Baldry and District Registrar, Administrative Appeals Tribunal
[2022] AATA 3796
•28 October 2022
Baldry and District Registrar, Administrative Appeals Tribunal [2022] AATA 3796 (28 October 2022)
Division:GENERAL DIVISION
File Number: 2022/4729
Re:Frankie Baldry
APPLICANT
AndDistrict Registrar, Administrative Appeals Tribunal
RESPONDENT
Decision
Tribunal:Senior Member C. J. Furnell
Date:28 October 2022
Place:Melbourne
The Tribunal affirms the decision the subject of review.
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Senior Member C. J. Furnell
Catchwords
Application for fee reduction – Administrative Appeals Tribunal Act 1975 – Administrative Appeals Tribunal Regulation 2015 – application for review of decision to refuse request for fee reduction – whether payment of prescribed application fee would cause or has caused financial hardship – income – expenses – assets – liabilities – Tribunal does not consider that payment of prescribed application fee would cause or has caused financial hardship – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Appeals Tribunal Regulation 2015 (Cth)
Court Procedures Act 2004 (ACT)
Higher Education Support Act 2003 (Cth)
Cases
Applicant at 032022 v The Registrar, ACT Civil and Administrative Tribunal (Administrative Review) [2022] ACAT 16
Australian Securities and Investments Commission v Westpac Banking Corporation [2020] FCAFC 111
Bailey and Commonwealth Tertiary Education Commission, Re (1986) 12 ALD 165
Dedes and Commissioner of Taxation [2008] AATA 331
McKechnie v Victorian Civil and Administrative Tribunal & Anor [2020] VSC 454
O’Brien Ltd v Elliott [1965] NSWR 1473
Paterson and Department of Arts, Heritage and Environment, Re (No 2) (1985) 8 ALD
Re Kabalan [1993] FCA 76
Stocks and Registrar, High Court of Australia [2008] AATA 968
Van De Wiel and Civil Aviation Safety Authority, Re [2006] AATA 207
WAJ and Commonwealth Ombudsman, Re (1999) 53 ALD 700
Secondary Materials
Australian Government, Department of Education, ‘Loan repayment’ (Web Page, 2022) < (accessed on 17 October 2022
REASONS FOR DECISION
Senior Member C. J. Furnell
28 October 2022
The applicant applied for Tribunal review of a decision refusing to re-credit the applicant’s HELP balance in relation to a number of units of study, with respect to each of which the applicant had received an amount of FEE-HELP assistance under the Higher Education Support Act 2003 (Cth).
Such an application is required to be “accompanied by any prescribed fee”.[1]
[1] Administrative Appeals Tribunal Act 1975, s 29(1)(b).
A fee is prescribed in respect of most applications for review.
Generally, the prescribed fee is a specific amount subject to annual indexation.[2] At the time of lodgement of the applicant’s review application, that amount was $962.
[2] Administrative Appeals Tribunal Regulation 2015 (Tribunal Regulations), regs 20(1) and 27.
Instead of that generally prescribed fee, however, in certain circumstances a fee of $100 is prescribed.
One such circumstance in which a fee of $100 is prescribed arises when the Tribunal’s registrar makes “…an order that, having regard to the applicant’s income, expenses, liabilities and assets, the Registrar considers that the payment of an amount would cause, or has caused, financial hardship to the applicant”.[3]
[3] Tribunal Regulations, regs 20(3) and 21(h).
In March 2022, the applicant sought to have the Tribunal’s registrar make such an order by lodging a “request for fee reduction” form (the “fee reduction form”).[4]
[4] T3, pp.9-18, with a reference to the “T” documents being a reference to copy documents lodged by the respondent under s 37 of the Administrative Appeals Tribunal Act 1975.
On 13 April 2022, the registrar refused the applicant’s request and decided not to make an order that the applicant’s payment of the generally prescribed fee would cause, or had caused, financial hardship to the applicant.[5]
[5] T7, pp.105-106.
The applicant applied to the Tribunal for review of the registrar’s decision, submitting that paying the “full fee will cause me financial hardship”.[6]
[6] Tribunal Regulations, reg 28(1). See T1, pp.1-7.
I do not accept that submission. I do not consider that payment of the generally prescribed fee would cause the applicant financial hardship. Hence, I have decided on the papers[7] not to make the order that the applicant requested be made, and I affirm the registrar’s decision of 13 April 2022.
[7] On 22 July 2022, with the consent of the parties, the Tribunal decided pursuant to section 34J of the Administrative Appeals Tribunal Act 1975, that the decision under review in this proceeding would be reviewed by considering the materials lodged by the parties and without holding a hearing.
Before outlining my reasons for that decision, I should first say something about the concept of “financial hardship”.
Would payment of the prescribed FEE cause financial Hardship?
The applicant’s particular concern appears to be that payment of the generally prescribed fee of $962 represents expenditure of a substantial amount in return for an uncertain benefit, given that the applicant might not succeed in obtaining re-crediting of the FEE-HELP assistance received under the Higher Education Support Act 2003 in respect of fees charged to undertake certain units of study (noting that the debt arising by reason of such assistance is remitted on a re-crediting[8]).
[8] Higher Education Support Act 2003, s 137-10(4).
In this regard:
(a)In the fee reduction form, the applicant stated that: “I need to pay for this application so I can apply to AAT regarding getting my fee help debt re-credited for a course I withdrew from due to mental illness. I am hoping the fee to apply for this will be reduced as I simply don’t have >$900 to put towards this application, especially if it ends up being declined because then I’ll be out of pocket over 12 grand”.[9]
(b)Later, in an email of 25 March 2022, the applicant stated that: “I really cannot afford to pay the $962 simply to have my case considered by AAT, as there is a chance it might not even be resolved and I'll end up down $962 still with 11k of student loans outstanding for a course I never got to complete. … $100 fee to lodge my case is much more manageable”.[10]
(c)In a revised fee reduction form provided in July 2022, the applicant stated that: “I cannot afford to pay >$900 out of pocket to have my case simply considered with no guarantee of your help”.
[9] T3, p.14.
[10] T6, p.23.
Standing in the shoes of the registrar, in order to make the order sought by the applicant, I would need to consider that payment of the generally prescribed fee would cause financial hardship to the applicant. As I see it, the risk of the applicant not succeeding in the application for re-crediting of FEE-HELP assistance is irrelevant to that consideration.
As to the concept of “hardship”, it has no fixed meaning and any assessment of it involves questions of fact and degree.[11] It is said to be a “…condition that bears hard upon one; severe toil, trial, oppression, or need. In Re Kabalan …, Gummow J stated that ‘[a]ny condition which presses with particular asperity upon a person may be described as a hardship’”.[12]
[11] McKechnie v Victorian Civil and Administrative Tribunal & Anor [2020] VSC 454 at [101]-[102].
[12] Australian Securities and Investments Commission v Westpac Banking Corporation [2020] FCAFC 111 at [96].
A provision under the Court Procedures Act 2004 (ACT) somewhat analogous to that found in the Tribunal Regulations was recently considered by the ACT Civil and Administrative Tribunal.[13] Pursuant to the relevant provision, a fee could be waived if a court registrar “considers payment of the fee would impose hardship on the person”.
[13] APPLICANT AT 032022 v THE REGISTRAR, ACT CIVIL AND ADMINISTRATIVE TRIBUNAL (Administrative Review) [2022] ACAT 16.
There, it was said that “use of the word ‘would’ requires evidence that payment of the fee will cause hardship, not speculation that it might”.[14] That evidence needed to be such as to allow a conclusion that “payment of the fee would cause the applicant an appreciable detriment”.[15]
[14] Ibid at [21].
[15] Ibid at [32], in apparent reliance on an observation of Asprey J in O’Brien Ltd v Elliott [1965] NSWR 1473 at [91]. See also Dedes and Commissioner of Taxation [2008] AATA 331 at [25] where it was concluded that the applicant in that case would not suffer any “appreciable detriment” from having to pay the required fee.
Unlike the cases just mentioned, however, the appreciable detriment under the Tribunal Regulations must be financial.
That appreciable detriment is not constituted by the mere requirement to pay the generally prescribed fee out of one’s own resources.[16] In Re WAJ,[17] SM Hotop cited with apparent approval statements that financial hardship:
(a)“…means hardship caused to the applicant by reason of the financial burden of being obliged to meet the costs of the application from its own resources. … It is not enough … for the applicant to assert that if it is obliged to meet its own costs, it will deplete the funds otherwise available to it to pursue its objects. Every successful applicant, no matter how wealthy, would suffer financial hardship on that basis”.[18]
(b)“surely amounts to more than that a person, irrespective of his financial situation, has to meet a charge from his own resources”.[19]
[16] Stocks and Registrar, High Court of Australia [2008] AATA 968 at [22]-[23].
[17] Re WAJ and Commonwealth Ombudsman (1999) 53 ALD 700 at [21].
[18] Re WAJ citing Re Paterson and Department of Arts, Heritage and Environment (No 2) (1985) 8 ALD 227 at 238.
[19] Re WAJ citing Re Bailey and Commonwealth Tertiary Education Commission (1986) 12 ALD 165 at 167.
Hence, if financial hardship is to be found in this case, it must be found not in simply the requirement to pay the generally prescribed fee but in the financial consequences for the applicant of the payment, assessed objectively (rather than by reference to the applicant’s own view of those consequences[20]).
[20] Re Van De Wiel and Civil Aviation Safety Authority [2006] AATA 207 at [17].
Would payment of the prescribed Fee cause financial hardship for the applicant?
In the fee reduction form provided in March 2022,[21] the applicant stated that they[22] had no dependents and were employed on a full-time basis.
[21] T3, pp.9-18.
[22] The applicant’s preferred pronouns are “they/them”.
In the form, the applicant provided details of their income, expenses, liabilities and assets.
Based on the details so provided:
(a)The applicant’s income (excluding superannuation) exceeds the applicant’s expenses, generating disposable income of around $860, on a fortnightly basis; [23]
(b)The applicant had liquid assets (being cash at bank) of around $6890;
(c)Including those liquid assets, the applicant had assets the gross value of which was around $23,883;
(d)The applicant had liabilities of around $17,618, leaving net assets of around $6265.
[23] Noting that the applicant stated that they might have underestimated fortnightly food expenditure.
In July 2022, the applicant provided a further version of the fee reduction form including updated details of their income, expenses, liabilities and assets.
Based on the updated details so provided:
(a)The applicant’s income (excluding superannuation) exceeds the applicant’s expenses, generating disposable income of around $434.93, on a fortnightly basis;
(b)The applicant had liquid assets (being cash at bank) of around $5763;
(c)Including those liquid assets, the applicant had assets the gross value of which was around $25,753;
(d)The applicant had liabilities of around $16,711, leaving net assets of around $9042.
Whichever set of financial details is adopted, relative to the generally prescribed fee, it is clear that the applicant has significant net assets. This is the more so if the applicant’s HELP debt were to be ignored, in which case the applicant would have net assets of around $17,265 (employing the details provided in March) or $20,000 (employing the details provided in July), assuming the applicant’s HELP debt to be in the order of $11,000, as suggested by the applicant.[24]
[24] In this regard, the applicant’s liability for HELP debt might not be considered a material impediment to the applicant’s financial capacity to pay the generally prescribed fee given that a repayment in respect of the debt would only be required when the applicant’s income in a year exceeds a particular threshold and then only a proportion of the applicant’s income would need be applied in repayment of the debt. For instance, given the applicant’s income as detailed in the fee reduction form, only 1% of that income would need to have been applied in reduction of debt. Assuming debt in the order of $11,000, a repayment of only $110 would have been required in the financial year ending 30 June 2022. See Australian Government, Department of Education, ‘Loan repayment’ (Web Page, 2022) < (accessed on 17 October 2022). See also Higher Education Support Act 2003, s 154-20.
More significantly, however, it is clear from the details provided in both March and July 2022 that the applicant could pay the generally prescribed fee from liquid assets or from less than three weeks of disposable income without placing the applicant in a financially embarrassing situation or in financial difficulties.[25]
[25] As was the case in Re WAJ at [22].
While it is clear from the applicant’s revised fee reduction form of July 2022 that the applicant wishes to preserve liquid assets against the risk of increased expenditure or loss of income should there be a deterioration in the applicant’s health, as things stand, this is not a situation where the financial consequences of payment of the generally prescribed fee would press upon the applicant any particular asperity or severity in a financial or pecuniary respect.[26]
[26] See Re Kabalan [1993] FCA 76 at [11].
The decision under review is affirmed.
| I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell |
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Associate
Dated: 28 October 2022
| Date of hearing on the papers: | 17 October 2022 |
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