Mills and Secretary, Department of Education

[2022] AATA 149

Mills and Secretary, Department of Education [2022] AATA 149 (27 January 2022)

Division:GENERAL DIVISION

File Number(s):      2021/9084

Re:Deborah Mills

APPLICANT

AndSecretary, Department of Education

RESPONDENT

DECISION

Tribunal:Ms A E Burke AO, Member

Date of decision:                   27 January 2022

Date of written reasons:        1 February 2022

Place:Melbourne

The Tribunal refuses the Applicant’s application for an extension of time to reinstate the application for review under s 42A(8) of the Administrative Appeals Tribunal Act 1975 (Cth).

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Catchwords

HIGHER EDUCATION SUPPORT – debt – application for re-crediting or debt waiver – application for extension of time to reinstate matter – five years after Applicant withdrew her application - whether special circumstances existed – extension of time denied

REASONS FOR DECISION

Ms A E Burke AO, Member

1 February 2022

1. At the outset, the Tribunal was very sympathetic to Ms Mills’ situation.  The Tribunal’s decision not to grant an extension of time should not be taken as a reflection on Ms Mills credibility or capacity.

2. During the period of 2006 to 2013, Ms Mills enrolled in a large number of subjects at six universities. Ms Mills described this as a tumultuous period in her life. She failed to complete or withdraw from the majority of the subjects she enrolled in prior to the census date. Ms Mills advised that though she was failing to complete multiple units of study, she continued to enrol in further units.

3. Ms Mills contended that in this period she was experiencing a severe mental health condition, which she continues to experience. She argued that because of her mental health issues, she was unable to deal with her university studies and the administration of her enrolments.   As a result of her failure to withdraw from the units of study prior to the census dates, Ms Mills accumulated a debt owing to the Commonwealth.

4. Ms Mills stated that in early 2016 her mental health condition had improved, and she identified that something needed to be done about her mounting debts, including her outstanding HECS debt. She accordingly applied to the six universities for remission and/or re-crediting of the debt. With the exception of Open Universities Australia (OUA) and Swinburne University of Technology (Swinburne), each of the universities agreed to remit or re-credit the debt

5. Ms Mills originally applied to the Administrative Appeals Tribunal in 2016 to have her debt at OUA and Swinburn withdrawn. In early 2017, on advice from her legal representatives and following conciliation with the Department of Education, Ms Mills withdrew her AAT appeal.

6. Ms Mills is now seeking an extension of time to reinstate this application. Ms Mills stated in her request for the extension of time:

   In 2016 I was advised by my Lawyer that it would be detrimental on my mental health to proceed with a hearing and the fact that I don't earn enough, I'd never meet the threshold to make repayments.

   She did advise me I could apply to the Department of Finance to have the debt waived due to mental health.

   I applied to the DOF in May, however the DOF has stated I need to exhaust all avenues of appeal before they'll even look at my application.

   Fast forward to 2021 and it's the first time in years that I feel stable enough to deal with this issue. The Psychiatrist started me on a new medication in March and it's the first time in my life I feel like I could handle dealing with an issue like this. I'm sure this is going to be extremely difficult even with my current level of stability because as a Psychiatric patient I'm either crazy or a liar! However I am in a much better place to be able to cope with what happens.

7. In accordance with section 42A(8) of the Administrative Appeals Tribunal Act 1975 (AAT Act), Ms Mills had a period of 28 days to lodge an application for reinstatement of her application for review of the deemed dismissal decision following the withdrawal by her legal representative on 3 March 2017.

8. Section 42A(8B)(b) of the AAT Act allows the Tribunal to extend this period in special circumstances.

9. In Ms Mills’ original application to the AAT, she was seeking fee remission for a total of 14 units of study undertaken at OUA and Swinburne over six separate study periods, each of which had a different census dates by which a student must seek fee remission.

10. Ms Mills applied for fee remission of the units undertaken at Swinburne University on 22 February 2016. The application periods for the respective study periods were as follows:

    (a)22 February 2013 - 22 February 2014 in respect of units undertaken in Teaching Period 3, 2012 – 2 year out of time

    (b)21 June 2013 - 21 June 2014 in respect of units undertaken in Teaching Period 1, 2013 – 2 years and approximately 4 months out of time

11. Ms Mills applied for fee remission of the Open Universities Australia Units on 27 January 2016. The application periods for the respective study periods were as follows:

    (a)28 August 2009 - 28 August 2010 in respect of the Study Period 2, 2009 Units – approximately 6 years and 7 months out of time

    (b)27 November 2009 - 27 November 2010 in respect of the Study Period 3, 2009 Units – approximately 5 years and 2 months out of time

    (c)27 November 2012 – 27 November 2013 in respect of the Study Period 3, 2011 Units – approximately 2 years and 2 months out of time

    (d)26 February 2013 – 26 February 2014 - in respect of the Study Period 4, 2011 Units – approximately 2 years and 11 months out of time

12. The Respondent contended that because Ms Mills’ application for fee remission was outside the 12-month statutory application period for each of the study periods in which the units were undertaken, the Tribunal would need to consider five separate and distinct application periods to determine whether Ms Mills had an arguable case that it would not have been possible for her to apply for fee remission within each of the statutory periods.

13. The Respondent therefore argued that Ms Mills’ application had no prospects of success as case law indicates that in order for an Applicant to establish it was not possible for them to lodge an application within the statutory timeframe, they must provide clear evidence of a prolonged, continuous and systemic effect on a person’s capacity to perform day to day activities within the statutory period. This should include probative and contemporaneous evidence of a medical condition, memory lapses or behavioural discrepancies which would have inhibited Ms Mills’ capacity to perform a routine administrative actions or other actions to submit fee remission applications.

14. The Tribunal did not consider Ms Mills’ prospects of success were completely without merit as her actions at the time of enrolment indicate that whilst she could undertake some administrative actions such as enrolling in numerous courses, her decisions did not appear to be rational. Additionally, several other universities granted Ms Mills fee remission, indicating they accepted that Ms Mills’ capacity was impaired, and she was unable to apply for withdrawal by the census date.

15. Despite considering that Ms Mills’ application had some prospect of success, the Tribunal did not consider special circumstances existed to grant an extension of time as Ms Mills was legally represented at the time of her original claim and she made an informed decision to withdraw her application in 2017. Ms Mills’, or her legal representative’s, failure to pursue her claim with the Department of Finance in 2017 was not a circumstance the Tribunal considered special. Whilst the Tribunal does consider Ms Mills’ mental health condition as a factor, it was the very reason she withdrew her original claim.

16. Ms Mills advised the Tribunal that whilst her mental health condition has improved since 2017, she still struggles every day with her condition and her reason for seeking reinstatement was to exhaust all her avenues of appeal, in order to allow her to make an ex gratia claim with the Department of Finance 

17. The Tribunal notes that the Department of Finance's Resource Management Guide No. 401 states that the act of grace or ex gratia is a mechanism whereby a person may seek discretionary financial assistance from the Minister for Finance. It is a remedy of last resort and is not used when there is another viable remedy available to provide redress in the circumstances giving rise to the application. An act of grace payment cannot be made if the matter can be justly or legally considered under any enactment (which would be the case here). If other avenues exist for a person to receive financial assistance from the Commonwealth (such as existing legislation or schemes), the Department of Finance requires that those avenues are investigated before a request is made for an act of grace payment.

18. The Tribunal’s determination not to grant an extension of time to reinstate Ms Mills’ application exhausts all avenues of investigation Ms Mills has undertaken to deal with her outstanding debts to OUA and Swinburn.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the written reasons for the decision herein of Ms A E Burke AO, Member

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Associate

Dated: 1 February 2022

Date of hearing:	25 October and 2 December 2021
Applicant:	Self-Represented
Counsel for the Respondent:	Mr Charles Clarke
Solicitors for the Respondent:	Ms Rebecca Shelley, Hall & Wilcox