Beard and Secretary, Department of Education
[2023] AATA 1722
•20 June 2023
Beard and Secretary, Department of Education [2023] AATA 1722 (20 June 2023)
Division:GENERAL DIVISION
File Number:2023/1343
Re:Lauren Beard
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:20 June 2023
Place:Brisbane
The Tribunal dismisses the application for review pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
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Member D Mitchell
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction of the Tribunal – higher education – application for re-credit of FEE-HELP debt – where reconsideration request made outside of prescribed time frame – where university decided not to allow longer time for making of reconsideration request – whether decision confirmed, varied or set aside – university did not confirm, vary or set aside decision – Tribunal does not have jurisdiction in respect of application for review of decision – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Higher Education Support Act 2003 (Cth)
CASES
KQKM and Secretary of the Department of Education, Skills and Employment [2022] AATA 296
Vu and Secretary, Department of Education [2020] AATA 358
Staats and National Archives of Australia [2009] AATA 598; (2009) 50 AAR 147
REASONS FOR DECISION
Member D Mitchell
20 June 2023
INTRODUCTION
On 3 March 2023, Ms Lauren Beard (the Applicant) sought review by the Tribunal of a decision made by RMIT University on 2 March 2023 in relation to her application for
re-credit of a FEE-HELP debt in special circumstances for the RMIT Online July – December 2021 course MATH2404 ‘Data Visualisation and Communication’.BACKGROUND
On 16 August 2022, RMIT University denied the Applicant’s application for re-credit of
FEE-HELP debt in special circumstances for the RMIT Online July – December 2021 course MATH2404 ‘Data Visualisation and Communication’ it received on 27 July 2022 on the basis it was not satisfied that:
· The Applicant’s circumstances did not make their full impact on her until on or after the census date; or
· An unexpected deterioration of her circumstances on or after the census date occurred.
The decision letter sent to the Applicant outlined her review rights indicating that she could seek a review by RMIT University in writing and that any such review including lodgement of additional independent documentation “must reach RMIT University within 28 days of the date of [the] letter or it will not be considered.”
RMIT University considered that the Applicant did not provide a complete request for review of that decision until 6 February 2023.
On 2 March 2023, RMIT University determined that the original decision to deny the Applicant’s application for re-credit of her FEE-HELP debt stands. The decision letter relevantly provided:
I regret to inform you that following consideration of your request under the relevant provisions of the Higher Education Support Act 2003 (“the Act”) and its related Administration Guidelines 2022 (under which this specific process operates), I confirm the original outcome. I have determined that the original decision to deny your application for remission/re-credit of your FEE-HELP debt for this course stands.
I will not be reconsidering the original decision because your request for review was received outside the required 28 day timeframe and I have been unable to identify circumstances under which this timeframe should be extended.
…..
The original outcome letter of 16 August 2022 also advised that “If initiating a review, this must occur within a defined time period. Your submission requesting a review (including lodgement of additional independent documentation) must reach RMIT University within 28 days of the date of this letter or it will not be considered. Please make sure that you quote the file/reference number (at the top of this letter) on your submission”.
As the original outcome letter was sent to you via email on 16 August 2022, your complete request for review was due for submission by no later than 13 September 2022. I acknowledge that you enquired about a review on 23 September 2022, however, you did not provide any formal documentation. In response to your email, on 27 September 2022 you were again provided with information about the timelines for lodging a review and the requirement to provide further independent supporting documentation.
While the Federal Government’s Higher Education Support Act 2003 advises “
The person’s request must be made by written notice given to the reviewer within
28 days, or such longer period as the reviewer allows…”, I cannot identify a satisfactory reason upon which to extend the 28 day timeframe and accept your late request for review.
Your complete request for a review was received on 6 February 2023, however, you did not reference or provide any formal documentation to evidence the lateness of your request. Further, you have not provided a satisfactory reason upon which an extension to the 28 day submission timeframe for a review request could be considered. It was open to you to email the HESA Remissions email account within the required 28-day timeframe to indicate your intention to request a review of the decision of 16 August 2022 and enquire about whether additional time to obtain supporting documentation was possible, however you did not do so.
Where a request for a review to reconsider a decision not to remit is made outside of the 28-day time limit, the provider is not obliged to reconsider the original decision. However, on this occasion I can confirm that had your request for a review been submitted within the 28-day timeline, I have not been able to identify any independent supporting documentation (in your request for review or original application) to evidence that your application satisfies the special circumstances test as required under the Act (see Appendix 1 attached to the original decision letter).
…
Further review information
The decision to decline your request for review because it was made out of time is not a decision reviewable by the Administrative Appeals Tribunal (AAT). However, as a matter of procedural fairness, it is open to you to contact RMIT Complaints for a review of the decision not to extend this timeframe if you believe there has been breach of University Regulation, Policy or Procedure in the handling of your review request.
…
[Emphasis in original]
On 3 March 2023, the Tribunal received an application for review of decision from the Applicant seeking review of RMIT University’s decision dated 2 March 2023. The Applicant provided the following reasons for the application:
I provided evidence I was receiving treatment for a medical condition signed by an authorised medical professional from 2 June 2021. I began treatment before the census date, however my condition worsened after that date and medication interfered with my ability to complete the course. How I would respond to treatment and medication prescribed by the medical professional was beyond my control and unforeseeable.
On 3 March 2023, the Tribunal wrote to the Applicant advising that it seemed that the Tribunal could not review the decision and asked that she tell it why she thought it could.
On 3 and 9 March 2023, the Applicant provided responses seeking to have the jurisdiction issue reviewed.
On 17 April 2023, an interlocutory hearing was conducted by telephone. The Respondent had not been invited to participate in that interlocutory hearing. The Applicant told the Tribunal that she did not accept that a reviewable decision had not been made by
RMIT University on 2 March 2023 in circumstances where the decision maker provided that they determined that the decision of 16 August 2022 stands and indicated that they had reviewed the matter. The Applicant also told the Tribunal that she had evidence that
RMIT University, in reviewing her review request, had contacted her medical practitioner.
The Tribunal adjourned the interlocutory hearing and sought to have the Respondent invited to participate in a resumed interlocutory hearing. The Respondent was asked to provide written submissions and did so on 28 April 2023. On 14 May 2023 the Applicant provided written submissions in reply.
On 22 May 2023 a resumed interlocutory hearing by telephone was conducted to consider whether the Tribunal had jurisdiction to review the 2 March 2023 decision of
RMIT University.
JURISDICTION OF THE TRIBUNAL
The Tribunal’s role is to undertake an independent merits review of administrative decisions for which it has jurisdiction to hear.
The bounds of the Tribunal’s decision-making powers are found in section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) which provides:
1.For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)Affirming the decision under review;
(b)Varying the decision under review; or
(c)Setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any direction or recommendations of the Tribunal.
The Tribunal cannot make a decision that is outside of the law that is in place. Concerns raised with regard to the administration of higher education support laws that do not fall within the Tribunal’s jurisdiction are not a matter for the Tribunal to determine.
Section 25 of the AAT Act sets out the jurisdiction of the Tribunal as follows:
1Enactment may provide for applications for review of decisions
An enactment may provide that applications may be made to the Tribunal:
(a)for review of a decision made in the exercise of powers conferred by that enactment; or
(b)for the review of decision made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
…….
As explained by Senior Member Constance (as he then was) in Staats and National Archives of Australia [2009] AATA 598; (2009) 50 AAR 147 at 149-150:
It is clear from the wording of section 25 of the Administrative Appeals Tribunal Act 1975 that the Tribunal can only review a decision if it is given the jurisdiction to do so by a specific provision of another enactment. It is essential to look very carefully at the provisions of the enactment said to give rise to the jurisdiction to review to make sure that the jurisdiction extends to the particular decision in respect of which a review is sought.
As such, the Tribunal is limited to reviewing decisions if it is given the jurisdiction to do so by a specific provision of an enactment. In the present matter the enabling statute is the Higher Education Support Act 2003 (Cth) (the Act). Part 4 of the Act deals with reconsideration of particular decisions and review of such decision by the Tribunal.
Section 212-1(1) of the Act provides that an application may be made to the Tribunal for the review of a reviewable decision that has been confirmed, varied or set aside under section 209-5 or 209-10 of the Act.
Section 209-5 of the Act provides that the reviewer of a reviewable decision may reconsider the decision if they are satisfied that there is sufficient reason to do so and in doing so must confirm, vary or set aside and substitute a new decision.
Section 209-10 of the Act deals with reconsideration of a reviewable decision on request and relevantly provides:
209‑10 Reconsideration of reviewable decisions on request
1A person whose interests are affected by a reviewable decision may request the reviewer to reconsider the decision.
2The person’s request must be made by written notice given to the reviewer within 28 days, or such longer period as the reviewer allows, after the day on which the person first received notice of the decision.
3The notice must set out the reasons for making the request.
4After receiving the request, the reviewer must reconsider the decision and:
(a)confirm the decision; or
(b)vary the decision; or
(c)set the decision aside and substitute a new decision.
……..
Section 206-1 of the Act provides a table that sets out the reviewable decisions under the Act and relevantly includes at items 2 and 2A of the table, decisions made under section 104-25 to refuse to re-credit a person’s HELP balance as reviewable decisions.
Section 104-25 of the Act relevantly provides:
104‑25 Main case of re‑crediting a person’s HELP balance in relation to FEE‑HELP assistance
1A higher education provider must, on the Secretary’s behalf, re‑credit a person’s HELP balance with an amount equal to the amounts of FEE‑HELP assistance that the person received for a unit of study if:
(a)the person has been enrolled in the unit with the provider; and
(aa)access to the unit was not provided by Open Universities Australia; and
(b)the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake the unit; and
(c)the provider is satisfied that special circumstances apply to the person (see section 104‑30); and
(d)the person applies in writing to the provider for re‑crediting of the HELP balance; and
(e)either:
(i) the application is made before the end of the application period under section 104‑35; or
(ii) the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.
PARTIES’ JURISDICTION SUBMISSIONS
In written submissions dated 28 April 2023, the Respondent submitted that there is no decision for the Tribunal to review as a decision to refuse a request for review under section 209-10(2) of the Act is not a reviewable decision under section 206-1 of the Act and there has not been a decision to confirm, vary or set aside the original decision that would otherwise enliven the Tribunal’s jurisdiction under section 212-1 of the Act.
The Respondent relevantly submitted:
12. A request for internal review under section 209-10 “must be made by written notice given to the reviewer within 28 days, or such longer period as the reviewer allows, after the day on which the person first received notice of the decision”. Deciding whether or not an extension of time should be granted is an exercise of discretion by the reviewer. In this case, the Applicant failed to make their request for internal review within the 28 day time limit and that time limit was not extended. As compliance with the 28 day time limit is mandatory under subsection 209-10(2) (‘the person’s request must be made by written notice given to the reviewer within 28 days…’), a request for internal review made outside of this time limit is not a valid request for review (unless that time limit is extended at the discretion of the reviewer). As such, it does not trigger the obligation under subsection 209-10(4) of the Act to reconsider the original decision. Therefore, the refusal to extend time decision made on 2 March 2023 was not an internal review decision for the purpose of subsection 209-10(4) of the Act. Rather, it was a decision to refuse a late request for review under subsection 209-10(2) of the Act, which is not listed as a reviewable decision under section 206-1.
13.A decision to refuse an application for review on the basis of the 28 day time limits also does not amount to a ‘confirmation’ of the original decision that would allow the Tribunal to review the decision under section 212-1 of the Act. In the refusal to extend time decision, the reviewer did acknowledge that the evidence provided by the Applicant was insufficient to support a finding that they satisfied the special circumstances criteria. However, the reviewer also recognised that this comment was only made in context of what they would have found if the Applicant had made a valid request for review: “…on this occasion I can confirm that had your request for a review been submitted within the 28-day timeline, I have not been able to identify any independent supporting documentation (in your request for review or original application) to evidence that your application satisfies the special circumstances test as required under the Act…”.
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17.We note that it appears that RMIT did not accept the request for internal review made on 23 September 2022 due to the Applicant not providing further supporting evidence with their request. It was not until the Applicant provided further evidence on 6 February 2023 that RMIT considered her request as ‘complete’ and accepted it. Subsection 209-10(2) of the Act does not require that individuals seeking review of a decision provide additional evidence or documentation with their request for review, only that they give ‘written notice’ of their request. The Respondent considers that the Applicant’s email dated 23 September 2022 provided sufficient written notice and therefore was the relevant request for internal review rather than the second email sent on 6 February 2023. However, as the 23 September 2022 request was still made outside of the 28 day time limit, this does not alter the Respondent’s above submission that it was nevertheless an invalid request for review under the Act.
[Emphasis in original]
In written submissions, dated 14 May 2023, the Applicant submitted that there is a decision reviewable by the Tribunal on the basis that:
1.On 7 February 2023, the Reviewer acknowledged the Applicant’s request for internal review (attached as Annexure 1).
2.On 15 February 2023, the Applicant’s doctor’s clinic [redacted] advised the Applicant that they had received a request for information from the Reviewer, stating: “Swati from HESA Remissions, RMIT University has asked for Dr [Z] to confirm that the IAS form she completed for you has not been adjusted. Dr [Z] is happy to advise that she has reviewed the document and confirm it has not been altered.” (attached as Annexure 2).
3.On 23 February 2023, the [doctor’s clinic] responded to the Reviewer’s request for information, stating: “I have discussed with Dr [Z], and we confirm that the information contained by the two documents completed by Dr [Z] is correct.” On 23 February 2023, the Reviewer acknowledged the [doctor’s clinic’s] correspondence, stating: “Thank you for your email and confirming this information, it's very much appreciated.” (attached as Annexure 3).
The Applicant contends that the Reviewer sought additional information, and therefore this does amount to a ‘confirmation’ that the Reviewer conducted an internal review of the original decision to reconsider the decision, and either confirm, vary, or set the decision aside and substitute a new decision under section 209‑5 or 209‑10 of the Act.
4.On 2 March 2023, the Reviewer provided their ‘Review Outcome Letter’, in which they state: “I confirm the original outcome. I have determined that the original decision to deny your application for remission/re-credit of your
FEE-HELP debt for this course stands” (attached as Annexure 4).The Applicant contends that because of the Reviewer conducting an internal review, this does amount to a ‘reconsideration’ of the original decision and ‘confirmation’ of the original decision by the Reviewer under section 209‑5 or 209‑10 of the Act and would allow the Tribunal to review the decision under section 212-1 of the Act.
The submissions provided at the jurisdiction hearing by the Applicant and Respondent were consistent with their written submissions.
CONSIDERATION ON JURISDICTION
Having reviewed the material before it, the Tribunal considers that on the face of the decision letter of RMIT University dated 2 March 2023, there is room for confusion in relation to what had actually been decided and on what basis.
The decision of 2 March 2023, in effect, appears to be indecisive in relation to the basis as to why it was determined that a different decision would not be made on reconsideration and as such appears to look to cover all legislative bases.
The Reviewer commenced using the words of section 209-10(4) of the Act by confirming the decision of 16 August 2023, however, then went on pursuant to section 209-10(2) of the Act to refuse to consider the request for reconsideration on the basis that the request was not made within the prescribed time frame and an extension of time to make such a request was not granted. The Reviewer further outlined that should the request for review have been submitted within the 28-day timeline they would have found that the special circumstances test under the Act was not satisfied. The letter provided that the Applicant had further review rights to the Tribunal.
The Tribunal notes that the RMIT University decision of 16 August 2021 provided that if a request for review did not reach it within 28 days of the date of the letter it will not be considered. This appears to indicate that there is no discretion outside of the 28 day timeframe. The evidence before the Tribunal indicates that at no stage was the Applicant asked to provide a request for further time to request reconsideration of the decision or to provide reasons for the delay. This appears to be inconsistent with section 209-10(2) of the Act which in setting a time frame to request reconsideration also provides a discretion for that timeframe to be extended.
The matter was further made murky by the contact made by or on behalf of the Reviewer with the Applicant’s treating practitioner in circumstances where a reconsideration was not being undertaken due to the timing of the Applicant’s request.
The Tribunal considers such an approach by RMIT University with regards to the Applicant’s request for reconsideration to be peculiar and inherently confusing and misleading for a student, especially in circumstances where review rights are provided that indicate that the matter could be further reviewed by the Tribunal.
In such circumstances the Tribunal considers that the Applicant’s submissions that the decision made by the RMIT University Reviewer dated 2 March 2023 constitutes a reviewable decision that has been confirmed under section 209-10 of the Act are not unreasonable.
Unfortunately, however this matter comes down to legal interpretation of the Act and how it enlivens the Tribunal’s jurisdiction.
While there is not much that is clear about the decision being made and communicated by RMIT University in its letter dated 2 March 2023, what is clear is that the Reviewer had decided not to allow the Applicant a period longer than the prescribed 28 days to seek a reconsideration.
The Tribunal considers that on that basis, while the Reviewer may have chosen to look at the Applicant’s request for reconsideration in full, they did not have power to affirm or vary the reviewable decision or to set it aside and substitute a new decision in its place. In such circumstances the Tribunal’s jurisdiction has not been enlivened.
As such, a decision not to allow the Applicant a period longer than the prescribed 28 days to seek a reconsideration is subsequently not reviewable by the Tribunal pursuant to section 212-1(1) of the Act. The Tribunal’s jurisdiction to review decisions in relation to whether or not a person should have an amount of FEE-HELP remitted pursuant to section 125-1 of the Act is limited to circumstances where the initial decision (as the reviewable decision) has been confirmed, varied or set aside (at reconsideration) under section 209-5 or 209-10 of the Act.[1]
[1] See Vu and Secretary, Department of Education [2020] AATA 358 and KQKM and Secretary of the Department of Education, Skills and Employment [2022] AATA 296.
The Tribunal notes that there was some conjecture in relation to when the Applicant’s request for internal review was made, however agrees with the Respondent’s submissions as set out above that regardless of whether that request was taken to have been made on 23 September 2022 or 6 February 2023 it was made outside of the 28-day window and as such does not alter the Tribunal’s decision.
The Tribunal further notes that the Respondent outlined at the jurisdiction hearing that it may be open to the Applicant to make a complaint to the University Complaint Ombudsman or to contact RMIT University and request that they conduct an own motion review pursuant to section 209-5 of the Act or that she make a further application for internal review outlining why an extension of time to make such an application was required in the circumstances.
DECISION
For the reasons set out above, the Tribunal finds, that there is no reviewable decision before it and as such it does not have jurisdiction to consider this application.
Consequently, pursuant to section 42A(4) of the AAT Act the application for review is dismissed.
| I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell |
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Associate
Dated: 20 June 2023
Date of hearing:
22 May 2023
Applicant: By phone Solicitors for the Respondent: Myles Norris
Australian Government Department of Education
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