3. The Applicant enrolled in four subjects in Semester 2 of 2022 (the '2022 Units'). The 2022 Units had a census date of 31 August 2022 (the '2022 Census Date').[6] The teaching period for the 2022 units ran from 25 July 2022 to 31 October 2022, with the examination period ending on 19 November 2022.
4. Between August 2022 and October 2022 the Applicant requested deferrals of examinations or rescheduling of practical sessions for reasons including public transport delays[7], personal illness[8] and unfamiliarity with University systems.[9] The Applicant failed three of the 2022 Units and was recorded as not having submitted assessable work for the fourth.[10]
5. The Applicant re-enrolled in the same four subjects in Semester 1 of 2023[11] (which will be described as the '2023 Units' for the purposes of this decision, reflecting their different treatment by the Respondent).

1. On 3 May 2023, the Applicant applied for re-credit of his HELP balance for one of the 2023 Units. This was initially refused by the University on 30 June 2023, and the Applicant sought reconsideration by the University of its decision. The University affirmed its original decision on 2 August 2023.
2. The Applicant applied to the Tribunal for a review of the University's decision of 2 August 2023. The outcome of that application was that in April 2024, the Tribunal made a decision in accordance with an agreement of the parties that the Applicant's HELP balance would be re-credited for that one 2023 Unit.[12]
3. On 28 April 2024 the Applicant applied to the University for re-crediting of his HELP balance in relation to the remaining three 2023 Units and the four 2022 Units.[13] In his application, he referred to the previous Tribunal application and outcome, stating[14]:

My special circumstances is the reason for not being able to apply for RoC earlier. I have been waiting for the outcome of my appeal to the UQ decision on my RoC for [Subject] Sems 1 2023, from the AAT(Adminstrative Appeals Tribunal) which has been finalised on 12 April 2024. > > [University] Union and [Name] Government Lawyer Representative of the Respondent (For AAT appeal of above mentions case of [Subject]) after thorough consideration of my special circumstances, they advised me that I may apply for RoC for the rest of my taken courses due to following reasons:

• Unique special Circumstances
• Undertaking courses during the first 24 months of arrival and residency in Australia.
• Not passed a single course during mentioned period.

1. The Applicant attached personal statements outlining his circumstances and which he had prepared for University decision review and re-enrolment approval in 2023.[15] Also included with his application were copies of materials in support of the special circumstances he had identified, such as invoices from tradesmen and emails with the government agency and support service dealing with the quarantine debt matter.
2. On 25 June 2024 the University wrote to the Applicant notifying him of its decision (the 'Original Decision')[16] to:

(a) Accept his late application for re-credit and Removal of Course; > > (b) Approve his withdrawal from, and re-crediting of his HELP balance for, the 2023 Units; and > > (c) Not approve re-crediting of his HELP balance for the 2022 Units.

3. In relation to the acceptance of his late application, the delegate of the University said under a heading 'Policy, authority and legislative basis of decision':

I have considered your application and the information in Appendix 1 and made a decision to accept your Removal of Course application for consideration. > > Your late application for Removal of Course has therefore been accepted and assessed against the Special Circumstances criteria below. Please see the table at the end of Appendix 1 for details of additional relevant University policies and procedures under which I have made this decision, my authority to make this decision and, where relevant, the applicable provision within the Higher Education Support Act (HESA).

4. The Respondent has subsequently contended that the Applicant's application for re-crediting of the 2022 Units was made outside the required application period, and there was no basis upon which the University could waive that requirement. Noting the absence of reasoning in the Original Decision, the Tribunal asked the Respondent's representative at the hearing whether the Respondent's position was that the University had decided to waive the application period requirement on an incorrect basis or whether it had simply failed to turn its mind to the question. The Respondent was unable to advise the Tribunal how or why the University reached its conclusion on this issue.[17]
5. The University set out the following reasons for refusing to re-credit the HELP balance for the 2022 Units[18]:

(a) The decision-maker was not satisfied that the supporting documentation provided by the Applicant demonstrated special circumstances beyond his control. They said that the evidence he provided suggested that the issues with the quarantine debt were resolved on 20 August 2022 (prior to the Census Date) and other issues arose after the end of Semester 2 of 2022. Further they said that he had not provided sufficient supporting documentation to demonstrate his carer responsibilities or how they made completion of his course requirements impracticable. > > (b) The decision-maker was not satisfied that his special circumstances did not make their full impact on the Applicant until on or after the Census Date. Again they said that the quarantine debt had been resolved before the Census Date and that his financial and other difficulties arose after the end of Semester 2 of 2022. > > (c) The decision-maker said they were unable to make an assessment of the criterion as to whether the Applicant's special circumstances had made it impracticable for him to complete his course 'due to the reasons above' which presumably is a reference to a perceived lack of supporting evidence.

6. On 23 July 2024, the Applicant requested that the University reconsider its Original Decision and provided additional material for consideration.[19] This included documents relating to the Applicant's residential tenancy arrangements, information about the gas connection issue, a medical certificate for the Applicant, a copy of the Medicare claims history for his mother and sibling and photographs of his sibling's skin condition. He also provided a personal statement detailing his special circumstances.
7. The University notified the Applicant by letter dated 30 July 2024[20] that it was affirming its Original Decision (the 'Review Decision').[21] After identifying various University policies and guidance on which it relied, the University said that the Applicant had not provided sufficient explanation or documentation to verify that he met the criteria for removal of courses due to special circumstances. In particular:

(a) The Applicant had not demonstrated that he had special circumstances beyond his control. The University said that the Applicant had not provided evidence to confirm his carer responsibilities for his mother and sibling, or provided medical certificates relating to their conditions. > > (b) The University was not satisfied that the Applicant's special circumstances did not make their full impact until after the Census Date because he knew about his rent increase in mid-August 2022. > > (c) Although the University was sympathetic to the Applicant's circumstances and acknowledged the 'challenges of [his] domestic conditions', it did not believe that he had provided supporting documentation that his circumstances made it impracticable for him to complete his course.

1. The Applicant applied to the Tribunal for a review of the Review Decision on 5 September 2024.
2. In addition to documents that had previously been provided to the University, the Applicant provided to the Tribunal[22]:

(a) Additional correspondence from medical practitioners relating to his mother's medical conditions; > > (b) Further photographs of his sibling's skin condition; > > (c) Material relating to his work in his country of birth with the Australian government and other foreign organisations; > > (d) Copies of emails between the Applicant and the University dated from September to October 2023; and > > (e) Copies of emails between the Applicant and the University student union dated September 2023.

3. The Respondent filed the statement and document required by section 37 of the former Administrative Appeals Tribunal Act 1975 (Cth) (the 'section 37 statement' and 'T Documents') on 21 October 2024 and a Statement of Position on 16 December 2024.
4. In its section 37 statement[23] and Statement of Position the Respondent raised an argument that, contrary to the findings in the Original Decision (as affirmed by the Review Decision), the Applicant had not made his request for re-crediting of his HELP balance for the 2022 Units within the period set out in the HESA and the Tribunal should not make a decision to waive the requirement to do so. That meant that the application to the Tribunal should fail without the Tribunal needing to consider the issue of whether 'special circumstances' arose for the Applicant.
5. The Applicant filed a Statement with the Tribunal dated 4 April 2025 addressing his special circumstances and the other matters raised by the Respondent since the commencement of the Tribunal processes, cross-referenced to the T Documents ('Applicant's Statement'). The Respondent filed a Statement of Facts, Issues and Contentions dated 15 May 2025 ('Respondent's SFIC').
6. The Applicant represented himself at the hearing on 28 May 2025, and the Respondent was represented by an external legal services provider.

1. Section 137-5 of the HESA sets out provisions relating to the incurrence of a HECS-HELP debt and when a HECS-HELP debt is taken to be remitted.[24] This includes the circumstances in which a person's HELP balance may be re-credited under Division 97.[25]
2. Division 97 of the HESA sets out the circumstances in which a person's HELP balance is to be re-credited with an amount equal to the amounts of HECS-HELP assistance that the person has received for a unit of study: section 97-23.
3. Subsection 97-25(2) provides that:

(2) A higher education provider must, on the *Secretary's behalf, 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.

4. Each of the criteria in subsection 97-25(2) must be satisfied before an amount can be re-credited under this provision. Where each of the criteria is satisfied, the higher education provider 'must' re-credit the person's HELP balance.
5. In relation to the criteria in paragraph 97-25(2)(c) section 97-30 provides that:

(1) For the purposes of paragraph 97-25(2)(c), special circumstances apply to the person if, and only if, the higher education provider receiving the application 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. > > (2) If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36-21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.

6. The Higher Education Support (Administration) Guidelines 2022 are 'Administration Guidelines' made under section 238-10 of the HESA for the purposes of matters in section 36-21.[26] In this context, the Administration Guidelines are not merely relevant considerations, but form part of the statutory scheme that confers and defines the decision-maker's power and which must be complied with.[27]
7. Part 3 of the Administration Guidelines sets out matters which must be considered for a decision-maker to be 'satisfied' that a person's circumstances meet the criteria in subsection 97-30(1). They provide as follows:

12 Circumstances beyond a person's control > > (1) 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. > > (2) 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), 104-30(2) and 128E-5(2) of the Act. > > 13 Circumstances that did not make their full impact until on or after the census date > > (1) 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 day; > > > > (b) before the census date, but the full effect or magnitude does not become apparent until on or after that day; or > > > > (c) on or after the census date. > > Note : Circumstances specified in this provision also apply for the purposes of subsections 97-30(2), 104-30(2) and 128E-5(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. > > (2) The requirements for a unit of study referred to in subsection (1) are that the person: > > > (a) undertakes the necessary private study required, or attends sufficient lectures or tutorials or meets other compulsory attendance requirements in order to meet their compulsory course requirements; > > > > (b) completes the required assessable work; > > > > (c) sits the required examinations; or > > > > (d) completes any other course requirements. > > Note : Circumstances specified in this provision also apply for the purposes of subsections 97-30(2), 104-30(2) and 128E-5(2) of the Act.

8. In relation to paragraph 97-25(2)(e), section 97-35 sets out the manner in which the statutory 'application period' is to be calculated.
9. Division 206 of the HESA ('Which decisions are subject to review?') sets out reviewable decisions for the purposes of the HESA. This includes a refusal to re-credit a person's HELP balance under subsection 97-25(2): Item 1B of the table in section 206-1. Division 209 sets out the process for reconsideration or internal review of a reviewable decision. An application may be made to the Tribunal for a review of a reviewable decision that has been confirmed, varied or set aside under sections 209-5 or 209-10: subsection 212-1(1).

SHOULD THE APPLICANT'S HELP BALANCE BE RE-CREDITED?

1. The Respondent has confirmed that it accepts that:

(a) All of the criteria in subsection 97-25(2) were met in relation to the 2023 Units.[28] > > (b) The criteria in paragraphs (a), (b) and (d) of subsection 97-25(2) were met in relation to the 2022 Units.

2. The Respondent therefore confirmed that the re-crediting of the HELP balance referable to the 2022 Units remains in dispute. More specifically the Respondent contended that:

(a) The Applicant's request for re-credit was not made within the time provided for making an application within paragraph 97-25(2)(e)(i) and that time period requirement should not be waived under paragraph 97-25(2)(e)(ii). > > (b) The Tribunal should not be satisfied that special circumstances applied to the Applicant for the purposes of paragraph 97-25(2)(c) and section 97-30. This is because the circumstances identified by the Applicant were not beyond his control (for the purposes of the HESA), those circumstances (with some exceptions) did not make their full impact on the Applicant on or after the Census Date and/or those circumstances did not make it impracticable for the Applicant to complete the requirements for the 2022 Units in the period during which he undertook them.

3. In his Applicant's Statement, the Applicant said that it would be inappropriate for the Tribunal to reconsider the issue of whether his application for re-credit for the 2022 Units was out of time. At the hearing he also explained to the Tribunal the reasons why he believed it had not been possible for him to make his re-credit request within the statutory application period.
4. The Applicant further submits that special circumstances applied to him, with those circumstances being beyond his control, not making their full impact on him until on or after the Census Date and making it impracticable for him to complete the requirements for the 2022 Units.
5. It is not necessary for the Tribunal to comment further on the treatment of the 2023 Units, except to the extent that the factual background to those units is also relevant to the 2022 Units.

TIMING OF THE APPLICATION FOR RE-CREDIT OF THE HELP BALANCE

1. The Respondent suggested that the question of whether the Applicant's request for re-credit for the 2022 Units was made within the statutory application period was the primary issue in this proceeding.
2. It is not in dispute that the Applicant made his request for re-crediting of the HELP balance for the 2022 Units on 28 April 2024.
3. In the Original Decision, the University stated that it had 'made a decision to accept [the Applicant's] Removal of Course application for consideration' and '[the Applicant's] late application for Removal of Course has therefore been accepted and assessed against the Special Circumstances criteria below.' The Review Decision did not address the issue of a late application, however it presumably proceeded on the basis that the late application was accepted as it provided its position on the 'special circumstances' of the Applicant. Although the University did not provide details of why it decided to accept the late application, it clearly did so, and acknowledged the existence of the HESA and relevant policy and authority in doing so.
4. The Applicant contended that the Tribunal should not revisit the question of whether his application should have been accepted as made within time. This is because the Review Decision assessed his re-credit application on the basis of the 'special circumstances' criteria only and the Tribunal review should therefore be limited to a consideration of paragraph 97-35(2)(c) and section 97-30. The Respondent submitted that the role of the Tribunal in hearing a matter 'de novo' involves considering the merits of the entire reviewable decision.[29] In this case, this would require a consideration of all of the criteria in section 97-25.
5. It is highly unsatisfactory, particularly in the circumstances of an Applicant who is self-represented and where the background to his application involves challenges faced by a person who had little experience of Australian education and regulatory settings, for the Respondent to raise the issue of the re-credit request being out of time after the proceeding was commenced in the Tribunal. This question was apparently dealt with by the University as the primary decision-maker and the Applicant came to the Tribunal for a review on this understanding.
6. Nevertheless, the Tribunal accepts the Respondent's argument that the Tribunal must have regard to the entirety of the Review Decision and all of the criteria in subsection 97-25(2). The Review Decision (and the Original Decision which it affirmed) represented single decisions, at least insofar as it related to the 2022 Units. Item 1B of the Table in section 206-1 of the HESA which defines the relevant 'reviewable decision' refers to 'a refusal to re-credit a person's HELP balance' made under subsection 97-25(2). Consideration of all of the criteria is also consistent with the object of the Tribunal's review being to determine the correct or preferable decision through conducting its own 'assessment and determination of the matters necessary to be addressed'.[30]
7. Section 97-35 of the HESA sets out the relevant application period for the purposes of paragraph 97-25(2)(e). The date from which the application period runs depends on whether the student has withdrawn their enrolment for the relevant unit of study (and been notified that the withdrawal has taken effect) or not. There is no evidence to suggest that the Applicant withdrew from any of the 2022 Units prior to his request for re-credit. Therefore subsection 97-35(2) applies and the application period is the 12 months after the period during which the Applicant undertook, or was to undertake, the 2022 Units.
8. The Respondent submitted that the 12 month period should run from the end of the examination period for the 2022 Units on 19 November 2022. The Tribunal agrees with this general approach, and therefore the application period would have been from 20 November 2022 to 20 November 2023.[31] The Applicant therefore did not make his application for re-credit for the 2022 Units before the end of the application period under section 97-35 for the purposes of subparagraph 97-25(2)(e)(i). The Applicant told the Tribunal at the hearing that he accepted that his application for re-credit had been made late.[32]
9. The next question is therefore whether the Tribunal should waive the requirement that the application be made before the end of that period. The Tribunal does not have an unfettered discretion to waive the requirement. It can only do so 'on the ground that it would not be, or was not, possible for the application to be made before the end of that period': subparagraph 97-25(2)(e)(ii).
10. The Respondent pointed to previous decisions of the Tribunal which it said established a 'high threshold' for demonstrating that it was not possible for an application to be made by the end of the 12 month application period:

(a) In Brown and Secretary, Department of Education and Training_[33]_ ('Brown') the Tribunal noted a dictionary definition of the word 'possible' referring to something that 'may or can exist, be done, or happen' or 'is in one's power, that one can do, exert, use'. From that the Tribunal concluded that the word 'possible' gave rise to 'a broad range of circumstances under which some action may be taken' and conversely for something not to be possible 'would require a very serious constraint to be placed on a person's ability to act.' In the context of an application to withdraw from studies, the Tribunal looked to whether there was a serious constraint on Ms Brown's ability to complete and send a withdrawal application form to her education provider. Lack of knowledge or a failure to properly inform oneself of processes was not sufficient. > > (b) In Thomson and Secretary, Department of Education, Skills and Employment[34] ('Thomson') the Tribunal also had regard to the 'ordinary grammatical meaning' of the words 'not possible.' A finding that an application could not have been made due to some incapacity, whether physical or mental, and not necessarily of a medical nature, was required. The Tribunal recognised that some subjective circumstances might be relevant to establishing whether there was a barrier to making an application. However where a person ignored information about an application process or did not avail themselves of the opportunity to take notice of information provided to them, they were not regarded as being incapacitated or prevented from making the application.[35] > > (c) In HHJK and Secretary, Department of Education[36] ('HHJK') the Tribunal had regard to evidence indicating that HHJK was able to perform routine administrative tasks during the relevant 12 month periods and had been able to apply for special examinations. There was no evidence that HHJK lacked the legal capacity to carry out the tasks necessary to make withdrawal applications. The delay in making an application had not been 'reasonably explained' on the evidence before the Tribunal.

11. The Respondent also referred to a further decision in CNPG and Secretary, Department of Education[37] ('CNPG') where the Tribunal rejected too strict an interpretation of the word 'possible' and suggested it should be interpreted as meaning 'reasonably possible in all the circumstances.'[38] What might be possible for others might not be possible for a particular applicant in their circumstances.
12. Although consistency of decision-making is desirable, these previous decisions are not binding on this Tribunal. What they do demonstrate is that careful consideration of the facts and evidence of the particular case is required.
13. The Respondent pointed to the following matters which it characterised as indicative of the Applicant having the capacity or ability to complete administrative tasks such as engaging in the re-credit process within the statutory application period of November 2022 and November 2023, but choosing not to by prioritising other issues he was facing:

(a) In February 2023 the Applicant emailed the University to explain why he had failed to meet the conditions of his scholarship.[39] > > (b) The Applicant applied for re-credit of his HELP balance in relation to one of his 2023 Units on 3 May 2023, sought an internal review of the University's decision to refuse re-crediting in July 2023 and then applied to the Tribunal in August 2023 for review of the University's decision to affirm their prior decision. The Respondent said that this demonstrated that not only was the Applicant capable of making an application during the statutory period, but also that he had done so in relation to another unit indicating that he was aware of the process for re-credit applications. > > (c) The form completed by the Applicant on 3 May 2023[40] contained information and instructions about the 12 month time period, as well as setting out all of the subjects in which he had been enrolled with a box to tick beside each one he wished to remove. The Applicant only ticked the box beside one of the 2023 Units. > > (d) The Applicant re-enrolled in the 2023 Units during the period and attempted to complete those subjects, again demonstrating his ability to complete administrative tasks. > > (e) In September and October 2023, the Applicant corresponded with the University in relation to his studies and received advice that he consider exploring the RoC process for the 2022 Units and 2023 Units.[41]

(a) He did not have information about, and had been unaware of his ability to make, an application for 'RoC' until he spoke with the University student union in September 2023. He acknowledged that he was still within time to make a re-credit application at this point, but said that he had to deal with more significant problems relating to an enrolment cancellation and rejection of his review request for the 2023 Units.[42] > > (b) In August 2023 the Applicant was advised that his request for review of the University's decision not to re-credit his HELP balance for one of the 2023 Units had been rejected. He then sought review by the Tribunal of that decision and was successful in having the University's decision set aside in April 2024. > > (c) In September 2023 the Applicant's re-enrolment had initially been rejected and he had to apply to the Academic Dean of the relevant faculty for approval to re-enrol (which was granted). > > (d) In relation to the form he completed in May 2023, he gave evidence at the hearing that he was not familiar with the University system at that time. He had thought that if he had failed a subject he could not subsequently remove or withdraw from it. He therefore submitted the form with only one subject to be removed to see if that approach would work. > > (e) At the time of completing the form for withdrawing from one of the 2023 Units, he only had supporting documentation relevant to that subject. He had difficulty collecting and understanding what documents he needed. > > (f) During this period he was trying to find someone who could help him with his re-enrolment and application issues.

15. The Tribunal makes the following observations:

(a) The September and October 2023 emails identified by the Respondent relate to the Applicant reaching out to the University Student Services team for help with his situation. It indicates that he discussed the problems he was experiencing with an adviser and was given information and referrals on services that might be able to assist him, including financial, advocacy and study support. It includes an email from a student advocacy and support officer dated 18 September 2023 where she said that following a conversation with him she was 'very concerned' and asked for the Applicant's permission to discuss his case with her manager. Far from demonstrating that the Applicant was able to complete routine administrative tasks, this correspondence suggests he was struggling. > > (b) Similarly, the correspondence from February 2023 relating to his scholarship is a single email in which the Applicant identifies his circumstances of financial hardship. Of itself this email, even if viewed as the completion of an administrative task, does not greatly assist in demonstrating whether it was possible for an application for re-credit to be made around that time. > > (c) However, there is no suggestion that the Applicant lacked the legal capacity to withdraw from subjects or apply for re-credit during the statutory application period, or that he was suffering from a medical condition that prevented him from doing so. > > (d) The completion of the ROC form in May 2023, albeit for only one of the 2023 Units, supports a finding that it was possible for an application for re-credit for all of the units listed on that form (being the 2022 Units and the 2023 Units) to be made around that time, which was before the end of the statutory application period for the 2022 Units. The form contained information and instructions which clearly set out the relevant dates for each subject in which the Applicant had enrolled, the option to tick a box for each subject and a contact point for 'advice on how to submit an application outside this timeframe.' The Applicant did complete and submit that form, although he did not select any of the 2022 Units. > > (e) The Tribunal acknowledges the Applicant's explanation that he was not sure about the processes, whether he had sufficient documentation or whether he could apply for removal of a subject that he had failed, but the test in subparagraph 97-25(2)(e)(ii) is whether it was not possible for an application to be made. It does not look to the standard of an application or its likelihood of success.

16. In these circumstances the Tribunal must conclude that it was 'possible' for the application for re-credit of the 2022 Units to have been made before the end of the 12 month period after the period during which the Applicant undertook those units of study. This is the case whether the threshold applied is 'reasonably' possible as suggested in CNPG or a stricter approach is applied. There is no ground upon which the Tribunal can waive the requirement that the application be made before the end of the 12 month statutory period. Accordingly, the 'application period' requirement in paragraph 97-25(2)(e) has not been met in relation to the 2022 Units and the HELP balance for those units of study cannot be re-credited, regardless of whether the Applicant can demonstrate that special circumstances applied to him.
17. The Tribunal reiterates its serious concern that the Applicant was provided with written decisions of the University indicating that his late application for the 2022 Units had been accepted, and that the 'application period' criteria was apparently only raised by the Respondent after he applied to the Tribunal for review of the 'special circumstances' findings. These actions limited his ability to seek advice or prepare a position in response to the contention that his application for re-credit was out of time.

1. Although the Tribunal has found that the Applicant did not meet the 'application period' requirement in paragraph 97-25(2)(e), the Tribunal acknowledges the extensive submissions made by both parties on the 'special circumstances' criteria. The Tribunal also acknowledges the effort made by the Applicant, who represented himself, to gather supporting evidence and present his case to the Tribunal about the challenges he had faced. The Tribunal believes it is appropriate to make the following observations about the 'special circumstances' criteria as set out in paragraph 97-25(2)(c) and section 97-30.

1. Although the Respondent subsequently agreed that 'special circumstances' did arise in relation to the 2023 Units, those circumstances were particular to the timeline of Semester 1 of 2023. That is, the Respondent acknowledged the financial hardship which arose after the census date for the 2023 Units when the Applicant's mother lost access to Centrelink benefits in April 2023, such that the Applicant had to take on additional work hours to support his family. That situation did not exist in 2022, even if some of the background elements to the family's financial difficulties did.
2. From his correspondence with his University, the materials he filed with the Tribunal and the evidence he gave at the hearing, the Applicant has identified the following circumstances as relevant for consideration in relation to the 2022 Units:

(a) The trauma he experienced from the conflict in his country of birth, including during his work with the Australian government and the requirement to resettle in Australia for his safety and that of his family. > > (b) His obligations as the head of his family (including his mother and younger siblings) following the death of his father. This included being the liaison point for his family with multiple institutions, including Centrelink and the school attended by his siblings. > > (c) Medical conditions suffered by his mother which required diagnostic tests and treatment. He needed to accompany his mother to medical appointments due to her lack of English language proficiency when they arrived in Australia. > > (d) The skin condition suffered by his younger sibling which required daily bathing in a medicated solution. > > (e) A substantial increase in the rent for their family home which resulted in financial hardship. A dispute over a COVID-19 quarantine bill added to this financial difficulty. He had difficulty finding employment to support his family. > > (f) The loss of gas supply to his family home in late 2022, such that they had no hot water on tap and needed to boil kettles for washing and bathing for over a month. He spent considerable time with property managers, tradespeople and gas suppliers trying to resolve this issue. > > (g) A lack of a suitable computer for his studies, relying on a refurbished laptop that was more than 10 years old, until he received a scholarship in December 2022 which funded the purchase of a new study device. > > (h) The non-delivery of resettlement assistance and support services that had been promised when the family arrived in Australia.

Did the Applicant have circumstances that were beyond his control?

1. In applying paragraph 97-30(1)(a) and clause 12 of the Administration Guidelines, the Tribunal should have regard to the Applicant's circumstances or situation overall, rather than considering individual circumstances or aspects of his situation. This is consistent with the approach taken in Montenegro, where Charlesworth J[43] said that the 'situation' of the appellant was not merely the circumstance of the appellant having a particular medical condition. That medical condition was 'the starting point in a series of events' that culminated in the situation to be considered.
2. Both parties agreed with this general approach. The Respondent acknowledged that the Applicant could not control the existence of individual circumstances he identified, but contended that the Applicant's situation 'as a whole' was not beyond his control (as required by the relevant statutory provisions).[44] The Applicant referenced the impact of his 'combined circumstances' and the 'cumulative toll' of those circumstances on his studies.[45]
3. The Respondent accepted that the Applicant could not control the existence of individual circumstances as set out in paragraph 61 above. Nevertheless the Respondent submitted that the Applicant's overall situation was not 'beyond his control' for the purposes of Administration Guideline 12 because those circumstances had been in existence prior to the Census Date for the 2022 Units (and in some instances prior to his enrolment at the University) such that those circumstances were not 'unusual, uncommon or abnormal' for him. The Respondent said that the Applicant enrolled in the 2022 Units with the knowledge of the existence of those circumstances and did not withdraw from the 2022 Units prior to the Census Date. Therefore his 'situation' was due to his action (enrolment in the 2022 Units) and/or lack of action (failure to withdraw from those units prior to the Census Date).
4. In this regard the Respondent referred the Tribunal to previous decisions of the Tribunal[46] which determined that an applicant's situation was not 'beyond their control' in the sense required by the HESA and the Administration Guidelines where they were aware of circumstances prior to the relevant census date but made a choice not to withdraw from those subjects prior to that census date.
5. The Applicant's submissions were based on a more literal or ordinary meaning of the phrase 'beyond a person's control' when he explained how he did not have control over the circumstances set out in paragraph 61 above, and those circumstances were unusual, abnormal or uncommon as those words might commonly be understood. However, as submitted by the Respondent, and aligned with previous decisions of the Tribunal, the Tribunal believes it is correct to consider those circumstances or his situation in the context of the Applicant's choice to enrol in the 2022 Units and to not withdraw from those units prior to the Census Date.
6. The Respondent's analysis of the facts is effectively that the status of the Applicant's challenges and hardships was consistent up to the Census Date.[47] The Tribunal agrees that is the case with certain matters, such as the significant responsibility undertaken by the Applicant for his siblings' education, his brother's skin condition, the non-provision of anticipated support services, the quarantine debt issue and his lack of a suitable computer.
7. However the Tribunal disagrees with the Respondent's conclusion that the extent of the Applicant's financial difficulties was known by the Census Date. Although the residential lease was dated July 2022, it is not disputed that the rent increase did not take effect until the first week of September and the Tribunal accepts the Applicant's evidence that he did not realise the effect of that rental increase until after it commenced. This was a significant matter in the context of his overall 'situation'. The Applicant's correspondence with employment services from late August 2022 corroborates this concern. His scholarship was not awarded until October 2022. Any failure by the Applicant to withdraw from the 2022 Units prior to the Census Date of 31 August 2022 was not done with an awareness of these financial matters.
8. For this reason had the Tribunal been required to make a decision on this criteria it believes there would have been sufficient evidence to find that the Applicant's situation or 'circumstances' were beyond his control in the sense required by paragraph 97-30(1)(a) and Administration Guideline 12.

Did the Applicant's circumstances not make their full impact until on or after the Census Date?

1. The Tribunal has formed the view that had the criteria of 'special circumstances' remained in contention it would have been satisfied that the Applicant's circumstances were 'beyond his control.' The Tribunal would then have had to consider whether it could be satisfied that the Applicant's circumstances did not make their full impact on him until on or after the Census Date for the 2022 Units: see paragraph 97-30(1)(b) and Administration Guideline 13. The Tribunal makes the following observations in response to the parties' submissions.
2. The Respondent accepts that some of the circumstances identified by the Applicant made their full impact on the Applicant on or after the Census Date for the 2022 Units. This includes the treatment required by the Applicant's mother around September 2022 for pain related to her medical conditions and the issues relating to the gas connection at the Applicant's home which occurred across October and November 2022. However the Respondent argues there was insufficient evidence to support the contention that the full impact of the Applicant's other claimed circumstances occurred on or after the Census Date.[48] On that basis the Respondent says that the Tribunal cannot be satisfied that most of the Applicant's circumstances made their full impact on him on or after the Census Date, such circumstances having existed since the Applicant and his family arrived in Australia in August 2021.
3. The Applicant described an accumulation of factors in his family situation, including his mother's further medical investigations, his sibling's skin condition, the loss of gas supply, his own illness and not having a reliable computer. He said that this material change or significant deterioration in his family circumstances occurred after the Census Date and reached a peak in October/November 2022.
4. Under Administration Guideline 13, the Tribunal will be satisfied that a person's circumstances did not make their full impact until on or after the relevant census date where the circumstances occurred on or after the census date, or if the circumstances occurred before the census date, they either worsened after that day or their full magnitude or effect did not become apparent until on or after that day.
5. The Respondent accepts that the loss of residential gas supply made its full impact on the Applicant on or after the Census Date and before the end of Semester 2 of 2022. The period from late October 2022 to late November 2022 coincides with the conclusion of the Semester 2 teaching period on 31 October 2022 and the exam period for the 2022 Units which ran from 1 to 19 November 2022. A Medicare statement indicates that his sibling saw a doctor at least twice in September 2022, and the Applicant referred to his sibling's skin condition, which required daily bathing, being 'newly emerged' at the time they lost their gas supply. The Tribunal accepts the Applicant's evidence to the effect that this increased the difficulties that would otherwise have occurred as a result of not having hot water at their home.
6. The Applicant stated that he had only been notified of his rental increase a couple of weeks before it took effect however the relevant lease was signed by the Applicant on 15 July 2022. Nevertheless, it is correct that the 25% increase in the Applicant's rent commenced as of early September 2022. [49]
7. Although the Tribunal accepts the Respondent's contention that the Applicant had faced numerous difficult circumstances since the family's arrival in August 2021 which were ongoing at the time of Semester 2 of 2022, the Tribunal would have found that his circumstances did not make their full impact on the Applicant until on or after the Census Date.

Did the Applicant's circumstances make it impracticable for him to complete the requirements of any of the 2022 Units?

1. Had the criteria of 'special circumstances' remained for consideration, the Tribunal would have been required to consider the parties' submissions on the operation paragraph 97-30(1)(c) and Administration Guideline 14.
2. The Respondent referred to previous decisions of the Tribunal which suggested the word 'impracticable' as used in paragraph 97-30(1)(c) meant 'not able to be done'[50] rather than 'difficult.'[51] This is consistent with the ordinary or dictionary meaning of 'impossible in practice to do or carry out' or 'cannot be put into practice.'[52]
3. The Respondent acknowledges that circumstances experienced by the Applicant in 2022 may have made it difficult for him to complete the requirements of the 2022 Units (including assignments, tests and exams and practical work) but contends that there is insufficient evidence to support a finding that it was impracticable for him to do so. In particular the Respondent points to:

(a) The Medicare statements provided by the Applicant disclosing only three medical appointments for his mother and younger sibling on five dates during Semester 2 of 2022. > > (b) A lack of evidence to indicate the amount of time that the Applicant was required to attend to appointments and other tasks associated with his siblings' schooling. > > (c) A lack of evidence to indicate the time that the Applicant required to deal with the gas supply issues at the family home, including the requirement for the Applicant to assist his younger sibling with bathing or engage with tradesmen, and how this affected his studies, including his ability to attend classes or complete assessments. > > (d) A lack of evidence to demonstrate a change in his employment arrangements which affected the Applicant's studies, including the ability to attend classes or complete assessments. > > (e) The Applicant obtaining a deferral of an exam and rescheduling of practical sessions for reasons other than his claimed circumstances, including public transport delays[53], personal illness[54] and unfamiliarity with University systems.[55] > > (f) The University's systems recording that the Applicant was able to log into his student portal during Semester 2 of 2022.

4. The Applicant submitted that the Tribunal should consider whether his combined circumstances made it impracticable for him to complete the requirements of the 2022 Units. The Applicant referred to his personal illness, his role as sole caregiver during medical crises within his family, utility outages, lack of study equipment and financial instability as giving rise to an overwhelming burden that made completion of studies impracticable. He described the seeking of special consideration for the exam and practical assignments as a final effort on his part to avoid failing those subjects rather than an indication of his capacity to study. His illness occurred in the context of the broader circumstances which reached their peak around October and November 2022 towards the end of the semester. The Applicant said that the body of evidence demonstrated that it was genuinely impracticable for him, and not merely difficult to complete the requirements of the 2022 Units.
5. The Tribunal acknowledges that it may be difficult for a person to provide compelling documentary evidence of the nature and duration of day-to-day domestic events. Unlike record keeping requirements for business or financial transactions a person may not have anticipated that they would need to prove, for example, how much time they spent filling a bathtub over an extended period. A pragmatic approach may be required by the Tribunal in assessing available evidence against the statutory criteria. However the Tribunal is required to apply the relevant legislative provisions and can only do so based on its understanding of key factual matters.
6. The Tribunal does not place significant weight on the University records of the Applicant's student portal log in activity. While they show that he did log into the portal during Semester 2 of 2022, his pattern of engagement with the Learning Management System is noticeably different (in terms of number of log ins and duration of being logged in) to the 'Cohort A' comparison, which could either demonstrate his ability to participate in online tasks or equally support the Applicant's claims of significant problems with his laptop computer.[56]
7. Although the Applicant did not provide details of the number of hours taken up with attending to his siblings' educational matters, on the basis of the extensive list of tasks and activities set out in the letter signed by the school principal and senior teacher[57] and their description of the Applicant's involvement as 'extensive' the Tribunal accepts that the Applicant was required to dedicate substantial amounts of time to support his siblings.
8. The Tribunal accepts that the Medicare statements may not disclose all of the medical appointments which the Applicant was required to attend during the relevant period, that medical appointments may take up considerable time and that this may have interfered with the Applicant's ability to attend classes or complete assessments.
9. For the purposes of Administration Guideline 14(1):

(a) Paragraph 14(1)(b) provides that a person's 'family or personal circumstances' may make it impracticable for them to complete a unit of study where, for example, severe medical problems within a family or unforeseen family financial difficulties are such that it is unreasonable to expect a person to continue studies. The Tribunal accepts that around April 2022 the Applicant's mother was undergoing medical tests for a potentially serious condition and underwent surgery in June 2022. Fortunately she did not have that condition, although she was referred for follow up testing in September and October 2022. The Tribunal also accepts that the Applicant was unwell in October 2022, but based on a medical certificate this appears to have been of limited duration (approximately one week).[58] > > (b) The Tribunal accepts that the rent increase in early September 2022 was unforeseen and caused financial hardship to the Applicant and his family. > > (c) Paragraph 14(1)(c) provides that a person's 'employment related circumstances' may make it impracticable for them to complete a unit of study where, for example, the person's employment status or arrangements have changed so that the person is unable to continue their studies and this change is beyond their control. The Applicant told the Tribunal that after significant effort to find employment he was hired by a local supermarket around December 2022. The timing of this change in his employment status was after the conclusion of Semester 2 of 2022. The Tribunal acknowledges that the Applicant was actively looking for work in the months and weeks prior.

10. However although the Tribunal accepts that there is evidence of challenges claimed by the Applicant in relation to completion of his Semester 2 of 2022 studies, it is difficult for the Tribunal to assess the degree of impact of these challenges, in the sense of whether it made it 'difficult' for him to complete the requirements of the 2022 Units or whether it was 'impracticable' for him to do so. The Tribunal notes that the Applicant was engaging with the University in relation to deferrals, rescheduling and other forms of special consideration in relation to assessment tasks between August and October 2022. In the present case, and although mindful of its previous acceptance of the Applicant's evidence of the existence of his circumstances, the Tribunal does not believe it would have had a sufficient basis for finding that it was impracticable for the Applicant to complete the requirements for the 2022 Units in the period during which he undertook those units for the purposes of paragraph 97-30(1)(c) of which the Tribunal must be satisfied.
11. The Tribunal emphasises that its observations should not be viewed as suggesting that the Applicant did not face significant challenges in his personal and academic life during the second half of 2022, but reflect the requirement for the Tribunal to apply the specific wording of the provisions of the HESA and the Administration Guidelines.

1. Subsection 71(1) of the ART Act sets out the principle that it is desirable that evidence given before the Tribunal is made available to the public. Decisions of the Tribunal may therefore be published on the 'Austlii' website in the absence of a non-disclosure or non-publication order made under section 70 of the ART Act. The Applicant advised the Tribunal that he had not been aware that the details of his proceeding, including information identifying him and which might identify members of his family, might be published. Mindful of the evidence given by the Applicant as to his prior work with Australian government agencies and the circumstances of his departure from his country of birth, the Tribunal asked the Applicant whether he wished to seek an order to be referred to by way of a pseudonym in any decision that might be published. The Applicant confirmed that he did have concerns for his welfare and safety, and that of his family.
2. The Tribunal invited the Respondent to provide their view as to whether they opposed a pseudonym order, and they subsequently advised the Tribunal that they did not.
3. In the particular circumstances of this Applicant. the Tribunal is satisfied that the risk of harm to the Applicant and his family from disclosure of their identities outweighs the principle that evidence and other information about Tribunal proceedings be made public. The Tribunal believes it is able to convey its decision and reasoning without needing to identify the Applicant and his family members. The Tribunal made an order under section 70 for the Applicant to be identified by a pseudonym accordingly.

1. For the Applicant to be re-credited with an amount of HELP balance referable to the 2022 Units it was necessary for the Tribunal to be satisfied that each of the criteria in subsection 97-25(2) was met. The Tribunal has concluded that in circumstances where the Applicant had not made his application for re-credit before the end of the application period set out in section 97-35, it was nevertheless possible for that application to have been made within the application period. Therefore the criteria in paragraph 97-25(2)(e) was not met and there is no basis for re-credit of the HELP balance for the 2022 Units.
2. In response to the submissions made by the parties the Tribunal has made observations about whether the requirements of paragraphs (a), (b) and (c) in subsection 97-30(1) relating to 'special circumstances' would have been met. The Tribunal has indicated its view that paragraph (c) would not have been satisfied.
3. The Tribunal reiterates that its decision must be based on the specific wording of the provisions of the HESA and the Administration Guidelines. The Tribunal accepts that the Applicant has faced significant challenges arising from his circumstances and sought to give an honest and full account of his experiences to the Tribunal.

[1] See section 128-7 of the Higher Education Support Act 2003 (Cth)

[2] See letter dated 20 March 2025, attachment to Applicant's Statement dated 4 April 2025.

[3] T25, page 202. The term T document refers to the documents that the Respondent is required to file under section 23 of the ART Act, previously section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

[5] T24, page 192. See also attachments to the Applicant's Statement including an invoice for an Apple device.

[6] This is the final date by which a student may withdraw from a subject without penalty and is determined in accordance with section 169-25 and Schedule 1 of the HESA.

[13] T23. This was described as a 'Removal of Course' or 'RoC' application. This application also asked for a re-credit in relation to the 2023 Unit that was the subject of the earlier Tribunal decision, and the Applicant was advised that he was not required to apply again for removal of that subject.

[14] Some names and other information has been removed to avoid disclosure of the Applicant's identity.

[17] The Respondent's Statement of Position at paragraph [16] acknowledges that the delegate of the University must have been satisfied that it was not possible for the Applicant to have made his re-credit application within the statutory application period.

[20] This letter was sent to the Applicant by email dated 8 August 2024.

[22] Some of this material was provided with the application and other items were filed on 21 January 2025.

[24] The 'HELP balance provisions' of the HESA apply to units of study with a census date on or after 1 January 2020: subsection 144(2), Part 2, Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018 (Cth). The HELP balance provisions also include Division 97: paragraphs 144(1)(c) and (d). HECS-HELP assistance received by a person will contribute to the person's 'HELP balance' under subection 128-15(1) of the HESA.

[26] See the Note to subsection 36-21(2).

[27] Montenegro v Secretary, Department of Education [2020] FCAFC 210 ('Montenegro') at [64] per Charlesworth J, at [25] per Flick J.

[28] The Respondent ultimately accepted evidence provided by the Applicant which demonstrated that the suspension of his mother's Centrelink payments in April 2023, resulting in the Applicant having to work extra shifts to support his family, were 'special circumstances' for the purposes of sections 97-25 and 97-30. The Respondent also accepted that the Applicant made his application for re-credit of the 2023 Units within the statutory application period.

[29] The Respondent pointed to the approach previously taken by the Tribunal in Crick and Comcare [2020] AATA 4483 at [171] per Deputy President McDermott.

[30] Shi and Migration Agents Registration Authority [2008] HCA 31 at [140] to [141] per Kiefel J.

[31] The Respondent suggested that the application period would commence on 19 November 2022. The Tribunal believes that the application period would start on the day after the end of the examination period but this is only a minor difference in the present circumstances.

[32] This is also consistent with his submissions to the University as to why he was applying out of time, see T23 at pages 170 to 171.

[33] Brown and Secretary, Department of Education and Training [2015] AATA 518

[34] Thomson and Secretary, Department of Education, Skills and Employment [2020] AATA 4672.

[36] HHJK and Secretary, Department of Education [2023] AATA 1775.

[37] CNPG and Secretary, Department of Education [2022] AATA 4349.

[38] Ibid at [85] per Senior Member Morris, considering similar wording in section 36-20 of the HESA.

[43] Montenegro at [57] to [58] per Charlesworth J.

[44] Respondent's SFIC at paragraph 62.

[45] Applicant's Statement at pages 57 and 61.

[46] Nacol and Secretary, Department of Education, Skills and Employment [2022] AATA 1033, Lushchayev and Secretary, Department of Education, Skills and Employment [2022] AATA 374.

[47] See paragraph 63 of the Respondent's SFIC.

[48] In its SFIC the Respondent referred to other events identified by the Applicant that occurred in mid-2023, some months after the end of the 2022 Units and examination period. The Applicant clarified that he was not claiming those as special circumstances relating to Semester 2 of 2022 but wished to set out the cumulative circumstances he experienced.

[50] Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 at [45] per Deputy President Forgie and Member Cameron.

[51] Georgiou and Secretary, Department of Education and Training [2019] AATA 170 at [20] per Senior Member Poljak.

[52] Oxford Dictionaries, Macquarie Dictionary.

[56] The University records at T29 record access to the student portal up to December 2022. The Tribunal accepts the Applicant's evidence that he was only able to purchase a new computer in mid-December 2022 from scholarship funding.

[57] Letter dated 20 March 2025 included with the Applicant's Statement.