Mhatre and Secretary, Department of Education, Employment and Workplace Relations

[2011] AATA 852

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 852

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/3204

GENERAL ADMINISTRATIVE DIVISION		)
Re		Vivek Mhatre

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Senior Member A K Britton

Date9 November 2011

PlaceSydney

Decision The Tribunal does not have jurisdiction to hear the application.

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

Senior Member A K Britton

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – Higher Education Support Act - non-reviewable decision

Administrative Appeals Tribunal Act 1975 (Cth) – s 25

Higher Education Support Act 2003 (Cth) – ss 36-22, 206-1, 212-1

WRITTEN REASONS FOR DECISION REVISED FROM THE TRANSCRIPT

9 November 2011 Senior Member A K Britton           

1.      The applicant seeks review by the Administrative Appeals Tribunal of a decision made by the University of Western Sydney on 12 July 2011 not to allow him to withdraw without penalty from a course in which he was enrolled. As I understand, as a consequence of that decision the applicant lost a not insignificant sum — over $2000 — and, in addition, his academic record now carries an “E” or a “Fail-Discontinued” grade as opposed to a record indicating that he withdrew from the course. 

2.      The respondent, the Secretary of the Department of Education, Employment and Workplace Relations, submits that the Tribunal does not have power to review this decision. I agree for  the reasons that follow. In these reasons I do not address the merits of the University’s decision, only the technical or jurisdictional question of whether the Tribunal has power to review the decision made by the University.

3.      The Tribunal can only review “reviewable decisions”, that is, those decisions the Tribunal is given power to review under an enactment (s 25 of the  Administrative Appeals Tribunal Act 1975 (Cth)). In this case the relevant enactment is the Higher Education Support Act 2003 (Cth) (Higher Education Act).  Section 212-1 of that Act provides that an application may be made to the Tribunal for review of a “reviewable decision”. Section 206-1 lists 10 classes of “reviewable decisions”. Of those, only three are decisions made by a “higher education provider” and, therefore, only those decisions are potentially relevant. 

4.      The first category of decisions, that is, the decision listed at Item 1A of s 206-1, relates to decisions made under s 36-22 of the Higher Education Act about the repayment of amounts paid for units wholly consisting of study in respect of work experience.  Plainly, that does not apply in this case.

5.      The second class of reviewable decision is listed in Item 1 of 206-1 — a decision to refuse to re-credit some or all of a person’s “study learning entitlement”. As the applicant was not an “eligible person” because of his visa status, he was not entitled to a student learning entitlement and, therefore, that provision has no application. 

6.      In respect of the third category of reviewable decision listed in Item 2 of 206-1 — a refusal to re-credit a person’s “FEE-HELP balance”, the applicant did not qualify for or receive fee help at the relevant time and, therefore, that provision does not apply. 

7.      It follows that the decision that the applicant seeks to have reviewed does not fall within s 206-1 of the Higher Education Act and, therefore, the Tribunal does not have power to review that decision.  This is a matter where the Tribunal does not have any discretionary power regardless of the merits of the offending decision.

8.      This unfortunate state of affairs seems to have arisen because of a letter written to the applicant dated 12 July 2011 which advises him that under the Higher Education Support Act he has a right of appeal in respect of the subject decision to the Administrative Appeals Tribunal.  Plainly, that information was incorrect and Mr Mhatre has now been put to some significant inconvenience and cost as a result of that erroneous information. I would ask the respondent to send a copy of these reasons for decision to the University of Western Sydney to ensure that this type of information is not provided to persons in the applicant’s position in the future.  I note that Ms Delaney has undertaken to email the applicant and to provide information on another review avenue that is open to him and to provide appropriate contact details.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed:         .................................[sgd]............................
  Associate to Senior Member A K Britton

Date of Hearing  9 November 2011
Date of Decision  9 November 2011
Applicant self-represented
Solicitor for the Respondent     S Delaney, DEEWR Legal