ANTHONY DE BIJL and SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, SCIENCE, RESEARCH AND TERTIARY EDUCATION
[2012] AATA 264
•27 April 2012
[2012] AATA 264
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number | 2011/5202 |
| Re | ANTHONY DE BIJL |
| APPLICANT | |
| And | SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, SCIENCE, RESEARCH AND TERTIARY EDUCATION |
| RESPONDENT |
DECISION
| Tribunal | G. D. Friedman, Senior Member |
| Date | 27 April 2012 |
| Date of written reasons | 4 May 2012 |
| Place | Melbourne |
The Tribunal refuses the application for an extension of time.
......................[sgd].....................................
G. D. Friedman, Senior Member
HIGHER EDUCATION – extension of time to lodge application for review – exercise of discretion.
Administrative Appeals Tribunal Act 1975 s 29(7)
Defence Reserve Service (Protection) Act 2001
Higher Education Support Act 2003 s 79
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
G. D. Friedman, Senior Member
`
4 May 2012
On 10 August 2011 RMIT University (RMIT) rejected Mr de Bijl’s request for remission/re-credit of the HECS–HELP debt/Student Loans Entitlement (SLE) (the debt) accrued in Semester 1 2009 after he withdrew from subjects in which he had been enrolled. Mr de Bijl requested an internal review of that decision and on 5 October 2011 RMIT affirmed the decision.
On 5 December 2011 Mr de Bijl lodged an application with the Tribunal which was outside the 28 day time limit.
ISSUE
The issue before the Tribunal is whether to grant Mr de Bijl an extension of time to lodge his application for review.
RELEVANT LEGISLATION AND PRINCIPLES
Section 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) states:
The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
In determining applications for extensions of time, the Tribunal has been guided by the principles listed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. He stated at [18]:
… The 'prescribed period' of 28 days is not to be ignored … Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained … It is a pre-condition to the exercise of the discretion in his favour that the application of an extension of time show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time.
His Honour set out another five principles:
whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as having been finalised;
any prejudice to the respondent or any other party;
the absence of such prejudice is insufficient to justify the grant of an extension and any wider prejudice to the general public in terms of disruption to established practices or the unsettling of other people;
the merits of the substantive application;
considerations of fairness between the applicant and other people in a similar position are relevant to the exercise of the discretion.
The legislation under which the decision under review was made is the Higher Education Support Act 2003 (the Act). Chapter 3, Part 3-1, Division 79 of the Act outlines the circumstances in which a HECS-HELP debt/SLE can be re-credited. Section 79 stipulates that the relevant higher education provider must re-credit a person’s HECS-HELP debt/SLE if the person meets the criteria outlined in the section. Section 79-10 provides that:
...the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.
Section 79-1 (e)(ii) of the Act does provide for an extension of the application period:
The provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.
Section 61 of the Student Learning Entitlement Guidelines states that a …lack of knowledge of how HECS-HELP works is not considered beyond a person’s control.
CONSIDERATION
EXPLANATION FOR THE DELAY
Mr de Bijl told the Tribunal that he had lodged his application for review with the Tribunal on 13 October 2011, which is within 28 days of the reviewable decision dated 5 October 2011 and had contacted the Tribunal within the time limit to discuss his application. He claimed that the application had been sent via registered post, although he was unable to produce evidence to support this claim and there is no reference in the Tribunal’s records of any discussion with Mr de Bijl at the time he claims.
Mr de Bijl explained that any delay was caused by an injury he had suffered to his Achilles tendon, and medical treatment that his son was undertaking.
The Tribunal accepts that Mr de Bijl suffered an injury to his Achilles tendon in June 2011 but there is no persuasive medical evidence that this injury prevented him from lodging his application to the Tribunal within the prescribed time. Similarly, the Tribunal accepts that his son required ongoing medical treatment from the time of his birth in July 2010, but Mr de Bijl has not shown that this treatment prevented him from lodging his application for review within the time limit.
The Tribunal records are somewhat unclear regarding initial contact with Mr de Bijl, so the Tribunal concludes that the explanation for delay neither assists nor hinders his application for an extension of time.
WHETHER THE APPLICANT HAS RESTED ON HIS RIGHTS
There is no material before the Tribunal to suggest that Mr de Bijl made known to RMIT that he was seeking a review of the decision, although his evidence that he lodged an application with the Tribunal on 13 October 2011 is consistent with his earlier correspondence with RMIT and his claim that the reviewable decision was incorrect. The Tribunal finds that this factor has minimal significance in determining his application for an extension of time.
PREJUDICE TO OTHER PARTIES
There is little evidence to suggest that the respondent would suffer significant prejudice if an extension of time is granted and the Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.
WIDER PUBLIC CONSIDERATIONS
Time limits for review of administrative action should be observed in order to assist the proper administration of government agencies. There is also a public expectation that there be a degree of certainty relating to time limits. However, as the application to the Tribunal was lodged about one month after the due date, and there is some uncertainty about initial contact with Mr de Bijl, the Tribunal finds that this factor has minimal significance in determining his application for an extension of time.
MERITS OF THE SUBSTANTIVE APPLICATION
Mr de Bijl agreed that his application for remission/re-credit of the debt was received by RMIT on 5 July 2011; more than 24 months after the study period for the relevant courses ended on 26 June 2009, and well outside the 12-month period provided for in the Act.
He told the Tribunal that the prescribed 12-month time limit should be waived. He explained that he was unaware of his entitlement to apply for remission/re-credit of the debt, and that none of his lecturers had alerted him to this possibility. However, the Tribunal is satisfied that information relating to a student’s rights and responsibilities is contained in RMIT literature and on its website. The Tribunal finds that Mr de Bijl’s ignorance of his right to apply for remission/re-credit of the debt is no excuse for lodging his application to RMIT outside the 12-month time limit.
Mr de Bijl told the Tribunal that during the 12-month application period, commencing on 26 June 2009, he was a member of the Australian Army Reserve and was deployed full-time at various times including the period from May 2009 to July 2009, and so he was unable to apply for remission/re-credit of the debt. However, Mr de Bijl agreed that he withdrew from Semester 2 2009 course enrolments on 27 August 2009. This suggests to the Tribunal that Mr de Bijl had the capacity to apply for remission/re-credit of the debt within the 12-month prescribed period. He said that, in any event, the Defence Reserve Service (Protection) Act2001 (the Protection Act) provides for a protected period which prevents RMIT enforcing the 12-month time limit contained in the Act. However, the definition of protected period in the Protection Act explicitly excludes application to education. The Tribunal finds that the Protection Act is not applicable to the decision under review, and does not assist Mr de Bijl’s substantive application.
The Tribunal finds that, in all the circumstances, it was possible for Mr de Bijl to apply for remission/re-credit of the debt within 12 months of the end of Semester 1 2009. Therefore, if can extension of time was granted, Mr de Bijl would not be entitled to a waiver under the Act, and would be unlikely to succeed in the application for review. The Tribunal finds that there is little merit in the substantive application, so this factor weighs strongly against granting an extension of time.
CONSIDERATIONS OF FAIRNESS
In considering the circumstances of Mr de Bijl’s situation, the Tribunal finds that there are no relevant considerations of fairness between him and other people in a similar position.
CONCLUSION
In considering all of the circumstances the Tribunal concludes that the lack of merit in Mr de Bijl’s substantive application is a significant factor against granting him an extension of time and is not satisfied that it is reasonable to exercise the discretion to grant an extension of time.
DECISION
The Tribunal refuses the application for an extension of time.
| I certify that the preceding 23 (twenty three) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. |
.....................[sgd]..............................
Associate
Dated 4 May 2012
| Date(s) of hearing | 27 April 2012 |
| Advocate for the Applicant | Self-represented |
| Counsel for the Respondent | Shane Maundrell, Principal Legal Counsel, Dispute Resolution, DIISRTE |
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