Fee Remission under “Special Circumstances”: What the AAT Cases Really Says

Fee Remission under “Special Circumstances”: What the Case Law Really Says

If you’re asking a university or the Department of Education to wipe a HELP or VET FEE‑HELP debt under “special circumstances”, you’re stepping into a very technical area of law. The words sound sympathetic – special, beyond your control – but the cases show the test is strict and evidence‑heavy.

This post walks through how the test works, and what historical Administrative Appeals Tribunal (AAT) decisions tell us about which applications succeed and which fail.

1. The legal test for “special circumstances”

For most HECS‑HELP, FEE‑HELP and VET FEE‑HELP debts, the legislation uses essentially the same three‑limb test.

For HECS‑HELP (pre‑2020), s 36‑20 and s 36‑21 of the Higher Education Support Act 2003 (Cth) require the provider (on the Secretary’s behalf) to be satisfied that:

1. The circumstances were beyond your control;

2. They did not make their full impact on you until on or after the census date; and

3. They made it impracticable for you to complete the requirements of the unit in the relevant study period.

For units with census dates after 1 January 2020, the same test appears in the re‑credit provisions in ss 97‑25 and 97‑30.

For VET FEE‑HELP (old scheme), the same three “special circumstances” limbs appear in cl 48 of Sch 1A, combined with a separate 12‑month application deadline in cl 49.

The Higher Education Support (Administration) Guidelines spell out what those terms mean in practice, and the AAT treats them as a “substitute regime” that must be followed.

Key points from the Guidelines:

• Beyond your control – not caused by your action or inaction, and “unusual, uncommon or abnormal”.

• Full impact after census – the situation either worsened after census, the full effect only became apparent then, or it occurred on/after census.

• Impracticable – not just difficult or unlikely; it must be “not able to be done” in the relevant period (this phrase is repeatedly adopted by the AAT).

2. Time limits and the “not possible” test

On top of the special‑circumstances test, there’s a hard 12‑month clock:

• For HECS‑HELP remission: 12 months from the withdrawal date or end of the unit’s teaching period.

• For VET FEE‑HELP: 12 months from the withdrawal date (if you withdrew) or end of the unit’s teaching period.

The provider can waive that deadline – but only if it “would not be, or was not, possible” for you to apply in time. The AAT has said repeatedly that “not possible” means a very serious constraint on your ability to act, not just that it was hard, stressful or you didn’t realise.

This is where many otherwise sympathetic cases fail.

3. What the Tribunal actually does with real students

(a) GMFV – juggling sick children, break‑ins, accidents and study

In GMFV and Secretary, Department of Education and Training [2019] AATA 701, the student was in a Diploma of Counselling with VET FEE‑HELP funding. She faced:

• A child with recurrent ear infections and multiple surgeries;

• Serious bullying of another child, leading to home‑schooling;

• A house break‑in and car theft;

• A later car accident involving her husband;

• Her own series of injuries and health issues.

She applied more than 12 months late for a re‑credit of her 2016 units and also argued “special circumstances” for 2017 units.

The Tribunal accepted that her life was objectively very stressful – but:

• She had still withdrawn from the course, opted in to grandfathering, re‑enrolled, sought extensions, dealt with insurers, managed medical and school admin and home‑school registration during the same period when she said she couldn’t lodge a re‑credit application.

• That showed it was possible to apply in time – she chose not to or prioritised other things. So the 12‑month deadline couldn’t be waived.

• For the later units, the Tribunal also found that the children’s health issues and bullying were already present before the relevant census dates and had not been shown to make completion impracticable within the meaning of the Act.

Take‑away: High personal stress and caring responsibilities, without clear evidence that you were actually unable to apply or complete study requirements, won’t satisfy either the time‑limit or “impracticable” tests.

(b) Currie – mental health issues but still passing some units

In Currie and Secretary, Department of Education and Training [2017] AATA 1431, Mr Currie sought remission of debts for two failed units in a Graduate Diploma of Science. He relied on serious family and mental health issues.

However, in the same semester he:

• Failed to complete assessments and failed two units; but

• Completed all work and achieved high distinctions in the other two units.

The Tribunal:

• Adopted the approach that “impracticable” means “not able to be done”, not just difficult or unlikely.

• Held that being able to excel in other units showed it was possible to meet assessment requirements, even with his difficulties.

Take‑away: If you pass (especially with good marks) in other units during the same period, the AAT often treats this as strong evidence that it wasn’t “impracticable” to complete the failed ones.

(c) Killen – serious back injury and partial success

In Killen and Secretary, Department of Education and Training [2018] AATA 774, a highly experienced special‑education teacher studied a Master of Education part‑time. She had a serious, longstanding back injury that flared badly in the semester in question.

She:

• Enrolled in three units, withdrew from one before census without penalty;

• Passed one unit (despite late penalties);

• Failed the contested unit after obtaining an extension to 31 December.

The Tribunal found:

• Her back condition was beyond her control, and it worsened after census – limbs (a) and (b) satisfied.

• But it was not “impracticable” for her to complete the unit: she continued working, completed another unit, gathered extensive research and even produced a draft for the failed unit. She herself thought she still “might be able to do it” right up to mid‑December.

Quoting Zabaneh, the Tribunal emphasised that “impracticable” means “not able to be done” – a higher bar than “very difficult”.

Take‑away: Even where the Tribunal accepts medical circumstances and worsening after census, you still must show that completing the unit was effectively impossible, not just extremely hard – and partial success in other units undercuts that argument.

(d) Binns – childhood cancer, GAD and years of fails

In Binns and Secretary, Department of Education [2023] AATA 2988, the applicant survived childhood leukaemia but was left with:

• Avascular necrosis in both knees (pain and fatigue);

• Brain fog and cognitive issues;

• Later, diagnosed generalised anxiety disorder (GAD) and a 2020 suicide attempt;

• Long‑term psychological treatment.

He sought remission/re‑credit for 15 units failed across 2017–2020, but did not apply until 2022 – well outside the 12‑month periods.

The Tribunal accepted that he had genuine, serious long‑term conditions. However:

• Across the same years he also passed many units, including credits, distinctions and a high distinction, and even did an overseas study trip to Hong Kong.

• He repeatedly managed the online enrolment system, withdrew from units, negotiated disability support and later completed outstanding units with assistance.

• On that evidence, the Tribunal concluded he hadn’t shown it was impossible to apply in time; rather, his GAD manifested in avoidance and prioritisation, but not a total inability to act.

The Tribunal also emphasised that the Administration Guidelines 2022 must be complied with and that “special circumstances” remains a high bar.

Take‑away: Serious mental health conditions can in principle be “special circumstances”, but the Tribunal wants:

• Clear medical evidence tied to the specific study periods; and

• A convincing explanation of why you could not complete or apply, given everything else you did manage to do.

(e) PVQQ – cannabis‑induced psychosis and a very long delay

In PVQQ and Secretary, Department of Education [2019] AATA 659, the student had significant mental health issues including cannabis‑induced psychosis, multiple hospital admissions and a psychiatrist’s diagnosis of a psychotic disorder with likely schizophrenia.

She applied for remission of multiple HECS‑HELP debts years out of time, and then applied to the AAT for review more than three years after the university’s review officer decision. The Tribunal had to decide whether to grant an extension of time.

Applying the classic Hunter Valley factors for extensions, the Tribunal noted:

• The delay was “extraordinary”;

• The AAT fee could have been reduced or waived for hardship;

• Medical evidence clearly supported serious mental illness in 2012–2013, but there was little evidence about her condition during the later years when she could have lodged the AAT application.

The extension of time was refused.

Take‑away: Even with a genuine psychotic illness, an extension of time is not automatic. You still need medical evidence covering the period of delay and explaining why you couldn’t file sooner.

4. Common themes from the case law

Looking across these cases, a few patterns emerge:

a. The Tribunal looks at what you did manage to do

If during the same period you:

• Passed some units;

• Travelled for study;

• Continued working;

• Navigated enrolment, withdrawal and extension processes;

• Dealt with insurers, Centrelink, schools, or other complex admin, the Tribunal will often say: “You were clearly able to complete tasks of similar complexity – so it wasn’t impracticable to complete your studies or apply in time.”

b. “Impracticable” is not the same as “very stressful”

Consistently, the AAT reads “impracticable” as “not able to be done” – not “unwise”, “undesirable” or “very difficult”.

That’s why:

• Serious back pain wasn’t enough in Killen;

• Significant family and mental health issues weren’t enough in Currie;

• A mix of caring duties, crime, accidents and health issues weren’t enough in GMFV.

c. Timing and evidence must line up

The Tribunal expects:

• Medical or other reports that clearly identify diagnosis, severity, and functional impact;

• Evidence covering the specific semester(s) and, where relevant, the 12‑month application window;

• A coherent explanation of why you didn’t apply earlier, not just why the situation was hard.

d. “I didn’t know about remission” is usually not enough

The AAT repeatedly treats a lack of understanding of HELP rules, or discovering your debt years later on your ATO account, as not being “special circumstances”. That is expressly backed by the VET FEE‑HELP policies and is clear from decisions like GMFV and others.

5. Practical tips if you’re thinking about a remission or re‑credit

Every case is different, but the Tribunal’s approach suggests some practical steps:

1. Apply as soon as you can

   • Treat the 12‑month period as a hard deadline. If you’re already outside it, you’ll need to prove it was not possible to apply earlier, not just that it was difficult or you didn’t know.

2. Collect targeted evidence

   • Ask your doctor/psychologist to address:

     • Diagnosis and symptoms;

     • How those symptoms affected study and admin tasks (concentration, memory, ability to fill forms, meet deadlines);

     • The dates they believe you were unable to study or manage applications.

3. Explain the contradictions

   • If you passed some units or were working, front up to that and explain why those successes don’t mean you could reasonably complete the failed units or apply on time (for example, group‑based vs individual work, or support structures that weren’t present for the failed units).

4. Be precise about the timeline

   • Link specific events (hospital admission, relapse, family crisis) to census dates, assessment deadlines and the 12‑month period.

5. Be realistic about your prospects

   • The case law shows that sympathetic personal circumstances do not always meet the legal test. Understanding that upfront can help you decide how much time and energy to invest, and whether to seek specialist assistance.

Important disclaimer (please read!)

This blog post is general information and academic discussion only about how Australian tribunals have applied the “special circumstances” test in student loan and fee remission cases. It is not legal advice and must not be relied on as a substitute for advice about your own situation.

If you are considering a remission or re‑credit application, or an appeal to the AAT, you should obtain independent legal advice or specialist assistance tailored to your circumstances and deadlines.

If you are applying for fee remission under special circumstances, you are more than welcome to Contact Us directly to consult about our service on such Late Withdrawal Application.