Bradley and Secretary, Department of Education
[2023] AATA 309
•3 March 2023
Bradley and Secretary, Department of Education [2023] AATA 309 (3 March 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9160
Re:James Duncan Bradley
APPLICANT
AndSecretary, Department of Education
RESPONDENT
Decision
Tribunal:Mr S Evans, Member
Date:3 March 2023
Place:Sydney
The application for an extension of time is dismissed pursuant to paragraph 42B(1)(b) of the AAT Act. Pursuant to subsection 42B(2) the AAT Act, the Tribunal directs that the applicant must not, without leave from the Tribunal, make a subsequent application to the Tribunal for review of decisions of the University of Tasmania dated 20 September 2013, 7 July 2016, 28 February 2020 or 29 June 2020 to decline (or confirm a decision to decline) respective applications for fee remission in relation to FEE-HELP debts incurred in the course of his study towards a Bachelor of Human Movement between 2002 and 2005.
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Mr S Evans, Member
Catchwords
PRACTICE AND PROCEDURE – application for extension of time – substantive matter seeks review of decision refusing remission of course fees – delay – merits of substantive matter – jurisdiction – prejudice to the respondent – extension of time application refused – whether the Tribunal should dismiss the application under section 42B – application dismissed for no reasonable prospects of success – application of section 69BA to sections 42A and 42B – whether the Tribunal should make an order under subsection 42B(2) – order made
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
The Higher Education Funding Act 1988 (Cth)
Higher Education Support Act 2003 (Cth)
Cases
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305
Bradley and Secretary, Department of Education and Training (General) [2018] AATA 1074
Bradley and Secretary, Department of Education, Skills and Employment [2021] AATA 4507
Re Hempel and Civil Aviation Authority [2006] AATA 188
Rust-Oleum Pty Ltd and Australian Pesticides and Veterinary Medicines Association [2017] AATA 298
Kitko and University of Technology Sydney [2021] FCA 360
Fuller and Military Rehabilitation and Compensation Commission (Compensation) [2022] AATA 3827
Williams and Australian Electoral Commission (1995) 38 ALD 366
Secondary Materials
REASONS FOR DECISION
3 March 2023
Mr S Evans, Member
Introduction
James Bradley (Mr Bradley) seeks an extension of time to make an application for review of a decision of the University of Tasmania (the University) to refuse remission of a HECS-HELP debt for studies undertaken between 2002 and 2005. The Secretary of the Department of Education (the Secretary) opposes Mr Bradley’s application. Further, as this is the fourth occasion on which Mr Bradley has sought to agitate a decision relating to the same units of study, the Secretary seeks an order under section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) prohibiting further applications for review without leave from the Tribunal.
For the reasons which follow, the application will be refused and an order will be made under subsection 42B(2) of the AAT Act.
Background
Between 2002 and 2005, Mr Bradley was enrolled in a Bachelor of Human Movement (the Course) with the University. He completed 29 units of study, but did not complete the Course.[1] On 20 September 2005 Mr Bradley successfully sought to have the fees for three incomplete units of study undertaken in Semester 2 of 2005 remitted on medical grounds.[2] 10 units of study were credited towards a Bachelor of Business degree Mr Bradley completed at the University in 2008.[3]
[1] Annexure to Respondent’s Submissions (Annexure) B, 4-5
[2] Annexure A, 1
[3] Annexure B, 6
On 30 August 2013, Mr Bradley applied to the University for fee remission of 21 units of study under the Course.[4] On 20 September 2013 the University declined remission of the units which had been completed by the Applicant (the September 2013 decision).[5]
[4] Annexure C, 8-10
[5] Respondent’s Submissions dated 5 December 2022 (RSFIC), [8]
Mr Bradley again sought fee remission on similar grounds on 27 April 2016. The request was rejected by the University in a decision dated 7 July 2016. Mr Bradley sought to appeal that decision on 16 January 2017 and the matter was considered by the University’s student complaints committee. On 10 February 2017 the University informed Mr Bradley that the committee had declined to review the Applicant’s notice of appeal and that the decision was final (the February 2017 decision).[6]
[6] Annexure A, 2-3
2018 extension of time application
Mr Bradley applied to the Tribunal for review of the February 2017 decision on 14 February 2017, but withdrew his application on 27 April 2017.[7] An application for an extension of time to seek review was later lodged with the Tribunal on 15 March 2018. On 27 April 2018 the Tribunal refused the application.[8]
[7] Annexure J, 23
[8] Annexure K, 24-31
2021 extension of time application
On 14 February 2020 Mr Bradley again wrote to the University seeking remission of fees for the same units of study.[9] On 28 February 2020 the University Provost wrote to Mr Bradley advising that as his complaint was a ‘replica’ of his request of 16 January 2017, his complaint had not been investigated (the February 2020 decision). He was also advised that he had, ‘exhausted all internal processes for consideration of this complaint, including the University’s appeal process’.[10]
[9] Annexure L, 33-37
[10] Annexure M, 38-39
On 25 June 2020 Mr Bradley emailed the Tasmanian Police and the Tertiary and Quality Standards Agency about the decision of ‘27 February 2020’ [sic] copying in the University Vice Chancellor. On 29 June 2020 the University Vice-Chancellor emailed Mr Bradley stating that his ‘request was refused by the Provost on the basis that any further investigation into the complaint is unjustifiable’ and ‘detailed reasons were given to you in relation to this determination’.[11] On 15 October 2021 Mr Bradley applied to the Tribunal for an extension of time to lodge an application for review of the February 2020 decision.
[11] Annexure N, 40-43
The application was refused.[12] In short, the Tribunal found that the application was made following a delay of 15 months, and as Mr Bradley had already completed the units in question there was no merit to his substantive application. Further, as it was Mr Bradley’s third application and the Tribunal’s second decision on substantively the same matter, there was ‘particularly stark’ prejudice to the Secretary should the application be allowed to proceed.[13]
[12] Annexure P, 46-52
[13] Annexure P, [15] – [26]
The 2022 extension of time application
In an application to the Tribunal dated 4 November 2022 Mr Bradley sought review of the decision he received on 28 February 2020. He writes in his application:
New information has come to light, in the form of UTAS fraud advertising [and] marketing (evidence) including legal advice that took time to obtain, and the documents took time to obtain and peruse.[14]
[14] 4 November 2022 Application
Where asked why he believes the decision is wrong, Mr Bradley refers to an ‘attached document, which provides all the explanation and evidence’. The attached document is a sworn affidavit of Mr Bradley dated 17 March 2022[15] and a statement of claim against the University dated 31 March 2022 and filed with the Federal Court.[16]
[15] Annexure Q, 53-59
[16] Annexure Q, 78-82
Issues to be determined
The issues to be determined by the Tribunal are:
(a)whether to extend the time for making a substantive application for review of the 28 February 2020 decision; and if not
(b)whether the application should be dismissed under section 42B of the AAT Act.
Consideration
Extension of time application
Ordinarily, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant pursuant to paragraph 29(2)(a) of the AAT Act. The Tribunal may extend the time for lodging of an application if it is ‘satisfied that it is reasonable in all circumstances to do so’ pursuant to subsection 29(7).
When considering applications for an extension of time, the Tribunal has generally applied the principles outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (Hunter Valley)[17] which include:
(a)It is a prima facie rule that proceedings commenced outside of the prescribed period will not be entertained, and the application for extension of time must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time;
(b)a distinction is to be made between an applicant who has ‘rested on his rights’, and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
(c)any prejudice to the respondent caused by the delay is a material factor militating against granting an extension;
(d)the mere absence of prejudice is not enough to justify an extension; the ‘unsettling of other people’ or of established practices is ‘likely to prove fatal to the application’;
(e)the merits of the substantial application are properly to be taken into account; and
(f)‘considerations of fairness as between the applicant and other persons’ in a similar position.
[17] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305, 309-311
These principles are not intended to be applied mechanically and no one factor carries primacy over others. All of the circumstances of the case must be considered with the overriding consideration being whether it is ‘reasonable in all the circumstances’ to grant the extension.
Reasons for delay
At the interlocutory hearing Mr Bradley made oral submissions confirming the reasons for the delay set out in paragraph 10.[18]
[18] Transcript of proceedings dated 9 December 2022 (Transcript), 8
Mr Bradley sought review of the February 2020 decision in November 2022. He contends he took some time to process new information. The new information he refers to is dated March 2022. I take into account that Mr Bradley had sought review in 2021. However, there remains a delay of approximately 7 months between receiving the ‘new information’ and lodging his application.
I am not satisfied that this explanation for the delay is acceptable and I consider the delay weighs heavily against granting an extension of time.
Prejudice to the respondent and general public
Mr Bradley lodged his request for review over a year after receiving the June 2020 decision and almost two years after the February 2020 decision. 18 years have passed since the Applicant completed the units of study at issue.
Substantial resources have already been utilised reviewing this decision and the Secretary submits that considerable further prejudice would be caused by the grant of an extension of time.
As the Secretary is entitled to consider that the matter is finalised and there is a public interest in the appeal process ending, this consideration weighs against granting an extension of time.
Merits of the substantive matter
As Mr Bradley seeks remission of fees for study undertaken between 2002 and 2005, two legislative schemes apply. The Higher Education Funding Act 1988 (Cth) (HEF Act) applies to units with a census date prior to 31 December 2004, and the Higher Education Support Act 2003 (Cth) (the HES Act) applies to those Mr Bradley commenced after 1 January 2005.
Relevantly, section 79-1 of the HES Act provides:
Providers to repay amounts – special circumstances
(1) A higher education provider must, on the Secretary's behalf, determine that this section applies to a person if:
(a) the person has been enrolled as a Commonwealth supported student with the provider in a unit of study; and
(b) the unit would, if completed, form part of a course of study undertaken with that provider or another higher education provider; and
(c) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit;...
Subsection 106L(1) of the HEF Act states that the Secretary may remit debt in special circumstances:
(1) The Secretary may, in writing, remit the whole or part of a person's HEC semester debt or PELS semester debt if:
(a) the person has not completed the course requirements for his or her course of study in respect of a semester during the semester or during the year in which the semester occurred;...
As Mr Bradley does not dispute that he completed the units of study for which he seeks fee remission, he is ineligible for the grant of fee remission by operation of paragraphs 79-1(1)(c) of the HES Act and 106L(1)(a) of the HEF Act.[19]
[19] Transcript, 8
When considering an application for an extension of time it is appropriate for the Tribunal to assure itself that it has jurisdiction to review the decision. If there are no reviewable decisions, then it could result in a waste of resources to undertake a hearing.[20]
[20] Re Hempel and Civil Aviation Authority [2006] AATA 188, [14]
The Tribunal has jurisdiction to review a reviewable decision ‘that has been confirmed varied or set aside’ under sections 209-5 or 209-10 of the HES Act or section 106(M)(3) of the HEF Act. An application may be made to the Tribunal pursuant to section 212-1 of the HES Act or subsection 106M(6) of the HEF Act after a decision has been reconsidered by a reviewer.
Mr Bradley has sought review of the February 2020 decision refusing his application. That decision was a primary decision which was subsequently confirmed by the Vice Chancellor of the University in June 2020.
In the June 2020 decision Mr Bradley was advised:
You have now exhausted all internal avenues (including an appeal process) and any further review of the Provost’s decision will need to be to an external body such as the Ombudsman or the Administrative Appeals Tribunal. The University cannot assist you further with this matter.
I am satisfied that the Tribunal has jurisdiction to review the June 2020 decision. I find that the Tribunal does not have jurisdiction to review the February 2020 decision of the Provost.
Taking into account the circumstances outlined above, I do not find it reasonable to grant Mr Bradley an extension of time pursuant to subsection 29(7) of the AAT Act.
Should the application be dismissed?
While it is open to the Tribunal to finalise the matter by refusing to grant the extension of time or determining that there is no reviewable decision before the Tribunal pursuant to subsection 42A(4) of the Act, the Secretary has asked that it be dismissed pursuant to section 42B of the AAT Act which provides:
42B Power of Tribunal if a proceeding is frivolous, vexatious etc.
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
(2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(3) The direction has effect despite any other provision of this Act or any other Act.
Section 42B allows for the Tribunal to dismiss ‘an application for review of a decision, at any stage of the proceeding’. Subsection 3(1) of the AAT Act provides a broad definition of proceeding in relation to the Tribunal which relevantly includes:
(h) an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter…
Section 69BA extends the application of sections 42A and 42B in relation to an application described in paragraph 3(1)(h) ‘in the same way as those sections apply in relation to an application for review of a decision.’ [21] As such, I am satisfied that it is open to the Tribunal to dismiss the matter under section 42B.
[21] Rust-Oleum Pty Ltd and Australian Pesticides and Veterinary Medicines Authority [2017] AATA 298, [36] see footnote 30
The Secretary argues that as there are no reasonable prospects of success, the Applicant should not be allowed to continue pursuing this matter.[22] The Secretary submits that dismissal is appropriate as the uncontested facts underlying the decision ‘would foreclose the possibility of a successful application for fee remission at a threshold level’ and there is a ‘high degree of certainty about the ultimate outcome of this proceeding if it were allowed to progress substantially.’[23]
[22] Transcript, 31
[23] RSFIC, [38]
In determining whether a matter has reasonable prospects of success for the purposes of paragraph 42B(1)(b), the Tribunal need not be persuaded that a claim is hopeless or bound to fail, but it must make a preliminary, practical judgment as to whether the claim is one which is real, and not “merely fanciful or arguable”.[24]
[24] Kitko and University of Technology Sydney [2021] FCA 360, followed in Fuller and Military Rehabilitation and Compensation Commission (Compensation) [2022] AATA 3827, [11]
In this regard Mr Bradley faces the insurmountable challenge that he has completed the units of study for which he seeks fee remission, which renders him ineligible for fee remission by operation of the paragraphs 79-1(1)(c) of the HES Act and 106L(1)(a) of the HEF Act.
The exercise of the Tribunal’s power to dismiss a proceeding under section 42B of the AAT Act must always be exercised with caution and should not be exercised lightly.[25] However, this is the fourth occasion on which Mr Bradley has sought to reagitate the issue of fee remission for units of study undertaken 2003 and 2005.[26] As the University stated in 2020, the requests for review have essentially been the same application.[27] Importantly, the new information he has provided for this application does not appear to assist him in overcoming the insurmountable difficulty of having completed the units of study.
[25] Williams and Australian Electoral Commission (1995) 38 ALD 366, 372
[26] See Bradley and Secretary, Department of Education and Training (General) [2018] AATA 1074; and Bradley and Secretary, Department of Education, Skills and Employment [2021] AATA 4507
[27] Annexure M, 38
During the interlocutory hearing, Mr Bradley was asked if he had considered alternative avenues for recourse, to which he said that he had intended to have the Federal Court consider the matter but that he was fearful of having costs ordered against him.[28]
[28] Transcript, 26
Mr Bradley submits that his ‘application is certainly not frivolous, vexatious, misconceived or lacking substance’ and argues that the ‘interest bearing debt’ he carries is indicative of the seriousness of the matter. In this regard, I do not doubt Mr Bradley’s sincerity or motivations in pursuing the matter. I note the Tribunal’s observation when refusing the 2018 extension of time application that Mr Bradley had ‘significant and genuine grievances about his experiences, which has led him to seek remission for his HECS-HELP debt’.[29]
[29] Bradley and Secretary, Department of Education and Training (General) [2018] AATA 1074, [30]
Regardless of his sincerity, the Tribunal can only consider whether his HECS-HELP debt can be remitted under the preconditions set out in the HES and HEF Act, which on the available evidence he cannot. As such I find that Mr Bradley’s application has no reasonable prospects of success and that an order under subsection 42B(2) is warranted. It is appropriate to order that Mr Bradley must not without leave from the Tribunal, make a subsequent application to the Tribunal regarding fee remission for these units of study.
decision
The application for an extension of time is dismissed pursuant to paragraph 42B(1)(b) of the AAT Act. Pursuant to subsection 42B(2) the AAT Act, the Tribunal directs that the applicant must not, without leave from the Tribunal, make a subsequent application to the Tribunal for review of decisions of the University of Tasmania dated 20 September 2013, 7 July 2016, 28 February 2020 or 29 June 2020 to decline (or confirm a decision to decline) respective applications for fee remission in relation to FEE-HELP debts incurred in the course of his study towards a Bachelor of Human Movement between 2002 and 2005.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
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Associate
Dated: 3 March 2023
Date of hearing:
9 December 2022
Applicant:
In person
Solicitors for the Respondent:
Mr A Downie, Australian Government Solicitor
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