Lim and Secretary, Department of Education - [2024] AATA 928

Lim and Secretary, Department of Education [2024] AATA 928 (1 May 2024)
Division:GENERAL DIVISION
File Number(s): 2024/0151
Re:Jason Lim
APPLICANT

AndSecretary, Department of Education
RESPONDENT

DECISION
Tribunal:Senior Member Honourable J Rau SC
Date:1 May 2024
Place:Adelaide

The Applicant’s application for an extension of time is refused.
..........................[sgnd].......................................
Senior Member Honourable J Rau SC
CATCHWORDS
PROCEDURE – application for extension of time – not granted – the decision is refused.
LEGISLATION
Higher Education Support Act 2003 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
Mohammed v Minister for Home Affairs (Citizenship) [2019] AATA 4482
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 244
Simonsen v Secretary, Department of Social Services (Social services second review) [2021] AATA 2442
Re Grafton v Commonwealth (1988) 16 ALD 533
Re Romeo v Secretary, Department of Social Security (1992) 26 ALD 248
Re Civic Tavern Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381
REASONS FOR DECISION
Senior Member Honourable J Rau SC
1 May 2024

Mr Lim is seeking the review of a decision (“the decision”) made on 16 January 2023 under subsection 97-25(2) of the Higher Education Support Act 2003 (“the Act”) not to recredit his HELP balance for assistance received for units of study undertaken at Flinders University (“Flinders”).
On 6 January 2024, Mr Lim applied to the Tribunal for an extension of time to lodge an application for review of the decision.
Facts
On 11 December 2022, Mr Lim lodged an application for remission of fees.
On 16 January 2023, Flinders refused Mr Lim’s application.
On 19 January 2023, Mr Lim requested a review of the decision.
On 24 February 2023, Flinders affirmed the decision. Mr Lim was advised of his rights to seek a review in the Administrative Appeals Tribunal (“AAT”) within 28 days.[1]
[1] Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SOFIC) dated 12.04.2024 at para [6].
The proscribed time for making an application for review to the AAT expired on 24 March 2023.[2]
[2] Ibid.
On 30 March 2023, Mr Lim met with the Flinders University Student Association (“FUSA”). FUSA confirmed that he had exhausted internal review processes and advised him that he could only seek a review in the AAT.[3] FUSA advised Mr Lim that he could lodge a complaint with Flinders.[4]
[3] Respondent’s SOFIC at para [9]; Applicant’s submission - emails correspondence between the Applicant the Flinders University - (Applicant’s submission), 7.
[4] Ibid.
On 18 April 2023, Mr Lim emailed FUSA enquiring about the AAT process.[5]
[5] Respondent’s SOFIC at para [10]; Applicant’s submission, 7.
On 20 April 2023, FUSA responded to Mr Lim’s email, stating that they were unaware of the AAT processes. FUSA advised Mr Lim to contact the AAT directly for more information. FUSA told Mr Lim that the 28-day time limit had now expired.[6]
[6] Respondent’s SOFIC at para [11]; Applicant’s submission, 8.
On 22 June 2023, Mr Lim told FUSA that he intended to apply to the AAT.[7]
[7] Respondent’s SOFIC at para [12]; Applicant’s submission, 8.
On or around 15 November 2023, Mr Lim made a formal complaint to Flinders.[8]
[8] Respondent’s SOFIC at para [14]; Applicant’s submission, 9.
On 22 November 2023, Flinders emailed Mr Lim, advising him of the outcome of the complaint.[9]
[9] Respondent’s SOFIC at para [15]; Applicant’s submission,9.
On 6 January 2024, Mr Lim applied to the Tribunal for an extension of time to lodge an application for review of decision. This application was approximately 10 months late.
On 28 March 2024, Mr Lim provided a Statement of Facts, Issues and Contentions (Applicant’s SOFIC), and further evidence in support of his extension of time application.
RELEVANT LEGISLATION
Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that an application for review must be made within 28 day from the day of the decision. In this case that was 24 March 2023.
Subsection 29(7) of the AAT Act provides that the Tribunal may extend the time to make an application to the Tribunal, if it is satisfied that it is reasonable in all the circumstances to do so.
ISSUES
The issue is whether the discretion under subsection 29(7) of the AAT Act should be exercised.
CONTENTIONS
The Respondent opposes the extension of time application based on the length of delay. It says is no adequate explanation for lengthy delay has been provided.[10]
[10] Respondent’s SOFIC at para [21].
The length of the delay
The length of delay (around 10 months) is very significant, given that the prescribed time within which to apply to the Tribunal is only 28 days.[11]
Lack of reasonable explanation for delay
[11] Mohammed v Minister for Home Affairs (Citizenship) [2019] AATA 4482.
Mr Lim was made aware of his right to seek review on 24 February 2023, but he did not pursue it in a timely manner.
In these circumstances, it is incumbent upon Mr Lim to demonstrate an acceptable explanation for his delay.[12]
[12] See Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 244 at 348; Simonsen v Secretary, Department of Social Services (Social services second review) [2021] AATA 2442.
In his extension of time application, Mr Lim provided this explanation for his delay:
"I've contacted the university many many [sic] times and have emailed various people, escalated emails, called relevant university services and offices, gone through student advocacy services for advice, made formal complaints etc. This process involved exploring/assessing my options and trying to determine a reasoning for the remission rejection so that I could be sufficiently prepared for an AAT appeal".[13]
…………….
“Emails show that there has been constant communication throughout and that the last communication did not end with the remission appeal rejection. A vast amount of email enquiries have been sent and lots of preparation has gone into this tribunal application.
The last email regarding the matter was on the 22/11/2023 and thus, was not a substantial amount of time before the AAT appeal application. Thus, the application for a time extension is within a reasonable period.”[14]
[13] Respondent’s SOFIC, Annexure 3, 2.
[14] Respondent’s SOFIC at para [26]; Applicant’s statement (lodged 28.03.2024).
Mr Lim told the Tribunal that he considered there was a lack of “valid reasons” for the decision, and he was pursuing this issue with Flinders. He also said that it took him time to secure funding to pay fees for his AAT application.
As to the second of these points, I note on 23 January 2024, the Tribunal wrote to Mr Lim giving him the benefit of a reduced fee of $100, based on his stated financial hardship.
In the Review Decision Mr Lim was provided with the following information regarding his appeal rights:
“If you wish for an external review, you may apply to the Administrative Appeals Tribunal (AAT).
The application must be lodged at the AAT within 28 days of receiving this notice. As you have received this notice via email to the mail address you provided to us upon application, you are deemed to have received it on the day it was sent to you. The time limit can be extended in limited circumstances by order of the AAT.”[15]
[15] Respondent’s SOFIC at para [28].
On 3 March 2023, prior to the expiry of the 28-day time limit, Flinders provided Mr Lim with further reasons for the Review Decision and repeated the advice regarding his appeal rights.[16]
[16] Respondent’s SOFIC at para [29]; Applicant’s submission, 4.
On the same day, Mr Lim sent an email to Flinders, requesting more information regarding the Review Decision and offering to submit further information in support of his application.[17]
[17] Respondent’s SOFIC at para [30]; Applicant’s submission, 4.
On 24 March 2023, the Applicant received a further email from Flinders, stating the following:
To have this reviewed again you will now need to lodge an application with the AAT in accordance with the instructions in the outcome letter you received.[18]
[18] Respondent’s SOFIC at para [31]; Applicant’s submission, 5.
On 24 March 2023 (the last day to make a request to the Tribunal for review) Mr Lim had:
(a)received the Review Decision and the reasons for that decision;
(b)received confirmation from Flinders that additional supporting documentation he provided had been taken into consideration by the relevant decision maker; and
(c)been informed on at least three separate occasions that if he wished to pursue his application further, he needed to make an application to the Tribunal and that this would need be done within 28 days of the Review Decision.
Whatever may be said about the adequacy or otherwise of the reasons for decision provided to Mr Lim by Flinders, he could have been in no doubt as to the urgent need to apply to the Tribunal, to seek a review, should he be unhappy with the decision.
I do not accept that Mr Lim’s explanation that he was seeking further information from Flinders, is an adequate explanation for such a lengthy delay. The timelines set out above demonstrate no urgency on Mr Lim’s part. He was reminded on many occasions of his rights to seek review.
Making a complaint to Flinders was never a substitute for an application to the AAT. Mr Lim was explicitly advised of his rights in this regard and how to exercise them.
Resting on his rights
The Respondent contends that rather than there being a reasonable explanation for Mr Lim’s delay, he has instead “rested on his rights”.
Mr Lim was informed of his rights of appeal by Flinders. He let nearly 10 months pass after the 28-day time limit expired. Mr Lim has not provided any compelling reason for this delay.
Mr Lim has not demonstrated that if his application were to proceed, he has a reasonable prospect of success on the merits of his case.
Mr Lim cannot simply rest on his rights and then almost 10 months later, seek an extension of time.[19]
[19] Re Grafton v Commonwealth (1988) 16 ALD 533; Re Romeo v Secretary, Department of Social Security (1992) 26 ALD 248; Re Civic Tavern Ltd v ACT Liquor Licensing Board (1993) 32 ALD 381.
CONCLUSION
For the reasons outlined above, I am not satisfied that it is reasonable in all the circumstances, to extend the time for the making of Mr Lim’s application to the Tribunal pursuant to subsection 29(7) of the AAT Act.
DECISION
The Applicant’s application for an extension of time is refused.
……………[sgnd]…………………….
Associate
1 May 2024

Date of Hearing:

22 April 2024

Applicant:

Jason Lim

(Self-represented)

Respondent

Myles Norris

(AGS)