Elhem Nourian and Temporary Agency

[2012] AATA 680

[2012] AATA 680

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/2789
Re	Elhem Nourian
APPLICANT
And	Temporary Agency
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	4 September 2012
Date of written reasons	4 October 2012
Place	Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal dismisses the application for want of jurisdiction.

...........................[SGD].............................................

Senior Member A K Britton

CATCHWORDS

HIGHER EDUCATION – student’s enrolment cancelled – jurisdiction conferred by Higher Education Support Act 2003 (Cth)

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 25
Higher Education Support Act 2003 (Cth) s 206.1, 36.20, 104.25 (1)

CASES

The Mutual Life and Citizens Assurance Company Limited v the Attorney-General of Queensland and Another (1961) 106 CLR 48

REASONS FOR DECISION

Senior Member A K Britton

13 September 2012

EDITED EXTRACT FROM TRANSCRIPT OF THE PROCEEDINGS

1. Ms Elham Nourian seeks review of a decision made by the University of Newcastle to cancel her enrolment in the Doctor of Philosophy program.  In an application made to the Administrative Appeals Tribunal on 5 July 2012, she wrote that she was seeking review because of lack of procedural fairness and maladministration.  These reasons address whether the Tribunal has power to review that decision, not its merits.

2. The statute establishing this tribunal, the Administrative Appeals Tribunal Act 1975 (the Tribunal Act) circumscribes its jurisdiction. The tribunal has no power at large to inquire into a matter that takes its interests but over which it has no jurisdiction. Indeed, as the High Court has made clear, it has a duty to decline such cases (The Mutual Life and Citizens Assurance Company Limited v the Attorney-General of Queensland and Another (1961) 106 CLR 48).

3. The tribunal may only review those decisions it has been given power to review under an enactment or law (Administrative Appeals Tribunal Act 1975 s 25). The relevant enactment in this case is the Higher Education Support Act 2003 (the Act).  As Ms Nourian correctly points out, the Act confers on the tribunal power to review certain classes of decisions. It does not confer power to review all decisions made by higher education authorities, only those decisions defined as reviewable by the Act.

4. A “reviewable decision” is defined by s 206.1 of the Act to include 12 classes of decisions. of which three can be made by higher education providers such as the University of Newcastle.  Each of those decisions relate to the requirement imposed on education providers to re-credit or refund a person’s learning entitlement or FEE-HELP balance and have no relevance to the current application.  It follows, therefore, that the tribunal has not been conferred power by the Higher Education Support Act to review decisions of the type about which Ms Nourian complains. 

5. Ms Nourian contends that it is anomalous that the NSW Ombudsman has power to and, in fact has, investigated her complaint about the University but the AAT does not.  The NSW Ombudsman and the AAT are separate government agencies.  The Ombudsman has broad powers to investigate action that relates to the conduct of a public authority (see Ombudsman Act 1974 (NSW)). In contrast, the Tribunal does not have a general power to review decisions relating to “matters of administration”. Rather, as I have stated, its power of review is restricted to those decisions nominated as reviewable by the relevant enactment.

6. Parliament has chosen not to confer on the Tribunal the power to review decisions of the type the subject of Ms Nourian’s application.  Whether there is a sound policy basis for that decision is not a matter for the tribunal to determine or comment upon.  It follows, irrespective of its merits, I am without power to proceed to review the decision the subject of Ms Nourian’s application, and therefore must dismiss that application.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

..................[SGD]......................................................

Associate to Senior Member A K Britton

Dated 4 October 2012

Date(s) of hearing	4 September 2012
Advocate for the Applicant	Mr John Holgate