Davies and Secretary, Department of Education

[2024] AATA 3212

Davies and Secretary, Department of Education [2024] AATA 3212 (18 April 2024)

Division:                  GENERAL DIVISION

File Number:           2024/1033

Re:  Tori Davies

APPLICANT

And  Secretary, Department of Education

RESPONDENT

DECISION

Tribunal:  Senior Member A. Nikolic, AM CSC

Date:  18 April 2024

Date of written reasons:        24 April 2024

Place:  Melbourne

The application is dismissed pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), because the Tribunal is satisfied it has no reasonable prospects of success

.......................[sgd].................................................

Senior Member A. Nikolic, AM CSC

© Commonwealth of Australia 2024

CATCHWORDS

PRACTICE AND PROCEDURE – valid application for review lodged – issue of extension of time not applicable – refusal to recredit VET FEE-HELP fees – Applicant completed units seeking recredit of fees – dismissed for no reasonable prospect of success – oral reasons provided – written reasons requested

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Higher Education Support Act 2003 (Cth)

CASES

Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13.

Negri v Secretary, Department of Social Services [2016] FCA 879

REASONS FOR DECISION

Senior Member A. Nikolic, AM CSC 23 April 2024

INTRODUCTION

1.On 12 February 2024, the Applicant asked for an extension of time (“EOT”) in which to lodge an application for review of a decision made by a delegate of the Respondent, to refuse to recredit VET FEE-HELP fees in respect of two units completed towards a Diploma of Photo Imaging. The application was heard by telephone on 18 April 2024. The Respondent opposed the extension of time and contended that even if an EOT was granted, the application has no reasonable prospects of success.

2.Following a brief hearing and because of Ms Davies’ self-represented status, the Tribunal provided oral reasons. The Tribunal accepted the Respondent’s submission that the application has no reasonable prospect of success and dismissed the application. On the same day, the Respondent emailed the Tribunal requesting written reasons. These are now provided consistent with the requirements of s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) and Federal Court authority, which states:

“...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).”¹

BACKGROUND

3.There is no dispute the Applicant applied for VET FEE-HELP in April 2015 and subsequently completed two vocational units for which she now seeks recredit. This is confirmed by an academic transcript dated 4 July 2023. In her request for VET FEE-HELP assistance the Applicant acknowledged it was her responsibility to be aware of her FEE-HELP balance

1 Negri v Secretary, Department of Social Services [2016] FCA 879, [27] (Bromberg J).

and that she understood ‘the statements in item 11 relating to repayments of VET-FEE- HELP debts (and refunds under special circumstances)’.

4.Commonwealth Assistance Notices were sent to the Applicant from the NSW TAFE Commission dated 11 May 2015 and 11 August 2015. These set out the Vet FEE-HELP debt recorded against her Tax File Number for the units studied.

5.Since 2017 the Applicant has complained about the unexpected increase in tuition fees for these two units, which she estimates was 70%. She claims this occurred without her knowledge. On 31 July 2023, the VET Student Loans Ombudsman (“VSLO”) advised the Applicant of its preliminary view that she was not entitled to a re-credit because she had completed the units of study. An opportunity was provided for the Applicant to respond to this within 28 days and did so by email dated 26 August 2023.

6.On 22 September 2023, a delegate of the Respondent declined to recredit the Applicant’s VET FEE-HELP balance because she had completed the units. The Applicant sought review of this decision, which the Respondent affirmed on 16 January 2024.

LEGISLATIVE FRAMEWORK AND ITS APPLICATION TO THE APPLICANT

7.The decision the Applicant seeks to appeal was made under the Higher Education Support Act 2003 (Cth) (“the Act”). Section 46AA(1) of Schedule 1 of the Act refers to re-crediting of a person’s VET FEE-HELP balance and 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.

TRIBUNAL CONSIDERATION

Extension of time application.

8.The Applicant received the reviewable decision on 16 January 2024. She applied to the Tribunal for an EOT on 12 February 2024. This was accompanied by a copy of the reviewable decision and an email. The Tribunal considers these documents collectively constitute a valid review application that was lodged within the permissible 28-day period.² This was not contested by the Respondent and the issue of an EOT therefore did not arise.

Dismissal application

9.The Applicant completed the two units for which she seeks a VET FEE-HELP recredit approximately nine years ago. There is no basis on currently available materials to find that she is taken not to have completed those unit requirements pursuant to s 46AA(1)(a)(ii) of Schedule 1 of the Act. It therefore follows that her application has no prospects of success.

DECISION

10.The Tribunal dismisses the application under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

2 Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13, [37]-[38].

………[sgd]…………………………. Associate

Dated: 24 April 2024

Date of hearing:  18 April 2024

Advocate for the Applicant:              Applicant – self represented

Solicitors for the Respondent:          Sparke Helmore Lawyers