Mayhew and Secretary, Department of Education

[2021] AATA 914

Mayhew and Secretary, Department of Education [2021] AATA 914 (15 April 2021)

Division:GENERAL DIVISION

File Number(s):      2021/1023

Re:Jade Mayhew

APPLICANT

AndSecretary, Department of Education

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:15 April 2021

Date of written reasons:        19 April 2021

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, pursuant to section 42B (1) (b) of the Administrative Appeals Tribunal Act 1975 (Cth), the application of the Secretary, Department of Education, Skills and Employment to have the application made on 22 February 2021 by Ms Jade Mayhew, for a review of a decision by the delegate of the Secretary made on 22 January 2021, dismissed is granted.

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

Chris Puplick AM, Senior Member

CATCHWORDS

APPLICATION FOR DISMISSAL – application for review – re-creditation of VET FEE-HELP – inappropriate behaviour by provider or provider’s agent– whether the unit requirements of the course are completed - whether there are any reasonable prospects of success – application for dismissal granted

LEGISLATION

Higher Education Support Act 2003 (Cth) s 46AA

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

CASES

Last and Secretary, Department of Education and Training [2019] AATA 658

REASONS FOR DECISION

Chris Puplick AM, Senior Member

19 April 2021

1. This is an application by the Secretary, Department of Education, Skills and Employment), dated 22 March 2021,  for the Tribunal to dismiss without proceeding to a full merits-based hearing an application made by Ms Jade Mayhew which sought the Tribunal’s review of a decision by the Applicant not to grant a refund of Ms Mayhew’s request for refund of her VET FEE-HELP debt.

2. To begin, as the application is made on behalf of the Secretary of the Department of Education, Skills and Employment, the Tribunal will treat the Department as the Applicant in this application for dismissal. Conversely, Ms Mayhew will be treated as the Respondent.

3. The Tribunal has power under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) as follows (emphasis added):

   42B  (1)  The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

   (a)is frivolous, vexatious, misconceived or lacking in substance; or

   (b)has no reasonable prospect of success; or

   (c) is otherwise an abuse of the process of the Tribunal.

4. The uncontested facts in this matter are that:

   ·On or around 26 August 2013 Ms Mayhew enrolled in a Diploma of Business Administration course with ACTE Pty Ltd trading as Evocca College;

   ·On or around 13 August 2013 an application on Ms Mayhew’s behalf for VET FEE-HELP assistance under the provisions of the Higher Education Support Act 2003 (Cth) was made, apparently by Evocca College;

   ·This FEE-HELP was granted and in total Evocca College received payment of $18,000 in three tranches credited against Ms Mayhew;

   ·Ms Mayhew was notified of these payments by correspondence from Evocca College dated 9 September 2013, 4 October 2013 and 9 January 2014;

   ·On or around 26 September 2014 Ms Mayhew successfully completed her enrolled course of study and a certificate to this effect was issued by the course provider and the Australian Skills Quality Authority (ASQA).

5. Ms Mayhew contends that:

   ·She was misled by Evocca College as to the full and complete cost of the course in which she enrolled,

   ·The quality of the course was unsatisfactory and not in line with her expectations based upon advice from Evocca College,

   ·She was unaware of the application for FEE-HELP submitted on her behalf by Evocca College, and

   ·While she recalls receipt of the Evocca letter of 9 September 2013 which related to a debt of some $4,500 being in line with her expectations of the cost of this course, she has no recollection of receipt of the further two letters.

6. The Tribunal has no reason to doubt or dispute any of the claims made by Ms Mayhew and is aware of the reports of similar issues with Evocca College which has now apparently  been stripped of its accreditation by the federal government citing “alarmingly low completion rates and  aggressive recruitment practices” and has ceased trading leaving many students and staff severely compromised. Ms Mayhew herself has provided reports of other complains made against Evocca College as part of her submission.

7. Sometime later, in March 2019, Ms Mayhew sought assistance from the VET Student Loans Ombudsman (VSLO) to obtain a re-credit of her FEE-HELP balance.;

8. In March 2020 the VSLO determined not to re-credit the debt.

9. In April 2020 Ms Mayhew, in effect, sought a review of that decision.

10. The Ombudsman reconsidered the matter following those representations and made a decision adverse to Ms Mayhew which it reported to the Department which, on 3 November 2020 made a formal decision not to re-credit the FEE-HELP balance.

11. Ms Mayhew sought a further review of that decision in November 2020.On 22 January 2021 a delegate of the Department reaffirmed that refusal decision.

12. Thereupon on 22 February 2021 Ms Mayhew sought a review of that decision in this Tribunal where the matter was heard on 15 April 2021.

13. Ms Mayhew seeks a review on the basis, as noted above, of her dissatisfaction with the quality of the course provided, the extent of the fees charged and generally inappropriate behaviour on the part of Evocca College. 

14. In response, the Applicant draws attention to section 46AA of Schedule 1A of the Higher Education Support Act 2003 (Cth) which provides:

    46AA   Re-crediting a person's HELP balance in relation to VET FEE-HELP assistance --inappropriate conduct by provider or provider's agent

    Re-crediting

    (1)  The * Secretary may, on application under subclause (3) or on the Secretary's own initiative, re-credit a person's * HELP balance with an amount equal to the amounts of * VET FEE-HELP assistance that the person received for a * VET unit of study with a * VET provider, 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 of which the unit forms a part.

15. It is to be noted that this clause contains a number of elements:

    ·In the first place the matter of re-creditation is discretionary – the Secretary may re-credit if satisfied of certain conditions;

    ·An applicant for re-creditation must either have “not completed the requirements of the unit” or be “taken not to have completed those requirements” in a specified period;

    ·The reference to any inappropriate behaviour on the part of the VET provider is engaged only when one of those first two pre-conditions is satisfied.

16. The question therefore arises as to whether or not Ms Mayhew “completed” the course requirements.

17. In my decision in Last and Secretary, Department of Education and Training [2019] AATA 658 I made it clear that, in plain English, “completed means completed”.

18. There is no doubt that Ms Mayhew completed the course in question. There are clear records and documentary evidence to that effect and she herself does not, and never has contested the fact.

19. Although she undoubtedly has legitimate complaints against the course provider, that is not a matter for this Tribunal to determine, there are potential remedies in other jurisdictions. The role of the Tribunal is to apply the statutes relevant to her application.

20. Ms Mayhew cannot be granted a re-credit of her FEE-HELP balance because the legislation specifically prohibits any applicant who has completed their course of study from doing so. There is no discretion in the matter.

21. Given that, were the matter to proceed to a full hearing before the Tribunal the outcome cannot be anything other than the dismissal of her application, therefore the requirements of section 42B(1)(b) of the AAT Act are fulfilled.

22. Ms Mayhew’s application has no reasonable prospect of success.

23. The application by the Secretary for the dismissal of the matter is therefore granted.

24. The Tribunal records its sympathy for Ms Mayhew, and many other like students who were caught in a dreadful perversion of the FEE-HELP scheme by this provider. There is, however, nothing in that which would allow the Tribunal to ignore the express provisions of the legislation.

    DECISION

25. The application of the Delegate of the Secretary, Department of Education, Skills and Employment to have the application made on 22 February 2021 by Ms Jade Mayhew, for a review of a decision by the Applicant made on 22 January 2021, dismissed is granted.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate

Dated: 19 April 2021

Date(s) of hearing:	15 April 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Fiona Baker (Department of Education, Skills and Employment)