Goodwin and Secretary, Department of Employment and Workplace Relations

[2024] AATA 3274

Goodwin and Secretary, Department of Employment and Workplace Relations [2024] AATA 3274 (12 September 2024)

Division:GENERAL DIVISION

File Number:2023/3560          

Re:Shaun Goodwin  

APPLICANT

Secretary, Department of Employment and Workplace RelationsAnd  

RESPONDENT

DECISION

Tribunal:Deputy President I Hanger 

Date:12 September 2024

Place:Brisbane

The decision under review should be set aside and the following decision substituted:

• Section 46AA (1) (a) and (b) are satisfied with respect to IFNAV1, IFNAV1 and IFNAV2 such that VET FEE-HELP balance associated with those units be remitted; and

• Section 46AA(1)(a) is not satisfied with respect to IFG1A and IFG2. The balance associated with those units should not be remitted.

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

Deputy President I Hanger

Catchwords

VET FEE-HELP – where the delegate of the respondent refused to re-credit applicant’s VET FEE-HELP – does the applicant satisfy cl 46AA(1) of Higher Education Support Act 2003 (Cth) – Tribunal finding in favour of application- decision under review set aside and substituted.

Legislation

Higher Education Support Act 2003 (Cth)

REASONS FOR DECISION

Deputy President I Hanger

12 September 2024

1. The applicant seeks review of a decision of a delegate of the respondent dated

   
   

   22^nd of May 2023. That decision confirmed an earlier decision to refuse to recredit the applicant’s Vocational Education and Training Higher Education Loan Program (VET FEE-HELP) balance under clause 46 AA (1) of Schedule 1A to the Higher Education Support Act 2003 (Cth)(‘HES Act’).

2. At the beginning of February 2013, the applicant enrolled in a Diploma of Aviation (Instrument Flight Operations) course with Australian Wings Academy (AWA). The applicant was approved for VET FEE HELP for the course. He enrolled in 8 units and according to the data entered into the Tertiary Collection of Student Information he passed 6 units and withdrew from 2 units. He is recorded as having passed IFG1 and IFG2 which are relevant to these proceedings.

3. According to data collected by the Tertiary Collection of Student Information (TSCI)[1], the applicant passed six (6) units and withdrew from two (2) as shown below:

   [1] TD page 165-167.

Unit	Census date	Result
IFG1A (Instrument Flying Ground School 1a)	11 February 2013	Passed
IFG2 (Instrument Flying Ground School 2)	26 June 2013	Passed
IFNAV1 (Instrument Flying Navigation 1	21 February 2013	Passed
IFNAV1a (Instrument Flying Navigation 1a)	8 April 2013	Passed
IFNAV2 (Instrument Flying Navigation 2)	13 May 2013	Passed
IFNAV3 (Basic Instrument Flying Rules and Navigation)	22 July 2013	Withdrawn
IMEE (Multi Engine Endorsement)	11 September 2013	Withdrawn
REMF	4 October 2013	Passed

1. The applicant has many complaints about the training he received, and the behaviour of AWA — and it would seem that many are justified. He complained that a number of units of study which were recorded as successfully completed, were not truly successfully completed and that he had to pay to complete them elsewhere.

2. On 22^nd of February 2021, the applicant lodged a complaint with VET Students Loan Ombudsman (VSLO) in relation to his outstanding VET FEE-HELP balance with AWA. VSLO was satisfied that AWA had engaged in misleading or deceptive conduct with respect to the applicant but decided that five (5) units of study which had been recorded by AWA as successfully completed, were taken as successfully completed because it was reasonably likely that his subsequent trainer (Basair Aviation College) recognised his prior learning. These units where IFG1A, IFG2, IFNAV1, IFNAV1a and IFNAV2. One unit, being REMF, which was recorded as successfully completed was regarded by the VSLO as incomplete.

3. A delegate of the respondent then made a decision on 23^rd of March 2023 to recredit three (3) subjects. Subsequently other subjects have been recredited to the applicant and those will be dealt with in the final order of this tribunal; but two remain outstanding. Those are IFG1A and IFG2.

4. IFG1A was a unit that had to be completed in order to fly a DA40 aircraft.

5. IFG2 was a theory unit that prepared students to sit for CASA’S Instrument Rating Exam (IREX).

6. AWA records both of these units as having been passed by the applicant.

7. Clause 46AA(1) of schedule 1A to the HES Act provides that the secretary may recredit a person’s HELP balance 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 which the unit forms a part.

8. Section 58 A of the guidelines made pursuant to the HES Act, provides as follows:

   ‘For the purposes of subparagraph 46AA(1)(a)(ii) of Schedule 1A to the Act, a person (the 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 recorded as having completed the unit.’

   IFG1A

9. The respondent submits that the applicant completed requirements for this subject. It points to:

   (a)spreadsheet from AWA showing that the syllabus for this unit included 8 briefings/lessons on Garmin 1004 briefings/lessons on DA40 aeroplanes and the documentation (which the applicant disputes is accurate) shows him as having completed those briefings;

   (b)it also relies on a completed “Engineering, Data and Performance Questionnaire” by the applicant for a “Single Engine Piston Aeroplane Endorsement for Diamond DA40.  That is the questionnaire completed as a result of those briefs;

   (c)the applicant’s own logbook and post flight assessment records show that he flew DA-40 aeroplanes at AWA and it can therefore be inferred that he completed the necessary theoretical training at AWA; and

   (d)the applicant’s logbook which shows flights type, date and duration that correspond with the flight assessment sheets.[2]

   [2] TD pp. 157-159.

10. In relation to the subject, the applicant says that he was working full-time as an accountant for Australian Helicopters when the course began. He points to the fact that the subject IFG1A was conducted on the 11^th and 12 February 2013. [3] He was a late entry. Therefore, he did not complete the initial briefs with regard to avionics and the DA Ground School. AWA was paid for the subject by the respondent.  He completed the study in his own time but says he did not attend the classes.

    [3] SD p 220.

11. He asserts that the spreadsheet of AWA shows that on 18^th of February 2013 he enrolled and on the same day attended 12 briefing sessions. He says that he was at work that day. I do not accept that particular part of his submission. An examination of the spreadsheet (ST 191) does not establish that the spreadsheet contains even a suggestion that he attended briefings on 18^th of February 2013. However, I do accept his evidence that he did not attend any briefing sessions.

12. Unfortunately, the applicant was not legally represented and he is understandably very emotional about the fact that, as he sees it, he was cheated by AWA. To put it simply he feels that they did nothing towards furthering his aviation career but that he has to pay for it now. It is accepted that AWA has a lot to answer for but the task of the tribunal is to focus on the issues in relation to these two subjects. That said, I’m satisfied that he did not attend any briefings because he was a late enrolment to the course and the course only consisted of 12 briefing sessions.

13. The fact that he did not attend the briefing sessions does not assist his case in this tribunal. It is open to the course provider and to the student to come to an arrangement, that the student will be exempted from actually attending the lectures. He subsequently completed a document described as ‘Engineering, Data and Performance Questionnaire’ for a single engine Piston aeroplane endorsement for a Diamond DA-40.[4]

    [4] ST pages 199-210 and 189.

14. He subsequently flew DA-40 aeroplanes at AWA.[5]

    [5] TD, 5a and T7a.

15. He is recorded as having successfully completed the subject IFG1A. 

16. It would appear therefore that he did not attend the briefing sessions, but that he did successfully complete a lengthy questionnaire which appears to have been assessed, and that he flew the planes to which the briefing session and the questionnaire were directed. He would not have been allowed to proceed to fly such planes, under the relevant regulations if he had not completed this subject.

17. I am therefore not satisfied that he has not completed requirements for IFG1A.

    IFG2

18. This subject consisted of 2 weeks of briefings in preparation for Instrument Rating Examination (IREX) which is an exam conducted by CASA.

19. The respondent refers to a record of AWA which shows that he undertook the course involving 40 hours of the briefs. [6]

    [6] ST p 191.

20. The respondent points to a record of CASA which shows that the applicant passed his IREX CASA examination on 9 September 2013[7] with a mark of 80%.

    [7] ST p 214.

21. After finishing with AWA, the applicant enrolled for further training with a company called Basair. The respondent relies on an email from Mr Trevelyan of Basair, which contains a statement that because the Applicant had passed the CASA IREX exam, he received recognition of prior learning in respect of that aspect of the course with Basair.[8]

    [8] TD p 137.

22. In relation to this subject, the applicant says that he was asked by the owner of the AWA school to assist the Ground School Instructor because he had self-studied and passed all 7 Commercial Pilot Fixed Wing exams as well as having self-studied all the Instrument Rating Exam (IREX) which was regarded as a difficult examination. He complains that although being part of the training team, he was still charged for the subject. In his evidence before me he said that he was told that he would not be charged for the course[9], but admitted that he needed to enrol in the course to get the qualifications and to learn certain things[10].Furthermore it would appear that he did not make a complaint about charges at the time[11].

    [9] Transcript pp 30-31.

    [10] Transcript pp 33-34.

    [11] T5, p 27.

23. Once again it appears that the applicant’s understandably hurt feelings caused by the conduct of AWA interfere with rational decision making on his part. It may well be that he greatly assisted with the presentation of the subject. It may well be that hypothetically he knew it all before he began. The point is that he enrolled in the subject, and he needed that subject, in order to proceed further with his course. He was credited with having passed the subject and did not have to repeat the subject when he enrolled with the second provider, Basair because Basair recognised his prior learning.

24. I am not satisfied that the applicant has demonstrated that he did not complete requirements for IFG2.

    ORDER

25. The decision under review should be set aside and the following decision substituted:

    ·Section 46AA (1) (a) and (b) are satisfied with respect to IFNAV1, IFNAV1,and IFNAV2 such that VET FEE-HELP balance associated with those units be remitted; and

    ·Section 46AA(1)(a) is not satisfied with respect to IFG1A and IFG2. The balance associated with those units should not be remitted.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President I Hanger

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

Associate

Dated: 12 September 2024

Date of hearing:	15 May 2024
Representation for the Applicant:	Self-represented litigant
Solicitor for the Respondent:	Ms Catherine Oppel (Senior Lawyer)
Australian Government Solicitor