Cosgrove and Secretary, Department of Education, Skills and Employment
[2022] AATA 1195
•16 May 2022
Cosgrove and Secretary, Department of Education, Skills and Employment [2022] AATA 1195 (16 May 2022)
Division:GENERAL DIVISION
File Number(s): 2021/8007
Re:Paige Cosgrove
APPLICANT
AndSecretary, Department of Education, Skills and Employment
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:16 May 2022
Place:Brisbane
The Tribunal dismisses the application for review pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
............................[SGD]......................................
Member D Mitchell
Catchwords
PRACTICE AND PROCEDURE – role of the Tribunal – application for dismissal pursuant to section 42B(1)(b) the Administrative Appeals Tribunal Act 1975 (Cth) – re-credit of VET FEE-HELP debt as a result of inappropriate actions of a VET Provider or its agent – whether Tribunal is satisfied the application has no reasonable prospect of success – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Higher Education Support Act 2003 (Cth)
Higher Education Support (VET) Guideline 2015 (Cth)Cases
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Filsell and Comcare (2009) 109 ALD 198; [2009] AATA 90
Re Paraponiaris and Secretary, Department of Employment (2015) 153 ALD 484;
[2015] AATA 895REASONS FOR DECISION
Member D Mitchell
16 May 2022
By way of application dated 26 October 2021, Ms Paige Cosgrove (the Applicant) sought review of a decision made by the Respondent on 23 June 2021.
The decision the Applicant is seeking to be reviewed relates to her application requesting removal of her Vocational Education and Training (VET) FEE-HELP debt (and re-credit of FEE-HELP balance) in relation to a Diploma of Business Administration course she completed in 2015.
BACKGROUND
On 23 June 2014, the Applicant was enrolled in a Diploma of Business Administration (the course) with ACTE Pty Ltd (Evocca College) (the Provider). As a result of that enrolment, the Applicant incurred a VET FEE-HELP debt of $18,000.
In the lead up to her enrolment, the Applicant, on 13 June 2014, completed a Request for VET FEE-HELP assistance. In the form she declared that she had read the VET FEE-HELP information booklet and was aware of her obligations if she received VET FEE-HELP assistance and that the information she provided on the form was complete and correct.
Further on 19 June 2014, the Applicant completed a pre-enrolment quiz in which she confirmed her understanding of the fees that she would incur by undertaking the course and how they would be repaid through VET FEE-HELP.
Between 7 July 2014 and 12 December 2014, the Provider issued the Applicant with three Commonwealth Assistance Notices for the three units of study that made up the course (the Units).
The Applicant successfully completed the course and was issued with a Diploma of Business Administration BSB 50407 dated 29 April 2015. The Applicant’s record of results show that she achieved competency in respect of the eight subjects of which the Tribunal understands made up the Units of the course.
On 17 November 2019, the Applicant made a complaint to the VET Student Loans Ombudsman (VSLO) about the Provider and her VET FEE-HELP debt. Consequently, the VSLO commenced a process to consider whether it would recommend that her debt be removed.
The VSLO recorded that it contacted the Applicant by telephone on 10 January 2020 at which time she confirmed that she had completed the course, had received her diploma, and had found studying the course to be a positive experience.
After assessing the Applicant’s complaint, the VSLO formed the view that the Applicant’s FEE-HELP balance was not available for recredit because her records showed she had completed the units that made up the course and that she herself agreed she had completed the course and received her diploma.
On 10 December 2020, the VSLO confirmed with the Applicant that its recommendation to the Respondent pursuant to clause 46AA of Schedule 1A to the Higher Education Support Act 2003 (Cth) (HES Act) was not to re-credit the Applicant’s FEE-HELP balance as the Units were not eligible for re-credit as the Applicant had completed the course that comprised the Units.
On 23 March 2021, the Respondent emailed the Applicant, advising her of the outcome of her application for removal of her VET FEE-HELP debt (and re-credit of FEE-HELP balance). The Applicant was advised that the delegate had decided not to re-credit her FEE-HELP balance for the Units that made up the course. The decision provided the following reasons:
The Delegate may re-credit your FEE-HELP balance under Clause 46AA(1) of Schedule 1A of the Higher Education Support Act 2003 (HESA) where satisfied that:
(1) you have not completed the unit of study and
(2) your VET FEE-HELP debt was incurred through the inappropriate conduct of a VET
In coming to a decision the Delegate has considered the following:
·your provider’s report on whether you had successfully completed the above units in the department's Higher Education Information Management System (HEIMS);
·the recommendation of the VSLO within the Office of the Commonwealth Ombudsman;
·the inappropriate conduct outlined in your complaint was consistent with your VET provider’s, or
·broker’s known conduct;
·any evidence provided to the Delegate indicating that you have completed the unit/s of study or
·that your FEE-HELP debt was not incurred through the inappropriate conduct of your VET provider, or their agent; and
·any submissions you made within 28 days of the letter from the VSLO advising you of its intention to make a recommendation that your units not be re-credited.
On the basis of this evidence the Delegate is not satisfied that you meet the necessary criteria to justify a re-credit—that is, either:
(1) you have completed the requirements for the unit, or
(2) it has not been established that it is reasonably likely that the VET provider (or their agent) engaged in inappropriate conduct towards you in relation to the unit, or the VET course of study of which the unit forms a part.
Consequently the Delegate has decided not to re-credit your FEE-HELP balance for the above units.
On 24 March 2021, the Applicant applied for a review of that decision. The Applicant provided the following in support of her request for review:
I undertook training with a private TAFE college called Evocca College doing a Diploma of Business Admin with the promise of a new laptop/iPad so that I agreed up to being told at the time it was 100% free no repayment ever as long as u hadn’t done a course in the past and as long as I had completed high school which I had. It seems like this organization has shut down and reopened their doors numerous times (Evocca, Nuvocca, ACTE, etc) just to try and escape negative press but I guess they aren't trading anymore. I put in a complaint with department of education but now have lead back to having to email you guys disputing the decision they made which I find very unfair. I'm not in a job that I have to start repaying this amount back but safe to say I am not very thrilled about the obligation of paying back $20,000 if I ever get to a job that I have to start paying back but just because it doesn't exist. I can honestly say in my heart that there is no way in the world I would of ever done this course if I didn’t get pulled up in a shopping center and taken for granted of a free course if I 100% knew there was a Vet fee payment of roughly $20k. I’m a single mother trying to do the best I can and this infuriates me that companies can lead people in to do this government scam for their companies. Having this on my shoulders is huge, yes I competed [sic] the course but why would I agree to this course and not complete it. I’m happy to not have the course outlined and have the money wiped clear due to the lack of communication that occurred and not just to me but hundred of people. Evocca have been on the news for a reason and I’m sure there are other companies alike. I find it unfair and not human like that people could do such things. Can you please consider my decision about how unfair this is to me and my daughter and how it could affect my future. Please take the time to understand where I’m coming from and how much this has hurt me and upset me. On 23 June 2021, the Respondent affirmed the initial decision. The Respondent provided the following reasons for its decision:
On 23 June 2021, the Respondent affirmed the initial decision. The Respondent provided the following reasons for its decision:
The Secretary may re-credit your FEE-HELP balance under Clause 46AA(1) of Schedule 1A of the Higher Education Support Act 2003 (HESA) where the Secretary satisfied that:
(1)You either did not complete, or can be taken not to have completed, the requirements for the unit of study (having regard to section 58A of the Higher Education Support (VET) Guideline 2015 (VET Guideline); and
(2)It is reasonably likely that the VET (or their agent) engaged in inappropriate conduct towards you (having regard to section 58AB of the VET Guideline).
In coming to this decision, I considered the following:
·whether you had successfully completed the above units in the department's Higher Education Information Management System
·the recommendation of the VET Student Loans Ombudsman (VSLO) within the Office of the Commonwealth Ombudsman;
·whether the inappropriate conduct outlined in your complaint was consistent with your VET provider or broker's known conduct;
·any evidence provided to the reviewer indicating that you have completed the unit/s of study or that your debt was not incurred through the inappropriate conduct of your VET provider or their agent;
·any submissions you made within 28 days of the letter from the VSLO advising you of its intention to make a recommendation that your units not be
·the original information submitted as part of your complaint to the VSLO;
·the information provided in your review request. On the basis of the above, I was not satisfied that you meet the necessary criteria to justify a is, there is insufficient evidence for me to be satisfied you did not complete the requirements for the units of study.
Consequently, I confirm the initial decision to refuse to recredit your FEE-HELP balance for the above units.
The decision of 23 June 2021 was sent to the incorrect email address and as such was not received by the Applicant until 26 October 2021.
The Applicant sought review of the decision of 23 June 2021 by way of application to this Tribunal dated 26 October 2021. The Applicant provided the following reason for making the application:
I feel this decision is wrong as the company who no longer exists actually did the wrong thing, I feel I’m getting very mistreated that I have copped a now $20k debt that was told to be “100% free” at the time and no catches involved. I would happily pay this is if it was the case of myself heading to uni or tafe however in a shopping center pulling people in and than the business gets shut down just explains how wrongly they have done. It’s really upsets me. Im a single mum that doesn’t deserve this help debt for a company that did the wrong thing to see real people. I know of other people that got caught up in this scheme too. Please help me with this. I’ve been back and forth emails regarding my issue and just want this sorted out on a final basis please. I don’t do wrongly in life, it’s just an unfair ordeal. Please understand where I am coming from. Thank you very much.
On 8 March 2022, the Respondent provided written submissions requesting that the Tribunal conduct an Interlocutory Hearing to consider dismissing the Applicant’s application pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the application has no reasonable prospect of success.
A telephone Interlocutory Dismissal Hearing was conducted in this matter on
10 May 2022.
ISSUES
The present issue before the Tribunal is whether the Tribunal should exercise the discretion to dismiss the Applicant’s application for review under section 42B(1)(b) of the AAT Act.
THE ROLE OF THE TRIBUNAL
The Tribunal’s role is to undertake an independent merits review of administrative decisions for which it has jurisdiction to hear.
The Tribunal stands in the shoes of the original decision-maker and considers the matter afresh. The Tribunal considers the evidence before it and is tasked to make the correct and preferable decision in accordance with law.
The bounds of the Tribunal’s decision-making powers are found in section 43 of the AAT Act, which provides:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
a)Affirming the decision under review;
b)Varying the decision under review; or
c)Setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any direction or recommendations of the Tribunal.
The Tribunal cannot make a decision that is outside of the law that is in place. Where no discretion is provided by the statute, the Tribunal cannot, regardless of its view on the matter, make a decision that is not correct at law.
SHOULD THE APPLICATION BE DISMISSED?
Section 42B(1) of the AAT Act provides that:
(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceedings, 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.
The High Court, in Spencer v Commonwealth [2010] HCA 28, stated that ‘the exercise of powers to summarily terminate proceedings must always be attended with caution’[1] and it is readily ‘accepted the power to dismiss an action summarily is not to be exercised lightly.’[2]
[1] At [24].
[2] At [60].
In considering whether to dismiss proceedings under section 42B(1)(b) of the AAT Act, Deputy President Jarvis, in Filsell and Comcare [2009] AATA 90 at [33] provided the following rationale:
The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously. ….. However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
Conversely, applications to dismiss under s 42B should not be made except in appropriate cases, since otherwise the parties will be put to additional expense, the tribunal’s time and resources will be wasted, and the tribunal’s ability to provide a mechanism of review that is fair, just, economical, informal and quick (as required by s 2A of the AAT Act) will be impeded.
In Re Paraponiaris and Secretary, Department of Employment [2015] AATA 895, Deputy President Alpins in considering relevant authorities regarding the Tribunal’s power under section 42B of the AAT Act provided:[3]
The exercise of the Tribunal’s power to dismiss proceedings under s 42B, being a power to dismiss a proceeding summarily, “must always be attended with caution” and “is not to be exercised lightly” (Spencer at [24], [60]; see also Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366 at 372), as ordinarily a party ought not be denied the opportunity to put their case and have it heard in the usual way; the expression “no reasonable prospect” prescribes a standard describing “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to [hearing] in the ordinary way” (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57], cited with approval in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]).
The requirement that the Tribunal be satisfied that the application “has no reasonable prospect of success” necessarily involves a consideration of the merits in the sense that it requires a finding that the application lacks any prospect of success which can properly be said to meet the standard of being a reasonable one (see Duncan v Fayle [2004] FCA 723; (2004) 138 FCR 510 at [22] per French J). The Tribunal’s discretion to dismiss an application for review under s 42B(1) of the AAT Act is enlivened in circumstances where the Tribunal forms the view that the application, upon a practical judgment as to the expected ultimate outcome of the proceeding, suffers from the requisite deficiency described in s 42B(1)(b), which will depend upon the nature of the issues raised by the application, particularly whether the case involves resolution of issues of fact, law or both (Spencer at [25]-[26]).
Where the application for review requires resolution of a real issue or issues of fact (or law and fact, or mixed law and fact), the Tribunal cannot properly be satisfied that the application “has no reasonable prospect of success” for the purposes of s 42(1)(b) – it is not enough that the Tribunal has formed the view that the applicant is unlikely to succeed in respect of such issues (Spencer at [25]-26]; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J).
Where the application for review requires resolution of a real issue or issues of law, the Tribunal cannot properly be satisfied that the application “has no reasonable prospect of success” – that will be so where there may be room for doubt about a proposition of law upon which the success of the application for review depends. On questions of law, “an inquiry as to their merit should not be for the purpose of resolving them ... but in order to decide if it is sufficiently strong to warrant a [hearing]” (Dandaven at [6]).
The fact that the proposition of law is apparently precluded by existing authority may not always be the end of the matter, unless the success of the proceedings is critically dependent upon a proposition of law which would contradict a binding decision of the High Court (Spencer at [25]).
However, where the success of an application for review depends upon propositions of law said to arise from relevant legislative provisions which are not sufficiently tenable as a matter of proper statutory interpretation, in my opinion it is open to the Tribunal to be satisfied that the application has no reasonable prospect of success for the purposes of s 42B(1)(b).
[3] At [23]-[28].
The requirements that must be fulfilled to be entitled to VET FEE-HELP assistance (which constitutes a loan) for VET units of study are set out in clause 43 of Schedule 1A to the HES Act. Pursuant to clause 55 of Schedule 1A to the HES Act, the Commonwealth pays the amount loaned to the student directly to the VET provider to discharge the student’s liability to pay their VET tuition fees.
There is no dispute in this matter in relation to the Applicant’s entitlement to VET FEE-HELP or that her VET tuition fees were paid to the Provider under the VET FEE-HELP scheme.
Subdivision 104-B of Part 3.3 of the HES Act provides that a student’s FEE-HELP balance is the amount of VET FEE-HELP assistance loaned to the student less any amount re-credited to the student.
Clause 46AA of Schedule 1A to the HES Act provides an avenue for a student to apply to the Respondent for the re-credit of their HELP balance in respect to VET FEE-HELP assistance due to inappropriate conduct by a VET provider. Clause 46AA of Schedule 1A to the HES Act relevantly provides:
(1) The *Secretary may, on application under subclause (3) or on the Secretary’s own initiative, re‑credit a person’s *HELP balance with an amount equal to the amounts of *VET FEE‑HELP assistance that the person received for a *VET unit of study with a *VET provider, if the Secretary is satisfied that:
(a)either:
(i)the person has not completed the requirements for the unit during the period the person undertook, or was to undertake, the unit; or
(ii)under *VET Guidelines prescribed for the purposes of this subparagraph, the person is taken not to have completed those requirements during that period; and
(b)it is reasonably likely that, having regard to any matters prescribed by the *VET Guidelines for the purposes of this paragraph, the VET provider (or an agent of the VET provider) engaged in inappropriate conduct towards the person in relation to the unit, or the *VET course of study of which the unit forms a part.
Note 1: A VET FEE‑HELP debt relating to a VET unit of study will be remitted if the HELP balance in relation to the unit is re‑credited: see section 137‑18.
Note 2: The VET provider may be required to repay an amount to the Commonwealth under subclause 56(4), depending on the nature of the inappropriate conduct.
Section 58A of the Higher Education Support (VET) Guideline 2015 (Cth) (VET Guidelines) provides that for the purposes of clause 46AA(1)(a)(ii) of Schedule 1A to the HES Act, a student is taken not to have completed the requirements for a VET unit of study with a VET provider if it is reasonably likely that the student did not complete the requirements for the unit, regardless of whether the student is records as having completed the unit.
RESPONDENT’S CONTENTIONS
The Respondent contended that clause 46AA(1) of Schedule 1A to the HES Act does not apply to the Applicant as she has completed the requirements of the Units leading to completion of the course. As such, she does not meet the threshold requirements of the clause which got to a person having not completed or being taken to have not completed the requirements of the unit in question.
The Respondent contended that as a consequence, it is unnecessary to address the matters prescribed by the VET Guidelines for the purposes of clause 46AA of Schedule 1A to the HES Act in relation to whether the Provider engaged in inappropriate conduct towards the Applicant in relation to the course.
The Respondent contended that in circumstances where the Applicant does not deny that she completed the requirements of the Units leading to the completion of the course and the award of a diploma, this amounts to the proposition that completion and conferral of a passing grade is an effective bar to fee remission. The Respondent provided the following in support of their contentions:
23. In the Tribunal decision of Last and Secretary, Department of Education and Training [2019] AATA 658 (8 April 2019) (‘Last’), the Applicant had completed the requirements of all the units of study but sought fee remission on the basis of her contention that the academic quality of the units was low, and the provider conducted the course poorly. Senior Member Puplick AM found that although the Applicant had issues with the academic quality of various units she undertook and the administrative proficiencies of the provider, she proceeded with them and was eventually graded in each. In Last, the Senior Member observed that, as the word ‘completed’ is not defined in the HESA, the Senior Member cited the Macquarie Concise Dictionary definition of the term ‘completed’ as having all its parts or elements; whole, entire, full.. Finished, ended, concluded…..” The Senior Member then determined that ‘[t]here is no room for the Tribunal to adopt the Humpty-Dumpty principle that a word “means what I choose it to mean – neither more or less”, nor deconstructionism’s différance principle of purely contextualised exposition. Completed means completed’. (see paragraphs [14-26]).
24. In Bradley and Secretary, Department of Education and Training (General) [2018] AATA 1074 (27 April 2018) (‘Bradley’) Member Dr Bygraves, in a decision summarily dismissing an extension of time application, considered the application of the equivalently worded paragraph 36-20(1)(c) and former paragraph 106L(1)(a) of the Higher Education Funding Act 1988 (‘HEFAct’). In Bradley, the Applicant had completed all units of study for which he sought remission of his (HECS-HELP) debt. Although Member Dr Bygraves agreed that the applicant had “significant and genuine grievances about his experiences” as to the fact that the Applicant had completed the units of study in contention, the Member observed:
31. 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.
25. The decision of Al Hir and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 595 (13 August 2009) (‘Al Hir’) involved a comparable argument by a student under the former Student Learning Entitlement (‘SLE’)1 scheme (a predecessor student loan entitlement scheme) and by application of former section 79-1 of the HESA which governed the re-crediting of a person’s SLE. Analogously to the application of subclause 46AA(1) of Schedule 1A to the HESA, the former paragraph 79-1(1)(b) required that an applicant seeking re-credit of SLE not have completed the requirements of the units in question. In Al Hir, the applicant’s official academic transcript indicated that he achieved a pass grade or higher in the units in contention (save for one which he failed which the Senior Member held to affirmatively meet the statutory requirement for incompleteness). As to the units for which the applicant received passing grades, the Senior Member observed:
8. For SLE to be re-credited, the Act requires that the applicant not have “completed the requirements” of the units of study in question: s 79-1(1)(b) of the Act. In this case, it is easily ascertained from the applicant’s official academic transcript that he achieved a “Pass” grade or higher for the units AGRC6640, AGRC6614, BOTN6017, ENTM6003 and PLNT7014. I am satisfied that, by achieving such grades, he did “complete the requirements” in relation to those units of study.
9. The applicant’s SLE for the units AGRC6640, AGRC6614, BOTN6017, ENTM6003 and PLNT7014 cannot be re-credited, because he has “completed the requirements” of those units. That being so, it is unnecessary to consider the other requirements of s 79-1 of the Act
The Respondent contended that the present case is one where the application for review ‘would clearly be untenable’[4] and the application for review has no arguable merits or reasonable prospect of success.
[4] The Respondent references Deputy President Jarvis in Wallis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 45.
The Respondent sought that the application be dismissed pursuant to section 42B(1)(b) of the AAT Act on the basis that it has no reasonable prospect of success, submitting that:
30. On the basis of the Respondent’s contentions on the threshold requirement as set out at paragraphs 21-28 above, the Respondent submits that the Applicant’s application for review in the Tribunal has no reasonable prospect of success because the Applicant cannot establish the threshold factual issue of there being units not completed or taken not to have been completed under Schedule 1A to the HESA. Accordingly, to use the language of Kirby J in Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516; 153 ALR 276; 72 ALJR 819 (22 April 1998) at [66], the application could be characterised as ‘hopeless, unarguable or bound to fail’ on the merits.
APPLICANT’S CONTENTIONS
As outlined above, the Applicant does not dispute that she undertook and completed the course, what she contends is that she was not aware that in doing so, she would end up with a large VET FEE-HELP debt.
At the Telephone Interlocutory Dismissal Hearing, the Applicant told the Tribunal that:
·She was approached in a shopping centre and offered a place to participate in a course that would give her a qualification for no cost, with an inducement of a free iPad or laptop.
·Had she known at that stage that by enrolling and completing the course, she would end up with an $18,000 debt, she would not have done the course. She thought that undertaking study while she had time off work on maternity leave would be a good idea.
·She had thought at the time that the offer of a free $20,000 course was too good to be true and she asked what the catch was but was reassured that there was no catch.
·She did not discover she had accrued a FEE-HELP debt until a number of years later when she did her tax return.
·
She agreed that she completed the forms referred to above in June 2014, however said at that time and until she saw she had a debt, she had no idea what VET
FEE-HELP was. In hindsight, she should have done some research into the questions and what she was signing, however she was young and took the Provider on their word.
·She successfully completed the study because that is what you do when you commit to something.
·She realises she was young and silly and was misled.
·She does not currently earn enough to meet the repayment threshold, however she is looking to the future and does not want to be stuck with a debt she did not intend to enter into.
·She would prefer that the Diploma be taken off her and her debt be wiped. If she was consciously deciding to invest $18,000 into study, she would have chosen to do something more substantial at university.
·$20,000 is a lot of money to have to pay back for what she got – people who do what this Provider has done should not be allowed out there operating and doing this type of thing. She has done a lot of research now into the provider and realises it was all a big scam. She is not the only one to have been “sucked” in.
The Applicant contends that what has happened to her is unfair and she should not be left with a large debt because of the Provider’s conduct.
CONSIDERATION
Firstly, the Tribunal acknowledges there is no inference that the Applicant has, in this matter, acted fraudulently or that her account of what occurred in the lead up to her enrolling in the course is not true. The Tribunal acknowledges the Applicant’s contentions and recognises her frustration and angst having found out she now has an $18,000 FEE-HELP debt.
Hindsight is a wonderful thing and if she could go back in time, the Tribunal accepts that the Applicant would not have signed up for the course, let alone diligently applied herself to successfully completing it.
While the Tribunal does not doubt that the Applicant has grievances about her experience with the Provider or their agents in relation to the inducement to sign up to the course, the fact of the matter is, however, that the Applicant did sign up to and complete the Units of the course. The Tribunal agrees with the precedents set out above in that the discretionary power of the Tribunal to dismiss an application under section 42B(1)(b) of the AAT Act for having no prospect of success should be exercised cautiously. As such, the Tribunal must be satisfied to a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to hearing in the ordinary way.
The HES Act makes it clear that the only avenue open for the re-crediting of FEE-HELP debt amounts in relation to the conduct of the Provider is found in clause 46AA of Schedule 1 to the HES Act. As outlined above, clause 46AA provides that the Respondent, or the Tribunal, standing in the shoes thereof, with a discretion to recredit a person’s HELP balance with an amount equal to the amounts of VET Fee-HELP they received due to inappropriate conduct by a VET provider or their agent only if they can be satisfied of certain things. The requirements that must be met before a decision can be made to exercise that discretion as set out in clause 46AA(1) of Schedule 1 to the HES Act are cumulative. As such, where the requirements of clause 46AA(1)(a) are not met, then there is no utility in proceeding to consider clause 46AA(1)(b) because the ability to consider whether to apply the discretion is extinguished.
The Tribunal considers the purpose of clause 46AA(1) of Schedule 1 to the HES Act to be to provide redress for those students who have accumulated a VET FEE-HELP debt in the absence of having derived a benefit from the course.
The Tribunal agrees with the interpretation of the application of clause 46AA of Schedule 1 to the HES Act as outlined in the previous Tribunal decisions referred to by the Respondent (as reproduced at paragraph 35 above).
As such, in this case as the Applicant completed the requirements of the Units of the course that lead to the VET FEE-HELP debt, the substantive matter before the Tribunal has no merits and as such has no prospect of success.
The Tribunal is in the same position as the Respondent in that it cannot, exercise the discretion of clause 46AA(1) of Schedule 1 to the HES Act to re-credit the Applicant’s
FEE-HELP debt, as based on the available facts, the discretion is not available to be exercised.
Consequently, the Tribunal considers it would be futile for the proceedings to continue and in such circumstances, it is, therefore, appropriate to exercise the discretion provided by section 42B(1)(b) of the AAT Act. The Tribunal, therefore, dismisses the Applicant’s application for review on the basis that it lacks reasonable prospect of success.
DECISION
Pursuant to section 42B(1)(b) of the AAT Act, the application for review is dismissed.
| I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell |
...................[SGD]..........................
Associate
Dated: 16 May 2022
Date of hearing: 10 May 2022 Applicant: By telephone Advocate for the Respondent: Ms Fiona Baker Solicitors for the Respondent: Department of Education, Skills and Employment
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