EDUCATION - HECS-HELP - debt remission - whether special circumstances apply - where all 3 criteria must be met - whether circumstances were abnormal, uncommon or unusual and beyond applicant's control - whether full impact of circumstances was on or after census date - whether circumstances made it impracticable for applicant to complete the requirements for the unit - Tribunal satisfied special circumstances apply for both units - but their full impact was only felt after census date for unit 2 - decision affirmed

Administrative Review Tribunal Act 2024 (Cth)

Higher Education Support Act 2003 (Cth)

Bow and Secretary, Department of Education [2020] AATA 114

Georgiou and Secretary, Department of Education and Training [2019] AATA 170

Ullah and Secretary, Department of Education and Training [2018] AATA 2159

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

Higher Education Support (Administration) Guidelines 2022

1. Ms Diana Tomkins is seeking a review of a decision by James Cook University (JCU) to uphold an earlier decision not to re-credit her HECS-HELP balance in relation to HECS-HELP assistance given to her pursuant to section 97.25 of the Higher Education Support Act 2003 (Cth) (the Act). This decision was made in respect of her enrolment in the Bachelor of Veterinary Science Trimester 2, 2024 TV5212 - Veterinary Professional and Clinical Practice 2.
2. Ms Tomkins commenced her Bachelor of Veterinary Science in 2015 as a mature aged student, having already completed a Bachelor of Science degree and worked for many years as a pathologist. Ms Tomkins described her desire to undertake and complete the course was related to her passion for animal welfare in her written submission advising:

I am now hoping that at this stage of my life I can do a job that I am passionate about i.e. animal welfare and am not interested in financial incentives, nor do I especially want to work in a private money oriented suburban practice. I am hoping to work in animal refuges where the need for all species is greatest with perhaps some paid but also volunteer work such as spay & neuter clinics, rehabilitation and public education both in Australia and overseas where I have seen for myself the consequences of the lack of veterinary care for animals

3. On 26 September 2024, Ms Tomkins submitted a request to JCU for remission of her HECS-HELP debt in relation to the Trimester 1 Unit TV5211 which commenced on 29 January 2024 with a census date of 22 February 2024 and the Trimester 2 Unit TV5212 year which commenced on 20 May 2024 with a census date of 13 June 2024.
4. On 8 November 2024, JCU declined her application for remittal of her HECS-HELP debt. On 17 January 2025, JCU on internal review, affirmed the determination in respect of Unit TV5211 and set aside the determination in respect of Unit TV5212. The Deputy Director Student Services and Support JCU provided the following rationale for this decision as follows:

In relation to TV5211, while your documentation indicates that your mother had been unwell for some time, there is no evidence to suggest that you were unable to complete your TV5211 studies, or if not, withdraw from the subject prior to the Census date. In fact, after a period of caring for your mother in Brisbane in 2023, you returned to Townsville to continue your studies. > > In relation to TV5212, your documentation shows an escalation of your mother's circumstances happened just prior to and post census date. While you were aware that your mother was admitted to Redcliffe Hospital prior to census, you were not aware that she had been re-admitted to the Royal Brisbane Women's Hospital with worsening health after census. Additionally, your mother's health deteriorated from that point requiring you to return to Brisbane to provide care.

5. On 13 February 2025, Ms Tomkins applied to the Tribunal for review of the internal review decision, stating:

Appeal for withdrawal without academic or financial penalty of both units from BVSc (TV5211 & TV5212) degree attempted in 2024 and to enable the completion of my final year of the degree. N.B. one unit has been withdrawn but not the other. I returned to Brisbane without completing the 3rd unit and final exams and therefore anyway will have to repeat the whole year again if this appeal is successful otherwise I have spent a lot of time and money for nothing. The reason for my "poor performance" and time off is that the last few years have been very difficult, when on top of COVID and staying at home to participate in lectures and limited practical sessions in 2022, my now 95-year-old Mother's dementia was diagnosed and took hold quite rapidly. Towards the end of that year, I was suddenly required to return home to enable her to be discharged from hospital after a bad fall and suspected fractured hip as there were no other close family members to assist at the time. I spoke to the course co-ordinator about finishing my degree which meant completing my final exams in the following April 2023. However, it was extremely difficult to do the substantial amount of revision and study required for me to pass my exams when I was Mum's 24/7 carer and I was unsuccessful. I was absent from JCU for the rest of 2023 to further be Mum's carer and implement other options for her care and she had further hospitalizations. As I am a mature age student, I also have a home here in Brisbane which had been rented out for some time and needed some attention. I wasn't entirely ready to return to JCU in 2024 (plus car problems developed) but at the same time, I was very keen to get finished and I was urged to do so by the co-ordinator. While I was back at JCU in 2024, Mum was again hospitalized a few more times including being given COVID by one of the carers which further took its toll on Mum's demeanour and mental state and while she was discharged after spending a week in hospital, was back

6. Ms Tomkins appeared self-represented by video at the hearing on 23 July 2025 and Ms Jacky Vetter Special Counsel at HWL Ebsworth appeared for the Secretary Department of Education (the Respondent).

1. The Act governs the provision of financial support to students and the repayment of a person's contributions, or remission, of a HECS-HELP debt in respect of a unit of study in certain circumstances.
2. A HECS-HELP debt is incurred when the Commonwealth makes a loan to a person and uses the loan amount to make a payment to a higher education provider to discharge the person's liability to pay the student contribution for a unit of study.[1] HECS-HELP debt is taken to have been incurred immediately after the census date for the unit.[2] A higher education provider must re-credit a person's HECS-HELP 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; 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 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.[3]

3. Under section 97.25 of the Act, where a person has not completed a unit of study they may, as in this matter, apply for remission of a debt which must be granted where the provider is satisfied that special circumstances apply to the person.
4. 'Special circumstances' are defined as applying to a person under section 97.30 of the Act if and only if, they:

(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; and

(c) make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.

1. The Higher Education Support (Administration) Guidelines 2022 (the Guidelines) have been made under section 238.10 of the Act. A decision made in respect of special circumstances must, under section 97.30 of the Act, be made in accordance with the Guidelines.
2. Chapter 3 of the Guidelines addresses the circumstances in which a higher education provider is to be satisfied as to the existence of special circumstances.
3. Paragraph 3.5.1 of the Guidelines provides that circumstances are beyond a person's control if a situation occurs which a reasonable person 'would consider is not due to the person's action or inaction, either direct or indirect, and for which the person is not responsible'. Paragraph 3.5.5 provides that the situation must be 'unusual, uncommon, or abnormal'.
4. Paragraph 3.10.1 of the Guidelines provides as follows:

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 or study if the person's circumstances occur:

(a) before the census date, but worsen after that day; or

(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.

1. The issue before the Tribunal is whether special circumstances apply to Ms Tomkins's situation.

1. Ms Tomkins submitted the deterioration in her mother's health condition resulted in her having to abandon her studies around September 2024 and return to Brisbane to care for her mother full time and to assist with the arrangements for her mother to move into permanent residential care.
2. Ms Tomkins advised the Tribunal the situation with her mother was very stressful and complex, impacted by the failure of her and her brothers to agree on the most appropriate care for their mother. Ms Tomkins advised she had attempted now on many occasions to complete her veterinarian degree but had failed at the last hurdled because of the need to care for her mother and the complications with Covid restrictions.
3. Ms Tomkins advised in 2022 she had to return from Townsville to look after her mother eventually deferring her studies in 2023. In 2023 she was her mother's full-time carer. Feeling the pressure from JCU and the time constraints to complete her degree she returned to full time study in 2024 thinking her mother's situation was now well managed with carers and assistance from her brother.
4. Ms Tomkins's advised her mother finally moved into Residential Care on 13th May 2025 due to her advanced dementia, problems with carers and the increasing costs. Ms Tomkins advised this had been a long and difficult process as it had not been easy to find the appropriate care for her mother and she continue to be involved in managing her mother affairs preparing the sale of her mother house to meet the associated cost of her mother's care and visiting her mother regularly.

1. Ms Tomkins contended her situation was completely beyond her control as she could not predicate the nature and rapidity of her mother's declining health including her mother's dementia, falls, gall stones, impact of hospitalization with COVID-19 and behavioural issues. This situation was also exacerbated by the breakdown of family relationships with regards the appropriate course of action to take in respect of her mother's care.
2. Ms Tomkins relied on the letter from Dr Catherine Yelland, Geriatrician, dated 19 April 2023

Mrs Tomkins has clearly declined since I saw her in November. Her MMSE was 27 then and is now 20, and this is consistent with Diana's story that her cognition has declined. > > She also looks quite frail. She is using a walking frame and walks slowly but has not had any significant falls. She still has a moist cough, despite some physiotherapy, and I repeated the chest x-ray, which was clear. Her weight has been quite well maintained, but she is now 45.6kg, 1kg less than in November. > > Mrs Tomkins remains independent in showering, using a chair, and dressing and toileting. She says that she helps around the house, but essentially Diana does all of this and I cannot imagine that Mrs Tomkins is really capable of doing very much. > > Overall the picture is of frailty and progressive cognitive decline and as Diana cannot continue living there indefinitely, it is time to move to residential aged care. We talked about the options of having live in carers, or moving to live with her son Nigel, with carers coming in for most of the day, but usually this is an unsustainable arrangement, and I would not recommend it. Mrs Tomkins is not particularly agreeable to going to residential aged care, but I think she has very limited insight into her care needs, so it is time for her three children, who are all her Power of Attorney's, to make this decision for her.

3. Ms Tomkins relied on the letter from Dr Yelland dated 28 June 2023

Mrs Tomkins returned to the Memory Clinic on the 26th June, 2023 with her daughter, Diana and her son, Nigel. You maybe aware that there is some family tension about her care. > > I thought she looked very frail, although her weight is steady at 50kg. She had difficulty working out how to get into the consulting room and to sit down in the chair_ > > However, she is still living in her own home with carers assisting her. > > Her son, Nigel, said that Mrs Tomkins is able to go for walks, participates with the family in meals when she is staying with them and generally feels that she is managing. Mrs Tomkins said that she is content with the present situation and does not want to go to a nursing home. > > All three of the children have an Enduring Power of Attorney, apparently to act jointly i.e. all three have to sign. I do not understand how her funds are being accessed if all three Enduring Power of Attorneys are required for this. > > As noted in my last letter, I recommended that she move to residential age care and I repeated this to Diana and Nige. I think there are concerns about the appropriate use of her funds and there is nobody there at night and she has already had on unwitnessed fall resulting in presentation to The Prince Charles Hospital.

Circumstances that did not make their full impact until on or after the census date

1. Ms Tomkins contended that her circumstances did not make their full impact until after the census date as her mother's situation deteriorated after a fall and administration to Redcliffe Hospital on 6 June 2024 and a subsequent admission to the Royal Brisbane Hospital on 15 June 2024 for complications associated with her Alzheimer's disease.
2. Ms Tomkins relied on the letter from Dr Peter Gibling, General Practitioner, dated 3 October 2024:

She is under a lot of stress with her Mother's deteriorating dementure and she feels she needs to be here while her mum transitions into nursing home care. Please give consideration to deferment without penalty so as not to add to her stress load.

Circumstances that make it impracticable for the person to complete the requirements

1. Ms Tomkins submitted it was her mother's deteriorating health in 2024 which necessitated her return to Brisbane around September 2024 which made it impracticable for her to complete the requirements of the units.
2. In her written submission to the Tribunal Ms Tomkins submitted:
   • In 2022 I had passed all rotations and placements except small animals which included passing surgical skills but not specialist surgery. I have also shown that I am competent with my sterile techniques and surgical skills as I carried out successful spay & neuter surgery on live animals, not cadavers as I was threatened with T23A. Perhaps the surgical tutor never got the memo or knew that I was in fact competent in this area.
   • I consider that this demonstrates that I am capable of meeting the inherent requirements of the degree including the cognitive, physical and emotional attributes but perhaps not to commit to the course at this time.
   • "The student has indicated that their circumstances made full impact on 01/11/2022" and I had to return home before sitting my final exams. Chained subjects generally mean that students have to pass all rotations and exams in the same period or repeat the whole year. "The student had already failed the small animal identified element precluding her from completing the degree even had she passed the written examinations". If I had been told this, then I would have saved myself considerable time, trouble, anxiety and money by not returning to sit my exams on 6th March 2023. However, I was advised by the subject co-ordinator that if I passed the exams, then I could just repeat the small animal module the following year. Unfortunately, I did not pass the deferred exams on 6th March 2023.
   • I was not in my 10th year of Vet Science. It was 8 years to 2022 then I had all of 2023 off and my return in 2024 equals 9 years. A few years ago, another student (whom I met during my time at JCU) did take 10 years and she also said that "they kept failing me!"
   • I do not believe that JCU Vet takes student welfare seriously.
   • There was no such support or feedback sessions. "We have implemented a great degree of support for Diana over the attempts at year 5, which include weekly/shift based feedback". "After many many times encouraging Diana to go to accessibility, she has finally gone recently and developed an access plan". I went to accessibility of my own volition on 18/06/2024 but there was no plan that could be made only adjustments for final exams (emails attached). We have set up multiple feedback meetings that Diana has not shown up to or elected not to attend. I genuinely forgot about one meeting and the others were at very awkward times for students to attend when we were mostly doing consults. They also summoned me one time when we were on a 2 week break which I politely declined. There is no point at all in me attending such meetings which are not supportive, do not tell me anything I already know and take 3 academic staff to tell me that I was a complete failure! Staff seem to forget that the rules have made it very clear that if students miss any of their time in rotations for sickness, medical appointments, meetings etc they are to make it up. "A student who misses part or all of a module or elective due to illness or any other reason must present medical or counselling certification, or a statutory declaration as appropriate, to the Rotation Supervisor or Fifth Year Coordinator at the earliest possible opportunity. The student will be required to undertake appropriate catch-up time for that learning experience, as determined by the Module Coordinator. If the equivalent of 10 or more working days are missed for any reason, there will be insufficient opportunity remaining to provide an adequate learning experience and the student will be required to repeat Fifth Year or the affected Module" (assessment details). I don't know when we are supposed to do this especially when we were there from 7.30 AM to 7.30 PM some days. "We have a one on one student support officer at the veterinary clinic that has completed many hours of support planning with Diana". This is also incorrect and I never completed many hours of support planning with the support officer as I did not have many hours of spare time for the same reasons as explained above.
   • I took a leave of absence in 2023 and towards the end of that year and early 2024 further attempts were made to find my Mother a place in Residential Care and which required me to be in Brisbane and make further phone calls and visits to potential Care Homes - but without any success. However, I was also very concerned about finishing my studies and since we now had regular carers looking after Mum and one of my brothers overseeing her care it seemed possible that I could return to JCU which I did in 2024.
   • I attended the compulsory Orientation Week in Townsville from 22nd January 2024 but it was cancelled after 2 days due to Cyclone Kirrily. After I returned to Brisbane I undertook placements from 29th January to 8th March 2024. However, due to my other commitments and need to arrange accommodation in Townsville (which was not needed until after the Malanda rotation was completed and for which only temporary accommodation could then be found due to the housing shortage), make arrangements for somebody to look after my house and affairs in Brisbane, I did not adequately investigate them all and 2 of the 4 placements were very disappointing - as they were with me apparently! I then returned to JCU at Malanda on16th March 2024 but unfortunately without a car, as some problems with the radiator had developed and the mechanic insisted that I should not drive it anywhere outside of Brisbane unless it was repaired (which was going to take some weeks and cost $thousands) or replaced. This made life difficult getting to and during the Malanda rotation and then getting to and around Townsville.
   • This time, I did not pass the Malanda rotation but passed radiography, pharmacology, pathology etc. However, at this stage I felt that remediation could address these shortcomings. I was also very upset by the lack of empathy and compassion shown towards the animals by some of the staff and students at Malanda e.g. bobby calves. As stated in my previous application, I became quite stressed and disillusioned in the last year of the degree. The Australian Veterinary Association (AVA) has been saying for some time that the veterinary curriculum needs overhauling as it does not adequately meet student's or employer's needs or public expectations. These issues along with trying to address the welfare of my Mother added to my reduced "performance".
   • I then completed the ECC rotation at JCU VETCH which I had already passed in 2022 at an emergency/specialist vet in Brisbane. During this time all students got feedback from the supervising vets that they worked with and I had no concerns with the emails I received. One indicated that I needed to show that I understood blood gases and fluid therapy (as I had not had the opportunity to do this on previous shifts) and I made a point of going through these procedures with the vet on my next night shift by staying on till 3 AM. I have previously worked in pathology laboratories and the supervising vet was happy with my performance and understanding in this area. I was then quite shocked and couldn't believe that I would also have to have remediation for ECC.
   • The next rotation was Specialist Surgery and for which I received no real feedback during the rotation (only a few verbal comments here and there during consults which were both positive and negative and that we all expected) but again at the end of the rotation I was told that I would have to have remediation. I was again very upset and demoralized.
   • After this was the anaesthesia rotation which started off well with a very pleasant, new staff member who explained things very well and appeared to genuinely like students but unfortunately left after the first week. After this, some aspects went well such as my ability to write up anaesthetic plans, skills such as intubation and catheterisation but others such as my ability to troubleshoot the monitoring equipment did not go so well as it does require some practice. Again, I was required to attend remediation and was even further demoralized.
   • Some staff are very pleasant, supportive and encouraging when students have felt like giving up by reminding students that they were good enough to be accepted into veterinary science and that they have progressed this far. However, other staff belittle students and make them feel inferior/stupid regardless of anything good that they have done and asking for help is frowned upon. I certainly did not, not notice or ignore an animal that had a drop in blood pressure or heart rate but called for assistance for which I was berated, belittled and failed. Staff are meant to support students especially when there is a lack of confidence on the student's part. One afternoon I walked home with a fellow student who was crying her eyes out and shaking all the way back to the accommodation and she also said such things. Skills development in the veterinary profession can take time. That is why human and veterinary doctors refer to the job as "practicing medicine/surgery" or that they have a "veterinary or medical practice".
   • At the end of these rotations, I was extremely tired, very upset, demoralized and felt that I was doomed and needed to have a couple of days off which were granted by the GP.
   • Added to this, after I had finally secured more permanent accommodation in Townsville, suddenly at around 2 AM one morning there was a problem with the smoke alarms which continually went off every 20 minutes. The next morning a technician finally came to the house and pulled them all down as they couldn't be fixed and needed upgrading. I have been told by one of the other residents that to this day, the smoke alarms have not been replaced.
   • Since my Mother's health had significantly declined and everything else had been going from bad to worse so far in 2024, it was pointless continuing and I returned home to Brisbane.
   • Since returning to JCU in 2024 I had been unable to concentrate effectively on my studies and carry out tasks associated with my progression in my final year due to reports of problems at home and spending considerable time discussing/dealing with issues with medical staff, carers and family members.
   • I then put in another Application for Withdrawal without Penalty on 26th September 2024 for the 2 units in 2024 that I would have to obviously repeat. In this regard, even if I had passed TV5211, I would still need to repeat it due to the rules of chained subjects.
3. In Summary Ms Tomkins contended in her written submission:

Since my Mother's health had significantly declined and everything else had been going from bad to worse so far in 2024, it was pointless continuing and I returned home to Brisbane > > I then put in another Application for Withdrawal without Penalty on 26th September 2024 for the 2 units in 2024 that I would have to obviously repeat. In ths regard, even if I had passed TV5211, I would still need to repeat it due to the rules of chained subjects. > > I believe that the above:- > > (a) were beyond my control; and > > (b) did not make their full impact until on or after the census date of 22nd February 2024 for the unit of study (TV5211); and > > (c) made it impracticable for me to complete the requirements for the unit (TV5211) during the period during which I undertook the unit. > > The only option for me now is to return and complete the whole of 5th year including rotations and end of year exams. I do not want to take an exit degree. I already have a science degree and do not want another nor am I after just any job that requires a science degree. I am now hoping that at this stage of my life I can do a job that I am passionate about i.e. animal welfare and am not interested in financial incentives, nor do I especially want to work in a private money oriented suburban practice. I am hoping to work in animal refuges where the need for all species is greatest with perhaps some paid but also volunteer work such as spay & neuter clinics, rehabilitation and public education both in Australia and overseas where I have seen for myself the consequences of the lack of veterinary care for animals.

1. The Respondent contended that the Tribunal could not be satisfied that special circumstances applied to Ms Tomkins as she had not met all the conditions set out in section 97.30(1) of the Act.
2. The Respondent contended the Tribunal should set aside JCU's decision of 17 January 2025 and substitute it with a decision in terms of the original decision dated 8 November 2024.

1. The Respondent submitted that Ms Tomkins's claimed 'special circumstances' were best described as family circumstances. The Respondent submitted Ms Tomkins's claimed:
   • that it has been difficult to keep up with her studies since she took a leave of absence to care for her mother in 2023, after her mother had a bad fall and during the initial stage of her dementia diagnosis.
   • that her mother's dementia has continued to decline and that her mother has experienced falls, gall stones, hospitalisation due to COVID and now requires sedation at home due to behavioural issues.
   • that her mother's two hospitalisations in June 2024 were of considerable concern to her and that the second hospitalisation on 15 June 2024 was when these circumstances made their full impact on her.

1. The Respondent accepted Ms Tomkins met the criteria under section 97.30(1)(a) of the Act as her family circumstances were beyond her control as they were not due to action or inaction on her part, and she was not responsible for those circumstances.

(a) was aware of her mother's health issues as she had previously submitted a remission application in respect of units, she undertook in 2022 in which she claimed that she was impacted by her mother's health issues associated with her dementia and was absent from JCU during 2023 while she was caring for her mother and

(b) had provided no evidence to demonstrate that her mother's health issues changed in any way during Trimester 1 of 2024.

1. The Respondent contended Ms Tomkins family circumstances were not 'unusual, uncommon or abnormal.'

1. The Respondent submitted that while Ms Tomkins's was aware of her mother's health issues since at least July 2022, they accepted the evidence demonstrates an escalation in her mother's health issues in June 2024 resulting in her being hospitalised on two separate occasions.
2. The Respondent accepted that these situations were beyond Ms Tomkins's control as they were unusual, uncommon or abnormal.

Circumstances that did not make their full impact until on or after the census date

1. The Respondent submitted the census date for Ms Tomkins subject in Trimester 1 of 2024 at JCU was 22 February 2024.
2. The Respondent submitted the evidence demonstrated Ms Tomkins family circumstances have been ongoing since at least November 2022 and there is no evidence to demonstrate that they changed in any way during Trimester 1 of 2024.
3. The Respondent contended on the evidence before the Tribunal it should find for the purpose of section 97.30(1)(b) of the Act that the full impact of Ms Tomkins's special circumstances occurred before the census date.

1. The Respondent submitted the census date for Ms Tomkins subject in Trimester 2 of 2024 at JCU was 13 June 2024.
2. The Respondent submitted while the evidence demonstrated Ms Tomkins family circumstances have been ongoing since at least November 2022, accepted there was evidence to demonstrate Ms Tomkins's mother's health deteriorated in June 2024. The Respondent accepted Ms Tomkins's mother was admitted to

(a) Redcliffe Hospital on 6 June 2024 with a COVID 19 diagnosis and discharged on14 June 2024 and

(b) Royal Brisbane Women's Hospital on 15 June 2024 with a diagnosis of delirium and discharged on 24 June 2024.

1. The Respondent accepted on the evidence before the Tribunal it should find for the purpose of section 97.30(1)(b) of the Act that the full impact of Ms Tomkins's special circumstances occurred after the census date in Trimester 2.

Circumstances that make it impracticable for the person to complete the requirements

1. The Respondent submitted the Tribunal could not be satisfied that Ms Tomkins's circumstances made it impracticable for her to complete the requirements for the units of study during the period which she undertook them.
2. The Respondent referred the Tribunal to matter of Zabaneh and Secretary, Department of Education and Training [2016] AATA 569, where the AAT found at [45] that '"Impracticable" means "...not able to be done"' and that experiencing difficulty in completing the requirements will not satisfy this criterion. And the matter of Bow and Secretary, Department of Education [2020] AATA 114, where the AAT noted that the test for whether an Applicant's circumstances made it impracticable to complete the course of study in question is a high bar, and that a sufficient nexus was required between the Applicant's claimed circumstance and their inability to complete the unit in question.
3. The Respondent referred the Tribunal to further examples of the high threshold established in AAT's determination:

Ullah the AAT stated the following at [36] in relation to impracticability:

In my view none of the matters canvassed made it impracticable for Mr Ullah to continue his studies. Mr Ullah's problems with his studies certainly made it more difficult for him to succeed, but they did not make it impracticable to continue, and he acknowledged during the hearing that although internet access in his village was limited, it was not so limited as to make it impossible for him to continue his studies. His loss of employment when he left Pakistan no doubt reduced his income, but did not prevent him from studying. His wife's health, as noted above, did not, on the evidence available to me, change significantly after the census date and so there is no evidence that it had an impact on his ability to study.

Georgiou the AAT found the following at [20] in relation to impracticability:

I accept that the situation in early 2013 was unfortunate for the applicant and that she suffered from depression and anxiety in the early stages of undertaking her studies. However, while the available evidence may lead to a conclusion that it would be difficult for the applicant to complete the requirements of the Units, it is insufficient to establish that the circumstances were such that it was impractical for this to be done. I note that in the letter of Ms Malone she speaks of the applicant's cognitive difficulties and its impact on her decision-making capabilities; I give this evidence little weight as it is not contemporaneous to when the applicant allegedly withdrew from the Units, or the census date in 2013.

Trimester 1 of 2024 - TV5211 & Trimester 2 of 2024 - TV5212

1. The Respondent contended there was insufficient evidence for the Tribunal to be satisfied that it was Ms Tomkins family circumstances that made it impracticable for her to complete the requirements of TV5211 and TV5212.
2. The Respondent contended Ms Tomkins had failed to establish a causal connection between her claimed circumstances and her failure to complete the requirements of TV5211. The Respondent submitted the evidence clearly demonstrates that the exacerbation of her mother's health, evidenced by the two hospitalisations, occurred after the end of Trimester 1 of 2024. The Respondent referred to the matter of Ullah, where the AAT considered whether an applicant's circumstances, namely the ill-health of his wife and newborn daughter constituted special circumstances as defined in section 104-30 of the Act. The Respondent noted the AAT said in that matter the Applicant's wife's health did not "change significantly after the census date and so there is no evidence that it had an impact on his ability to study."
3. The Respondent contended that the Tribunal should take a similar approach in the present application - that is, there is no independent evidence to demonstrate that Ms Tomkins's mother's health changed significantly after the census date for TV5211, and that there is no evidence to demonstrate how this directly impacted her ability to study.
4. With respect to TV5212, the Respondent contended there was no evidence to demonstrate that Ms Tomkins was so severely impacted by her family circumstances that she was unable to complete the requirements of TV5212. The Respondent submitted while Ms Tomkins's circumstances may have presented challenges that affected her ability to study effectively, it did not mean she could not undertake her studies as the evidence demonstrated her brothers were providing care for their mother following her discharge from hospital and her mother eventually went back to her own home with support from carers.
5. Further, the Respondent contended that the evidence currently before the Tribunal does not support a finding that Ms Tomkins returned to Brisbane during Trimester 2 of 2024 to provide care for her mother, as the Review Decision found.
6. The Respondent submitted while Ms Tomkins referred to returning to Brisbane and feeling it was "better to spend time with [her mother] before her demise rather than to just rush back for her funeral", it is not clear when Ms Tomkins actually did return to Brisbane. Given Ms Tomkins:

(a) refers to "seriously considering" flying back to Brisbane after her mother's first hospitalisation in June 2024

(b) stated that after the second hospitalisation in June 2024, her mother "settled down sufficiently and went back to her own home with the carers coming in"

(c) reported to have attended all activities in Module 2 (TV5212) and only applied for one missed compulsory class on 23 - 24 July 2024

(d) referred to the circumstances with her mother's hospitalisation being beyond her control when she is in Townsville, which suggests that she was not in Brisbane when they occurred and

(e) medical evidence demonstrates that as of at least 8 October 2024 (which was after the end of the Trimester 2 teaching period) had returned to Brisbane as she was seen by a general practitioner in North Lakes, QLD.

1. The Respondent contended that Ms Tomkins had not provided substantive evidence or an adequate explanation as to how her family circumstances prevented her from being able to engage with or complete the requirements of TV5212, particularly in circumstances where she submitted all compulsory assessments up until 11 October 2024 and attended all activities in Module 2 (TV5212).
2. The Respondent contends that the real reason Ms Tomkins failed to meet the requirements of TV5211 and TV5212 was because she accumulated remediation greater than the maximum time allowed and was therefore awarded a fail grade.
3. The Respondent submitted TV5211, TV5212 and TV5213 are chained subjects for Year 5 of the Bachelor of Veterinary Science. Initially Ms Tomkins was awarded a "KU (continuing grade)" for TV5211, which is an interim result for a subject which forms part of a subject chain after undertaking TV5212 the Applicant had surpassed the threshold for failing clinical competencies and remediation requirements and therefore failed Year 5.
4. The Respondent submitted the Subject Outline for Veterinary Professional and Clinical Practice 1, 2, 3 (TV5211, TV5212, TV5213) states that:

To pass this subject, you must: > > • Complete each Module to a satisfactory standard, including any remediation or catch-up time required to achieve that standard (NB: Being awarded remediation does not guarantee that a student will automatically pass the remediation: the required standard must be achieved within the permitted and available timeframe for the student to pass). There is a maximim [sic] allowance for remediation within a rotation, and across combined rotations. Students accumulating remediation greater than the maximim [sic] time allowed will not be eligible to sit final examinations and will be awarded a Fail grade.

5. The Respondent submitted the Year 5 Handbook 2024 defines the maximum time permitted for remediation as follows:

If a student accumulates 15 days or more of total remediation, the student is considered to have failed the year and will be required to repeat Fifth Year in its entirety.

6. The Respondent submitted the evidence before the Tribunal demonstrates that Ms Tomkins was required to complete 58 days of remediation. The three remediation notices before the Tribunal identify that the Applicant:

(a) had non-competency in the following areas of day one competency: physical examination, case management, critical thinking, aseptic technique, surgical knowledge

(b) had suboptimal performance in client communication, history taking and integration, problem lists and differential diagnoses and was not yet competent with respect to critical thinking about cases and record keeping and

(c) was unable to meet day one competencies and overall fail of rotation.

1. The Respondent submitted Remediation was required in circumstances where Ms Tomkins had submitted all compulsory assessments up until 11 October 2024, attended all activities in TV5211 and TV5212 and was provided multiple opportunities for counselling around academic advice and avenues for withdrawal.
2. The Respondent contended the evidence before the Tribunal demonstrates that it was not Ms Tomkins family circumstances that made it impracticable for her to complete the requirements of TV5211 and TV5212, rather they contended Ms Tomkins failed to meet the course requirements as she accumulated remediation greater than the maximum time allowed and was therefore awarded a fail grade.

1. Pursuant to section 97.30 of the Act and Chapter 3 of the Guidelines, special circumstances only apply to a person where the circumstances are: beyond a person's control; and make their full impact on or after the census date; and make it impracticable for the person to complete the requirements for the unit of study during the relevant study period.
2. The conditions established in section 97.30 of the Act are cumulative, and all of those conditions must be met in order for the Tribunal to be satisfied that special circumstances apply.
3. The Tribunal found, based on the evidence, that Ms Tomkins withdrew from Unit TV5211 unit on 26 September 2024 after the census date of 22 February 2024 and withdrew from Unit TV5212 on 26 September 2024 after the census date of 13 June 2024. The Tribunal therefore finds that Ms Tomkins has a HECS-HELP debt.

Special circumstances/ Circumstances beyond a person's control

1. The Tribunal found on the evidence that Ms Tomkins mother's deteriorating health exacerbated by the complicating factor of the disputes with her brothers about placing her mother into residential care amounted to special circumstances. Sadly, it is a common situation many families now find themselves in struggling with the needs of their aging parents while also juggling the requirements of their own lives. In this regard the Tribunal considered Ms Tomkins situation was more complex than the average.
2. Whilst the Tribunal appreciated that Ms Tomkins's was aware of her mother's dementia, and that it would continue to deteriorate it also accepts the nature of the illness, the ability for family members to support a person's high care needs and the age care system's ability to provide appropriate support are not predicable and finds these numerous factors combined made Ms Tomkins's situation unusual, uncommon or abnormal.
3. The Tribunal found on the evidence that Ms Tomkins met the criteria under section 97.30(1)(a) of the Act as her family circumstances were beyond her control as they were not due to action or inaction on her part, and she was not responsible for those circumstances.

Circumstances that did not make their full impact until on or after the census date

1. The Tribunal appreciates that the nature of Ms Tomkins's course made the decision on when to withdraw from the course more complicated than the average student. Given the subjects are chained and a student cannot sit the final exams until after all modules have been completed to a satisfactory standard.
2. The Tribunal noted the JCU Subject outline for Veterinary Professional and Clinical Practice 1, 2, 3 subjects TV5211, TV5212, TV5213 outlines the completion requirements for the final year of the degree:

1.3 Subject description > > TV5211_5212_5213 is a chained subject for Year 5 of the Bachelor of Veterinary Science degree program. These subjects are intended to provide students in the final year of the degree with an extended immersion in all major aspects of veterinary practice and employment, including the opportunity for elective periods to facilitate additional focus in selected areas. This is accomplished by having students complete a series of three modules, through companion and production animal clinics, practices, laboratories and government agencies. > > 2.2 Requirements for successful completion of this subject > > To pass this subject, you must: > > • Complete each Module to a satisfactory standard, including any remediation or catch-up time required to achieve that standard (NB: Being awarded remediation does not guarantee that a student will automatically pass the remediation: the required standard must be achieved within the permitted and available timeframe for the student to pass). There is a maximim allowance for remediation within a rotation, and across combined rotations. Students accumulating remediation greater than the maximim time allowed will not be eligible to sit final examinations, and will be awarded a Fail grade. > > • Meet the requirements of professionalism as expected in the Veterinary Industry. Professionalism is a key requirement of being a veterinarian. Exemplary professional conduct upholds the dignity and the public trust vested in the veterinary profession (AVA Code of Conduct). Both the RCSV and AVBS have domains of day-one competencies, associated solely with professionalism. > > • Complete all Placement requirements > > • Attempt each on-course assessment item and achieve a minimum of 50% across combined assessment items within each module, with weightings applied > > Once the above requirements are successfully completed, you are eligible to sit end-of-year exams within the formal end-of-year examination period. If there are outstanding elements not completed to a satisfactory standard, the student must meet with the subject coordinator to develop a completion plan prior to examinations, or sit examinations in the next available TV5211_5212_5213 examination period.

1. The evidence before the Tribunal clearly indicates Ms Tomkins's commenced her studies in 2024 fully appraised of her mother's deteriorating health issues and her strained relationship with her brothers. The Tribunal notes it was for the very same special circumstances that Ms Tomkins sought to have her HECS- Help remitted for her enrolment in the same units in 2022.
2. The Tribunal notes Ms Tomkins had previously requested the remission of HECS-HELP debt and withdrawal without academic penalty for the following subjects:

• Subject: TV5211; EFTSL: 0.375; Census Date: 24 March 2022 > > • Subject: TV5212; EFTSL: 0.375; Census Date: 05 May 2022 > > • Subject: TV5213; EFTSL: 0.250; Census Date: 25 August 2022

3. In a letter dated 19 December 2023, the Remission and Refund Officer Student Services JCU outlined Ms Tomkins claimed special circumstances impacting during the academic year 2022.

Circumstance beyond a person's control > > In your student statement, you indicate that you have been dealing with a difficult time since early November 2022 to current. In November 2022 you had to urgently return back to Brisbane to be able to discharge your mum from the hospital as she had another fall. You needed to stay in Brisbane as your mother required full-time care as the family member who was helping prior to this incident could no longer help with the care of your mother. You attempted to keep up with your studies in preparation to sit your exam in April 2023, however, it has been a difficult few months dealing with the situation you were in on top of attending medical appointments, home visits for physio, Centrelink appointments, and visits from care facilities for your mum. Due to this, you found it difficult to focus and continue with sufficient study and unfortunately, you were unsuccessful in your exam. These circumstances would be considered beyond your control. > > Circumstance that did not make their full impact until on, or after the census date > > The Medical report from Dr Catherine Yelland on 30/03/2023 notes that you are still living with your mum to help care for her. Dr Yelland mentions that your mum has clearly declined since she last sore her in November. She notes that your mum is looking quite frail and still has a cough. > > The medical letter from Dr Peter Gibling on 09/10/2023 confirms that he has been treating your month and that you have been a live-in carer since she was discharged from the hospital on 11/11/2022. Dr Gibling notes that her dementia has worsened considerably in the time you have been her primary carer up until the end of April 2023 which he believes is a full-time commitment and notes it would make even part-time study almost impossible.

4. In a letter dated 24 March 2024, the Director Student Services JCU affirmed Ms Tomkins had not fulfilled the requirements to have her HECS-HELP debt remitted for her 2022 units, advising:

Circumstance that made it impracticable for the person to complete the requirements > > While we sympathise with your circumstances related to your mother's ill health, your brother moving to the United States and difficulties you faced with remote learning, when considering whether your circumstances made it impracticable to complete your subject requirements, attention is given to the progressive requirements of your subjects. Following consultation with the College of Public Health, Medical and Vet Sciences, it was determined that you had not met the progressive assessment requirements of your subjects at the date you advised your circumstances made full impact - 01November 2022. You mentioned in your review application that you had not missed any classes, this is confirmed by the College however it has been advised that you were aware at the time of deferring your end of year examinations that as you had failed one of the core modules of 5th year Veterinary Science, this would mean you would be required to repeat the module even if you passed your theory examinations. > > Outcome > > As the University's Director, Student Services, I acknowledge the seriousness of the circumstances you have described. Based on my findings above and a review of the decision of JCU's Remission and Refund Officer, I confirm you have not satisfied the above criteria for a withdrawal from the above subjects without financial and academic penalty. Thus, I confirm you remain financially liable for the subject fees of these subjects and your academic results remain.

5. The Tribunal found the evidence clearly demonstrated Ms Tomkins's complex situation was well known to her when she enrolled for her final year in 2024. Indeed, Ms Tomkins's own evidence to the Tribunal had been she was conflicted about returning to complete the final year of her course while her mother was still being cared for at home and found it extremely difficult to concentrate on her studies. There was no evidence before the Tribunal which indicated there was a change in her circumstance during Trimester 1 of 2024.

1. The Tribunal accepts on the evidence that Ms Tomkins's mother's health significantly deteriorated on 6 June 2024 with an admission to Redcliffe Hospital with Covid 19. The Tribunal further accepts this resulted in her mother's overall health significantly declining resulting in an admission to Royal Brisbane and Women's Hospital on 15 June 2024.
2. The Tribunal finds that Ms Tomkins's mother health seriously decline after the census date of 13 June 2024.
3. The Tribunal accepts on the evidence Ms Tomkins made the decision to return to Brisbane around September 2024 to take on the full time care of her mother and to undertake all the requirements to place her mother into permanent residential age care. The Tribunal therefore finds Ms Tomkins's special circumstance did not make their full impact until after the census date for Trimester 2.

Circumstances that make it impracticable for the person to complete the requirements

1. The Tribunal found there was no evidence to indicate Ms Tomkins's special circumstances made it impracticable to complete the requirements of Trimester 1. Indeed, Ms Tomkins's was initially awarded a "KU (continuing grade)" for TV5211, as an interim result as it formed part of a subject chain.
2. The Tribunal while sympathising with Ms Tomkins's grievance about the nature of the course meant she did not seek to withdraw until it was obvious she could not go on with studying in Townsville and caring for her mother in Brisbane. It was not sufficient to demonstrate the significant decline in her mother's health, which occurred in June 2024, after the end of Trimester 1 of 2024 made it impracticable to complete the unit.
3. The Tribunal found on the evidence it was not Ms Tomkins special circumstances which made it impracticable for her to complete the requirements of TV5211.

1. The Tribunal does not concur with the Respondent contention that Ms Tomkins's was not so severely impacted by her family circumstances that she was unable to complete the requirements of TV5212. The Tribunal also did not concur with the Respondent contention that Ms Tomkins was not prevented from being able to engage with or complete the requirements of TV5212 because of her special circumstances.
2. The Tribunal accepts that a high bar has been set in respect of the test of circumstances that make it impracticable for the person to complete the requirements of an enrolled course. That the test has established that it must be impracticable, not merely difficult, to complete the requirements of the units.
3. The Tribunal noting the guidance provided in the matters of Zabaneh and Georgiou accepted Ms Tomkins's circumstances were such that she was not able to complete the requirements of Trimester 2 unit. The meaning of the word 'impracticable' was discussed in Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 ('Zabaneh') at [45], as follows:

As unfortunate as it is that Mr Zabaneh does not enjoy good health and that his parents have died, we are not satisfied that his circumstances were such that it was impracticable for him to complete the requirements of each unit within the relevant semester as required by s 104-30(c).27 "Impracticable" means "not able to be done" [Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers]. On the evidence, it might have been difficult for him to do so but the circumstances on which Mr Zabaheh relies were not such that completion of the requirements of the four units of study was not able to be done.

4. The Tribunal concurred with the original findings of JCU that Ms Tomkins's special circumstances made it impracticable for her to complete the units. The Tribunal accepts that the exacerbation of her mother's deteriorating health and the complicated family dynamics were so overwhelming she was unable to pay full attention to the requirements of her studies. Further the requirement for Ms Tomkins's to return to Brisbane to care for her mother made it impracticable for her to undertake the necessary remediation or catch-up time required to achieve the standard required.
5. The Tribunal found on the evidence Ms Tomkins had successfully completed units in the pass, had successfully fulfilled the requirements of several competencies and had attempted to engage in discussion with the JCU in respect of her academic performance.
6. The Tribunal found on the evidence Ms Tomkins special circumstances made it impracticable for her to complete the requirements of TV5212.