McMillan and Secretary, Department of Education

This matter concerned an appeal by McMillan against a decision of the Secretary, Department of Education, regarding the dismissal of her application under section 42B(1)(b) of the *Administrative Appeals Tribunal Act 1975* (Cth). The core of the dispute revolved around whether McMillan had completed the units for a Diploma of Business Administration course offered by Careers Australia and, consequently, whether she was liable for the associated HELP debt. McMillan contended that Careers Australia had misrepresented the cost of the course and engaged in undue pressure to keep her enrolled, and that she required significant assistance to complete the course units. She sought to have the debts from her enrolment re-credited under section 46AA of the *Higher Education Support Act 2003* (Cth).

The primary legal issue before the Tribunal was whether McMillan's application had no reasonable prospects of success, which would justify summary dismissal. This required the Tribunal to determine if there were significant factual questions to be resolved, particularly concerning the completion of the course units and the reliability of the evidence presented by Careers Australia. A further question was whether McMillan could be considered to have 'not completed' the unit requirements under the VET Guidelines, thereby satisfying an alternative threshold for relief under subclause 46AA(1)(a)(ii).

The Tribunal found that there were substantial gaps in the respondent's evidence that raised the possibility that McMillan had not actually completed the units for which she was charged. Specifically, the Tribunal noted that all documentation indicating completion originated from Careers Australia, which itself had been subject to an ASQA audit report identifying assessment issues in the Diploma of Business. This audit suggested that students might have been certified as completing units without meeting the required standards, thus undermining the reliability of Careers Australia's records. Furthermore, the Tribunal observed that the respondent could not definitively establish that the units for which McMillan incurred a HELP debt were the same units she was recorded as having completed, due to an inability to cross-reference unit codes. Consequently, the Tribunal concluded that it could not be satisfied that McMillan had no reasonable prospect of success in establishing that she did not complete the units for which she was charged, and that more evidence was required.