Bradley and Secretary, Department of Education, Skills and Employment
[2021] AATA 4507
•6 December 2021
Bradley and Secretary, Department of Education, Skills and Employment [2021] AATA 4507 (6 December 2021)
Division:GENERAL DIVISION
File Number: 2021/7671
Re:James Bradley
APPLICANT
AndSecretary, Department of Education, Skills and Employment
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:6 December 2021
Place:Sydney
I do not find it is reasonable in all the circumstances to grant the applicant’s extension of time application pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).
..................................[sgd]......................................
Senior Member A Poljak
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time – substantive matter seeks review of decision refusing remission of course fees – whether it is reasonable in all the circumstances to do so – delay – merits of substantive matter – prejudice to the respondent – extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975(Cth) s 29
Higher Education Funding Act1988(Cth) s 106L
Higher Education Support Act 2003 (Cth) s 36.20
CASES
Bradley and Secretary, Department of Education and Training [2018] AATA 1074
Comcare v A’Hearn (1993) FCA 498; 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Knudson and Secretary, Department of Education, Skills and Employment [2021] AATA 63
Last and Secretary, Department of Education and Training [2019] AATA 658
Wilson and Secretary, Department of Education [2021] AATA 1554
REASONS FOR DECISION
Senior Member A Poljak
6 December 2021
Mr Bradley, the applicant, was enrolled in a Bachelor of Human Movement (the course) with the University of Tasmania (University) from 2002 to 2005. The applicant successfully completed 29 units of study within the course but did not complete the course.
On 20 September 2005, the applicant successfully sought remission of his fees from the University for three incomplete units of study undertaken in Semester 2 of 2005 on medical grounds.
On 27 February 2006, the applicant commenced and completed a Bachelor of Business (BBus) with the University; conferred 9 August 2008. Ten units of study completed by the applicant were credited from the course to the BBus.
On 30 August 2013, the applicant applied to the University for fee remission for 21 units of study (Units) relating to the course (Application). On 20 September 2013, the University declined remission of the Units which were completed. On 27 April 2016 and 26 June 2016, the applicant submitted further requests for remission to the University on the same grounds as the request dated 30 August 2013 and on 7 July 2016, the University reviewed and rejected the applications noting that the applicant had “received credit for 125% unit loading from your Bachelor of Human Movement, which was credited to your Bachelor of Business that you undertook at the University of Tasmania from 2006 to 2008” (Review Decision).
In January 2017, the applicant wrote to the University on two occasions seeking to appeal the Review Decision on the grounds that the University was biased, the decision maker bore ill will and failed to comply with the principles of natural justice and that he had new evidence. On 10 February 2017, the University advised the applicant that it had determined not to hear the appeal.
In 2016 and 2018, the applicant unsuccessfully applied to this Tribunal for a review of the University’s decision to refuse his fee remission applications (AAT Matters 2017/0815 and 2018/1333).
In respect of AAT Matter 2017/0815, the applicant withdrew the application, and it was dismissed with effective date of 27 April 2017. In respect of AAT Matter 2018/1333 the applicant’s request for an extension of time was refused on the basis that “the substantive matter before the Tribunal has no merit” because the applicant had completed all the units in question: see Bradley and Secretary, Department of Education and Training [2018] AATA 1074 (Bradley).
On or around 14 February 2020, (almost 14 years after the relevant study periods had concluded), the applicant made another application to the University for refund or remission of fees due to special circumstances for the Units relating to the course which he was enrolled in 2002-2005. On 28 February 2020, the University refused this application. The applicant sought review of this decision and on 29 June 2020, the University advised the applicant that it was not going to re-credit the applicant’s HECS-HELP balance for the Units stating that, inter alia, “any further investigation into the complaint is unjustifiable” (2020 Review Decision).
On 15 October 2021, the applicant applied for an extension of time (EOT application) to lodge an application for review of the 2020 Review Decision (substantive application).
These interlocutory proceedings concern the application for an EOT with respect to the substantive matter, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The respondent opposes the extension of time sought.
PRINCIPLES TO BE APPLIED
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 an application if it “is satisfied that it is reasonable in all the circumstances to do so” pursuant to subsection 29(7) of the AAT Act.
The principles to be applied in determining an application for an extension of time are well-known. In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J said, at [348] and [349], that the principles guiding the exercise of the discretion could be distilled from the authorities as including, “although not in any exhaustive manner”:
(a)it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, and 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”, allowing 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;
(f)“Considerations of fairness as between the applicant and other persons” in a similar position are relevant.
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; 45 FCR 441. All the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all the circumstances to grant the extension.
The principles relevant in these interlocutory proceedings are the extent and reason for delay, merits of the substantive matter and any prejudice to the respondent.
DELAY
The applicant is approximately 15 months out of time in lodging his application for review with the Tribunal. This is a significant delay. Also, of significance is that the 2020 Review Decision dealt with the refund or remission of fees relating to Units completed some 14 years ago.
At hearing the applicant explained that it was only after the previous decision of Bradley that he obtained evidence that on 25 September 2019, the national regulator imposed conditions on the University’s re-registration. He explained that the delay was because he needed time to consider his legal position.
The fact of the lengthy delay is a factor against the exercise of the Tribunal’s discretion in the applicant’s favour and weighs against the granting of an EOT.
MERITS OF SUBSTANTIVE MATTER
Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a preliminary view as to the prospects of the application under review.
The applicant is seeking remission of HECS-HELP debt for units of study which he successfully completed.
Both the Higher Education Funding Act1988 (Cth) (HEF Act) and the Higher Education Support Act 2003 (Cth) (HES Act) apply in this matter depending on when the applicant undertook each unit of the course during 2002-2005. The HEF Act is the legislative framework that applied to funding arrangements for study undertaken by the applicant in 2002 and potentially partially applicable to his study in 2003 depending upon when he undertook the units during that year and the commencement of the HES Act. Relevantly, under both section 106L of the HEFA Act and paragraph 36.20(1)(c) of the HES Act, a student may be entitled to remission of their student’s fee assistance (either HEC semester debt, PELS semester debt or HECS-HELP assistance) if they have not completed the requirements of the relevant unit(s).
The proposition that completion of units renders a student ineligible for fee remission under the Commonwealth loan scheme has been placed beyond doubt by the Tribunal in a succession of cases (see Last and Secretary, Department of Education and Training [2019] AATA 658, Mayhew and Secretary, Department of Education [2021] AATA 914, Wilson and Secretary, Department of Education [2021] AATA 1554 and Knudson and Secretary, Department of Education, Skills and Employment [2021] AATA 63).
On this basis alone, the applicant does not satisfy a key precursor for eligibility for fee remission as he has completed the Units of which he is seeking fee remission. The substantive application is untenable and has no prospects of success.
At hearing the applicant said he was also seeking review as the Units he completed were not of a decent standard and claimed that the University was fraudulent in their conduct and had concealed evidence. He raised issues about the effectiveness of the regulator in ensuring the courses offered by the University were of a decent standard. In his written submissions, the applicant said, “Please add Tort Law to the many other legislative provisions ie Trade Practices Act, Contract Law, criminal Fraud code, Higher Education Act etc, I want to raise and prosecute to the respondent by referring to”. Any of these other claims that the applicant may wish to pursue against the University or regulator are not within the Tribunal’s jurisdiction in reviewing the substantive application.
PREJUDICE TO THE RESPONDENT
Given the applicant’s failure to lodge his application for review on time and following the significant passage of time since the applicant completed the relevant Units of study, the respondent is entitled to consider the matter finalised. It is in the public interest that there is an end to the appeal process. Time limits are imposed to ensure there is a predictable and orderly conclusion to proceedings. Prejudice to the respondent in this case is particularly stark given that the basis and relevant facts of the substantive matter are the same as the ones considered and determined previously by this Tribunal in Bradley to have no reasonable prospects of success.
The prejudice to the respondent should an EOT be granted in this case is considerable and proceeding with this application for review would be an unnecessary burden on the resources of the Commonwealth and the Tribunal.
DECISION
For the above reasons, I do not find it is reasonable in all the circumstances to grant the applicant’s extension of time application pursuant to subsection 29(7) of the AAT Act.
The EOT application is refused.
I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
................................[sgd]........................................
Associate
Dated: 6 December 2021
Date of interlocutory hearing: 29 November 2021 Applicant: Self-represented Solicitors for the Respondent: Ms F Baker, Department of Education, Skills and Employment
6
0