Zhong and Secretary, Department of Education
[2025] ARTA 2314
•30 October 2025
Zhong and Secretary, Department of Education [2025] ARTA 2314 (30 October 2025)
Applicant/s: Frankie Zhong
Respondent: Secretary, Department of Education
Tribunal Number: 2024/8619
Tribunal: General Member Ross
Place:Sydney
Date: 30 October 2025
Decision:The Tribunal affirms the decision under review.
.............................[SGN]......................................
General Member J Ross
Catchwords
EDUCATION – HECS-HELP – debt remission – whether special circumstances apply – circumstances beyond a person’s control – circumstances that make it impracticable to complete the requirements of the unit – decision affirmed
Legislation
Higher Education Support Act 2003 (Cth), s 35-5, s 97-25 and s 97-30
Cases
Aul and Secretary, Department of Education [2021] AATA 436
Forer and Secretary, Department of Education [2023] AATA 1271
Georgiou and Secretary, Department of Education and Training [2019] AATA 170
Nacol and Secretary, Department of Education, Skills and Employment [2022] AATA 1033
Ullah and Secretary, Department of Education and Training [2018] AATA 2159Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
Secondary Materials
Higher Education Support (Administration) Guidelines 2022
Statement of Reasons
On 18 October 2024, the Applicant lodged an application for review by the Tribunal of a decision made by the University of New South Wales (UNSW) not to remit his Higher Education Contribution Scheme – Higher Education Loan Program debt (HECS‑HELP debt) in respect of Theory of Statistics (MATH2801) (the Unit).
The Applicant had been enrolled to complete the Unit in Term 2 of 2023 as part of a Bachelor of Commerce/Bachelor of Science but failed to complete the requirements for the Unit because he did not sit the final exam.
On 26 September 2024, UNSW decided not to remit his debt in relation to the Unit because the requirements for remission of a HECS-HELP debt under s 36-21 of the Higher Education Support Act 2003 (Cth) (the Act) were not met (reviewable decision).
I have affirmed UNSW’s decision because I am not satisfied that special circumstances apply to the Applicant.
BACKGROUND
On 17 February 2023, the Applicant enrolled in the Unit,[1] for which he lodged a request for Commonwealth support and HECS-HELP.[2]
[1] T-Documents (T) T4(c), p. 54.
[2] T4(b) p. 53.
At the same time, he enrolled in another unit, Clinical Perspectives on Anxiety, Mood and Stress (PSYC1024), for which he later received a High Distinction.
The census date for the Unit was 25 June 2023.[3]
[3] T4, p. 26.
On 18 August 2023, the Applicant applied for special consideration in relation to the final exam for the Unit.[4] On 23 August 2023, the application was granted, and the Applicant’s final exam was rescheduled to 7 September 2023.[5]
[4] T4, p. 26; T4(g)(iii), p. 75-76.
[5] Ibid.
The Applicant did not attend that exam, and subsequently applied for special consideration on 8 September 2023, which was granted, and a second supplementary exam was scheduled for 23 September 2023.[6]
[6] Ibid.
The Applicant did not attend the second supplementary exam and applied again for special consideration on 25 September 2023.[7] He was granted special consideration to enrol in the Term 3 2023 examination period as an auditing student, for the specific purpose of sitting his final exam for the Unit. That exam was scheduled for 27 November 2023. The Applicant did not attend that exam.
[7] Ibid.
On 30 November 2023, the Applicant applied to the UNSW for fee remission in respect of the Unit. He gave the following reasons for making that application:[8]
I was not fit to sit the final exam due to medical reasons which became known after the census date. Supplementary exams were given however I was still not able to sit the exam due to a head injury and therefore I was not able to sit the exams. There were no special consideration outcomes after the latest supplementary exam on 27/12/23 and the course convenor has failed me. I followed the necessary steps for special consideration and supplied the dates I was ill. I followed up with student nucleus on 30/11/23 which they said they would get back to me and wait. Followed up again on 4/12/23, 5/12/23, 8/12/23, 12/12/23, 14/12/23 which they all mentioned to wait another day or so for them to get back to me. No action has been taken course convenor or student administration since.
[8] T4(h) p. 81.
On 11 May 2024, UNSW advised the Applicant it was not satisfied that the circumstances upon which the Applicant relied in support of his fee remission application made it impracticable for him to complete the Unit.[9]
[9] T4, p. 81.
The Applicant sought internal review of the original decision.
On 26 September 2024, UNSW advised the Applicant that it maintained the view that the Applicant had not demonstrated his circumstances made it impracticable for him to complete the Unit.[10]
[10] T2, p. 12.
On 25 August 2025, a Tribunal hearing was scheduled, and the Applicant did not appear. Consistent with s 106 of the Administrative Review Tribunal Act 2024 (Cth), the Applicant and Respondent subsequently consented to the proceedings being determined without a hearing. I consider the issue for determination can be adequately determined in the absence of the parties to the proceeding.
RELEVANT LEGISLATIVE PROVISIONS
Section 137-5(3) of the Act provides that a HECS-HELP debt is taken to have been incurred by a person immediately after the census date for the unit. Under s 137-5(4) a person’s HECS‑HELP debt in relation to a unit of study is taken to be remitted if, relevantly, s 97‑25 applies to the person.
Section 97-25 of the Act provides that a higher education provider must re-credit a person’s HELP balance with an amount equal to the amounts of HECS-HELP assistance that the person received for a unit of study if:
(a) the person has been enrolled in the unit with the provider; and
(b) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit; and
(c) the provider is satisfied that special circumstances apply to the person (see section 97-30); and
(d) the person applies in writing to the provider for re-crediting of the HELP balance; and
(e) either:
(i) the application is made before the end of the application period under section 97-35; or
(ii) the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.
Section 97-30 of the Act provides special circumstances apply only if the higher education provider is satisfied that circumstances apply to the person that:
(a) are beyond the person's control; and
(b) do not make their full impact on the person until on or after the census date for the unit of study in question; and
(c) make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake, the unit.
Section 97-30(2) of the Act provides that if the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraphs 36-21(1)(a), (b) or (c), any decision by the provider must be in accordance with the Administration Guidelines.
Section 36-21(2) of the Act provides the Administration Guidelines may specify circumstances in which a higher education provider will be satisfied that special circumstances apply to a person. A note to s 36-21 informs readers that the guidelines made for the purpose of that section also have effect for the purposes of 97-30(2) of the Act.
Part 3 of the Higher Education Support (Administration) Guidelines 2022 (Administration Guidelines) specifies the circumstances in which a higher education provider will be satisfied that special circumstances apply to a person. It states:
12 Circumstances beyond a person's control
For the purposes of paragraphs 36-13(3)(a) and 36-21(1)(a) of the Act, a higher education provider will be satisfied that a person's circumstances are beyond that person's control if a situation occurs which the provider reasonably considers is not due to the person's action or inaction, either direct or indirect, and for which the person is not responsible.
The situation referred to in subsection (1) must be unusual, uncommon or abnormal.
Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.
13 Circumstances that did not make full impact until on or after the census date
For the purposes of paragraphs 36-13(3)(b) and 36-21(1)(b) of the Act, a higher education provider will be satisfied that a person's circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person's circumstances occur:
(a) before the census date, but worsen after that date;
(b) before the census date, but the full effect or magnitude did not become apparent until after that date; or
(c) on or after the census date.
Note:
Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.
14 Circumstances that make it impracticable for the person to complete the requirements
(1) For the purposes of paragraphs 36-13(3)(c) and 36-21(1)(c) of the Act, a higher education provider will be satisfied that a person's circumstances make it impracticable for the person to complete the requirements for the unit of study if the person undertook, or was to undertake, the unit in the following kinds of circumstances:
(a) medical circumstances – for example, where a person's medical condition has changed to such an extent that he or she is unable to continue studying;
(b) family or personal circumstances – for example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies;
(c) employment related circumstances – for example, where a person's employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person's control; or
(d) course related circumstances – for example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.
The requirements for a unit of study referred to in subsection (1) are that the person:
(a) undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or
(b) complete the required assessable work; or
(c) sit the required examinations; or
(d) complete any other course requirements.
Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.
ISSUE FOR DETERMINATION
The issue for determination by the Tribunal is whether the Applicant’s circumstances were beyond his control and made it impracticable for him to complete the requirements of the Unit.
The Respondent accepts that the specific medical circumstances upon which the Applicant relies – in particular, his concussion and headaches – did not make their full impact upon him until after the census date of 25 June 2023.[11]
[11] Respondent Statement of Issues, Facts and Contentions (SIFC) at [23].
EVIDENCE BEFORE THE TRIBUNAL
The evidence before the Tribunal are documents produced under summons from Hola Health which consist of the Applicant’s medical records and medical certificates issued by Hola Health medical practitioners during the relevant periods.
SUBMISSIONS OF THE PARTIES
Applicant
The Applicant submits that he has clearly demonstrated it was impractical for him to complete the course requirements because he was not fit to sit the final exam (which is a requirement of the course) due to a head injury.[12]
[12] T4 (g)(iv), p. 78.
The Applicant submits that the course convenor agreed for him to be an auditing student only between 25 September 2023 and 28 November 2023.[13] The Applicant also submits that he made reasonable attempts for special consideration to be applied after 28 November 2023 to no avail even though he provided evidence that the situation was beyond his control.[14]
[13] Applicant email to UNSW Student Enquiries dated 11 May 2024.
[14] Ibid.
The Applicant submits that the medical certificate issued by Hola Health on 28 November 2023 was not considered in relation to his request.[15]
[15] Ibid.
Respondent
The Respondent submits that the study period for the Unit, for the purposes of s 97-30 of the Act, was 29 May 2023-27 November 2023 (noting that the Applicant was granted special consideration to sit his final exam outside of the Term 2 2023 teaching period).[16]
[16] RSIFC at [17].
The Respondent submits that for the Applicant to demonstrate that he satisfies paragraph 97‑25(2)(c) of the Act, he needs to show that his circumstances:
(a)were beyond his control
(b)did not make their full impact on him until after the census date, being 25 June 2023, and,
(c)in the period 29 May 2023-27 November 2023, made it impracticable for him to complete the requirements of the unit.
The Respondent submits that insofar as the Applicant was experiencing viral infections (between 13-18 July 2023 and 7-8 September 2023) or symptoms consistent with this (17‑18 August 2023), it is accepted that this was beyond the Applicant’s control.[17]
[17] SIFC at [21].
However, the Respondent also submits that the Hola Health records indicate that the Applicant’s concussions and headaches were directly linked to his decision to take boxing classes.[18] The Respondent further submits the inherent risk in engaging in boxing around exam time means that the Tribunal should find that the Applicant’s concussion and headaches were a product of his own actions and therefore not matters beyond his control.[19]
[18] Ibid at [22].
[19] Ibid.
The Respondent further submits that the Tribunal can only be satisfied that it was “impracticable for the Applicant to complete the requirements for the Unit if it finds that he was ‘not able’ to do so, as opposed to it being ‘difficult’ for him to do so”.[20] The Respondent also submits that the evidence before the Tribunal falls far short of establishing that that threshold is met.[21] In particular, it is further submitted:[22]
(a)the Hola Health records concerning the Applicant’s medical circumstances during the relevant study period are brief, lack detail as to the nature and severity of his symptoms, and are based almost entirely upon his self-reported information
(b)the Hola Health records relate to the Applicant having experienced common and minor ailments which resulted in only a few days of mild symptoms
(c)notes from the Applicant’s consultation on 28 November 2023, when he attended for a headache after boxing, record him as having told the doctor that he ‘missed (university) needs (medical certificate)’. The inference that arises from these notes is that the Applicant only attended the doctor to obtain a certificate for having failed to attend his exam the Saturday prior, which undermines the contention that he was genuinely experiencing special circumstances
(d)the Applicant’s academic transcripts record that in the relevant study period, he separately achieved a High Distinction score for Clinical Perspectives on Anxiety, Mood and Stress, and the Applicant has not explained how he was able to achieve a High Distinction during the relevant study period but could not complete the requirements of the Unit.
[20] Ibid at [24].
[21] Ibid.
[22] Ibid.
CONSIDERATION
Because it has been accepted that the specific medical circumstances upon which the Applicant relies did not make their full impact until after the census date, only two limbs of the three-limb test for special circumstances require my consideration:
(a)were the circumstances beyond the Applicant’s control, and
(b)did the circumstances make it impracticable for the Applicant to complete the requirements of the Units?
Were the circumstances beyond the Applicant’s control?
The Administration Guidelines state that a person’s circumstances are beyond that person’s control if a situation occurs which the provider reasonably considers is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.[23] The Administration Guidelines further state that the situation must be unusual, uncommon or abnormal.[24]
[23] Administration Guidelines at [12].
[24] Ibid.
The Applicant submits that he had a head injury and suffered concussions for a period for which he was taking painkillers.[25]
[25] Email from Frankie Zhong to UNSW Student Enquiries dated 11 May 2024.
UNSW considered the Applicant met s 97-30(1)(a) of the Act (requiring that the circumstances upon which he relied to support his fee remission application be beyond his control) and s 97-30(1)(b) of the Act (requiring that the circumstances upon which he relied did not make their full impact on him until on or after the census date for the Unit).[26]
[26] T3.
The Respondent submits that the Hola Health records indicate that the Applicant’s concussions and headaches were directly linked to his decision to take boxing classes and therefore were not beyond his control.[27]
[27] SIFC at [22].
I find that the evidence does not support that the circumstances were beyond the control of the Applicant. The evidence shows that:
(a)on 28 September 2023, the Student Case Review team advised the Applicant that he had been granted special consideration to enrol as an auditing student for his next attempt at the final exam during the Term 3 2023 examination period
(b)the Applicant was also advised that no additional examinations would be offered beyond this auditing examination attempt, irrespective of impact or ongoing circumstances. He was further advised to mark these dates in his calendar to ensure he keeps himself available and that the final exam timetable will be available on 30 October 2023
(c)on 13 November 2023, the Applicant was sent an email advising that the date of the MATH2801 (T2 2023) Supplementary Exam was 27 November 2023 at 9.30 at H13 Lawrence East 3078[28]
(d)the Applicant did not show up to sit the exam[29]
(e)on 28 November 2023, the Applicant attended Hola Health and received a medical certificate which stated he had a medical condition.[30] The doctor’s notes record that it was a standard consultation and that the Applicant had ongoing headaches since being hit in the head the previous Saturday during boxing.[31]
[28] T3, p. 116.
[29] T4, k) ix).
[30] Respondent’s Tender Bundle, p. 36.
[31] Ibid, p. 35.
I concur with the Respondent’s assessment of the evidence that the Applicant’s concussion and headaches were a product of his own actions and therefore not matters beyond his control. He was on notice that the auditing exam set for the 27 November 2023 would be his last opportunity to sit the exam for the Unit but regardless he went boxing two days before this final opportunity. The headache he suffered was a direct result of his actions for which he was responsible. Being injured while boxing was a reasonably foreseeable risk that he had the ability to control by taking precautions to avoid harm such as not participating in boxing until after he sat the exam. The risk was reasonably foreseeable because it was the same activity that had previously resulted in him not being able to sit the exam for the Unit.
It follows that I also consider that being kicked in the head during boxing and then suffering a headache as a result are not ‘unusual, uncommon or abnormal’ circumstances.
I am satisfied the circumstances were not beyond the Applicant’s control.
Did the circumstances make it impracticable for the Applicant to complete the requirements of the Units?
The Administration Guidelines say that the requirements of the Unit are that the person:
(a) undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or
(b) complete the required assessable work; or
(c) sit the required examinations; or
(d) complete any other course requirements.
On the issue of practicability, previous Tribunal decisions have found:
(i)that the meaning of ‘impracticable’ means ‘not able to be done’ – Zabaneh and Secretary, Department of Education and Training[32]
(ii)in considering impracticability, the bar set by decision-makers for the inability of a student to complete units is very high – Forer and Secretary, Department of Education[33]
(i)problems students encounter can make it more difficult to succeed but do not make it impracticable to continue – Ullah and Secretary, Department of Education and Training[34]
(ii)the onus of complying with the relevant requirements was on the Applicant, and that the Applicant's misunderstanding did not make it impractical for the Applicant to comply with the course requirements – Nacol and Secretary, Department of Education, Skills and Employment[35]
(iii)in reaching the conclusion that it would be difficult for the student to complete the requirements of the Units, is not sufficient to establish that the circumstances were such that it was impracticable for this to be done – Georgiou and Secretary, Department of Education and Training.[36]
[32] [2016] AATA 569.
[33] [2023] AATA 1271.
[34] [2018] AATA 2159.
[35] [2022] AATA 1033.
[36] [2019] AATA 170.
Again, I concur with the Respondent’s assessment of the evidence. The evidence simply does not support that the high bar of impracticability has been reached.
Previous Tribunal decisions have found that circumstances may be very difficult, and the student may be facing both physical and mental health conditions, but that something more is required to meet the threshold of impracticability.[37] The Applicant seems to be under the impression that obtaining a medical certificate means the threshold is met. In his email to Hola Health requesting further details of his medical examination, he says “usually writing ‘unfit for studies’ is enough but my school needs more details”.[38] He appears to be unaware of the high bar that has been set for special circumstances within the legislation.
[37] Aul and Secretary, Department of Education [2021] AATA 436 at 57.
[38] Emails between Applicant and Hola Health dated 8 October 2024.
It would be inconsistent with the Administration Guidelines and previous findings of the Tribunal to be satisfied that a medical certificate certifying that a person has a ‘medical condition’[39] without more would be sufficient to support a finding of impracticability.
[39] Hola Health Patient Medical Certificates dated 25/09/2023, 16/11/2023, 28/11/2023.
The Administration Guidelines provide an example of medical circumstances as being where a ‘person’s medical condition has changed to such an extent that he or she is unable to continue studying’.[40]
[40] Administration Guidelines at [14].
The fact that the Applicant was able to complete – during the same term – another Unit for which he received a High Distinction does not indicate that he was unable to continue with his studies.[41]
[41] T4, o).
I am not satisfied that the Applicant’s circumstances made it genuinely impracticable for him to complete the requirements of the Unit.
The Applicant has also raised as a contention that he made very reasonable attempts to apply for special consideration after failing to sit the exam on 27 November 2023. This included applying for special consideration under PSYC1023 (a unit he was sitting during Term 3) because he was unable to apply for it under MATH2801. Some confusion appears to have been created by the reasons provided to the Applicant for why it was considered that his circumstances were within his control. In the reasons for decision, he was told it was his responsibility to enrol as an auditing student in consultation with his course convenor.[42] However, as outlined above at [38], the Applicant was clearly advised when he was required to sit the exam. All he had to do was to show up. I therefore do not consider this to be a relevant consideration for concluding that the circumstances were beyond the Applicant’s control.
[42] T2.
It is unfortunate that the Applicant has failed this Unit, however I am not satisfied that his circumstances were such that it was impractical for him to complete the requirements of the Unit given the number of opportunities provided to him to sit the final exam.
I have found based on the evidence that the Applicant’s circumstances:
(a)were not beyond his control, and
(b)did not make it impracticable for him to complete the requirements of the Unit.
Although I have found that the circumstances made their impact after the census date, this is of no relevance as all limbs of the three-limb test need to be satisfied for special circumstances to exist.
CONCLUSION
That being the case, the Tribunal affirms the decision under review.
Date of hearing: 16 September 2025 Applicant: In person Counsel for the Respondent: Solicitors for the Respondent: Australian Government Solicitor
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