KAREMA KHATIB and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 888

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 888

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4512

GENERAL ADMINISTRATIVE DIVISION		)
Re		KAREMA KHATIB

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S E Frost, Senior Member

Date18 November 2009

PlaceSydney

Decision The Tribunal extends the time for the making of an application for review of the relevant decision to 22 September 2009.

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

Mr S E Frost
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – application for review of decision made pursuant to Higher Education Support Act 2003 – consideration of factors relevant to exercise of discretion to allow extension of time – extension of time granted

Administrative Appeals Tribunal Act 1975 s 29

Higher Education Support Act 2003 ss 79-1, 79-5, 104-25, 104-30

Brown v Commissioner of Taxation [1999] FCA 563

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

REASONS FOR DECISION

18 November 2009 Mr S E Frost, Senior Member       

1.      In the first semester of 2008, Dr Karema Khatib was enrolled in a course at the University of Western Sydney.  After attending only a handful of classes, she came to the view that the course was unsuitable.  She says that she sent an email to the faculty indicating that she wished to withdraw from the course.  She thought that would be the end of the matter.  Unfortunately, the University has no record of that email.  According to its records, Dr Khatib remained enrolled in the course.  And so, at the end of the semester, the University debited Dr Khatib’s Student Learning Entitlement (SLE), and raised a FEE-HELP debt, under the Higher Education Support Act 2003 (HESA).

2.      Dr Khatib has applied to this Tribunal for review of the University’s decision.  Her application is out of time.  The question is whether she should be granted an extension of time to lodge her application.

3.      I have decided to grant the extension of time.  My reasons follow.

4. Section 29(7) of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal may extend the time for making an application, beyond the usual 28-day limit, “if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.

5.      There are several factors to be taken into account in deciding whether or not to grant an extension of time.  They are (see, for example, HunterValley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-50, and Brown v Commissioner of Taxation [1999] FCA 563):

(a)Whether there is an acceptable explanation for the delay;

(b)Whether the applicant rested on her rights, leading the respondent to regard the matter as finalised;

(c)Whether there is any prejudice to the respondent or to the general public in terms of disruption to established practices;

(d)The merits of the substantive application; and

(e)Considerations of fairness between the applicant and other persons in a similar position.

6.      I will deal with each of these factors in turn.

Explanation for the delay

7.      Dr Khatib explained to me that she had migrated to Australia from Iraq more than 15 years ago.  Coming from that background, she was reluctant to initiate an appeal to the Tribunal because that seemed very confrontational, like court proceedings.  This was despite the fact that the correspondence she received from the University in September and November 2008 told her she had a right of appeal to this Tribunal.  She said that she wanted to see if she could negotiate a favourable outcome in a less formal way. 

8.      Eventually she approached the NSW Ombudsman.  When that approach was also unsuccessful, and she felt that she had no other choice, she lodged her application with the Tribunal.

Whether the applicant rested on her rights, leading the respondent to regard the matter as finalised

9.      The University first notified Dr Khatib in September 2008 that her appeal against the University’s decision was unsuccessful.  The letter told her that she could appeal to the Tribunal, but it did not tell her about the 28-day time limit for such an appeal. 

10.     About six weeks later, Dr Khatib approached a counsellor at the University to see if he could help.  He took the matter up with the University’s Complaints Resolution Manager, but by the end of November 2008 the University indicated that it could not assist her further.  She was told again that she could appeal to the Tribunal, but, once again, she was not told about the 28-day time limit.  She was also told that she was “at liberty to contact the NSW Ombudsman’s Office for an external procedural review”.  This is the course that she took, although not until June 2009.

Possible prejudice to the respondent or to the general public

11. The respondent Secretary points out that prescribed time limits, determined by Parliament and set down in legislation, should be observed so as to give effect to the intention of Parliament. That is so, although there is also a Parliamentary intention, expressed in s 29(7) of the Administrative Appeals Tribunal Act 1975, that extensions of time should be granted where it is reasonable to do so.

12.     I perceive no real prejudice to the respondent or the general public if Dr Khatib is given the opportunity to have the University’s decision reviewed by the Tribunal.

The merits of the substantive application

13.     The substantive application will be determined by particular provisions of the HESA: s 79-1 and s 79-5 in respect of SLE, and s 104-25 and s 104-30 in respect of FEE-HELP.  Dr Khatib will need to establish that “special circumstances” apply to her.  That means that she will have to establish that circumstances apply to her that:

(a)were beyond her control; and

(b)did not make their full impact on her until on or after the “census date” of 31 March 2008; and

(c)made it impracticable for her to complete the requirements for the course in the period during which she undertook it.

14.     The Secretary submits that Dr Khatib has identified two conflicting circumstances as reasons why she withdrew from the course: first, that the course was not suitable for her; and second, that she was suffering from depression.  But there is, it seems to me, one further limb to Dr Khatib’s case, and that is that she thought she had withdrawn from the course by sending (as she claims) an email to the faculty prior to the census date.  If the Tribunal, on a hearing of the substantive application, were satisfied that she did in fact send that email (and that is a question of fact that would be determined on a full merits review, rather than as part of this interlocutory proceeding: see Brown, above), then it is possible that her application for review could succeed.  On that basis, I do not agree with the Secretary’s submission that Dr Khatib’s application has “no merit”.

Considerations of fairness between the applicant and other persons in a similar position

15.     The Secretary submitted that it would not be fair to allow Dr Khatib an extension of time to lodge her application for review when other people have had similar applications refused.

16.     It may be that Dr Khatib will be unsuccessful on the facts.  But it is not unfair to other people that she should be given the opportunity to put her case.

Conclusion

17.     Having considered all the matters that I consider relevant, I am satisfied that it is reasonable in all the circumstances to extend the time for Dr Khatib to lodge her application to the Tribunal for review of the decision of the University.

18.     The time for lodgment of her application is extended to 22 September 2009.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Senior Member

Signed:         .................[sgd].............................................................
  Associate

Date of Hearing  4 November 2009
Date of Decision  18 November 2009
Appearance for the Applicant        Self-represented

Appearance for the Respondent    Ms A Carseldine, Department of Education, Employment and Workplace Relations