Pineiro and Australian Catholic University Limited
[2006] AATA 371
•28 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 371
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/153
GENERAL ADMINISTRATIVE DIVISION ) Re SERGIO PINEIRO Applicant
And
AUSTRALIAN CATHOLIC UNIVERSITY LIMITED
Respondent
DECISION
Tribunal The Hon. R.N.J. Purvis A.M, Q.C, Deputy President Date28 April 2006
PlaceSydney
Decision The Tribunal is without jurisdiction in this matter. The application is dismissed.
[SGD] The Hon R N J Purvis, A.M, Q.C. Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – dispute with University – privacy violated – unit assessments – unit credits – jurisdiction of AAT under Higher Education Support Act 2003 - no reviewable decision – application dismissed
Higher Education Support Act 2003 – ss. 36-22, 79-1, 206-1, 206-5, 209-1, 209-5, 209-10, 212-1
REASONS FOR DECISION
28 April 2006 The Hon. R.N.J. Purvis A.M, Q.C, Deputy President 1. The present application is concerned with the jurisdiction of the Administrative Appeals Tribunal to hear and determine issues arising out of problems and difficulties experienced by Mr Sergio Pineiro as an undergraduate student at the Australian Catholic University (“the University”).
2. Mr Pineiro was first enrolled as a student at the University in 1996. In 1998/1999 he enrolled as a student at the University of New South Wales. Mr Pineiro has remained as student at the University since 1996 having a number or units to complete before he becomes eligible for graduation. Over the years he has achieved success in some subjects, failed in others and has withdrawn from a number of units.
the appeal and the review process
3. The Administrative Appeals Tribunal is not a competent body to hear and determine a matter unless jurisdiction is conferred upon it by a Commonwealth Statute or Regulation. Jurisdiction is conferred upon the Tribunal to deal with disputes relating to problems arising in the field of higher education by the Higher Education Support Act 2003 (“the Act”).
4. The jurisdiction that is so conferred on the Tribunal is not such as to deal with all or indeed the majority of disputes, complaints and grievances that may be of concern to a student. The University by its counsel Mr L.T. Grey in the present proceedings provided the Tribunal with a summary of internal appeal and review provisions and procedures.
5. The University is required by the Act (section 19-45 to 19 – 75) to have and indeed does have its own grievance and appeal processes. There are procedures under the Policy for Appeal and Review on Administrative Matters which sets out a series of internal review procedures consistent with the internal review process required to be in place by the provisions of the Act. In the event of the internal review process being exhausted an appeal might be competent to the Tribunal.
6. The University also has a general Grievance Management Policy which deals with a wide range of matters of complaints. There is a formal mediation process with the opportunity of a final review by the Vice-chancellor.
7. The Academic Regulations provide for review and appeals referable to matters pertaining to grades and possible termination of enrolment with the involvement of the Head of School, a Faculty Appeals Committee and the Chair of the Academic Board.
8. Finally the University Visitor is available to provide an objective evaluation of grievances where no other course is available.
9. It is only on compliance with and completion of the procedure detailed in the Policy for Appeal and Review on Administrative Matters that an appeal on prescribed matters is competent to the Tribunal.
10. The Act as here relevant provides:
“Section 206‑1 Reviewable decisions etc.
The table sets out:
(a) the reviewable decisions under this Act; and
(b) the decision maker, for the purposes of this Division, in respect of each of those decisions.
Reviewable decisions Item Decision Provision under which decision is made Decision maker 1A A decision that section 36-22 does not apply to a person section 36-22 (a) the higher education provider with whom the student is enrolled in the unit; or
…
1 Refusal to re‑credit some or all of a person’s *student learning entitlement for a unit of study section 79‑1 (a) the higher education provider with whom the student is enrolled in the unit;
or
…
…”
It is noted that section 36-22 relates to: “Providers to repay amounts etc. for units wholly consisting of work experience in industry - special circumstances” and section 79-1 relates to the circumstances in which a person’s Student Learning Entitlement can be re-credited.
11. Section 206-5 of the Act provides:
“206‑5 Deadlines for making reviewable decisions
If:
(a) this Act provides for a person to apply to a *decision maker to make a *reviewable decision; and
(b) a period is specified under this Act for giving notice of the decision to the applicant; and
(c) the decision maker has not notified the applicant of the decision maker’s decision within that period;
the decision maker is taken, for the purposes of this Act, to have made a decision to reject the application.”
12. Section 209-1 of the Act provides:
“209‑1 Reviewer of decisions
(1) The reviewer of a *reviewable decision is:
(a) if the *decision maker was a higher education provider acting on behalf of the *Secretary—the Secretary; or
(b) if the *decision maker was *Open Universities Australia acting on behalf of the *Secretary – the Secretary, or
(c) in any other case—the decision maker, but see subsection (2).
(2) If:
(a) a *reviewable decision was made by a delegate of a *decision maker; and
(b) the decision is to be reconsidered by a delegate of the decision maker;
then the delegate who reconsiders the decision must be a person who:
(c) was not involved in making the decision; and
(d) occupies a position that is senior to that occupied by any person involved in making the decision.
Note: The Secretary may delegate to a review officer of a higher education provider the power to reconsider reviewable decisions made under section 36-22 or Chapter 3: see subsection 238‑1(2).
…”
13. Section 209-5 of the Act provides:
“209‑5 Reviewer may reconsider reviewable decisions
(1) The *reviewer of a *reviewable decision may reconsider the decision if the reviewer is satisfied that there is sufficient reason to do so.
(2) The *reviewer may reconsider the decision even if:
(a) an application for reconsideration of the decision has been made under section 209‑10; or
(b) the decision has been confirmed, varied or set aside under section 209‑10 and an application has been made under section 212‑1 for review of the decision.
(3) After reconsidering the decision, the *decision maker must:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
(4) The *reviewer’s decision (the decision on review) to confirm, vary or set aside the decision takes effect:
(a) on the day specified in the decision on review; or
(b) if a day is not specified—on the day on which the decision on review was made.
(5) The *reviewer must give written notice of the decision on review to the person to whom that decision relates.
(6) The notice:
(a) must be given within a reasonable period after the decision is made; and
(b) must contain a statement of the reasons for the *reviewer’s decision on review.
Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.”
14. Section 209-10 of the Act provides:
“209‑10 Reconsideration of reviewable decisions on request
(1) A person whose interests are affected by a *reviewable decision may request the *reviewer to reconsider the decision.
(2) The person’s request must be made by written notice given to the *reviewer within 28 days, or such longer period as the reviewer allows, after the day on which the person first received notice of the decision.
(3) The notice must set out the reasons for making the request.
(4) After receiving the request, the *reviewer must reconsider the decision and:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
(5) The *reviewer’s decision (the decision on review) to confirm, vary or set aside the decision takes effect:
(a) on the day specified in the decision on review; or
(b) if a day is not specified—on the day on which the decision on review was made.
(5A) The *reviewer must give the person written notice of the decision on review.
(5B) The notice:
(a) must be given within a reasonable period after the decision on review is made; and
(b) must contain a statement of the reasons for the decision on review.
(6) The *reviewer is taken, for the purposes of this Part, to have confirmed the decision if the reviewer does not give notice of a decision to the person within 45 days after receiving the person’s request.
Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.”
15. Section 212-1 of the Act provides:
“212‑1 AAT review of reviewable decisions
An application may be made to the Administrative Appeals Tribunal for the review of a *reviewable decision that has been confirmed, varied or set aside under section 209‑5 or 209‑10.”
a reviewable decision
16. As above indicated and as the University contends, the only decisions capable of review by the Tribunal are the “reviewable decisions” as set out in section 206-1 of the Act. There are twelve kinds of decision so detailed of which six concern course accreditation and have no immediate relevance. The University maintains that there is no matter identified by Mr Pineiro which falls within the scope of any of the other reviewable decisions. Further it is said on behalf of the University that even if a relevant matter or issue had been so identified, Mr Pineiro had not complied with the procedures prescribed by the Act or the University Policy for Appeal and Review. A primary decision-maker had not made a reviewable decision (section 206-5 of the Act) and no decision had been the subject of review by a designated reviewer (section 209-1 of the Act). Unless and until these steps have been followed, an appeal to the Tribunal cannot be made.
17. In order then to determine the jurisdiction issue it is necessary to discern the existence or otherwise of a reviewable decision and, if there be one, whether the prescribed review procedure precedent to any appeal to the Tribunal had been followed.
the grievances of mr pineiro
18. In a communication to the Tribunal of 9 February 2006 Mr Pineiro wrote of “matters in dispute with” the University. Without in any way minimising their impact on Mr Pineiro, they are summarised as follows:
· “Privacy was violated by the staff of the University”. Mr Pineiro has a “disability” and was required by the University, so he maintains, to disclose specific details of it. He failed a unit and the lecturer did not exercise his discretion in the student’s favour. Mr Pineiro sought a review of the decision by the Head of School which was not successful.
· For various reasons Mr Pineiro was not allowed to complete exams and assessments. It was his third attempt. He was terminated from the combined course (B. Arts and B. Business). He complained. A committee held a hearing and made a decision in his absence. He appealed but out of time.
· Mr Pineiro maintains that he was refused credits to which he claims to have been entitled preventing him from completing the degree unless he complies with rules applicable at this time.
· Mr Pineiro maintains that he experienced a relapse of his illness which “hindered the progress of my studies” causing him to apply for extension. He has been allowed to take the exam or have an alternative assessment or an allocated mark.
· The maximum extension date for submitting his major work in a unit has expired. Mr Pineiro has to enrol in the unit once again and repeat all the assessments.
19. Mr Pineiro says he could not complete the subjects “due to my illness”. He was not, he says, afforded assistance by the University in re-attempting the unit without starting from the commencement of a unit.
20. In his submissions to the Tribunal Mr Pineiro again referred to the lack of privacy afforded to him. Personal information given to the University in aid of his obtaining an extension of time was not persuasive enough and he was not afforded appropriate assistance. Even be it his HECS liability is $29,472 at this time, he is still required to complete twelve units in order to obtain his degree. He has been deprived, so he maintains, of an opportunity to complete the course.
decision
21. The Tribunal is satisfied on the basis of the material placed before it that not one of the complaints or grievances of Mr Pineiro as summarised above is of the nature of the matters referred to in section 206-1 and more specifically section 36-22 or section 79-1 of the Act. They are each of a nature peculiar to the Academic Regulations, the Policy for Appeal and Review or the Grievance Procedures. There is not anything or anyone of the complaints or grievances that relates to the decisions specified in section 206 of the Act.
22. Apart from the fact that the complaints are deficient in that they are not identified as to time, none is associated with a written application to the University that could be classified as appropriate for the review and appeal procedures or the purposes of section 206 of the Act. There has not been identified a decision of a primary decision-maker that might lead to a reviewable decision. There is not any material that identifies an appealable internal review of a relevant decision.
23. Mr Pineiro has failed to identify a matter that has lead to a decision that can be reviewed by the Tribunal. In the absence of compliance with the Act there is not a reviewable decision. In the absence of evidence of the internal review process being satisfied there is no reviewable decision.
24. Accordingly there is not a decision that can be identified as competent for review by the Tribunal. Mr Pineiro has not, even be there a relevant grievance which there is not, complied with that which the law requires in order to confer jurisdiction upon the Tribunal.
25. The Tribunal is without jurisdiction in this matter. The application is dismissed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis AM Q.C., Deputy President.
Signed: A. Garcia
Associate
Date of Hearing 6 April 2006
Date of Decision 28 April 2006
Representative of the Applicant self representedCounsel for the Respondent Mr L. T. Grey
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