Coombs and Hartwig Air Group Pty Ltd

[2016] AATA 137

Coombs and Hartwig Air Group Pty Ltd [2016] AATA 137 (15 February 2016)

Division	GENERAL DIVISION
File Number	2015/6212
Re	Nigel Allan Coombs
APPLICANT
And	Hartwig Air Group Pty Ltd
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	15 February 2016
Date of written reasons	8 March 2016
Place	Adelaide

The Tribunal decides that it does not have jurisdiction to hear the application for review. Accordingly, the applicant’s application for review is dismissed.

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Deputy President K Bean

CATCHWORDS

PRACTICE AND PROCEDURE - Jurisdiction - Request for re-crediting of VET FEE-HELP balance on the grounds of "special circumstances" - Where VET provider's decision has not been reconsidered by the Secretary - No jurisdiction - Further request for re-crediting on the basis that the VET provider ceased to provide the course - No decision made by VET provider - Enactment does not confer jurisdiction on Tribunal to review decisions of that kind - Application dismissed.

LEGISLATION

Higher Education Support Act 2003, Schedule 1A, clauses 46, 51, 91, 94, 96, 97

REASONS FOR DECISION

Deputy President K Bean

8 March 2016

1. As I understand it, the respondent, Hartwig Air Group Pty Ltd, is a vocational education and training provider which is approved under the Higher Education Support Act 2003 (the Act).  As the respondent is approved under that Act, students are eligible for Commonwealth assistance in respect of courses undertaken with the respondent.

2. The applicant, Mr Coombs, enrolled with the respondent in the course Advanced Diploma of Aviation on 23 October 2013.  The course was originally due to finish on 2 March 2015, although I understand that date was later extended to a date in June 2015.  The total tuition fees for the course were $114,900.00.  However, as Mr Coombs sought and obtained Commonwealth assistance with respect to these tuition fees, the amount of $87,060.00 was deferred through the VET FEE-HELP Scheme pursuant to the Act, and became a VET FEE-HELP debt owed by Mr Coombs.

3. In circumstances which I do not need to explore in detail here, Mr Coombs did not ultimately complete and graduate from the course and, following earlier communications, including in July 2015, on 29 October 2015 he sent an email to the respondent requesting “a full re-credit of my VET FEE-HELP balance”.  Attached to that email was a submission in which he also referred to seeking to have his FEE-HELP debt “remitted on the grounds of special circumstances” and setting out the reasons for that request, and why the relevant circumstances were beyond his control and did not make their full impact on him until after the census date.

4. The respondent replied to that request by letter dated 26 November 2015, in which it addressed some of the matters Mr Coombs had put forward in support of his request.  In summarising the reasons for refusing the request, Mr Johnston, Director of the respondent, stated in this letter:

   You enrolled on (sic) a course that you were not able to successfully complete and you failed.  Despite additional training in both theory and flight you were unable to achieve the standard required to conduct a solo navigation flight, much less a commercial licence and instrument rating.

   The School exceeded its training obligations to you on the Advanced Diploma course, and made genuine efforts to remediate your situation.  Unfortunately, you did not treat the course as a full-time endeavour, you did not progress at a satisfactory rate, and as a result you failed the course.  You have not fulfilled the requirements for any type of fee refund as per the Domestic Student Fees Refund policy, which is available on our website: … Accordingly, your Stage 1 Complaint has been rejected.

5. That letter also advised Mr Coombs that if he was not satisfied with the outcome, he could proceed to an internal “Stage 2 (appeal)”.  However it did not refer to, or address, the criteria set out in the Act, or advise him of any other review rights, such as any right to seek reconsideration of the decision by the Department of Education and Training.

6. On 30 November 2015, Mr Coombs lodged an application with this Tribunal seeking review of a decision dated 17 November 2015, but which I understand to be the decision reflected in Mr Johnston’s letter of 26 November 2015. However, as there was uncertainty and disagreement as to whether the Tribunal had jurisdiction to review that decision, the matter was listed before me on 15 February 2016 to determine whether the Tribunal had jurisdiction with respect to Mr Coombs’ application and, if so, to what extent.

7. On that day, I decided that the Tribunal did not have jurisdiction, and gave oral Reasons. On 16 February 2016, Mr Coombs requested reasons in writing for that decision, and these written Reasons have been prepared in answer to that request.

   STATUTORY FRAMEWORK

8. The starting point in determining whether the Tribunal has jurisdiction in this matter is the legislation conferring an entitlement on students to seek re-crediting of their FEE-HELP balance, and also conferring the Tribunal’s jurisdiction in this area.  Having reviewed the relevant parts of the Higher Education Support Act 2003, I consider the most relevant provisions to be clauses 46, 51, 91, 94, 96, and 97 of Schedule 1A.

9. Clause 46 confers an entitlement on students to seek re-crediting of their FEE-HELP balance in certain circumstances, and relevantly provides as follows:

   46  Main case of re-crediting a person’s FEE-HELP balance

   …

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

   (a)the person has been enrolled in the unit with the provider; 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)the provider is satisfied that special circumstances apply to the person (see clause 48); and

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

   (e)either:

   (i)the application is made before the end of the application period under clause 49; or

   (ii)the provider 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.

10. Clause 51 also provides for re-crediting in circumstances where the provider has ceased to provide the course of which the relevant unit forms part, and relevantly provides as follows:

    51Re-crediting a person’s FEE-HELP balance if provider ceases to provide course of which unit forms part

    (1)A VET provider must, on the Secretary’s behalf, re-credit a person’s FEE-HELP balance with an amount equal to the amounts of VET FEE-HELP assistance that the person received for a VET unit of study if:

    (a)   the person has been enrolled in the unit with the provider; 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 because the provider ceased to provide the unit as a result of ceasing to provide the course of which the unit formed part; and

    ...

11. Clause 91 sets out which decisions made under the Act are reviewable and who the decision-maker is in respect of reviewable decisions.  The relevant Table as set out in clause 91 relevantly provides as follows:

Reviewable VET decisions
Item	Decision	Provision under which decision is made	Decision maker
…
1	Refusal to re-credit a person’s FEE-HELP balance	subclause 46(2)	(a) the VET provider with whom the student is enrolled in the unit; or (b) if the Secretary made the decision to refuse the re-crediting—the Secretary

1. Subdivision 16-C of the Act provides for reconsideration of certain decisions and sets out who reviews decisions in respect of which reconsideration has been sought.  Subclause 94(1) relevantly provides as follows:

   94  Reviewer of decisions

   (1)The reviewer of a reviewable VET decision is:

   (a)if the decision maker was a VET provider acting on behalf of the Secretary—the Secretary; or

   (b)in any other case—the decision maker, but see subclause (2).

   …

2. Clause 96 sets out how a person affected may seek reconsideration of a reviewable VET decision and relevantly provides as follows:

   96  Reconsideration of reviewable VET decisions on request

   (1)A person whose interests are affected by a reviewable VET decision may request the reviewer to reconsider the decision.

   (2)The person’s request must be made by written notice given to the reviewer within 28 days, or such longer period as the reviewer allows, after the day on which the person first received notice of the decision.

   (3)The notice must set out the reasons for making the request.

   (4)After receiving the request, the reviewer must reconsider the decision and:

   (a)confirm the decision; or

   (b)vary the decision; or

   (c)set the decision aside and substitute a new decision.

   ...

3. Clause 97 of the Act confers a limited jurisdiction on the Tribunal to review certain decisions, as follows:

   97  AAT review of reviewable VET decisions

   An application may be made to the Administrative Appeals Tribunal for the review of a reviewable VET decision that has been confirmed, varied or set aside under clause 95 or 96.

4. It is relevant to note that one effect of the above provisions is that the Tribunal does not appear to have jurisdiction with respect to requests for re-crediting made under clause 51 on the basis that the provider ceased to provide the course.  The Tribunal has jurisdiction to review a decision refusing to re-credit a person’s FEE-HELP balance under clause 46 on the grounds of “special circumstances”.  However, the Tribunal does not have jurisdiction until a clause 46 decision has been made by the provider and also reconsidered by the Secretary of the Department or his or her delegate.

   CONSIDERATION

5. It follows on my analysis that, by reference to the legislative framework, what has occurred to date in this matter is that Mr Coombs has sought re-crediting of his FEE-HELP balance from the respondent pursuant to subclause 46(2) on the grounds of “special circumstances”, by letter dated 29 October 2015. As set out above, that request was refused by the respondent on 26 November 2015 and, although he was not advised of this at the time, it appears to me that Mr Coombs then had a right to seek reconsideration of that decision by the Secretary of the Department of Education and Training.

6. I also note that on 25 January this year, Mr Coombs wrote again to the respondent seeking re-crediting of his FEE-HELP loan.  In that correspondence, he described this as a “Stage Two: Appeal Formal Complaint”, by reference to the respondent’s internal complaints procedure.  However, he also referred to clause 51 of the Act, and indicated that the basis for his request was that the respondent had failed to deliver the course.  In substance therefore, it appears that this was in fact a second request for re-crediting, pursuant to clause 51, which was directed to the respondent as contemplated by the Act. As I understand it, because this was treated as a “Stage 2 Complaint” rather than a request for re-crediting under clause 51, as at the date of the Tribunal hearing, that request had not yet been formally determined by the respondent.  However, Mr Johnston, who appeared for the respondent at the hearing, indicated that following the discussion which took place at the hearing, the respondent would proceed to formally determine that request under clause 51 of the Act.

7. Turning to the question of the Tribunal’s jurisdiction or authority, as I explained to Mr Coombs at the hearing, the authority conferred on the Tribunal by the Parliament in this area is quite limited.  As I read the Act, the only relevant jurisdiction the Tribunal has in these circumstances is to review a clause 46 decision which has been made by the provider and then reconsidered by a delegate of the Secretary within the Department.  However, it is clear in the circumstances of this matter that, although a primary decision under clause 46 appears to have been made by the provider, Hartwig Air, there has been no reconsideration of that decision by the Department.  It appears this has not yet occurred at least partly because the respondent did not regard Mr Coombs’ request as a request under clause 46, did not determine it under clause 46 or refer to the criteria set out in clause 46, and accordingly did not advise him of his right to seek reconsideration by the Department. 

8. It therefore follows that, in the absence of any reconsideration decision which is reviewable by the Tribunal, the Tribunal currently lacks jurisdiction in the matter and the application must be dismissed for that reason.  Of course, assuming Mr Coombs now seeks reconsideration by the Department of the respondent’s decision of 26 November 2015, and he remains dissatisfied with the outcome of that reconsideration, it will be open to him at that stage to come back to the Tribunal and seek review of the reconsideration decision, which I would expect the Tribunal would have jurisdiction to review.

9. I note that, following discussions at the hearing, Mr Johnston agreed to provide Mr Coombs on that day with the contact details of the person within the Department to whom he should direct his request for review of the respondent’s decision of 26 November 2015.  As I have already mentioned, Mr Johnston also indicated that the respondent would treat Mr Coombs’ letter of 25 January 2016 as a request for re-crediting under clause 51 of the Act, and a decision would be made with respect to that request within 14 business days of the date of the hearing.  As I indicated to the parties at the hearing, from my perusal of the Act, the Tribunal does not appear to have any jurisdiction with respect to clause 51 decisions. However, I note that when the respondent advises Mr Coombs of its clause 51 decision, it will also advise him of any appeal or review rights he has with respect to that decision.

10. For the reasons I have given, I am satisfied that the Tribunal does not have jurisdiction in this matter and accordingly I propose to dismiss the application for lack of jurisdiction. 

    DECISION

11. The Tribunal decides that it does not have jurisdiction to hear the application for review. Accordingly, Mr Coombs’ application for review is dismissed.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

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Associate

Dated 8 March 2016

Date of hearing	15 February 2016
Applicant	In person
Respondent	In person