EDUCATION - application to recredit FEE-HELP liabilities- application refused - decisions under review affirmed

Higher Education Support (Administration) Guidelines 2022

Montenegro v Secretary, Department of Education [2020] FCAFC 2010

Zabaneh and Secretary, Department of Education and Training [2016] AATA 569

1. TLFD University is a tertiary institution offering tertiary and post graduate qualifications in aviation. Mr NTMP was enrolled in the Graduate Diploma of Aviation offered by TLFD University, and as part of that programme commenced an introductory flying course[1] on 18 April 2022 (the course). The census date for that course was 22 April 2022.
2. Following a number of end date extensions for the course, Mr NTMP ultimately applied for and was granted leave of absence from the course on 7 March 2023[2], resulting in TLFD University awarding a fail grade for the course[3] due to the amount of time that had transpired since the course was commenced.
3. Mr NTMP's tuition charges for this course were met by the Commonwealth under the Higher Education Loan Program (FEE HELP).[4] Mr NTMP incurred a liability of $17,833.32 under the FEE HELP program for his enrolment in the course.
4. Mr NTMP re-enrolled[5] (in the sense of enrolling to repeat the course) on 22 August 2023. The census date for that course (the repeat course) was 31 August 2023.
5. Following a failed assessment flight on 21 November 2023, the manager of the flight school that was partnered with TLFD University (the flight school) recommended to TLFD university that flight training be terminated. TLFD University discontinued Mr NTMP's involvement in flight training pending the convening of a formal process to consider the matter, presumably towards the end of terminating Mr NTMP's enrolment in the repeat course and the programme. On 1 February 2024, Mr NTMP withdrew from the repeat course[6]. Mr NTMP thus incurred a further FEE HELP liability of $17,833,32 in respect of the repeat course[7].
6. On 4 February 2024, Mr NTMP applied to TLFD for an amendment to his enrolment and fees[8]. Essentially and relevantly, Mr NTMP requested that his FEE HELP liability in respect of both attempts be recredited on the basis of special circumstances. In his application, Mr NTMP asserted that he had been impacted in his progress by aggressive behaviour during a flight from an identified flight instructor (Ms K), extended gaps between training flights, substantial delays in arranging flights and the consequential disruption to his training schedule, frequent and abrupt changes in instructors, an unsubstantiated incident report resulting in his grounding for a period, and the impact of a family crisis on his progress.
7. On 13 March 2024, in a brief record of decision, TLFD University refused the application in respect of the course and either refused to assess the application in respect of the repeat course or refused it[9]. Mr NTMP applied for internal review[10].
8. Mr NTMP's request for internal review was accompanied by correspondence dated 24 March 2024 from Mr NTMP's General Practitioner, Dr Hooshmand[11], who asserted that Mr NTMP's ability to concentrate, study effectively and meet the rigorous demands of his coursework were affected by his mental health.
9. On 27 May 2024, an internal reviewer of TLFD University decided that the original decision 'stands' in respect of the repeat course and found the application in respect of the course could not be assessed because the request had been made outside the timeframe of 12 months from the last day of the relevant study period[12].
10. On 1 June 2024, Mr NTMP applied to the Tribunal for review of the decisions.
11. On 14 October 2024, the AAT was abolished and the Administrative Review Tribunal commenced operations. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised by the Administrative Appeals Tribunal before 14 October 2024 were taken to be applications for review to the Administrative Review Tribunal (hereafter the Tribunal). The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed.
12. In the Tribunal, the Secretary of the Department of Education steps in as the proper Respondent in such proceedings as the reviewable decision is made under the Higher Education Support Act 2003 (the Act) by institutions on behalf of the Commonwealth.
13. In this matter, it was clear that the interests of TLFD University were affected by the proceedings in light of the allegations raised in the application by Mr NTMP. TLFD University was joined as second respondent to the proceedings at some stage between 28 August 2025 and 4 November 2025.

1. Section 104-25 of the Act requires a higher education provider, on behalf of the Secretary, to recredit a person's HELP balance with an amount equal to the amount of FEE-HELP assistance the person received for a unit of study if, relevantly (and among other matters), the provider is satisfied that special circumstances apply to the person: paragraph 104-25(1)(c) of the Act.
2. Sub-section 104-30(1) of the Act provides that for the purposes of (relevantly) paragraph 104-25(1)(c) of the Act, special circumstances apply to the person if, and 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.

1. Section 159-5 and section 238-10 of the Act authorise the making of Administrative Guidelines, and subsection 104-30(2) of the Act requires any decision of a higher education provider be made in accordance with any such guidelines. It has been observed[13] therefore that the Higher Education Support (Administration) Guidelines 2022 (the Administrative Guidelines) become a substitute regime to which the decision must comply.
2. Relevantly, Part 3 of the Administrative Guidelines address 'special circumstances'.
3. As to 'circumstances beyond a person's control', the Administrative Guidelines provide[14] that 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 Administrative Guidelines further provide[15] that the situation must be unusual, uncommon or abnormal.
4. As to 'circumstances that did not make their full impact until on or after the census date', the Administrative Guidelines provide[16] that a higher education provider will be satisfied that a person's circumstances did not make their full impact until on or after the census date for a [course] if the person's circumstances occur before the census date but worsen after that day, occur before the census date but the full effect or magnitude does not become apparent until on or after that day, or occur on or after the census date.
5. As to 'circumstances that make it impracticable for the person to complete the requirements' the Administrative Guidelines provide[17] that a higher education provider will be satisfied that a person's circumstances make it impracticable for the person to complete the requirements for the [course], if the person undertook, or was to undertake the course following identified kinds of circumstances as follows:
   • 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[18],
   • Family or personal circumstances - for example, death or severe medical problems within a family, or unforeseen family difficulties, so that it is unreasonable to expect a person to continue studies[19],
   • 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 and this change is beyond the person's control[20].
   • Course related circumstances - for example, where the provider has changed the [course] it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other [courses or programmes][21]. In this regard, requirements for a [course] are that the person undertake the necessary private study required, or attends sufficient lectures or tutorials or meets other compulsory attendance requirements in order to meet their compulsory [programme] requirements, complete the required assessable work, sits the required examinations or completes any other course requirements.[22]
6. It is necessary to briefly divert to address the Tribunal's jurisdiction to review the decision in respect of both the course and the repeat course. This is necessary because I raised some concern in this regard arising out of the approach of TLFD university in expressing its decision in relation to the course in its primary decision and its internal review.
7. As mentioned, TLFD University said of its primary decision in relation to the course that:

Your application cannot be assessed for those courses as it was received outside the timeframe of 12 months from the last day of the study period. There is no supporting documentation provided that demonstrates that there were extenuating and exceptional circumstances which prevented you from submitting the application during this time, however you may submit an appeal if you can provide this documentation[23].

Your application cannot be assessed for those courses as it was received outside the timeframe of 12 months from the last day of the relevant study period. There is no documentation provided that demonstrates that there were extenuating and exceptional circumstances which prevented you from submitting the application during this time. > > You were an active student and therefore could have applied within the timeframe. Not having knowledge of the University's policies and processes is not a sufficient reason for having the timeframe waived.[24]

9. The jurisdiction of the Tribunal is conferred in section 212-1 of the Act, which provides for an application to be made to the Tribunal for review of a reviewable decision. A 'reviewable decision' is a decision of a kind set out in the table to section 206-1 of the Act. Item 2 in the table lists a refusal to re-credit a person's HELP balance under section 104-25(1) of the Act.
10. The table does not expressly list a decision in relation to a refusal to waive the requirement under paragraph 104-25(1)(e) that requires the application for a re-credit of a person's HELP balance to be made within an 'application period' (established by section 104-35).
11. In circumstances where arguably TLFD University had not engaged in a primary or review decision on the merits of recrediting Mr NTMP's HELP balance beyond the issue of waiving the application period in respect of the course (as opposed to the repeat course) I considered a question of jurisdiction needed to be addressed.
12. In any event, the Secretary contends that TLFD University's decision in relation to the course premised on Mr NTMP's application being made outside the application period was incorrect in fact and law. TLFD University now also concedes that to be the case. I note this was an issue raised by Mr NTMP at the time he requested the reconsideration. In this regard, the Secretary contends that TLFD University had not taken into account that Mr NTMP had received extensions to undertake the course to 7 April 2023, and thus the application on 4 February 2024 was within the application period.
13. On the issue of jurisdiction, the Secretary further contends that the review decision was not a decision refusing to accept the application for a review decision under sub-section 209-10(2) of the Act, and I accept that to be so. In that regard, it is clear that the review decision in identifying a 12-month period as relevant, must be understood to be referring to the period in paragraph 104-25(1)(e) of the Act.
14. The Secretary further submits that the review decision engaged with the mental process of assessing the entirety of the sections 104-25(1) in respect of both the course and the repeat course, because the review decision does not specify either the course or the repeat course in expressing a finding that circumstances were not circumstances beyond Mr NTMP's control, did not make their full impact after the census date and did not make it impracticable for Mr NTMP to complete his course requirements. I consider that interpretation to be an overly generous one having regard to the overall text and structure of the review decision, but ultimately nothing turns on that in relation to jurisdiction.
15. The reason nothing turns on whether the review decision addressed the substance of the matters in paragraph 104-25(1)(c) of the Act for the purposes of jurisdiction is because the Secretary's second submission on this point is clearly correct. That is that the legislation establishes that a refusal to re-credit a person's HELP balance under subsection 104-25(1) of the Act is the reviewable decision, and the application period requirement results in a refusal to re-credit a person's HELP balance under that provision, thus bringing the decision within the scope of a reviewable decision.
16. Accepting that submission, I am satisfied that I have jurisdiction to review what I term the 'substance' of the decisions in respect of both the course and the repeat course. It is not open to me to focus on the application period requirement as the review decision maker did in relation to the course because the Secretary is correct to observe that a conclusion that Mr NTMP did not meet the application period requirement is factually incorrect.

1. It is convenient to identify and consolidate the circumstances raised by Mr NTMP. The matters identified by Mr NTMP in his closing submissions in this regard are:
   • (for the course) a family crisis in December 2022 and its functional (medical) consequences.[25] The reference to the family crisis relates to his brother in Iran going missing following protests, with it subsequently being established that he had been detained by Iranian authorities.
   • (for the repeat course), continuing functional (medical) consequences from the December 2022 family crisis and a further deterioration in mental health function following the death of Mr NTMP's grandmother.
2. Elsewhere in the material, Mr NTMP has identified other circumstances as circumstances justifying the recrediting of his HELP balance, with the relevance of the particulars not expressly attributed to either the course or the repeat course per se. These matters were explored in detail in evidence, and it is appropriate that I also consider them, notwithstanding Mr NTMP has not identified them as central in his closing submissions:
   • An allegation of inappropriate behaviour from a flight instructor;[26]
   • Extended gaps between training flights, including a period of grounding due to an issue with English language proficiency;[27]
   • Frequent and abrupt changes in flight instructors;[28]
   • Shortage of aircraft;[29]
   • The absence of a supportive learning environment;[30]
   • Financial hardship in relation to supporting his family[31] and inability to pay for remedial flight training.[32]
3. I find it most convenient and succinct to assess the evidence and reach findings of fact in this matter primarily against the third of the three criteria at section 104-30; namely, whether circumstances made it impracticable for Mr NTMP to complete the requirements for the course and/or repeat course in the period during which Mr NTMP undertook, or was to undertake it. This approach is notwithstanding that I recognise the criteria in section 104-30 are cumulative. In relation to subsection 104-30(1)(c), the Administrative Guidelines conveniently invite assessment against:
   • Course related circumstances, which invite assessment against the particulars of Mr NTMP's criticisms of the delivery of the course; and
   • Medical criteria, which invite assessment of the functional medical consequences of the family and personal circumstances mentioned by Mr NTMP.
4. I am conscious however that it remains the case that section 104-30 of the Act would require findings against the first two criteria before special circumstances were established for the purposes of paragraph 104-25(1)(c) of the Act.
5. As to impracticability, I accept that the test for establishing whether circumstances make it impracticable to complete a course of study is a high bar. Impracticable has been observed to mean "not able to be done".[33] I note the Australian Concise Oxford Dictionary[34] defines the term to mean "impossible in practice", in contrast to the word 'impractical', which is defined to mean "not practical". I note the authorities referred to by the Secretary and TLFD University demonstrate the predecessor to the Tribunal and the Tribunal has consistently recognised a distinction between that which is impracticable, and that which is (merely) difficult[35]. I rely on the ordinary meaning of the term as it is not further defined in legislation, but find the distinction between that which is difficult and that which is impracticable to be instructive.

1. Mr NTMP asserts that he was subjected to unprofessional and physically aggressive behaviour from an identified flight instructor (Ms K). He says he was struck by the instructor when in the cockpit, and he felt it endangered his safety and created a hostile learning environment. Mr NTMP says he reported the incident the same day to flight school management, and raised the matter later to the Dean of Programmes. There is nothing in the material to indicate that the matter was investigated at that specific time, although it is clear that Mr NTMP did not undertake any further flight training with Ms K.
2. The documentary evidence shows that Mr S, the manager of the flight school, sent Ms K an email on 8 February 2023[36] in the course of compiling information ahead of a meeting held with Mr NTMP held on 13 February 2023. The email requested that Ms K send an email describing what had happened when she was flying with Mr NTMP, as the flight school was 'building a case against him'. In response, Ms K wrote that she had referred to Whatsapp messages she had sent to Mr S, but summarised the difficulties she had with Mr NTMP related to matters of Mr NTMP's understanding (of language), with agreement having to be reached about specific words that could be used for different instructions in flight. Ms K said multiple flights needed to be repeated because objectives would not be met, and Mr NTMP became more frustrated and argued with her about her judgement. Ms K said she had issues with defiance from Mr NTMP.
3. Ms K identified an incident where Mr NTMP was conducting a radio transmission while pushing forward on the controls causing the attitude of the aircraft to change. Ms K said she attempted to correct the attitude with her controls but Mr NTMP looked at her and pushed against her control inputs forcefully. This incident was attributed to a flight on 4 May 2022.
4. In cross examination, Mr NTMP accepted that the incident he was referring to was the incident Ms K had identified as taking place on 4 May 2022. He said the incident had happened on his second or third flight, and it was quite normal for a student to make a mistake while flying, and he did not agree with the description in the email. While Mr NTMP accepted it might be appropriate for an instructor to make physical contact as a way of prompting him in circumstances where he was overwhelmed with tasks, Mr NTMP though the altercation may have taken place earlier and the instructor was not following protocols. Mr NTMP said he felt that the physical aggression was more than what was required.
5. It can be seen therefore that I do not have any immediately contemporaneous records of the incident, with the documented description of the incident being made 9 months after it occurred.
6. Later in the proceedings, and in his statement, Mr V the flight school's flight training manager described the relationship between an instructor and student on a training flight.[37] Mr V explained that students are required to follow the directions of flight instructors without question, with any concerns being addressed in the post flight briefing. An instructor may be required to take over control of an aircraft and will say "I have control" and the student is expected to immediately relinquish control. Mr V states that in the event a student doesn't respond to verbal prompts, it may be necessary to physically prompt the student.
7. In relation to the specific incident per se, I am not satisfied to find on the evidence available to me that the incident and behaviours described by Mr NTMP objectively meet the description he applied to them of 'unprofessional or physically aggressive'. I am not satisfied the incident can be described as an assault, either in fact or in law, noting that this term was used on occasion in these proceedings in relation to the incident.
8. I accept however that events transpired during the flight of 4 May 2022 that Mr NTMP recalled adversely when, nearly two years later, on 4 February 2024 he submitted his application to have his FEE-HELP balance recredited in respect of the course and the repeat course.
9. As to whether that particular event, as it was perceived by Mr NTMP, and its sequelae made it impracticable for Mr NTMP to complete the requirements of the course or the repeat course, it is not clear that Mr NTMP's references to that incident in his application were ever intended to convey that assertion. I have noted that Mr NTMP has not agitated this incident in his closing submissions. In this regard, while I note Mr NTMP has expressed the view in his application, and restated in his oral evidence, that he considered the behaviour unprofessional and unacceptable, there is no clear assertion from Mr NTMP that the event had such an impact on him so as to explain why he was ultimately unsuccessful in either attempt at introductory flying.
10. In any event, in my view, the incident of 4 May 2022, Mr NTMP's perception of it or any ongoing consequence of the incident is not a circumstance that made it impracticable for Mr NTMP to complete the requirements for the unit in the period during which he undertook the course. The flying school has provided a Student Flying Report[38] that documents that Mr NTMP repeated the lesson of 4 May 2022 successfully with a different flying instructor on 10 May 2022, and thereafter undertook many, many, more training flights with other instructions over the following months. Against this factual matrix, the suggestion that the incident of 4 May 2022 of itself is a circumstance that made it impracticable for Mr NTMP to complete the requirements of the course or the repeat course cannot be sustained.
11. Putting that particular incident aside, Mr NTMP has alleged that other factors pertaining to course related circumstances are relevant. In this regard, I take into account Mr NTMP's allegations that he had extended gaps between training flights, including a period of grounding due to an issue with English language proficiency, frequent and abrupt changes in flight instructors and that he faced a shortage of aircraft.
12. TLFD University contends to the contrary that Mr NTMP was a difficult student. TLFD University points to conduct issues being raised in relation to Mr NTMP from May 2022 resulting in TLFD issuing Mr NTMP a formal warning for a breach of the student code of conduct.[39] TLFD University submits that Mr NTMP failed to meet practical competencies for reasons separate and unrelated to any asserted special circumstances, and TLFD University contends that it had provided Mr NTMP with significant amounts of assistance and had acted reasonably and fairly in relation to him and managed conduct and competency issues in accordance with its relevant policies.
13. In relation to TLFD University's academic policies and the processes followed in relation to Mr NTMP, Ms DL provided an affidavit and gave oral evidence to the Tribunal to which I have had regard. Ms DL is a Team Leader in Program Services with TLFD University. Her evidence was useful for context, but it is not necessary for me to traverse that evidence in detail in these reasons. Ms DL did provide an explanation to address why Mr NTMP's request to take a leave of absence on 7 March 2023 resulted in a fail grade being recorded for the course. Ms DL explained that this was required by reference to the University's overall academic policy of requiring results to be entered for a unit (or course) within 12 months of commencement.
14. It is necessary to unpack Mr NTMP's assertions as to the unsatisfactory course-related circumstances and TLFD University's position and evidence in response, but only to the extent that the issues raised pertain to the statutory test I am to apply. My role is not to supervise the relationship between university and student, or TLFD University's application of its academic policies. Likewise I do not view it as my role to pursue a quest to understand conclusively why Mr NTMP was ultimately unsuccessful in his two attempts at the introductory flying course, and ultimately I reach no conclusive findings as to causation. I note in this regard that the Secretary has adopted a neutral position on many of these particulars.
15. As already mentioned, Mr NTMP's Flying Report[40] was important documentary evidence in the proceedings. It shows each training flight attempted or cancelled, the date, and the instructor. Each training flight included certain proficiencies to be demonstrated achieved that related to theoretical study undertaken prior to the flight (termed a 'phase'). From the Flying Report, one can discern whether Mr NTMP passed the phase on the first attempt, or whether the phase had to be subsequently repeated.
16. Understandably, training flights are resource intensive requiring designated instructors and available aircraft. They are no doubt expensive for TLFD University to provide, with the cost reflected in tuition fees and consequently the FEE-HELP liability. The Flying Report shows that a number of training flights were cancelled due to weather, and on occasion due to 'other' circumstances. In this regard, I understand that on occasion instructors may have become unavailable.
17. Given these variables, TLFD University has documented policies regarding training flights in the student handbook. Mr V, the Flight Training Manager of the Flight School gave evidence as to these matters, explaining that students must indicate blocks of time when they will be available for a scheduled flight, and in principle scheduled flights take precedence over all other commitments including work and social engagements. Mr V explained that students are expected to arrive for a pre-flight briefing fully prepared with the relevant theoretical knowledge. Any student-initiated flight cancellation due to medical reasons must be accompanied by a medical certificate.[41] It is also apparent that TLFD University does offer extensions of time in which the practical flight training course might be completed given availability of instruction flights are subject to the variabilities mentioned.
18. Mr NTMP points to gaps between flights that exceeded what was required to maintain competency. I note Mr NTMP raised similar issues with the Flight School in meetings leading to the formal warning letter he received[42] (which also discussed other matters). For example, there were a number of periods identified by Mr NTMP that exceeded one calendar month.
19. There were two particularly extensive periods where Mr NTMP did not fly: between 17 June 2022 and 1 September 2022, and between 27 January 2023 to 26 September 2023. In relation to the first significant gap, it took place to enable Mr NTMP to remediate an issue with English language proficiency identified by instructors, and in relation to the second gap, it commenced when the flying school commenced its investigation leading to the formal letter and also incorporated Mr NTMP's leave of absence and subsequent enrolment in the repeat course.
20. The formal warning letter sent to Mr NTMP on 1 March 2023 addresses matters relevant to the issue of gaps between flights and the delivery of the course. The letter identified an incident of 8 September 2022 (possibly occurring on 7 September 2022 by reference to other sources) where Mr NTMP had cancelled a flight without providing a good reason, and in the context of that incident had communications with an instructor TLFD University considered to be disrespectful and in breach of its code of conduct. The Flying Report attributes the cancellation to weather,[43] but a text message exchange[44] shows that when Mr NTMP had contacted the instructor to cancel his flight and was asked why, Mr NTMP had responded that he needed more time to prepare for the flight. It is likely in my view that Mr NTMP had requested the flight be cancelled, the issue in relation to that request arose, but then the weather intervened in any event. Subsequent sms message exchanges suggest that Mr NTMP had not responded to the subsequent message from the instructor who had suggested a discussion if Mr NTMP was struggling and emphasised the need for Mr NTMP to undertake two flights a week, with Mr NTMP suggesting that he could not continue with the instructor "if he wants to act like a boss. I'm not his employee and his(sic) not my boss"[45].
21. Ultimately, the formal warning letter pointed to the example of Mr NTMP's cancellation of the training flight without good reason, and the text message which was characterised as disrespectful. Other alleged incidents were also identified in the letter including another instance of Mr NTMP failing to release flight controls or complying with verbal commands while flying (with a different instructor), another instance of perceived disrespectful communications, and multiple requests for instructor changes in the context of what was said to be a consistently poor attitude to receiving feedback from instructors.
22. In his evidence, Mr V gave further information about his involvement in the investigation leading to that formal warning and his assessment as to Mr NTMP's flying record. Mr V described responding to complaints made about Mr NTMP regarding his competency during flight lessons and interactions with the instructors. He also gave evidence that the number of extensions of time to complete the course afforded to Mr NTMP was unusual in his experience, and exceeded that which might typically be offered if there had been delays due to flights cancelled for weather and instructor availability. Mr V rejected Mr NTMP's evidence that a student would typically require 40 or 50 hours of flying to complete the course.
23. In relation to Mr NTMP's complaints about instructors, Mr V said that there were quite a lot of changes to instructors at Mr NTMP's request (the Flying Record shows 10 instructors including Mr V). He had investigated complaints raised by Mr NTMP and had concluded that because issues were raised about multiple different instructors, it was "a student issue".
24. Mr V undertook an assessment flight with Mr NTMP on 21 November 2023 after Mr NTMP had undertaken a number of remedial flights concurrently with the repeat course. Mr V assessed that Mr NTMP required further training, had made little or no improvement although he had completed three recency flights and that he had failed the assessment flight. In his evidence Mr V said that Mr NTMP's flying competency was far below what he would expect for a student who had undertaken the number of hours of flight training undertaken by Mr NTMP.
25. I have had regard to the particulars raised by Mr NTMP about course-related circumstances. I am not satisfied that the evidence has established the absence of a supportive learning environment, or a shortage of aircraft.
26. The evidence does establish that there were on occasion extended gaps between training flights, but the evidence led by TLFD University establishes to my satisfaction why there were such gaps.
27. Regardless of the reason for the gaps in flight training, I am not satisfied that the gaps resulted in circumstances that made it impracticable for Mr NTMP to complete the requirements for the course or the repeat course in the period during which he undertook the courses. In this regard, I note that Mr NTMP had nonetheless undertaken a substantial number of flying hours and had been afforded extensions of time in which to compete the course. I accept Mr V's evidence in this regard that the amount of time afforded to Mr NTMP was unusual. Furthermore, I also note that in relation to the repeat course, Mr NTMP had completed remedial flights in advance of his assessment flight, and so I am not satisfied that any gaps in his flight training made it impracticable for him to complete the repeat course.
28. Furthermore, and in any event, in relation to the particulars of Mr NTMP's complaints regarding extended gaps between training flights, I am satisfied to find that the most extensive of those gaps were primarily attributable to the need for Mr NTMP to complete remedial English language training and for TLFD University to undertake its investigation relating to concerns raised by flight instructors relevant to flight safety based on Mr NTMP's conduct in training flights. These were matters, in my view, within Mr NTMP's control and the criterion in 104-30(1)(a) would not be satisfied even if I considered the gaps and delays in flight training rendered it impracticable for Mr NTMP to complete the course or the repeat course.
29. I am not satisfied that particulars identified, which I have categorised as course-related circumstances, are circumstances that made it impracticable for Mr NTMP to complete the requirements for the course or the repeat course in the period during which he undertook the courses. It follows that these circumstances cannot amount to special circumstances for the purposes of paragraph 104-25(1)(c) of the Act.

Medical circumstances including functional medical consequences from personal and family crisis

1. In his closing submissions, Mr NTMP focussed on two family crisis and the medical and functional impact of those crises on him.
2. In respect of the course, and the first census date of 22 April 2022, Mr NTMP points to a family crisis commencing in December 2022 and continuing to mid-early 2023 involving him becoming aware that his brother in Iran (a medical student) had disappeared after providing medical assistance to protesters during unrest in Iran. Mr NTMP had learned of his brother's disappearance from a telephone call from his father. It was subsequently established that Mr NTMP's brother had been arrested by Iranian authorities and had been detained in a prison, but was ok. Mr NTMP said his brother was released after approximately two months, so by February 2023, and had made contact with him to say that he was ok.
3. In respect of the repeat course, and the second census date of 31 August 2023, Mr NTMP said that the impact of the December 2022 family crisis continued and escalated throughout 2023, and he faced a further family crisis in November 2023 when his grandmother passed away. In a letter/email lodged by Mr NTMP,[46] Mr NTMP explained that his grandmother had raised him since he was two-years old, and he had learned she had been diagnosed with cancer shortly after resuming his training (i.e. commencing the repeat course).
4. In his submissions, Mr NTMP explained that aviation training demands complete physical and mental well-being, and the stressors he had described compromised his composure and quick decision-making.[47] Mr NTMP also submitted that the central and overriding reason for his withdrawal and inability to complete the course was a severe deterioration in his mental health triggered by these events.[48] Mr NTMP said that these medical issues, not performance or training issues, rendered continued study unsafe, clinically inappropriate and impracticable.
5. Turning to the medical evidence, the hearing bundle contains records pertaining to a successful application for recrediting of HECS/HELP liability in relation to an earlier degree course Mr NTMP had undertaken. In August 2019, Mr NTMP had either failed or withdrawn from a taxation law subject as part of a Bachelor of Commerce. In his application he had stated that he was suffering from severe depression, and an anxiety disorder and had changed his medication a few days before an exam and had headaches and was unable to concentrate[49]. A letter from Consultant Psychiatrist Dr Hmam dated 13 August 2019[50]confirmed this and requested the fail result be removed and Mr NTMP be given another opportunity.
6. Also, Mr NTMP was successful in a similar application in November 2019 in relation to an accounting subject. He had said he was unable to sit an exam because he was sleepy, tired an unable to concentrate[51]. A letter from Dr Hmam dated 30 October 2019 supported Mr NTMP in this regard.[52]
7. A request for accommodation in relation to Mr NTMP's study arrangements was made by his General Practitioner, Dr Hooshmand, in a letter dated 6 January 2020. That letter confirmed that Mr NTMP struggled with low mood, anxiety and excessive tiredness.
8. Mr NTMP's applications in relation to the course and the repeat course were supported by correspondence from Dr Hooshmand dated 24 March 2024.[53] That letter provided detailed particulars of the stressors of December 2022 and November 2023. In addition to advocating on behalf of Mr NTMP, the letter also mentioned that medically, Dr Hooshmand thought pressure and trauma had hindered Mr NTMP's ability to concentrate, study effectively and meet the rigorous demands of his coursework.
9. Further medical correspondence was provided by Mr NTMP during the course of the proceedings. A further letter of Dr Hooshmand dated 18 November 2025[54] was more emphatic as to its medical assessment. That letter said that during the period December 2022 to November 2023, Mr NTMP had experienced a severe deterioration in his mental health and presented with symptoms of major depression and anxiety, including poor concentration, disturbed sleep, reduced motivation and impaired decision-making. It was written that Mr NTMP's refractory depression affected his ability in cognitively demanding and high responsibility tasks such as aviation training. Dr Hooshmand said that her professional opinion was that Mr NTMP's condition during this time (that is between December 2022 and November 2023) made it clinically unsafe for him to continue flight training.
10. Dr Hooshman abandoned the opinions expressed in her letter of 18 November 2025 after she was effectively cross-examined by both TLFD University and the Secretary by reference to her clinical notes, TLFD University's records of the flight activities actually undertaken by Mr NTMP and the assessment of a 'DAME' (a Designated Aviation Medical Examiner of the Civil Aviation Safety Authority). In the course of her cross examination, it was established that Dr Hooshman had only consulted the applicant on isolated occasions during the period December 2022 to November 2023,[55] was unaware that Mr NTMP had in fact flown on multiple occasions during the period identified in her letter, and was willing to defer to the opinion of the DAME who had certified Mr NTMP as medically fit to fly on 13 September 2023.[56] I also observed that the contents of the letter of 18 November 2025 relied overly heavily on the information Mr NTMP had conveyed to Dr Hooshman during a consultation on 18 November 2025 in an appointment 'regarding paperwork and mental health' and for the purpose of preparing a letter 'for aviation university'[57]. I consider it was appropriate for Dr Hooshmand to abandon the opinions she had expressed in her letter when it became apparent to her that the opinions she had expressed could not be sustained and she had expressed those opinions on information provided to her by Mr NTMP which was incomplete.
11. I was impressed with Dr Hooshmand's demonstrated care for her patient, recognition and understanding of the nature of the stressors he had described to her and her willingness to advocate on his behalf. I do not however accept the medical opinions she expressed in her letter of 18 November 2025 as to the medical or functional impact on Mr NTMP of the stressors he had identified during the period. I do not accept that Dr Hooshman's letter of 18 November 2025 therefore establishes that Mr NTMP's medical condition or the functional impact of the personal and family stressors he has described made it impracticable for him to complete the requirements for the course or the repeat course.
12. I lost confidence in the clinical accuracy of correspondence provided by Dr Hooshman in relation to Mr NTMP's medical and functional capacity in relation to his studies generally. I therefore do not accept the medical opinions she expressed in her letter of 24 March 2024, although I note in any event those opinions were not expressed in terms commensurate with establishing it was impracticable for Mr NTMP to complete the requirements of the course or the repeat course, describing the impact of the identified stressors as hindering Mr NTMP's ability to complete the course or repeat course.
13. There is further medical evidence before the Tribunal which I have also had regard to. Mr NTMP provided a letter of Dr Ponte dated 10 December 2025[58]in which Dr Ponte stated he was Mr NTMP's regular treating GP, and Mr NTMP had consulted him on 23 December 2022 and 2 November 2023, dates Dr Ponte now understood to have coincided with the two stressors identified by Mr NTMP. Dr Ponte stated that at these consultations he had treated Mr NTMP for headaches and neck pain, which he now said could be associated with acute or chronic stress, and which were significant enough to affect his daily functioning and cognitive focus at the time.
14. Dr Ponte's clinical notes are before the Tribunal [59]and Dr Ponte was cross-examined. It is notable that in the clinical notes of 23 December 2022, there is no documented mention of the stressor Mr NTMP had faced in relation to the disappearance of his brother. The notes are indeed focussed on recurrent headaches with documented speculation as to whether it is coming from Mr NTMP's neck. A further consultation by telehealth on 18 January 2023 discusses the results of imaging associated with Mr NTMP's neck.
15. There was no further consultation until 2 November 2023, immediately following the passing of Mr NTMP's grandmother[60]. On that occasion, there was no documented mention of Mr NTMP's grandmother having passed away. Dr Ponte gave evidence that the absence of any reference to Mr NTMP's grandmother having passed away was consistent with this stressor not being mentioned. There is no documented mention of a decline in Mr NTMP's mental health state being reported to Dr Ponte. Dr Ponte accepted that a documented reference in his notes to a reduction in the dosage of an antidepressant would indicate that the stressor or a deterioration in mental health state was not mentioned, as that would be inconsistent with the reduction in the dosage of anti-depressant mentioned.
16. I find that Mr NTMP did not mention his grandmother's passing or a deterioration in his mental health state to Dr Ponte at the consultation on 2 November 2023. Similarly, I find that Mr NTMP did not mention the stressor associated with his brother's disappearance to Dr Ponte at the consultation of 23 December 2022 nor any deterioration in his mental health state.
17. I appreciate that Dr Ponte's letter of 10 December 2025 retrospectively recognises that the stressors subsequently identified by Mr NTMP may have contributed to his headaches in the context of acute or chronic stress. While that observation is rational I do not accept it to be conclusive as to the cause of headaches at the time given the focus of the examination and the clinical notes at the time are on the cause of the headaches being neck-related.
18. Prior to reaching my findings on the question critical in this review, I mention again that there is also medical evidence before me from Dr Hmam, Consultant Psychiatrist. In addition to the medical letters of 2019, Mr NTMP provided a further letter from Dr Hmam dated 7 January 2025. In that letter, Dr Hmam said he was the treating psychiatrist for Mr NTMP, but had not seen him since 2020 until a few months prior (that is, late 2024) when he had presented with a relapse in his mental health conditions. Dr Hmam then recounts the psychosocial stressors of December 2022 and the passing of Mr NTMP's grandmother on 1 November 2023. Dr Hmam said (in January 2025) this 'caused a major exacerbation of his depression and anxiety to [an extreme] point and these matters dramatically impacted Mr NTMP's capacity to complete the duties required in his aviation training'.
19. Dr Hmam was not called to give evidence, and did not respond to the Tribunal's summons. He was not cross-examined. He could not therefore be asked how he could know anything about Mr NTMP's mental health state during 2022 or 2023 beyond that which Mr NTMP himself had told him in late 2024 in the course of obtaining the letter presented for the purpose of these proceedings. The matters relating to Mr NTMP actually undertaking many training flights, the assessment of the DAME and what inferences were to be drawn from the absence of any attempt by Mr NTMP to consult him contemporaneously could not therefore be put to him to address. In these circumstances I am asked by TLFD University to give Dr Hmam's evidence no weight. TLFD University suggests that it is inherently likely that Dr Hmam's opinion was based on incomplete facts, and is unreliable.
20. I accept that to be an appropriate submission particularly where it has been seen in these proceedings that another medical practitioner has changed her opinion about the impact of the stressors on Mr NTMP's capacity to undertake his studies once presented with plainly relevant information about the period in question. I place no weight on the opinion of Dr Hmam as expressed in his letter of 7 January 2025.
21. I have found that Dr Hooshmand's medical correspondence does not establish that Mr NTMP's mental health or the functional impact of the stressors he identified made it impracticable for him to complete the requirements for the course or the repeat course in the period in which they were undertaken.
22. In relation to Dr Ponte, his evidence does not rise to an assertion in my view that Mr NTMP's mental health or the functional impact of the stressors he identified made it impracticable for him to complete the requirements for the course or the repeat course in the period in which they were undertaken. To the contrary, Dr Ponte's evidence tends to suggest that the stressors were not identified by Mr NTMP as being matters relevant to his health state during the period. It is significant in my view that Mr NTMP did not mention either of these matters at times proximate to them occurring.
23. I accept that Mr NTMP faced and endured the stressors he described. Similarly, and without recounting all the medical history available to me in these proceedings, I accept that on occasion Mr NTMP has suffered from mental health symptoms. However, I do not accept the medical or functional sequelae Mr NTMP has subsequently attributed to the stressors as an explanation for him being unsuccessful in his practical flight training. I do not accept Mr NTMP's medical condition changed at any material time to such an extent that he was unable to continue studying (to use the relevant term from the Administrative Guidelines). To the contrary, there is ultimately insufficient medical evidence demonstrating that Mr NTMP's mental health per se, or the functional impact of the stressors he identified made it impracticable for him to complete the requirements for the course or the repeat course in the period in which they were undertaken.
24. While my assessment of the medical evidence in this regard is sufficient to conclude that the statutory criteria for special circumstances to recredit the HELP liability cannot be satisfied, there are further features of the evidence that give me further confidence in reaching this finding. I relation to those further matters I will be brief.
    • I note that Mr NTMP did in fact complete three remedial training flights in January 2023 immediately after the stressor identified concerning his brother going missing.[61]
    • I further note that Mr NTMP sat and passed a Civil Aviation Safety Authority theory examination 'CFPA' (which I understand relates to flight planning) on 20 December 2022, 8 days after his brother was missing.
    • I further note that Mr NTMP passed five other academic courses in his programme in the 2023 calendar year, obtaining a distinction in Advanced Pilot Theory and a High Distinction in Air Transport Pilot Licence Theory on Navigation and Aircraft Systems.
25. In his submissions, Mr NTMP sought to draw a distinction between the theoretical subjects he successfully completed and the practical course and repeat course. Mr NTMP argued that the course and the practical course required sustained vigilance, rapid decision making, error free performance and cognitive resilience. I follow Mr NTMP's submission to a point, but on reflection I do not find the submissions persuasive even though I do recognise the course and repeat course are different in nature to academic and theoretical courses.
26. Mr NTMP's submissions in this regard are not adequately supported by medical evidence. It is incongruous with Mr NTNMP's contention that the medical and functional consequences of the stressors on Mr NTMP's mental health state made it impracticable for him to complete the requirements for the course or the repeat course that Mr NTMP's achieved such success at the same time in those other endeavours.
27. Finally, TLFD University drew attention to the absence of Mr NTMP raising any difficulties he was facing in relation to his mental health and the stressors he had experienced until the formal warning process was raised in March 2023. Mr NTMP established in his cross examination of TLFD University's witnesses (Mr V and Ms DL) that they were not medically qualified, and submitted that it was plausible that a student might under-disclose his mental health state out of fear he would be grounded for flight.
28. Ultimately, whether or not Mr TLFD disclosed the impact of stressors on his mental health state to his flight instructors or TLFD University, when any disclosures were made and in what context becomes immaterial in my assessment when, as I have found, the medical evidence does not sustain Mr TLFD's contention that the medical and functional consequences of the stressors on his mental health made it impracticable for him to complete the requirements for the course or the repeat course.
29. There is also a further particular which does not fall neatly into either course-related or medical circumstances that may be identified from written material submitted by Mr NTMP which was explored in cross examination and the subject of submissions. In describing the impact of the stressors on his health in written submissions,[62] Mr NTMP said that financial hardship compounded the challenges . He said that at the time he was receiving Jobseeker payments and addressing his family's financial needs, which placed additional strain on his capacity to focus on training. Arguably, from context, this particular suggests that Mr NTMP was under stress due to the need to address the financial needs of his family in Iran, but on cross examination it was established that Mr NTMP does not and did not remit funds to his family in Iran. Therefore, it may be that the reference to financial hardship in addressing his family's financial needs is a reference to his family in Australia, consisting of his partner and child. However, in cross examination Mr NTMP confirmed that his Centrelink payments were sufficient to cover his living expenses at the time.
30. The contention was not addressed by Mr NTMP in his Comprehensive Closing Submissions, and so it is not now clear to me the extent to which financial circumstances is relied upon. In light of the evidence given by Mr NTMP in cross-examination on this topic however, I am not satisfied that any financial hardship he faced based on his employment circumstances at the time of the course or repeat course made it impracticable for him to complete the requirements for the course or the repeat course.
31. I have considered all the particulars raised by Mr NTMP is support of his application to have the FEE HELP liability recredited under section 104-25 of the Act. I am not satisfied that any of the matters identified by Mr NTMP individually or in combination made it impracticable for him to complete the requirements for the course or the repeat course, forming that view by reference to the matters addressed in the Administrative Guidelines. It follows that I am not satisfied that paragraph 104-30(1)(c) of the Act is satisfied, and as the requirements of subsection 104-30(1) of the Act are cumulative, it follows that special circumstances are not established in relation to Mr NTMP's application for either the course or the repeat course.
32. Paragraph 104-25(1)(c) of the Act is therefore not satisfied, and as the requirements of subsection 104-25(1) of the Act are also cumulative, Mr NTMP's applications for recrediting of his FEE HELP liability in respect of the course and the repeat course must be refused.

2 February 2026, 3 February 2026 and 25 February 2026

[1] In these reasons, a reference to a 'course' or 'the course' or 'the repeat course' is a reference to the particular subject or unit. The degree or graduate diploma will be referred to as the 'programme'.

[4] HB120 - I note other courses as part of the programme were as Commonwealth Supported Places with tuition fees met under the HECS HELP program

[9] HB170 - see discussion below regarding jurisdiction

[13] Montenegro v Secretary, Department of Education [2020] FCAFC 2010 at [56]

[14] Administrative Guidelines Part 3, subsection 12(1)

[15] Administrative Guidelines Part 3, subsection 12(2)

[16] Administrative Guidelines Part 3, subsection 13(1)

[17] Administrative Guidelines Part 3, subsection 14(1)

[18] Administrative Guidelines Part 3, paragraph 14(1)(a)

[19] Administrative Guidelines Part 3, paragraph 14(1)(b)

[20] Administrative Guidelines Part 3, paragraph14(1)(c)

[21] Administrative Guidelines Part 3, paragraph 14(1)(d)

[22] Administrative Guidelines Part 3, subsection 14(2)

[25] Paragraph 8 of the "Applicant's Comprehensive Closing Submissions', see also HB 171, HB 291

[33] Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 at [45], quoting Chambers 21st Century Dictionary 1999.

[35] Zabaneh, Ullah and Secretary, Department of Education and Training [2018] AATA 2159, Georgiou and Secretary, Department of Education and Training [2019] AATA 170, RWHG and Secretary, Department of Education [2025] ARTA 1119 at [78]

[42] See for example the minutes of a meeting of 13 February 2023 HB272

[55] HB540 shows notes of a consultation on 25 July 2023 with results provided in a further consultation of 31/7/23

[60] The timing was confirmed by Mr NTMP in his Comprehensive Closing Submissions at point 22