Bookallil and Secretary, Department of Education, Science and Training

[2006] AATA 43

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 43

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2005/694

GENERAL ADMINISTRATIVE DIVISION		)
Re		TANIA BOOKALLIL

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Respondent

DECISION

Tribunal  Senior Member B J McCabe

Date 20 January 2006

Place Brisbane

Decision  The Tribunal does not have jurisdiction to hear the application.

..........[Sgd].........

SENIOR MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE – JURISDICTION - Application for review – review of academic and financial penalties – HECS census date – review of financial penalty within 12 months.

Administrative Appeals Tribunal Act 1975 s 25

Higher Education Funding Act 1988 ss 106L, 106M

REASONS FOR DECISION

20 January 2005  Senior Member B J McCabe

1.      Ms Bookallil asked the Administrative Appeal Tribunal (the Tribunal) to review decisions made in relation to academic and financial penalties imposed against her.  The respondent argues the Tribunal has no jurisdiction to hear the case.

2.      The applicant enrolled in a Bachelor of Commerce course at the University of Southern Queensland.  In semester one of 2004 she was enrolled in two subjects.  She sent a letter withdrawing from the two subjects dated 29 March 2004.  It seems the letter was not received by the university administration until 15 April 2004.  An academic and a financial penalty was imposed because the application was not received prior to 31 March 2004.  This date is important as it is the census date for the purposes of HECS legislation.  Ms Bookallil applied to have the academic and financial penalties waived.  Her application is dated 29 August 2005.  The application was accompanied by a statutory declaration made on 31 August 2005 explaining the request for withdrawal was made before the HECS census date of 31 March 2004.  Ms Bookallil told the Tribunal she was suffering from health concerns at the time of the letter of withdrawal.  The Tribunal was also told the fact that the letter did not reach the attention of the university administration before the census date was beyond Ms Bookallil’s control.

3.      Ms Bookallil says that the Tribunal has jurisdiction to hear the matter as her request to have the penalties waived was within the 12 month time limit prescribed by the Higher Education Funding Act1988.

4. The respondent disagrees on two grounds. The respondent says the Tribunal does not have jurisdiction to review decisions relating to academic penalties. The respondent also says the applicant did not file her application for review of the financial penalty within the 12 month time limit after the withdrawal request was made as required by s 106L(2)(c).

5.      These matters were considered by the Tribunal in the course of a telephone hearing of jurisdiction held on 11 January 2006.  Ms Bookallil represented herself and the Secretary for the Department of Education, Science and Training was represented by Mr O’Brien.

6.      The applicant was primarily concerned with a review of the decision to impose an academic penalty but during the course of the telephone hearing she also indicated that she would seek a review of the financial penalty.

7. I will deal firstly with the issue of the academic penalty. The Tribunal has jurisdiction to hear disputes under s 25 of the Administrative Appeals Tribunal Act 1975.  This section provides an enactment may provide that applications can be made to the Tribunal.  There is no enactment providing for an appeal to the Tribunal of a decision of the University of Southern Queensland to impose an academic penalty on Ms Bookallil.  It follows the Tribunal does not have jurisdiction to deal with this aspect of the application.

8. I turn now to the financial penalty. Section 106M says the Tribunal has jurisdiction to review a decision of the Secretary not to remit as much of the debt as the person sought to be remitted.

9. The power of the Secretary to remit debt is contained in s 106L(2) of the Higher Education Funding Act 1988.  That sub-section provides:

The Secretary may, in writing, remit the whole or part of a person’s BOTP study period debt or OL study period debt if:

(a) the person has not completed the BOTP course, or one or more of the units of study, for which he or she was enrolled for the study period; and

(b) the Secretary is satisfied that special circumstances apply to the person; and

(c) the person applies in writing to the Secretary for remission of the debt within 12 months after the person’s withdrawal day in relation to the BOTP course, or unit of study, in which the person was enrolled for the study period. 

10.     The Secretary has no discretion to review the decision if the application was made outside the 12 month period required by the Act.

11.     Ms Bookallil withdrew from her courses by – at the latest – 15 April 2004.  Her application for review is dated 29 August 2005 which is outside the 12 month period referred to in the Act.  Since there is no discretion under the Act to waive the 12 month requirement, a right of appeal does not exist as the Secretary no longer has the power to remit the debt.  It follows that the right of appeal to the Tribunal also no longer exists.

CONCLUSION

12.     For the reasons given, the application is dismissed for want of jurisdiction.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B McCabe

Signed:         Associate      Adam Ryan

Date/s of Hearing  11 January 2006
Date of Decision  20 January 2006
The applicant appeared by telephone.

The respondent was represented by Dennis O’Brien.