Wheatley and Secretary, Department of Education and Training

The applicant, a student enrolled in a Graduate Diploma of Adult Language, Literacy and Numeracy Practice, sought a review of decisions by TAFE NSW to refuse to re-credit her VET FEE-HELP balance. The applicant had withdrawn from the course on 3 November 2015, more than a year after the last census date for the units in which she was enrolled. She applied for a re-credit on the basis of special circumstances, as permitted by the *Higher Education Support Act 2003* (HES Act). The respondent, the Secretary of the Department of Education and Training, accepted that the applicant met all conditions for re-crediting except for paragraph (c) of clause 46(2) of Schedule 1A to the HES Act, which requires the provider to be satisfied that special circumstances apply to the person.

The court was required to determine whether the applicant met the criteria for "special circumstances" as defined by clause 48 of Schedule 1A to the HES Act. Specifically, the court had to consider whether the applicant's circumstances were beyond her control, whether they did not make their full impact until on or after the census date, and whether they made it impracticable for her to complete the requirements for the units of study within the period she undertook them. The court also considered the Department of Education and Training's policy guidance document, the 'VET Administrative Information for Providers 2015', which elaborated on these criteria.

The court found that the applicant had failed to discharge the burden of establishing that her bacterial illness rendered it impracticable for her to complete the course. The evidence indicated that the symptoms of her illness did not emerge until around November 2015, which was after the period during which she was to undertake the units. Therefore, the illness could not have made it impracticable for her to complete the requirements in the relevant period. Furthermore, the court noted that the applicant had demonstrated an inability to complete units from early 2013, even without the symptoms that emerged later. Even if the applicant's reported symptoms of foggy thinking, cognitive processing difficulties, and memory issues were accepted, they would have been apparent before many of the census dates, thus failing to meet the special circumstances requirements.

Consequently, the court was not satisfied that the applicant had established that special circumstances applied to her situation. The decision under review was affirmed.