Knudson and Secretary, Department of Education, Skills and Employment

[2021] AATA 63

Knudson and Secretary, Department of Education, Skills and Employment [2021] AATA 63 (28 January 2021)

Division:GENERAL DIVISION

File Number(s):      2020/4018

Re:Jonbenet Knudson  

APPLICANT

AndSecretary, Department of Education, Skills and Employment

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:28 January 2021

Place:Sydney

The Tribunal is satisfied that the application for review of the decision has no reasonable prospects of success.

The Tribunal, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth), dismisses the application.

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

Senior Member A Poljak

CATCHWORDS

PRACTICE & PROCEDURE – application for dismissal of substantive application – section 42B AAT Act – no reasonable prospects of success – substantive proceedings concern application to re-credit FEE-HELP debt – applicant completed the requirements of the units – threshold requirement not met – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

Higher Education Support Act 2003 (Cth) 104-25

REASONS FOR DECISION

Senior Member A Poljak

28 January 2021

1. The applicant, Jonbenet Knudson, seeks review of a decision of the International College of Management Sydney (ICMS) to not re-credit her FEE-HELP debt of $61,150 in respect of a Bachelor of Property (Development Investment and Valuation) (Degree) which appears to comprise 19 individual units of study (Units).

2. The respondent submits, that the applicant does not meet the threshold requirement set out in paragraph 104-25(1)(b) of the Higher Education Support Act 2003 (Cth) (the Act), and as such the matter does not have reasonable prospects of success and should therefore be dismissed pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). These interlocutory proceedings concern the respondent’s dismissal application.

   Relevant Legislative Provisions

3. Section 104-25(1) of the Act relevantly provides:

   (1) A higher education provider must, on the *Secretary’s behalf, re-credit a person’s *HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person received for a unit of study if:

   (a) the person has been enrolled in the unit with the provider; and

   (aa) access to the unit was not provided by *Open Universities Australia; and

   (b) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake the unit; and

   (c) the provider is satisfied that special circumstances apply to the person (see section 104-30); and

   (d) the person applies in writing to the provider for re-crediting of the HELP balance; and

   (e) either:

   (i) the application is made before the end of the application period under section 104-35; or

   (ii) the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period. [Emphasis added]

4. Pursuant to paragraph 42B(1)(b) of the AAT Act, the Tribunal has the power to dismiss an application for review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application has ‘no reasonable prospects of success'.

   Consideration

5. The applicant seeks review of ICMS’s decision as she submits that the institution failed to provide any formal communication regarding the changes to the delivery of the Degree, and this failure has impacted on her academically and financially. She states that the last three years have been a ‘fruitless exercise’, which has wasted her time and financial resources, and that she should be compensated for this loss of time and ICMS’s failure to deliver the Degree they said they would.

6. When the applicant enrolled in the Degree, she was told she would be receiving three qualifications: Certificate of Registration, the NSW Real Estate License and the Real Estate Australian Institute membership. The applicant submits that ICMS did not adequately communicate to students that these qualifications would no longer be available, nor did they offer an apology, replacement qualification or offer to meet with students about the changes in course delivery. At hearing, she advised that she now needed to attend TAFE for one more year of study in order to obtain her NSW Real Estate License.

7. For the purposes of the review in this Tribunal, section 104-25 of the Act sets out the main case for re-crediting a person’s FEE-HELP balance. In particular, paragraph 104-25(1)(b) sets out that a higher education provider must, on the Secretary’s behalf, re-credit a person’s FEE-HELP balance with an amount equal to the amounts of FEE-HELP assistance that the person received for a unit of study if, amongst satisfying other criteria, the person has not completed the requirements of the unit during the period that the person undertook, or was to undertake, the unit. This is a threshold requirement.

8. The applicant has completed all academic requirements for the Units for which she seeks fee remission. This includes meeting attendance requirements, the submission of assignments and the completion of all specified assessments and performance requirements measured against learning outcomes. This is confirmed by the applicant’s Academic Record dated 11 June 2020 and the letter from ICMS to the applicant dated 4 June 2020, which indicated that she had ‘been identified as having completed [her] course of study by the Chair of the Board of Examiners on 22nd May 2020’.

9. The material shows that the applicant has completed the requirements of the Units in which she enrolled and therefore does not satisfy paragraph 104-25(1)(b) of the Act. As such, the Applicant cannot then go on to satisfy section 104-30 of the Act (relating to special circumstances) and therefore qualify for re-credit of her FEE-HELP debt.

   Decision

10. The applicant has completed the Units such that she does not satisfy paragraph 104-25(1)(b) of the Act.

11. As this is a threshold issue, the Tribunal cannot go on to consider whether the applicant satisfies any of the other requirements for re-credit of her FEE-HELP debt (such as whether special circumstances applied to the applicant).

12. This application for review is dismissed pursuant to paragraph 42B(1)(b) of the AAT Act as it does not have reasonable prospects of success.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 28 January 2021

Date of hearing:	21 January 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Ms S Prasad, Minter Ellison