Cowin and Secretary, Department of Employment and Workplace Relations - [2023] AATA 3144

Cowin and Secretary, Department of Employment and Workplace Relations [2023] AATA 3144 (4 October 2023)
Division:GENERAL DIVISION
File Number(s): 2023/3650
Re:Nikola Cowin
APPLICANT

AndSecretary, Department of Employment and Workplace Relations
RESPONDENT

DECISION
Tribunal:Senior Member K Millar
Date:4 October 2023
Place:Adelaide

The application for an extension of time is refused.
...............[sgnd]..........................
Senior Member K Millar
CATCHWORDS
PRACTICE AND PROCEDURE – Higher Education – application for extension of time to apply for review - inappropriate conduct of registered training provider – excessive amount of the loan - contention that the Applicant did not sign a request for Commonwealth assistance and the consequences of the Commonwealth providing a not within the jurisdiction of the Tribunal – application for extension of time refused s 29(7)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Higher Education Support Act 2003 (Cth)
Higher Education Support Amendment (VET FEE-HELP Reform) Act 2015
Judiciary Act 1903 (Cth)
Public Governance, Performance and Accountability Act 2013 (Cth)
SECONDARY MATERIAL
Higher Education Support (VET) Guideline 2015 (Cth)
CASES
Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) (No 3) [2019] FCA 1982
Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (Subject to a Deed of Company Arrangement) [2021] FCA 956
Australian Competition and Consumer Commission v Unique International College [2017] FCA 727
Re Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Tu-Uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
REASONS FOR DECISION
Senior Member K Millar
4 October 2023
INTRODUCTION

Miss Cowin studied a Diploma of Business and Diploma of Management with Franklyn Scholar (Australia) Pty Ltd (‘Franklyn Scholar’) in 2015, successfully completing her studies. In doing so, she incurred a VET FEE-HELP debt of $35,880 under the Higher Education Support Act 2003 (Cth) (‘the Act’). Ms Cowin said she was not aware she was incurring a FEE-HELP debt or the amount of the debt, and has sought a review of the decision of the Secretary to refuse to re-credit her VET FEE-HELP balance.
A delegate of the Secretary reviewed the decision on 24 December 2020. On 25 May 2023, Miss Cowin applied for a review of the decision with the Tribunal. This application is considerably after the 28 days after the decision was made allowed by the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), and Miss Cowin has applied for an extension of time under subsection 29(7) of the AAT Act.
This is a consideration of her extension of time application.
BACKGROUND
Miss Cowin studied a Diploma of Business and Diploma of Management with Franklyn Scholar commencing in December 2014. She successfully completed her courses.
The Diploma of Business involved 8 units of study at a cost of $3,986 per unit (including the loan fee). The Diploma of Management involved one unit of study at the same cost. In total, the study with Franklyn Scholar cost $35,880.
Franklyn Scholar’s registration as a registered training organisation was cancelled on 22 March 2017,[1] and Franklyn Scholar was placed into liquidation.
[1] Code 7134 Franklyn Scholar (Australia) Pty Ltd: National register of vocational education and training (VET), Training.gov.au, <
Miss Cowin made an initial complaint to the Department of Education, Skills and Employment (‘the Department’) on 13 May 2019, stating that she was ‘…advised at the time there were no costs for the course as it was all taken care of and was to assist her gaining employment.’[2]
[2] Ex R11-12.
She has also raised concerns about the cost of the course, and in her email to the VET Ombudsman, Miss Cowin advises that the TAFE SA maximum fee for a Diploma of Business is $4,293, and for an Advanced Diploma of Leadership and Management is $6,080. The Certificate IV Miss Cowin completed in Veterinary Nursing cost between $5,000 and $6,000, and her bachelor’s degree cost $20,000. She sought re-credit of at least part of the cost of the course to make it commensurate with similar courses.
The records of a conversation between Miss Cowin and the Department on 6 February 2020 state that Miss Cowin said she had found out about the debt in 2019. Miss Cowin advised that in 2015 she was unemployed and seeking employment through SEEK and CareerOne. She was told by a caller that they had obtained her contact details from SEEK. She was told this was an opportunity to do a government funded course, and they would get her a job at the end. The caller then linked her with Franklyn Scholar. Ms Cowin said that she was ‘…sold … on the course because they kept saying it was government funded and that [she] would not have to pay a thing.’ She was enrolled over the phone and received starter emails saying the course was government funded.[3]
[3] Ex R12.
On 24 February 2020, the VET Student Loans Ombudsman recommended that there was no re-credit of her VET FEE-HELP because Miss Cowin had completed the course. Information recorded in this recommendation includes:
Based on the readily available evidence it appears reasonably likely [Miss Cowin] was subjected to misleading and deceptive conduct prior to enrolment.[4]
[4] Ex R30
On 18 August 2021, the Department announced a debt removal for students of Franklyn Scholar because it was reasonably likely that Franklyn Scholar or its agent engaged in inappropriate conduct in relation to the person’s unit of study or course.[5]
[5] Ex A2.
The notice advises students who think they may have a VET FEE-HELP debt due to a course studied with Franklyn Scholar to log on to a website to check the HELP balance. The advice states:
If, in checking myHELPbalance, you see that you have a VET FEE-HELP debt you believe you should not have, or if you are not able to find your CHESSN, please contact the VET Student Loans Ombudsman within the Office of the Commonwealth Ombudsman using the online complaint form. More information on seeking redress can be found on the Commonwealth Ombudsman VET Student Loans website.[6]
[6] Ibid.
LEGISLATIVE SCHEME
The provisions relating to VET FEE-HELP are set out in Schedule 1A of the Act. The VET FEE-HELP scheme provides for loans to be made available to students enrolled in certain vocational education and training (VET) courses.[7]
[7] Higher Education Support Act 2003 (Cth) Sch 1A Cl 1.
A person is entitled to VET FEE-HELP assistance if they meet the requirements in cl 43 of Sch 1A of the Act. At the time Miss Cowin commenced her study,[8] this included at cl. 43(1)(h) that the student:
… has on or before the census date, completed, signed and given to an appropriate officer of the VET provider a request for Commonwealth assistance in relation to the unit, or where the VET course of study of which the unit forms part is, or is to be, undertaken with the provider, in relation to the VET course of study.
[8] Since this time cl 43 has been amended in 2015, 2016 and 2018. Amendments in the Higher Education Support Amendment (VET FEE-HELP Reform) Act 2015 apply to requests for Commonwealth Assistance given on or after 1 January 2016 (cl 24 of amending Act). This inserted a new cl 45C that applies to requests for Commonwealth Assistance.
Under cl 88(3) of Sch 1A the Act, a request for Commonwealth assistance is a document in which the person requests the Commonwealth to provide assistance under the Act in relation to a unit or a course of study in the form approved by the Minister. A form has been approved by the Minister and is commonly referred to as a Commonwealth Assistance Form (‘CAF’).
If the CAF is not completed, the student is not entitled under cl 43(1) of Sch 1A of the Act to VET FEE-HELP for assistance in relation to the units of study, and the Commonwealth is not required under cl 55 of Sch 1A of the Act to lend to a student an amount of VET FEE-HELP in relation to those units, or pay the amount lent to the provider in discharge of the student’s liability to pay VET tuition for the unit.
This is of relevance in this case as Miss Cowin has repeatedly stated that she did not complete a CAF.
Under cl 97 of Sch 1A of the Act, the Administrative Appeals Tribunal may review a ‘reviewable VET decision’ that has been confirmed, varied or set aside under cls 95 or 96 of Sch 1A of the Act. Reviewable VET decisions are set out in cl 91 of Sch 1A of the Act. This includes at Items 1, 2 and 3 re-crediting a person’s HELP balance under cls 46, 46A or 46AA of Sch 1A of the Act.
A reviewable decision does not include a decision that a person is entitled to VET FEE-HELP under cl 43 of Sch 1A of the Act, or the decision of the Commonwealth under cl 55 of Sch 1A of the Act to loan a student an amount of VET FEE-HELP assistance or pay the provider the amount loaned to the student.
Where a person’s HELP balance has been debited, there are some circumstances in which this balance can be re-credited. For VET FEE-HELP debts, these circumstances are set out at cls 46, 46A and 46AA of Sch 1A of the Act, which are all specified in cl 91 of Sch 1A of the Act as reviewable VET decisions.
Each of these clauses; at 46(2)(b), 46A(1)(b) and 46AA(1)(a)(i) of Sch 1A of the Act, includes as a criterion that the person has not competed the requirements for the course.
In the case of cl 46AA(1)(a)(ii ) of Sch 1A of the Act, an alternative is that for the purpose of the VET Guideline the person is taken not to have completed the requirements. The Higher Education Support (VET) Guideline 2015 at Item 58A specifies that a person is taken not to have completed the requirements for a VET unit of study if it is reasonably likely that the person did not complete the requirements for the unit, regardless of whether the student is recorded as having completed the unit.
CONSIDERATION
The decision to refuse to re-credit Miss Cowin’s VET FEE-HELP balance was confirmed by a delegate of the Secretary on 24 December 2020 and provided to Miss Cowin by email. She applied for a review of the decision with the Tribunal on 25 May 2023.
Subsection 29(1)(d) of the AAT Act requires an application for review to be lodged with the Tribunal within the prescribed time. Subsection 29(2) of the AAT Act provides that the prescribed time is 28 days from the day on which the decision is made.
Subsection 29(7) of the AAT Act allows the Tribunal to extend the time for a person to make an application for the review of a decision if the Tribunal considers that it is reasonable in all the circumstances to do so.
The AAT Act does not indicate the factors the Tribunal should consider in deciding whether it is reasonable to extend the time for making an application. In Re Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344, Wilcox J set out principles to guide, in a non-exhaustive manner, the exercise of this discretion. These principles are:
(a)Whether the applicant has shown an acceptable explanation for the delay;
(b)The action the applicant has taken other than making the application for review, and whether the applicant has rested on his or her rights;
(c)Any prejudice to the respondent;
(d)Whether, despite the absence of prejudice, there are considerations of public policy such as whether the delay will result in unsettling of other people or of established practices;
(e)The merits of the application; and
(f)The fairness as between the applicant and other people in a like position.
The approach of Justice Wilcox was recently endorsed by the High Court in Tu-Uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (‘Tu-Uta Katoa’).
Miss Cowin seeks an extension of time to lodge her application. She has consistently argued that she did not sign a CAF, and that the amount of the debt is excessive.
The Secretary opposes an extension of time and submits there is no acceptable explanation for the delay, the substantive application is without merit because Miss Cowin completed the units in respect of which she seeks fee remission, and, to the extent to which she seeks a reduction in the fees charged, this outcome is not within the Tribunal’s jurisdiction.
Explanation for the delay
Information provided from the Secretary shows Miss Cowin was advised of her right to seek review from the Department and to request a review of this decision on 9 July 2020. The decision not to re-credit her VET-FEE HELP was made on 24 December 2020, and the decision record included a statement that if she was unhappy with the decision she could appeal to the Administrative Appeals Tribunal and will need to do this within 28 days of receiving the decision.
Miss Cowin states that she did not initially notice that she had a debt as she was not earning enough money to require compulsory repayments. She was unable to continue disputing the debt as she was overwhelmed and did not have the time to pursue the debt due to the hours in her job as a veterinary nurse at a 24-hour practice, which she started in July 2020. She did not have time to make calls and was not getting through when she did call. Her partner, Mr Smart, has assisted her because he works from home and was able to follow up attempts to locate the CAF. Mr Smart said he thought they needed the correct documents to challenge the decision. His efforts have been to try and locate a copy of the CAF, or establish that it does not exist.
The notice that Franklyn Scholar had likely engaged in inappropriate conduct and the debt removal was published 18 August 2021.
Miss Cowin began re-agitating this matter on 6 September 2022 and wrote to the Department disputing the loan and saying that she had not signed a CAF. In a response dated 16 December 2022, she was advised the Department did not require copies of CAF’s to be provided to it, and only providers and students were required to retain the CAF. She was advised that the Department does not have a copy of the CAF. The Department also advised that Franklyn Scholar had been liquidated and de-registered and suggested that she seek waiver of the debt from the Minster for Finance under s 63 of the Public Governance, Performance and Accountability Act 2013 (Cth).
In assisting Miss Cowin, Mr Smart states that he contacted the Assistant Director, Program Operation and Payments, VET Loans Branch requesting a copy of the CAF.
He states that he had previously contacted the Australian Taxation Office in December 2020 who advised that they do not hold records of the CAF and that the ATO proceeds with the charge as they are instructed.
A letter dated 11 April 2023 from the Assistant Director, Discretionary Payments, Department of Finance advises Mr Smart to dispute the debt with the VET Student Loans team at the Department, as debt waiver is not the appropriate course where the lawfulness of the debt is in question.
Mr Smart says he was unable to contact Franklyn Scholar as they had been deregistered. He contacted the General Records Authority to attempt to locate the CAF.
Mr Smart contacted their local Member of Parliament and the office of the Premier of South Australia. He provided a letter from Mr Tony Pasin MP to the Hon Brendan O’Connor, Minister for Finance dated 1 May 2023 and the reply from the Minister dated 23 May 2023.[9]
[9] Ex A5.
Mr Smart contacted the liquidator for Franklyn Scholar, Deloittes, but said he was told that the liquidator could not assist with locating the CAF.
Miss Cowin has been attempting to dispute the debt since May 2019 and continued to dispute it until she was unsuccessful on internal review of the decision. This was before the Commonwealth issued the notice of debt removal stating it was reasonably likely Franklyn Scholar had engaged in inappropriate conduct. There was a period where little happened and during which Miss Cowin had commenced a new job as a veterinary nurse before the matter was re-agitated by Miss Cowin in 2022 and then by Mr Smart on her behalf in 2023.
Action taken other than lodging the review
Miss Cowin lodged a complaint with the VET student loan Ombudsman before seeking internal review of the decision. The internal review decision was made on 24 December 2020. There is a delay of two years and five months before Miss Cowin lodged her application for review.
The original decision not to re-credit her FEE-HELP balance was made on 20 August 2020.
Contact has been made with the Department of Finance, as shown by a letter from Mr Andrew Bleeze dated 11 April 2023.[10] On 1 May 2023, The Hon Tony Pasin wrote to the Minister for Skills and Training on Miss Cowin’s behalf about her education debt.[11]
[10] Ex A6.
[11] Ex A5.
Mr Smart says he has been in contact with the Department, the Australian Taxation Office and the General Record Authority. He says he contacted the administrator for Franklyn Scholar at Deloitte.
Prejudice to the respondent
The respondent argues that the length of time since decision means it is difficult to obtain evidence of the CAF being signed.
The Secretary observes that there is other evidence that supports an inference that Miss Cowin did sign a CAF, including a previous audit of Franklyn Scholar which found that it met the requirements to provide information to students about fees.[12] A report by the liquidator Deloitte found that in conducting a file review of 331 students, there were 15 instances where VET FEE-HELP forms were not on the record.[13]
[12] Respondent’s Submissions on Matters raised by the Tribunal (post-hearing submissions), 8.
[13] Ibid 9.
In this case it is arguable that delay does not mean that the Commonwealth is in a different position in terms of locating the relevant documents. Mr Smart claims that early in the process, in his contact with the Assistant Director, Program Operations and Payments, he was advised that the Department does not hold the CAF.[14] Mss Cowan was advised that the Commonwealth did not require a copy of the CAF.
[14] Ex A1.
Had the Commonwealth engaged with Miss Cowin’s argument that she had not signed a CAF at the time it was raised, this would have been closer to time she requested a review of the decision. That the Commonwealth did not require a copy of the CAF, and the subsequent difficulty it may have in establishing a CAF was signed is a matter for the internal procedures of the Department.
Public Policy
This case may be of interest to the general community and to others who have had VET FEE-HELP fees incurred where it is considered likely that the provider has engaged in inappropriate conduct. It is acknowledged in the Notice for former students of Franklyn Scholars Pty Ltd that a delegate of the Secretary considers it reasonably likely that Franklyn Scholars engaged in inappropriate conduct . The time period addressed in the notice is 1 January 2015 to 31 December 2016. Miss Cowin studied at Franklyn in 2015 and falls within the period where it was considered likely Franklyn Scholar engaged in inappropriate conduct.
The merits of the application
In looking at the merits of the application, the High Court in Tu’uta Kaotoa reasoned that the degree to which the merits of the application weigh in favour of or against granting an extension of time may depend on other factors, for example, if the delay is lengthy, the merits may need to have more force than if the delay is short.[15]
[15] Tu-Uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28.
[18] (Kiefel CJ, Gageler J, Keane J and Gleeson J).
The merits deserve very close scrutiny in this case. Franklyn Scholar is acknowledged to have had its registration cancelled, and a notice has been issued about Franklyn Scholar’s likely inappropriate conduct to the extent that students who did not complete their course had VET FEE-HELP debts re-credited.

While the inappropriate practices of Franklyn Scholar are not specified, a lack of knowledge that a VET FEE-HELP debt was being incurred consistent with practices of other VET providers which were held by the Federal Court to have acted unconscionably in their marketing.[16]
[16] See, for example, Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (Subject to a Deed of Company Arrangement) [2021] FCA 956; Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) (No 3) [2019] FCA 1982; Australian Competition and Consumer Commission v Unique International College [2017] FCA 727.
The Secretary has not provided information on the nature of the inappropriate conduct undertaken by Franklyn Scholar, and instead provides information on past audits and submits that this supports an inference that Miss Cowin did sign a CAF. This is the first time Miss Cowin’s argument that she did not sign a CAF has been addressed. As observed in submissions, Miss Cowin’s claim that she did not sign a CAF has not been tested in evidence.
There is a real question about the need for a request for a CAF for the VET-FEE HELP balance to be debited. However, the decision that Miss Cowin was entitled to VET FEE-HELP and the decision of the Commonwealth to lend the amount of VET FEE-HELP are not decisions that can be reviewed by the Tribunal. Miss Cowin does not dispute that she completed her study, and the provisions under which the Tribunal can review the decision to refuse to re-credit he HELP balance do not apply.
This means that the merits of the case do not weigh in Miss Cowin’s favour because the Tribunal does not have the power to review the decision that she was entitled to FEE VET-HELP or the decision by the Commonwealth to loan the amount.
Fairness as between the applicant and others
There may be others in the same position as Miss Cowin, who continue to have a VET FEE-HELP liability because they completed the course and where the cost of the course is disproportionate, or where the student claims they did not know fees would be incurred in undertaking the course. Unless the person’s income is sufficient to attract repayment of the debt, they may not know the debt exists.
Avenue for review
The Secretary submits that the appropriate forum for Miss Cowin to dispute the debt is to seek a declaration from the Federal Court of Australia under s 39B(1A) of the Judiciary Act 1903 (Cth).
CONCLUSION
Miss Cowin is a veterinary nurse and is not on a high salary. The amount which she was loaned for the Diploma courses she studied at Franklyn Scholar far exceeds the cost of equivalent courses and the cost of her previous bachelor’s degree.
Franklyn Scholar was acknowledged by the Secretary to likely have been engaged in inappropriate conduct, and Miss Cowin has consistently claimed since 2019 that she was not told or made aware that she would incur fees for the courses she completed, or the extent of the fees charged. There is no record of her completing a CAF. In these circumstances, close consideration is required due to the likely application of a decision to others in a similar position, and the financial hardship imposed by the amount of the debt.
It is unfortunate for Miss Cowin that the Department has not engaged with her about her claim not to have signed a CAF. Miss Cowin has consistently claimed since May 2019 that she did not know she would be charged a fee for the courses she completed. If the Secretary considers that they are now in a worse position in finding the CAF, given the time that has passed, this is due to the Department’s failure to engage with Miss Cowin on this issue in 2019.
However, while it is arguable that the debt did not arise because Miss Cowin did not sign a CAF the decision that the requirements in cl 43 of Sch 1A of the Act were met, and the resulting requirement under cl 55 of Sch 1A of the Act for the Commonwealth to loan the money are not matters capable of review by the Tribunal. As a creature of statute, the Tribunal can only review those decisions that the legislature gives it power to review, and the Tribunal must concur with the Secretary that it does not have the power to consider whether the loan was properly made.
As it cannot review this decision, to put the parties to the cost of conducting a hearing would add unnecessary hardship, and the application to extend the time under s 29(7) of the AAT Act is refused.
DECISION
The application for an extension of time is refused.
I certify that the preceding sixty-three (63)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
K Millar
……………[Sgnd]………………..
Associate
Dated: 4 October 2023
Date of hearing:  28 July 2023
Advocate for the Applicant:      Matthew Smart
Advocate for the Respondent:  Adrian Downie,
  Australian Government Solicitor