Plonsker and Secretary, Department of Employment & Workplace Relations

[2024] AATA 2716

Plonsker and Secretary, Department of Employment & Workplace Relations [2024] AATA 2716 (2 August 2024)

Division:GENERAL DIVISION

File Number:          2024/4239

Re:Renee Louise Plonsker

APPLICANT

AndSecretary, Department of Employment & Workplace Relations  

RESPONDENT

DECISION

Tribunal:Senior Member K. Parker

Date:2 August 2024

Place:Melbourne

The Tribunal decides not to extend the time for lodgement of the Applicant’s application for review of decision pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Senior Member K. Parker

Catchwords

PRACTICE AND PROCEDURE – application for extension of time (‘EOT Application’) for lodgement of an application for review – Respondent opposes EOT Application on the basis the substantive application would serve no utility – Applicant seeks review of a decision to refuse to re-credit her HELP balance with an amount equal to the amounts of vocational education and training (‘VET’) FEE-HELP assistance in respect of three VET units of study with a VET provider – Applicant successfully completed all units – substantive application lodged two days after expiry of 28-day statutory time limit under s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) – substantive application has no prospects of success due to the wording of subclause s 46AA(1) in Schedule 1A of the Higher Education Support Act 2003 (Cth) – not reasonable in all the circumstances to extend the time for lodgement – EOT Application not granted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 29

Higher Education Support Act 2003 (Cth), Schedule 1A, clause 46AA

Cases

Hunter Valley Developments v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Senior Member K. Parker

2 August 2024

INTRODUCTION

1. On 23 June 2024, the Applicant, Ms Renee Plonsker, lodged with this Tribunal an application for review of a decision made on 24 May 2024 to refuse to re-credit Ms Plonsker’s HELP balance with an amount equal to the amounts of vocational education and training (‘VET’) FEE-HELP assistance that she received for three VET units of study for a Diploma of Business Administration course. This application for review was lodged two days after the 28-day statutory time limit under s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). Ms Plonsker requested that the Tribunal extend the time for lodgement of the application for review to 23 June 2024 pursuant to s 29(7) of the AAT Act (‘EOT Application’).

2. The Respondent, Secretary, Department of Employment and Workplace Relations (‘Secretary’) opposed the EOT Application as she considers that the progression of the substantive application to a hearing and determination would serve no utility. The Secretary holds this view because one of the mandatory requirements of re-crediting the HELP balance with an amount equal to the amounts of VET FEE-HELP assistance, is that the person making the request has not completed the requirements for the unit during the period the person undertook, or was to undertake, the unit – subclause 46AA(1) of Schedule 1A of the Higher Education Support Act 2003 (Cth) (‘HES Act’).

3. It is not in dispute that Ms Plonsker completed the requirements for all three units during the period she undertook, or was to undertake, the units.

4. The Tribunal listed this matter for a hearing on 31 July 2024 to address the EOT Application with the parties. Ms Plonsker was self-represented and she was supported by her mother who, helpfully, addressed the Tribunal at the hearing. The Secretary was represented by Ms Angel Fernandes as instructed by Ms Louise Treloar.

5. The Secretary lodged a set of written submissions dated 22 July 2024 to which a number of documents were attached. The attached documents included a detailed email by Ms Plonsker to the Ombudsman dated 29 December 2023 outlining her grievances upon realising she had a substantial debt to the Commonwealth relating to the three units. It would appear from this account that Ms Plonsker was deceived by the vocational education and training (‘VET’) provider who delivered the three units. Specifically, Ms Plonsker states that the VET provider represented in its advertisements that the total cost of the course was $4,500, when, in fact, the provider ultimately rendered a fee for the three units of $18,000. Ms Plonsker informed the Tribunal this is the typical level of fees that a person might need to pay to undertake a Bachelor’s degree and that she had deliberately chosen not to embark upon such a degree because of the associated higher costs.

6. Ms Plonsker states that the VET provider falsely generated (after the event) the Commonwealth Assistance Notice (CAN) and falsely claimed it had provided her with the CAN at the relevant time, when, in fact, she had not received the CAN notice from the VET provider. Ms Plonsker states she only became aware of the substantial debt relating to the three units, when she embarked upon the process of doing her taxes for the first time. The Tribunal regards this as a most unfortunate set of circumstances which no doubt has shocked Ms Plonsker and it is apparent from her presentation at the hearing that it has caused her ongoing distress.

7. The VET provider was ACTE Pty Ltd (trading as “Evocca College”) (‘Evocca’). Evocca has ceased its operations and is now de-registered as a company. As such, unfortunately, Ms Plonsker is unable to seek a civil remedy directly from Evocca as a consequence of this apparent deception about the total amount of the fees of the three units of study. The Tribunal is sympathetic to Ms Plonsker’s situation. She is a young woman at the start of her life who now faces a substantial debt which, if not waived, will require repayment for quite some time to come. Ms Fernandes helpfully and appropriately referred Ms Plonsker to a form “RMG409” which she may wish to complete and lodge with the Department of Finance to request consideration by the Department as to whether this debt should be reduced (that is, some part of it waived).[1] The Tribunal subsequently received an email from Ms Fernandes on 1 August 2024 referring to a different form "RMG 401".[2] The Tribunal would encourage Ms Plonsker to consider both forms and decide for herself if she should like to submit either or both of those forms for consideration.

   [1] Requests for discretionary financial assistance under the Public Governance, Performance and Accountability Act 2013 (RMG 401) | Department of Finance -

8. After hearing from both parties and considering the written material before the Tribunal, the Tribunal has decided not to grant the EOT Application for the reasons set out below.

   ISSUE

9. The issue arising in this matter is whether the Tribunal should exercise its discretion under sub-s 29(7) of the AAT Act to extend the time for Ms Plonsker to lodge a substantive application for review.

   CONSIDERATION

10. Subsection 29(2) of the AAT Act prescribes a 28-day time limit for lodging an application to the Tribunal for review of a decision. Subsection 29(2) relevantly provides:

    Prescribed time for making applications—general

    (2)  Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:

    (a)  if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or

    (b)  …

11. Subsection 29(7) of the AAT Act provides that the Tribunal may extend the time for lodgement of an application for review of decision, if it is satisfied that “it is reasonable in all the circumstances to do so”.

    Tribunal may extend time for making application

    (7)  The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

12. The factors the Tribunal will consider in making this assessment are:[3]

    (a)the length of the delay in lodging the AAT Application;

    (b)the explanation given for the delay;

    (c)the Tribunal’s preliminary impression as to the merits of the substantive application;

    (d)whether the NDIA has suffered any prejudice on account of the delay;

    (e)whether Ms Plonsker has rested on her rights of review;

    (f)public interest; and

    (g)any other matter the Tribunal considers appropriate (such as alternative avenues of review).

    [3] Hunter Valley Developments v Cohen (1984) 3 FCR 344.

13. Firstly, the Tribunal has considered the length of the delay in Ms Plonsker lodging the substantive application. The delay in this case is a very short, being only two days. This factor weighs in favour of granting the EOT Application.

14. Secondly, the Tribunal has considered the explanation given by Ms Plonsker for the delay in lodgement of the substantive application. Ms Plonsker states in her request for an extension of time that she did not apply within the statutory time limit because she was travelling in Europe at the time and had no access to a telephone for a large period of the time due to a faulty battery and other similar issues. Ms Plonsker also referred to having struggled with some financial issues when she returned home to Australia, as well as searching for work. The Tribunal accepts this explanation for the delay. This factor weighs in favour of granting the EOT Application.

15. Thirdly

    , the Tribunal must consider the merits of the substantive application. It is not appropriate to delve into a detailed analysis of the evidence and instead, it is for the

    
    

    Tribunal to form a preliminary impression as to the Applicant’s prospects of success, were the matter to proceed. The Tribunal has considered the evidence to see if there is at least an arguable case Ms Plonsker can mount that her HELP balance should be re-credited with an amount equal to the amounts of VET FEE-HELP assistance that she received for three VET units of study.

16. As discussed with the parties at the hearing, the relevant provision is subclause 46AA(1) of Schedule 1A of the HES Act, as set out below:

    (1)The *Secretary may, on application under subclause (3) or on the Secretary’s own initiative, re-credit a person’s *HELP balance with an amount equal to the amounts of *VET FEE-HELP assistance that the person received for a *VET unit of study with a *VET provider, if the Secretary is satisfied that:

    (a)       either:

    (i) the person has not completed the requirements for the unit during the period the person undertook, or was to undertake, the unit; or

    (ii) under *VET Guidelines prescribed for the purposes of this subparagraph, the person is taken not to have completed those requirements during that period; and

    (b) it is reasonably likely that, having regard to any matters prescribed by the *VET Guidelines for the purposes of this paragraph, the VET provider (or an agent of the VET provider) engaged in inappropriate conduct towards the person in relation to the unit, or the *VET course of study of which the unit forms a part.

17. There are two mandatory criteria which need to be satisfied before Ms Plonsker’s HELP balance can be re-credited with an amount equal to the amounts of VET FEE-HELP assistance for three VET units of study. They are set out in subclauses 46AA(a) and (b) respectively. Both must be satisfied.

18. Unfortunately, Ms Plonsker is unable to satisfy the first of these mandatory criteria because she has successfully completed the three units of study. For this reason, subclause 46AA(a) is not met and there is no arguable case that her HELP balance should be re-credited for these three units.

19. The Tribunal accepts the Secretary’s contention that there would be no utility in allowing the substantive application to proceed because there is no prospect Ms Plonsker will succeed in the substantive application.

20. The factor weighs heavily against granting the EOT Application.

21. Fourthly, the Secretary contends that there is limited prejudice to the Secretary occasioned by the delay. No specifics were provided by the Secretary about any prejudice suffered. Given the very short period of the delay, the Tribunal finds there is no identifiable prejudice to the Secretary should the Tribunal permit this matter to proceed. This factor weighs in favour of granting the EOT Application.

22. Fifthly, the Tribunal has considered whether Ms Plonsker has “rested on her rights”. The Tribunal is satisfied that she has proactively sought to address the decision under review when she was in a position to be able to do so. The delay was only very short. The Tribunal does not consider that Ms Plonsker can be said to have “rested on her rights”. Accordingly, the Tribunal considers this to be a neutral factor and does not weigh against the granting of the EOT Application.

23. Sixthly, the public interest gives rise to an expectation that parties will observe statutory timeframes when seeking review before this Tribunal. The delay in lodgement in this application was very short. The Tribunal is not satisfied that this is a factor which should weigh against granting the EOT Application.

    CONCLUSION

24. The Tribunal has concluded that there are three factors weighing in favour of granting the EOT Application, specifically:

    (a)the very short period of the delay, being only two days; and

    (b)Ms Plonsker has an acceptable explanation for the delay in lodgement; and

    (c)there is no identifiable prejudice to the Secretary should the Tribunal permit this matter to proceed.

25. However, the Tribunal considers that those three factors are outweighed by the finding of the Tribunal that there would be no utility in allowing this matter to proceed. As set out above, the Tribunal concludes that there is no prospect of Ms Plonsker succeeding in the substantive application, when one considers the mechanical way in which the relevant provisions of the HES Act are to be applied. Specifically, the mandatory criterion under clause 46AA(1)(a) of Schedule 1A of the HES Act is clearly not met because Ms Plonsker has successfully completed all three units of study. As much as the Tribunal empathises with Ms Plonsker, the operation of these provisions is unambiguous and does not confer onto the Tribunal any discretion to re-credit the HELP balance. It must apply subclause 46AA(1) as it exists and it is not possible for Ms Plonsker to satisfy subclause 46AA(1)(a).

26. Accordingly, the Tribunal considers that it is not reasonable in all the circumstances, to extend the time for lodgement of Ms Plonsker’s application for review of decision pursuant to subsection 29(7) of the AAT Act. The Tribunal does not grant the EOT Application. This means the application for review is not permitted to proceed to a hearing and determination.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker.

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

Associate

Dated: 2 August 2024

Dates of hearing:	31 July 2024
Applicant:	Self-represented
Solicitor for the Respondent:	Ms Angel Fernandes, Sparke Helmore, instructed by Louise Treloar