Paloma-Hernandez and Secretary, Department of Education

[2025] ARTA 2019

Paloma-Hernandez and Secretary, Department of Education [2025] ARTA 2019 (3 October 2025)

Applicant/s: Michele Paloma-Hernandez

Respondent:  Secretary, Department of Education

Tribunal Number:                2022/2569

Tribunal:Senior Member M Kennedy

Place:Adelaide

Date:3 October 2025

Decision:The Tribunal has jurisdiction to review only the decision pertaining to the refusal to recredit the applicant’s FEE-HELP balance in respect of COUN3211 Contemporary Counselling Orientations and Research for Trimester 2 of 2020.

Insofar as the application for review pertains to any other decision, that part of the application for review is dismissed for want of jurisdiction.

Statement made on 03 October 2025 at 3:31pm

Catchwords.

HIGHER EDUCATION – application to recredit FEE-HELP balance – jurisdiction – one decision subject to reconsideration – internal review - defects in notice and misdirection of process immaterial to jurisdiction 

Legislation
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Higher Education Support Act 2003

Statement of Reasons

1. On 29 March 2022 Ms Paloma-Hernandez submitted a general enquiry form to the Administrative Appeals Tribunal expressing grievance with responses to complaints, refund requests and communications she had received pertaining to her studies at the Australian College of Applied Psychology (ACAP). By 25 May 2022, the Administrative Appeals Tribunal had registered an application for review identifying the Secretary of the Department of Education as the Respondent.  The records available to me do not fully explain what decision or decisions were identified as being the subject of the application(s) for review in the notice sent to the Secretary by the Administrative Appeals Tribunal informing the Secretary of the application(s).

2. In due course, on 27 April 2022, the Administrative Appeals Tribunal, by consent, granted an extension of time for the making of an application for review of the reviewable decision to 28 March 2022, coinciding with the lodgement of the enquiry form.  The order granting the extension of time does not on its face identify what the reviewable decision or decisions is or are understood to be.

3. Throughout 2022, 2023 and 2024 the proceedings were the subject of conferences in the Administrative Appeals Tribunal. 

4. On 17 April 2023, the Respondent filed and served a statement under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). That statement, chronologically, identified eight requests made by the applicant of ACAP in relation to re-crediting FEE-HELP balances pursuant to subsection 104-25(1) of the Higher Education Support Act 2003 (the HES Act) made by the applicant 7 December 2020 and 12 January 2021 in respect of courses of study to have been undertaken in 2017, 2018, 2019 and 2020.

5. The Secretary submitted in that document that the applications identified as applications 2 to 7 were not ‘reviewable decisions’ under the Act because the decisions had not first been the subject of reconsideration.  ‘Application 8’ is a reconsideration of ‘application 1’, and the Secretary therefore accepted the Administrative Appeals Tribunal had jurisdiction to review it.

6. On 14 October 2024, the AAT was abolished and the Administrative Review Tribunal commenced operations. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised by the AAT before 14 October 2024 were taken to be applications for review to the Administrative Review Tribunal (hereafter the Tribunal). The Transitional Act gave the Tribunal the authority to continue and finalise any aspect of the review not already completed.

7. On 15 November 2024, the Secretary lodged a Statement of Facts Issues and Contentions restating the contention that there was no jurisdiction in respect of 6 of the 7 applications that appeared to be intended to be the subject of the proceedings.

8. On 1 September 2025 the matter was constituted to me, and I convened a directions hearing on 11 September 2025.  At the directions hearing, it was accepted that it would be convenient to resolve the Secretary’s contentions objecting to jurisdiction, and to otherwise conclusively clarify exactly what decision or decisions were the subject of these proceedings in advance of the substantive hearing.

9. Today, 3 October 2025, an interlocutory hearing was held to consider these matters and clarify what decision or decisions are the subject of the proceedings and within the Tribunal’s jurisdiction to review.

   Jurisdiction

10. As mentioned above, the applications for review were lodged (or purportedly lodged) many years ago in what appears to have been a somewhat informal and imprecise administrative process tolerated by the Administrative Appeals Tribunal’s registry.  The wisdom of hindsight permits me to observe that had greater discipline been observed at that time, or at any stage after the Secretary put the question of jurisdiction squarely in issue, the limitations on the Tribunal’s capacity to comprehensively resolve the applicant’s grievances in 2025 might have been addressed.

11. The jurisdiction of the Tribunal now stems from the Transitional Act, and it is necessary to assess whether the predecessor Administrative Appeals Tribunal had jurisdiction to review decisions. In other words, if the Administrative Appeals Tribunal did not have jurisdiction to review decisions, then the Transitional Act would not operate to have conferred jurisdiction on this Tribunal.

12. At the time it appears the applications were lodged, the AAT Act provided that an enactment may provide that applications may be made to the AAT for review of decisions made in the exercise of powers conferred by that enactment: paragraph 25(1)(a) of the AAT Act. It is necessary therefore to refer to the relevant enactment to identify what provisions provide for review of decisions in the AAT. The relevant enactment is the HES Act.

13. Division 212 of the HES Act provided that an application for review of a ‘reviewable decision’ (a defined term) may be made to the AAT if the reviewable decision has been confirmed, varied or set aside under section 209-5 or 209-10 of the HES Act.  I note for completeness that the current iteration of the HES Act now reflects the Tribunal in place of the AAT.

14. The definition of ‘reviewable decision’ is provided for by way of an extensive table of various decisions provided for by the HES Act at section 206-1 of the HES Act.  It is sufficient for present purposes to proceed on the basis that all the matters the subject of the applicant’s grievance could be described as a reviewable decision, and specifically appear to pertain to item 2 of the table: a decision to refuse to recredit a person’s HELP balance’.

15. Section 209-5 and 209-10 of the HES Act fall within Division 209 of the HES Act, dealing with reconsiderations.  The provisions provide for a reviewer to reconsider reviewable decisions either of their own motion or on request, and in doing so to confirm, vary or set aside and substitute the decision. Relevantly, section 209-10 provides that a person affected by a reviewable decision may request a reviewer to reconsider the decision, and must do so in writing within 28 days or such further period the review allows after the day on which the person first received notice of the decision. Subsection 209-10(6) provides that if a request for reconsideration is made, and the reviewer does not give notice of a decision within 45 days, the review is taken to have confirmed the decision.

16. Therefore, in order for the Tribunal to have jurisdiction to review a decision the subject of the applicant’s grievance, there must be either a reconsideration decision or evidence that the applicant requested a reconsideration decision within 28 days (or such further time as has been allowed) but did not receive notice of the reconsideration within 45 days.

17. The Secretary’s position is that the only such reconsideration decision in the extensive material before the Tribunal is that identified in correspondence from ACAP of 17 February 2021, when ACAP wrote to the applicant advising her that it was treating her second application ‘as an appeal against the outcome of her application for special circumstances pertaining to Trimester 3 of 2020’.  The letter (T14 folio 126) goes on to provide brief reasons as to why there was a conclusion that the application was unsuccessful.

18. A few observations about that letter and another letter sent the same date (T14 folio 125) are necessary.

19. The letter that indicates it is informing the applicant of the outcome of an appeal contains two errors.  First, the letter incorrectly identifies the appeal as pertaining to an outcome of an ‘application for special circumstances pertaining to Trimester 3 of 2020’, when it must be understood as pertaining to Trimester 2 of 2020 – see T8 folio 49.  Second, the letter states that the applicant may appeal the decision within 28 days by completing an internal appeal document.  This is incorrect, as the letter states that the decision is an ‘appeal decision’, which must be understood at law to be a ‘reconsideration of a reviewable decision’, and review rights lay instead to the Administrative Appeals Tribunal.

20. The other letter of the same date provides outcomes pertaining to other reviewable decisions, but in contrast to the letter described above, the letter does not describe them as appeal decisions, and it is clear from the context of the letter that it is the first and only such consideration of those matters.  The letter however incorrectly indicates that the outcome may be appealed to the Administrative Appeals Tribunal, which it could not because the decisions were not reconsiderations of reviewable decisions.

21. In this way, in the two letters of 17 February 2021, the ACAP provided the incorrect review process in respect of each outcome, and further confused matters by misdescribing the one decision that was amenable to review in the Administrative Appeals Tribunal.

22. I note the letters were attachments to a covering email that contained an amalgam of advice regarding the applicant’s options for further review.  The covering email therefore is similarly not strictly correct in its terms.

23. These errors and miscarriages of process and communication would provide solid justification for favourable exercises of discretion, for example to extend time to apply for reconsideration, or perhaps (as what may have happened in this case) extend time to apply for review in the Administrative Appeals Tribunal.  The presence of such errors and miscarriages of communication cannot however confer jurisdiction or permit the Tribunal to disregard the absence of jurisdiction in accordance with the legislation.

24. Finally, I note that on 28 March 2022, contemporaneously with the applicant making her approaches to the Administrative Appeals Tribunal, the ACAP wrote to the applicant acknowledging an email of 24 March 2022 ‘regarding your FEE-HELP balance.  The letter states that the applicant had exhausted her appeal avenues within the college, which insofar as the statement relates to any grievance other than that the subject of the letter at T14 folio 126.  I do not have the email to which the letter refers, but from the response it may have been open to construe the email as a request for reconsideration of those decisions which were amenable to such a request at that time, subject to an extension of time.  In this regard, subsection 209-10(2) of the HES Act permits a reviewer to extend time to receive a request for reconsideration of a reviewable decision.

25. A refusal to extend time under that provision is not, I note, a decision in respect of which the Administrative Appeals Tribunal or this Tribunal has jurisdiction to review.  There is nothing, in any event, which suggests that the possibility of an extension of time was considered by the ACAP, and I accept the Secretary’s contentions that the letter cannot be interpreted as a reconsideration of any reviewable decision.

26. In light of the apparent confusion and miscarriage of process and communication demonstrated by these letters, it is wholly unsurprising that the applicant has had difficulty identifying how to exercise her review rights, and it is disappointing that this issue has not been brought to a head and clarified by the Administrative Appeals Tribunal years ago, such that all grievances may proceed together for resolution.  I understand the applicant’s frustration and confusion at the current juncture of these proceedings, and understand that from her perspective, she simply wants to have all of her circumstances taken into account against the entirety of HELP balance.

27. Ultimately however, I accept the Secretary’s contention that there is only one decision that can be construed as a reconsideration of a review decision that is amenable to review: the decision pertaining to the refusal to recredit the applicant’s FEE-HELP balance in respect of COUN3211 Contemporary Counselling Orientations and Research for Trimester 2 of 2020.

28. There are no other decisions identifiable in the materials that fall within the description of the table at section 206-1 of the HES Act.

    DECISION

    The Tribunal has jurisdiction to review only the decision pertaining to the refusal to recredit the applicant’s FEE-HELP balance in respect of COUN3211 Contemporary Counselling Orientations and Research for Trimester 2 of 2020.

    Insofar as the application for review pertains to any other decision, that part of the application for review is dismissed for want of jurisdiction.