Igini and Secretary, Department of Education

[2018] AATA 4190

Igini and Secretary, Department of Education [2018] AATA 4190 (7 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/5782

Re:Dominic Igini

APPLICANT

AndSecretary, Department of Education

RESPONDENT

WRITTEN REASONS FOR ORAL DECISION

Tribunal:Senior Member D. J. Morris

Date of decision:                   7 November 2018

Date of written reasons:        8 November 2018

Place:Melbourne

The Tribunal, being satisfied that the decision sought to be reviewed is not a reviewable decision, dismisses the application under section 42A(4) of the Administrative Appeals Tribunal Act 1975.

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

Senior Member D. J. Morris

Catchwords

PRACTICE AND PROCEDURE – power of the Tribunal – whether there is reviewable decision – no inherent review power – enactment must empower Tribunal – discretion apparently exercised by a tertiary institution – no reviewable decision – application dismissed – written reasons requested

Legislation

Acts Interpretation Act 1901 (Cth), s 38
Administrative Appeals Tribunal Act 1975 (Cth), ss 3, 25, 42A, 43(2A)
Higher Education Support Act 2003 (Cth), ss 206-1, 209-5, 212.1
Monash University Act 2009 (Vic)

Cases
Re: Laird and Australian Broadcasting Tribunal [1979] AATA 52

Re: Qantas Airways Limited and Deputy Commissioner of Taxation (W.A.) [1979] AATA 40

REASONS FOR DECISION

Senior Member D. J. Morris

8 November 2018

1. Mr Dominic Igini lodged an application with the Tribunal on 5 October 2018.  In his application for review, Mr Igini submitted that the Tribunal should review a decision which he states was effectively made in 2009 when the Parliament made changes to the Higher Education Support Act 2003 (Cth) (the HES Act) in relation to Commonwealth Supported Places (CSP) for domestic students studying a tertiary course.

2. A telephone hearing was held on 7 November 2018. Mr Igini participated for part of the hearing but the connexion was lost. The Tribunal tried twice to reconnect with the Applicant, but was unsuccessful. Consequently, in these circumstances, the Tribunal advised at the end of the hearing that it would provide written reasons to parties in relation to its decision. The Respondent was represented at the hearing by Ms Johanna Palenschus, Senior Government Lawyer, Department of Education and Training (the Department). After the hearing concluded and the decision had been sent to parties, Mr Igini contacted the Tribunal and requested written reasons, which the Tribunal accepts as a request under section 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

3. For the reasons that follow, the Tribunal found it does not have jurisdiction to consider the matter raised by Mr Igini.

   The Applicant’s contentions

4. Mr Igini wrote in his application for review:

   The Federal government introduced changes to the legislation at the beginning of 2009 for Commonwealth Supported Places (CSP).  These changes effectively gave domestic students like myself on a FEE-HELP loan (full fee) to be changed over to a CSP (subsidised) place for my course at Monash Unniversity [sic]

   The government had only made available these changes on the study support website without any information provided to students through email, post or through the universities themselves to communicate these changes to its students.  I have effectively paid for a full-free placement from 2009 until completion of my studies in 2011 resulting in a FEE-HELP debt in excess of $120,000.  This large sum is largely due to the 20% interest plus indexation loan scheme which is payable to the government.  My real-value debt for my studies are [sic] much less. 

   I believe it is a reasonable request to have corrected my debt to a CSP place for that period of study, as a result of information not given to me at the time.  It is reasonable to assume that had I been told of these changes I would have been able to request a change to my Monash University place or transfer my units to another institution where I would have been entitled to a CSP by default.  Also I believe it is within the governments discretion (without loss) to cancel 20% and indexation charges and the issue should at least be discussed.

5. Mr Igini stated that the Director of the Student Information and Services team at the Department had failed to respond to his request for review or “explanation of a decision in helping me resolve the issue”.  He stated that the initial reasoning by the Director is that the “government and universities acted within their discretion” by not informing him of legislative changes that would have “dramatically affected my overall student debt (in excess of $120k and rising).”

   The Respondent’s submissions

6. The Department provided a written submission to the Tribunal on 5 November 2018.  The Respondent submitted that section 206-1 (Table Item 2A) of the HES Act sets out a list of decisions that are ‘reviewable decisions’ under that Act, and lists ten classes of ‘reviewable decision’, only three of which are decisions made by a tertiary education provider, namely decisions:

   (a)not to repay a person’s HECS-HELP contribution in respect of units consisting of work experience: section 36.22

   (b)to refuse to re-credit a person’s “Student Learning Entitlement”: section 79.1

   (c)         to refuse to re-credit a person’s FEE-HELP balance: section 104-25(1).

7. Section 212.1 of the HES Act provides that a person may make an application to the Tribunal for the review of a reviewable decision that has been confirmed, varied or set aside under section 209-5 or section 209-10 of that Act.  Ms Palenschus submitted that the ‘decision’, which Mr Igini is seeking the Tribunal to review, does not fall within any of these categories of decision and therefore does not fall within the jurisdictional power of the Tribunal.

8. The Respondent further submitted that Mr Igini did request that Monash University transfer him from a full free-paying enrolment to a CSP and that the University declined his request.  The Respondent provided a table detailing that Mr Igini had undertaken two courses at Monash University, a Diploma of Engineering Studies in 2005 and a Bachelor of Engineering (Chemical) between 2006 and 2011. The Respondent stated that Mr Igini had accrued a FEE-HELP debt totalling $103,861.65 as at 5 November 2018 in relation to these two courses.

9. The Respondent stated that the Department has been engaged with Mr Igini on this matter since 2015 and provided a letter dated 30 October 2018 to Mr Igini from Ms Katerina Lawler, Branch Manager, Funding and Students Branch of the Higher Education Group of the Department.  The letter advised Mr Igini that if he considered that Monash University improperly distributed its allocation of CSPs, the Applicant can raise this with the institution through its grievance processes.  The letter also advised that there are limited circumstances under which a person’s FEE-HELP balance can be re-credited under the HES Act and that these circumstances did not appear to apply to Mr Igini.  The letter also advised that, in limited circumstances, students may apply for a waiver of their HELP debt from the Minister for Finance and that this is an avenue that remains open to Mr Igini.

10. Relevantly, Ms Lawler’s letter stated:

    While the 2009 changes generally prevented most universities from offering full-fee paying places to new domestic undergraduate bachelor students, there were transitional arrangements set out in the legislation to ensure that existing full-fee paying students would have the opportunity to continue their courses to completion.  I understand that you completed your course with Monash University (the University).

    In 2015, you sought information from the department about the 2009 changes, including advice about whether a full-fee paying student could have elected or requested to transfer to a CSP at the time, in a series of correspondence in 2015 and 2016, the department advised you that the 2009 changes did not provide a person studying as a full-fee paying student with a right to be transferred to a CSP. 

    Further, the department advised you that each higher education provider was responsible for deciding whether it would offer enrolled full-fee paying students the option to transfer to a CSP to complete the remainder of their course.  There was no obligation on the University to make such an offer.

    The department made information about the 2009 changes accessible to students through the major communication channels at the time including the Going to Uni website, the Call Centre for students and associated Government publications for students.  However, as it was at the discretion of each university to transfer its fee-paying undergraduate students to CSPs, the onus was on each university to communicate to its students how it intended to manage the transition.

    CONSIDERATION

11. Section 38 of the Acts Interpretation Act 1901 (Cth) says that an Act passed by the Parliament of the Commonwealth may be referred to in a Commonwealth statute as an “Act” and that an Act passed by the Parliament of a State may be referred to as a “State Act”. Section 25 of the AAT Act sets out that an enactment may provide for applications for review of decisions under that enactment. Section 3 of the AAT Act defines “enactment” to mean an Act, an Ordinance made by a Commonwealth Territory or an instrument made under an Act or an Ordinance.

12. The Department has provided the Tribunal with a copy of Ms Lawler’s letter dated 30 October 2018 which states that in earlier correspondence between Mr Igini and the Department in 2015 and 2016, the Department made clear that the changes made in 2009 to the HES Act did not provide a person studying as a full fee paying student with a right to be transferred to a CSP.

13. It would appear that, as each higher education provider was responsible for making a decision whether it would offer a full-fee paying student like Mr Igini the option to transfer to a CSP, in his case that would be a decision, or the exercise of discretion, made by administrative officers of Monash University responsible for student enrolment.

14. The Tribunal has no inherent jurisdiction; it only has jurisdiction to review a decision where the legislation that gave power to the decision-maker to make the decision expressly confers that review power on the Tribunal.  While, as set out above, the HES Act contains provisions to allow the Tribunal to review certain decisions, that fact does not confer on the Tribunal a general power to review other decisions potentially made under that Act. This point was succinctly made by Davies J, then President of the Tribunal, in Re: Qantas Airways Limited and Deputy Commissioner of Taxation (WA) [1979] AATA 40:

    In argument, counsel for Qantas Airways Limited relied upon the provisions of s. 25 of the Administrative Appeals Tribunal Act 1975, particularly the provisions of ss (4) that, "The Tribunal has power to review any decision in respect of which application is made to it under any enactment.". He submitted, as a matter of construction, that the words "under any enactment" qualify the word "decision" and not the word "application". In my view, the expression qualifies "application" so that the Tribunal has power to review a decision only in those cases "in respect of which application is made to it under any enactment." Were there any doubt about this, which I think there is not, that doubt is resolved by the context. Section 25(1) provides that "An enactment may provide that applications may be made to the Tribunal..". An application for which provision is so made is an application made under an enactment. Moreover, s. 26(2) provides that a reference in s. 25(4) to an enactment includes a reference to the Schedule. The effect of s. 26(2) is that, for the purpose of s. 25(4), applications authorised by the provisions of the Schedule are applications made under an enactment.

    Counsel for Qantas Airways Limited further submitted that an application to review a decision made under an enactment is itself an application made under that enactment and, therefore, it is an application which, by the operation of s.25(4), confers upon the Administrative Appeals Tribunal power to review the relevant decision. Counsel submitted that the terms of s. 25(1), which state that an enactment may provide that applications may be made to the Tribunal, do not limit the interpretation of s. 25(4) but rather are an enabling provision providing for the granting of power to the Tribunal in specific cases. I do not accept this submission. An application is not made under an enactment unless the enactment empowers the making of the application.

    (Emphasis added.)

15. President Davies reiterated these reasons in Re: Laird and Australian Broadcasting Tribunal [1979] AATA 52, and added:

    An application for review may not be made to the Administrative Appeals Tribunal unless an enactment specifically empowers the making of that application. An application so authorised is an application made under that enactment and thus an application which s. 25(4) of the Administrative Appeals Tribunal Act empowers the Administrative Appeals Tribunal to adjudge. In the present instance, the Administrative Appeals Tribunal is not so empowered.

16. The Tribunal makes clear that Mr Igini has not asserted, in his application, that there has been some decision made under the HES Act in relation to his enrolment and liability for fees.  Additionally, Mr Igini has not identified a decision that was made under an enactment which would confer jurisdiction on the Tribunal.  Monash University operates under the Monash University Act 2009 (Vic), a State Act. As such, in the absence of any evidence that University staff were acting otherwise, decisions made by its staff fall outside the ambit of section 25 of the AAT Act.

17. If Mr Igini has concerns about the fairness of the process he was afforded as a student enrolled at Monash University in the wake of the 2009 amendments to the HES Act, there are avenues to pursue that grievance directly with Monash University, as was pointed out in Ms Lawler’s letter.  There may also be other legal avenues available to Mr Igini, but that is something on which the Tribunal cannot provide advice.

18. The Respondent has asserted that in a conversation on 6 July 2018, Mr Igini told officers of the Department that he asked Monash University during the transition period to transfer him from a full-fee paying enrolment to a CSP. The University reportedly declined that request, but Mr Igini was aware that other full-fee paying students at the University at that time were offered the opportunity to transfer to a CSP.  The Tribunal was unable to explore this assertion with Mr Igini at the hearing, but if it is an accurate reflection of what Mr Igini said to the Department, it would appear that it reflects the exercise of the discretion by the University at that time.

19. While the outcome of this hearing will no doubt be disappointing to Mr Igini, the Tribunal is satisfied that the apparent exercise of a discretion by Monash University officers in 2009, to not offer him the opportunity to transfer to a CSP, does not constitute a ‘reviewable decision’; it is not something the Tribunal is empowered to consider.

    DECISION

20. The Tribunal, being satisfied that the decision sought to be reviewed is not a reviewable decision, dismisses the application under section 42A(4) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the written  reasons for the decision of Senior Member D. J. Morris

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

Associate

Dated: 8 November 2018

Date(s) of hearing:	7 November 2018
Applicant:	In person
Advocate for the Respondent:	Ms Johanna Palenschus