Bradley and Secretary, Department of Education and Training (General)
[2018] AATA 1074
•27 April 2018
Bradley and Secretary, Department of Education and Training (General) [2018] AATA 1074 (27 April 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1333
Re:James Bradley
APPLICANT
AndSecretary, Department of Education and Training
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:27 April 2018
Place:Sydney
The application for an extension of time is refused.
..................[sgd]..................................................
Dr L Bygrave, Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – whether it is reasonable in all the circumstances to grant the extension – explanation for delay – whether substantive matter has merit – remission of HECS-HELP debt – units of study already completed – no jurisdiction to review decision – extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Higher Education Funding Act 1988 (Cth) s 106L
Higher Education Support Act 2003 (Cth) s 36.20
CASES
Chouman and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 222
Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344SECONDARY MATERIAL
Higher Education Standards Framework (Threshold Standards) 2015 (Cth)
REASONS FOR DECISION
Dr L Bygrave, Member
27 April 2018
INTRODUCTION
On 15 March 2018, Mr James Bradley lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) seeking an extension of time to make an application to review a decision made by the University of Tasmania (the University) on 10 February 2017 (the reviewable decision).
The reviewable decision is a decision by the University not to consider Mr Bradley’s notice of appeal dated 16 January 2017, in which he seeks remission of his Higher Education Contribution Scheme – Higher Education Loan Program (HECS-HELP) debt for units of study completed for a Bachelor of Human Movement degree.
The Secretary opposes the extension of time sought.
The application was heard in Sydney on 17 April 2018. Mr Bradley attended the hearing by conference telephone and was self-represented.
BACKGROUND
Between 2002 and 2005, Mr Bradley completed units of study towards a Bachelor of Human Movement degree at the University. He subsequently completed a Bachelor of Business degree at the University, which was conferred in August 2008.
On 30 August 2013, Mr Bradley applied to the University for remission of his HECS-HELP debt in relation to the units of study he completed for a Bachelor of Human Movement degree.
The Secretary submits that on 20 September 2013, the University declined remission of the units that were recognized and credited towards Mr Bradley’s Bachelor of Business degree (the original decision).[1]
[1] Department of Education and Training Submission dated 13 April 2018, paragraph 6.
There is extensive correspondence between the University and Mr Bradley, which shows the University reviewed and affirmed the original decision.[2] Mr Bradley then sought an appeal with the University’s Complaints Appeal Committee under Ordinance 8, Part 4 in accordance with the University’s Full Fee Paying and Commonwealth Supported Student Remission of Debt Policy (Remission Policy). In the reviewable decision dated 10 February 2017, the Committee determined not to hear Mr Bradley’s notice of appeal on the basis that it did not address the limited grounds of appeal specified in the University’s Remission Policy.
[2] Department of Education and Training Submission dated 13 April 2018, Annexures C-E.
Mr Bradley applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review on 14 February 2017. Mr Bradley withdrew his application on 27 April 2017 after he participated in a Tribunal convened telephone conference with a representative of the Secretary (Tribunal conference).
Mr Bradley then applied for an extension of time to lodge a further application for review on 15 March 2018, which is the matter for determination before this Tribunal.
PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION
Ordinarily, in accordance with paragraph 29(2)(a) of the AAT Act, 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 subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it ‘is satisfied that it is reasonable in all the circumstances to do so’ [emphasis added].
The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] as follows:
(a)an applicant must show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend 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;
(d)whether the respondent or the general public would suffer any prejudice as a result of the extension;
(e)the merits of the substantial application;
(f)‘[c]onsiderations of fairness as between the applicant and other persons’ in a similar position.
These principles are not to be applied mechanically. For example, an ‘acceptable explanation for the delay’ is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441.
All of the circumstances of the case must be considered; the overriding consideration being whether it is ‘reasonable in all the circumstances’ to grant the extension.
REASONS FOR DELAY
The delay in Mr Bradley seeking a review of the reviewable decision by the University on 10 February 2017 is more than 12 months outside the 28 day time limit and more than ten months after he withdrew his first application for review.
In his application for an extension of time, Mr Bradley provided the following explanation for the delay:
…the main reason I want to discuss this again is that I have had legal advice since the AAT conference where it was determined that there was definitely a breach of contract related to our agreement (and payment of fees).
At the Tribunal hearing, Mr Bradley said he withdrew his previous application before the Tribunal on 27 April 2017 because he understood the Secretary’s representative at the Tribunal conference would assist him to seek resolution of his complaint with the Ombudsman’s office. He further stated that he has sought pro bono legal advice in relation to his complaint and this process has taken time. I outline Mr Bradley’s submissions regarding this pro bono legal advice in my reasons below at paragraph 29.
While I accept Mr Bradley’s explanation for his delay in lodging a review of the reviewable decision, I agree with the Secretary’s submission that the length of delay weighs heavily against granting an extension of time.
While this principle weighs against the applicant, it is not the only factor I need to consider in determining whether to grant the extension of time.
PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC
It is in the interests of both the Secretary and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes. I have regard to Chouman and Secretary, Department of Education, Employment and Workplace Relations, in which the Tribunal stated:
... to grant an extension of time in this matter would be unfair to other applicants in similar situations who have not submitted late applications.
The grant of an extension of time in this matter would set an unwelcome example and cause inconvenience to Centrelink and the Tribunal in having to deal with large numbers of such applications. There is a general public interest in ensuring finality in decision-making.[3]
[3] [2009] AATA 222, paras [30-31].
I accept that the Secretary and the general public would have expectations about the finality of the decision-making process in relation to Mr Bradley’s application.
Mr Bradley withdrew his first application for review on 27 April 2017 and then lodged a further application for review more than ten months later. I accept Mr Bradley’s submissions to the Tribunal that he had expectations following the Tribunal conference on 27 April 2017 that his issues could be resolved with the assistance of the Secretary’s representative.
Given the extensive resources already expended in this matter by the Secretary and the Tribunal, however, and expectations by the Secretary that this matter was finalised when Mr Bradley withdrew his application before the Tribunal on 27 April 2017, I am satisfied that there would be prejudice to the Secretary and the general public if the extension of time is granted. This factor weighs against granting an extension of time application.
MERITS OF SUBSTANTIVE MATTER
The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time.
The substantive matter for me to consider is whether, on the balance of the evidence before the Tribunal, the University is able to remit Mr Bradley’s HECS-HELP debt for units of study he completed for his Bachelor of Human Movement degree from 2002 to 2005.
Relevant legislation and consideration of the evidence
The relevant legislation is set out in section 36.20 of the Higher Education Support Act 2003 (Cth) (HES Act), which 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; and… [emphasis added]
Section 106L of the Higher Education Funding Act 1988 (Cth) (HEF Act) also states:
Power of Secretary to 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; and… [emphasis added]
At the Tribunal hearing, Mr Bradley submitted that he has received pro bono legal advice that he should rely on sections of the HES Act and HEF Act, which set out that higher education providers must operate at an appropriate level of quality and be characterised by quality. He further relied on the Higher Education Standards Framework (Threshold Standards) 2015 (Cth), which provides at section 2.4 that there should be ‘provision for review by an appropriate independent third party’ for student grievances and complaints. He submitted that this provision should enable his complaint to be heard by the Tribunal acting as an ‘independent third party’.
Mr Bradley provided extensive written and oral submissions to the Tribunal about his experiences from 2002 to 2005 undertaking study towards a Bachelor of Human Movement degree at the University. It is clear on the face of these submissions that Mr Bradley has significant and genuine grievances about his experiences, which has led him to seek remission for his HECS-HELP debt accrued for units of study he completed for his Bachelor of Human Movement degree.
In considering all of the relevant circumstances and weighing the available evidence, the substantive matter before the Tribunal has no merit. This is because Mr Bradley completed all the units of study for which he seeks remission of his HECS-HELP debt between 2002 and 2005. This means that the Secretary has no legislative power to remit his debt in accordance with section 36.20 of the HES Act and section 106L of the HEF Act. Further, I am satisfied that the Tribunal has no jurisdiction to review the reviewable decision by the University because it is not a decision that can be reviewed by the Tribunal in accordance with the HES Act or the HEF Act.
As Mr Bradley’s substantive matter has no merit, this factor weighs heavily against granting the extension of time application.
CONCLUSION
Taking into account all of the information before me, I am not satisfied that it is reasonable in the circumstances to grant the extension of time application.
DECISION
The application for an extension of time is refused.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
.........................[sgd]...........................................
Associate
Dated: 27 April 2018
Date(s) of hearing: 17 April 2018 Applicant: In person Solicitors for the Respondent: Australian Government Solicitor
6
4
0