Berwick and Secretary, Department of Education and Training

[2017] AATA 2428

Berwick and Secretary, Department of Education and Training [2017] AATA 2428 (9 November 2017)

Division:GENERAL DIVISION

File number:           2017/6265

Robert Berwick

APPLICANT

AndSecretary, Department of Education and Training

RESPONDENT

DECISION

Tribunal:Dr James Popple, Senior Member

Date:9 November 2017

Date of written reasons:        28 November 2017

Place:Canberra

The Tribunal does not have jurisdiction to hear the application. The application for review is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975.

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James Popple, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE — whether decision reviewable by Tribunal — no enactment provides that an application may be made to the Tribunal for review of decision — application dismissed.

LEGISLATION

Administrative Appeals Tribunal Act 1975, ss 2A(c), 25, 42A(4)

Higher Education Support Act 2003, ss 104-25, 104-30, 104-35, 206-1, 209-5, 209-10, 212-1; Schedule 1, clause 1(1)

WRITTEN REASONS FOR ORAL DECISION

Dr James Popple, Senior Member

28 November 2017

1. On 9 November 2017, I conducted a hearing in this matter. I gave my decision, and my reasons, orally at that hearing. On 13 November 2017, the applicant requested written reasons for my decision. These are those written reasons. My reasons have been prepared having regard to the requirement, in s 2A(c) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), that the Tribunal pursue the objective of providing a mechanism of review that is proportionate to the importance and complexity of the matter.

   Summary

2. The applicant has a Higher Education Loan Program (HELP) debt recorded against his Tax File Number (TFN).  He claims that he is the victim of identify fraud: that he did not enrol in the units, and did not receive the financial assistance, to which the debt relates.  But no decision has been made about the applicant, under the Higher Education Support Act 2003 (the HES Act) or under any other enactment, that the Tribunal can review.  The Tribunal does not have jurisdiction to hear the applicant’s application for review.

   Background

3. Mr Robert Berwick claims to be the victim of identity fraud.  In these written reasons, I have assumed that he is telling the truth about what has happened to him.  I have not made any findings about what happened because—even assuming that Mr Berwick is telling the truth—the Tribunal does not have jurisdiction to hear his application for review.  If he is telling the truth, what has happened to Mr Berwick is Kafkaesque.

4. In 2015, Mr Berwick’s tax agent advised him that a HELP debt was recorded against his TFN.  This debt resulted from an enrolment with Open Universities Australia (OUA).

5. OUA’s records indicate that Mr Berwick enrolled in units during three periods of study in 2012.  According to those records, Mr Berwick applied for FEE-HELP assistance totalling $12,848 for those periods of study.  FEE-HELP is a loan scheme administered by the Department of Education and Training (the Department), which assists eligible fee-paying students to pay all or part of their tuition fees.  That FEE-HELP assistance was recorded as a HELP debt against Mr Berwick’s TFN.

6. Mr Berwick says that he never enrolled with OUA, and did not apply for (and did not receive) FEE-HELP assistance.

7. On or about 25 May 2015, Mr Berwick lodged a complaint with OUA about the imposition of the FEE-HELP debt, alleging fraudulent use of his TFN.  I will call this the complaint.

8. In undated correspondence, OUA responded by advising Mr Berwick that fraudulent use of a TFN is “a form of identity theft”, and that he should contact law enforcement for advice on how to proceed.  The correspondence further advised that “[t]he official process to have a re-credit/refund request and grade review formally assessed is through the process known as special circumstances and you are required to submit a special circumstances application form to proceed”.

9. On or about 8 October 2015, OUA confirmed its previous advice that Mr Berwick should contact law enforcement regarding the alleged identity fraud.  OUA advised that, until further investigations were undertaken by law enforcement, OUA could not refund Mr Berwick’s tuition fees.

10. On 11 September 2017, OUA e-mailed Mr Berwick, advising him that it was “not able to amend [his] enrolment history” and telling him that, if he disagreed with OUA’s decision, he could apply to the Tribunal.

11. On 23 October 2017, Mr Berwick applied to the Tribunal for review of that decision.

    Decision sought to be reviewed

12. Mr Berwick says that he is seeking review of the decision made by OUA on 11 September 2017.

13. The Secretary says that the “original decision” in this application is the undated correspondence from OUA responding to the complaint, and that the “internal review decision” is the correspondence OUA sent on or about 8 October 2015.[1]  The Secretary says that the decision that Mr Berwick seeks to have reviewed is “the deemed original decision and the possible review decision or in any event, the composite of decision making by OUA in response to” the complaint.

    [1]     The Department’s submissions also refer to a decision of OUA made on 8 October 2017.  I take this to be a typographical error, and a reference to the correspondence OUA sent on or about 8 October 2015.

14. I do not need to identify which of these purported decisions is the subject of this application.  For the reasons set out below, none of these decisions is reviewable by the Tribunal.

    Issue

15. The issue in this review is whether the Tribunal has jurisdiction to review this application.  That depends on whether there has been a reconsideration of a “reviewable decision”, for the purposes of the HES Act.

    Legislative framework

16. Section 25 of the AAT Act provides that the Tribunal may review a decision where an enactment provides that an application may be made to the Tribunal for the review of that decision.

17. Section 212-1 of the HES 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”.  Sections 209-5 and 209-10 provide for the reconsideration of reviewable decisions.  Clause 1(1) of Schedule 1 to the HES Act defines “reviewable decision” to mean “a decision listed in the table in section 206-1”.[2]  Of the decisions listed in the table in s 206-1, only one is relevant to Mr Berwick’s situation: a refusal to re-credit a FEE-HELP balance under s 104-25(2).[3]  Section 104-25(2) of the HES Act provides:

    [2]     Schedule 1 to the HES Act (“Dictionary”) would appear to have effect because of s 1-10(1), though not as clearly as Schedule 1A (“VET FEE HELP Assistance Scheme”) has effect because of s 6-1.

    [3]     HES Act, s 206-1, item 2A.

    (2)*Open Universities Australia must, on the *Secretary’s behalf, re-credit a person’s *FEE-HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person has received for a unit of study if:

    (a)  access to the unit was 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)  Open Universities Australia is satisfied that special circumstances apply to the person (see section 104-30); and

    (d)  the person applies in writing to Open Universities Australia for re-crediting of the FEE-HELP balance; and

    (e)  either:

    (i)the application is made before the end of the application period under section 104-35; or

    (ii)Open Universities Australia 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.

    Does the Tribunal have jurisdiction to review Mr Berwick’s application?

18. Mr Berwick has not applied to have his FEE-HELP balance re-credited under s 104-25(2).  So, there has been no reviewable decision under s 104-25 that could be reconsidered under s 209-5 or s 209-10.  None of the decisions made by OUA (including the decisions identified in [12]–[13] above) is a reviewable decision under the HES Act, either.  Mr Berwick has not identified any other enactment that provides that an application may be made to the Tribunal for the review of any decision that OUA (or the Secretary or the Department) has made about him.  It follows that the Tribunal does not have jurisdiction to hear Mr Berwick’s application.

    How can Mr Berwick’s HELP debt be waived?

19. Even if Mr Berwick were to apply to OUA for re-crediting of his FEE-HELP balance, and OUA waived the requirement that he apply before the end of the application period,[4] it is unclear whether OUA—or the Tribunal on review—can re-credit his FEE-HELP balance under s 104-25(2).  The “special circumstances” that must apply, for the purposes of s 104-25(1)(c), are set out in s 104-30.  They are circumstances that “make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake the unit”.[5]  Those circumstances do not apply to Mr Berwick because (he claims) he did not undertake, and was never going to undertake, any such unit.

    [4]     Section 104-35(2) of the HES Act provides that “the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit”.  Mr Berwick says that he did not undertake, and was never going to undertake, a unit.  In any event, the relevant units were undertaken, or were to be undertaken, more than 12 months ago.

    [5]     HES Act, s 104-30(1)(c).

20. In addition to his interactions with OUA, Mr Berwick has made a number of unsuccessful attempts to have his HELP debt waived.  He has approached the Australian Cybercrime Online Reporting Network, the New South Wales Police, the Australian Federal Police, and the Inspector-General of Taxation.  However, he has been unable to prove that he never enrolled with OUA or received FEE-HELP assistance.

21. On the assumption that Mr Berwick is telling the truth—that he is a victim of identify fraud, who never incurred this HELP debt—it is entirely unsatisfactory that there would appear to be no mechanism (under the HES Act, at least) by which his HELP debt can be waived.

    Conclusion

22. Mr Berwick has not identified any enactment that provides that an application may be made to the Tribunal for the review of any decision that OUA has made about him. I dismiss Mr Berwick’s application for review, under s 42A(4) of the AAT Act, because the Tribunal does not have jurisdiction to hear his application.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

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Associate

Dated: 28 November 2017

Date of hearing:	9 November 2017
Applicant:	In person
Counsel for the Respondent:	Ms Sonia Harris
Solicitors for the Respondent:	People, Communication and Legal Group, Department of Education and Training