Ritesh Devkota and Australian Skills Quality Authority

[2015] AATA 356

[2015] AATA  356

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/5783
Re	Ritesh Devkota
APPLICANT
And	Australian Skills Quality Authority
RESPONDENT

DECISION

Tribunal	Ms G Ettinger, Senior Member
Date	22 May 2015
Place	Sydney

The Tribunal refuses to grant an extension of time for Mr Ritesh Devkota to apply for review of the decision of the Australian Skills Quality Authority of 11 July 2014.

........................................................................

Ms G Ettinger, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time in which to lodge application for review of decision of ASQA – Applicant seeking compensation from various Commonwealth agencies – Tribunal has no jurisdiction in those matters - merits of case – extension of time refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

CASES

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Zhang and Secretary, Department of Social Services [2015] AATA 131

REASONS FOR DECISION

Ms G Ettinger, Senior Member

22 May 2015

SUMMARY

1. Mr Ritesh Devkota has applied to this Tribunal for an extension of time to file his application for review of the decision of the Australian Skills Quality Authority (ASQA), dated 11 July 2014.

2. Mr Devkota, who was a student in Australia, returned to Nepal in October 2011, and has been very dissatisfied with what he deems is the lack of response to his requests for documents from ASQA under Freedom of Information legislation.  He told me that he had made complaints to the Overseas Student Ombudsman, the Immigration Department, and the Department of Fair Trading, and has received no satisfaction from any of those approaches.

3. After receiving correspondence from Mr Devkota, I conducted a telephone hearing with Mr Devkota and Mr Cribb, a Legal Officer for ASQA, to ascertain whether the Tribunal has jurisdiction to deal with Mr Devkota’s complaints. The line was very indistinct, and I decided on that basis, that written submissions might serve better. In the meantime, Mr Cribb acknowledged that correspondence from ASQA to Mr Devkota dated 11 July 2014, was actually a decision which the Tribunal could review.

4. Mr Devkota could not recall receiving that correspondence initially, but later acknowledged that he had received it by email, as sent on 11 July 2014. His reasons for not appealing the decision of ASQA to this Tribunal until 6 November 2014 which was well outside the statutory 28 days, are discussed below.

5. I have had regard to the relevant case law in regard to applications for extensions of time. I am not satisfied that it is reasonable in all the circumstances to exercise the discretion in section 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), to grant an extension of time to Mr Devkota to lodge an application for review of the objection decision dated 11 July 2014. My reasons follow.

   ISSUE BEFORE THE TRIBUNAL

6. My task is to decide, pursuant to section 29(7) of the AAT Act, whether I am satisfied that it is reasonable in all the circumstances to extend the time for Mr Devkota to apply to the Tribunal for review of ASQA’s decision of 11 July 2014.

   RELEVANT LEGISLATION

7. Section 29(7) of the AAT Act confers on the Tribunal discretion to extend the time for the making of an application to the Tribunal for a review of a decision.

8. Subsection 29(7) of the AAT Act empowers the Tribunal to extend the time for a person to apply for review of a decision:

   29 Manner of applying for review

   …

   (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.

9. The case of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 provides a set of principles which have been accepted as providing guidance to the Tribunal in considering whether to exercise its discretion to grant an extension of time. Essentially the Court there held that:

   ·the prescribed period is not to be ignored; an acceptable explanation for the delay needs to be explored;

   ·consideration should be given as to whether the Applicant has rested on his/her rights;

   ·any prejudice to the Respondent is a matter that militates against the grant of an extension; any wider prejudice to the general public is a relevant factor;

   ·the merits of the case;

   ·considerations of fairness between the Applicant and other persons in a similar position.

10. The principles referred to above have been applied extensively, and were applied in a recent case in this Tribunal, being Zhang and Secretary, Department of Social Services, [2015] AATA 131.

    BACKGROUND

11. Mr Devkota made an application to ASQA by email dated 9 December 2013, for access to certain documents under section 15 of the Freedom of Information Act 1982 (the FOI Act).

12. ASQA gave Mr Devkota notice of the decision in relation to that application on 11 March 2014. On or before 30 May 2014, Mr Devkota applied for an Information Commissioner review (IC review) of ASQA’s decision under section 54N of the FOI Act. An officer of the OAIC wrote to Mr Devkota on 11 July 2014, recounting contact between the OAIC and Mr Devkota in the period between 30 May 2014 and 20 June 2014 before writing:

    … As a delegate of the Information Commissioner under s 54W(b) of the FOI Act, and having considered the circumstances of this application, I have decided to exercise my discretion to decide not to undertake an IC review on the basis that it is desirable that the IC reviewable decision be considered by the AAT.

    In coming to this conclusion, your view was sought. You indicated you did not have any objections to this office exercising discretion not to undertake an IC review of this matter under s 54W(b) of the FOI Act.

    An application for review of the relevant IC reviewable decision may be made to the AAT under s 57A within 28 days of this notice.

    As such, your application is now considered finalised by this office.

    Review rights

    If you are unhappy with the way we have handled this matter, you may complain to the Commonwealth Ombudsman. This service is free, and you can contact the office on 1300 362 072 or visit >

    Mr Devkota did not apply to this Tribunal for review of the 11 July 2014 decision until 6 November 2014. He stated:

    I have sought documents with ASQA, but they
    said the document which I have requested under
    Freedom of Information Act does not exist.

    Mr Devkota’s reasons for application were written in the application as follows:

    I am seeking compensation from Australian Authorities
    because Australian Authorities did not listen my
    problems and they mishandled the complaint. They
    have been cheating me by making wrong decision.

    MR DEVKOTA’S CASE

13. In order to ascertain whether the discretion to extend time for Mr Devkota to apply for a review of ASQA’S decision of 11 July 2014, should be exercised, the Tribunal wrote to Mr Devkota after the telephone hearing on 12 March 2014. The Tribunal’s letter to Mr Devkota of 19 March 2015 requested answers to four questions as follows:

    1)When did you receive the letter of the [OAIC] dated 11 July 2014?

    2)Why did you not apply to the Tribunal for review of the [OAIC] decision dated 11 July 2014 by 8 August 2014? Why did you wait until 6 November 2014?

    3)Did you contact the Tribunal or any other body in connection with the [OAIC’s] decision dated 11 July 2014 or ASQA’s decision dated 11 March 2014 between 11 July 2014 and 6 November 2014?

    4)The Tribunal’s understanding is that you asked ASQA for three items, two of which, namely the MOU and the Workplace Agreement Form, were provided to you and the third item, a curriculum, was said to not exist. Can you explain briefly what aspects of the ASQA decision you disagree with and why?

14. Mr Devkota replied discursively as follows. I have highlighted parts relevant to the consideration of the extension of time application.

    … At first I would like to inform AAT that my problem has three side criminal, fraud and abuse side. Sending threatening sms by talking responsibilities of firing is a criminal side. Doing fraud with a person is a fraud side. In any country where there is rule of law doing fraud is called a criminal act. The decision of ASQA and commonwealth ombudsman was to deceive me. Third, is a abuse side after 2010 I think I was abused in Australia.

    During the hearing date I admitted that I received the letter of OAIC. But on the next day I said after thoroughly checking my mail I haven’t got email. But today when I check a print document which I used to print emails during that time, I got it, I am still surprised that it is not in my mail box. Any way OAIC emailed to me on 11 July 2014. It is said that after agreeing closing my matter with OAIC I have to contact AAT within 28 days of OAIC Email.

    In my previous email to AAT I have said about Immigration department But I have still not got reply for that. I have many times informed to AAT that I am seeking compensation, I don't know why AAT did not contact with Immigration Department. I have already provided the attachment letter of Immigration department (CDDA Letter) to AAT that I have lodged with Immigration. I want a reply for that.

    Now I will reply the answer to your question that I was asked to provide

    Answer 1 I really don't know when I received the letter of OAIC but when I saw the print document I find it but I cannot say you exactly when I have printed by downloading the attachment letter of OAIC. Anyway Now I have got that email.

    Answer 2 I did not reply Australian information commissioner decision dated 11 July 2014 by 8 August 2014 to AAT because if you see on the letter of OAIC 11 July 1024 it is said my review right is with Commonwealth Ombudsman not with AAT. OAIC said I can directly contact AAT within 28 days of their email.The second reason not to contact AAT BY 8 August 2014 is I was frequently in contact with Commonwealth Ombudsman since Mid 2012,Commonwealth Ombudsman Knows what is my problem. I did not need to explain them my problems. OAIC has said in their email dated 11 July 2014 that Commonwealth is a free service so I contacted them. OAIC also informed me that AAT  may take a charge for review. I thought if commonwealth is a free service than why I should contact AAT.

    Answer 3 During that period I was in contact with Australian Ambassador to Nepal Mr. Glenn white. He was not listening to me. He was stick to same decision saying Australian Authorities has investigated my matter and closed. I said him on telephone conversation about ASQA decision on FOI act but he was stick to same decision. Probably he is stick to same decision now also. I have also contacted Commonwealth but they says they only look after administrative decision. My question is with AAT? If commonwealth has got the right to review why did not Commonwealth help me to review the decision of ASQA FOI decision?If commonwealth have no rights to review than why OAIC says my review right is with Commonwealth Ombudsman. If AAT has the review right and commonwealth did not have the review right on 11 July 2014 why Commonwealth did not referred to AAT? I feel convenient with Commonwealth Ombudsman because I was in frequent contact with them. I though Commonwealth Knows my problem so my matter will be solved faster. If I go with AAT I have to explain every thing and could  be  time consuming. That was the reason why I contact commonwealth not AAT. But after frustration I contacted AAT directly on 6 november 2014 and they provides me hearing date.

    Answer 4 During hearing date I have informed Senior member Ettinger and Mr.Cribb that ASQA has provided me MOU and work place agreement form but not complete one. It is incomplete document which ASQA sent to me. If senior Member Ettinger looks on my Work place agreement form it starts from 20/08/2010 and the requirement was  just for 14 weeks and it should have finished by the end of December 2010 but I left Australia on 8 October 2011. I am seeking document after 2010. ASQA has not provided me the documents after 2010. It means I was abused in Australia after 2010. I have also asked curriculum for my study after 2010(Begnning from 2011) but ASQA has not able to provide it to me. Under FOI act they says it does not exist. Which clearly means ASQA was deceiving me. I was abused after 2010 so ASQA was not able to provide document so that they were deceiving me by saying my matter is closed and They have investigated my matter. ASQA and commonwealth both says that they have properly investigated my matter and close but after requesting document under FOI act both of them were not able to provide me. They can deceive me but not the constitution. That is the reason why They were not able to provide it to me. They were trying to hide abuse so they made a wrong decision and said my matter was closed .But crime is crime. Thank to FOI act their fraud comes in frontbench. Another thing is if they have properly investigate why I should have to contact your office probably they might say I have no right to review.

    THE TRIBUNAL’S DELIBERATIONS

15. In order to decide whether it is reasonable in all the circumstances to exercise the discretion to extend time for Mr Devkota to apply for a review of ASQA’s decision of 11 July 2014, I have considered the principles from Hunter Valley Developments.

    The prescribed period is not to be ignored; reasons for the delay in applying  for review

16. The Applicant gave his reasons for the delay in applying for review to this Tribunal. He stated:

    I did not reply Australian information commissioner decision dated 11 July 2014 by 8 August 2014 to AAT because if you see on the letter of OAIC 11 July 2014 it is said my review right is with Commonwealth Ombudsman not with AAT.

17. However, on my reading of the Information Commissioner’s decision of 11 July 2014, he indicated the review period to this Tribunal was 28 days. He concluded by saying that if Mr Devkota was unhappy with the way the Information Commissioner had handled this matter, Mr Devkota could complain to the Commonwealth Ombudsman, a free service.

18. It appears that Mr Devkota chose not to seek review at this Tribunal because he states that he was familiar with the Commonwealth Ombudsman’s office, and had been corresponding with them since 2012. Further he said that he understood the Commonwealth Ombudsman’s service was free, whereas he might have had to pay to access review at this Tribunal. He stated:

    I feel convenient with Commonwealth Ombudsman because I was in frequent contact with them. … If I go with AAT I have to explain everything and could be time consuming. …I thought (sic) Commonwealth Knows my problem so my matter will be solved faster. That was the reason why I contact commonwealth not AAT. But after frustration I contacted AAT directly on 6 november 2014 and they provides me hearing date.

19. The Respondent submitted that that statement was inconsistent with other statements in Mr Devkota’s main email, and that ASQA considered the explanation Mr Devkota gave was not an explanation at all.

20. Mr Cribb noted that Mr Devkota provided this Tribunal with copies of a letter from the Commonwealth Ombudsman to him dated 6 August 2014. I have highlighted the relevant portion.

    The OAIC is entitled to reach its own decision following its consideration of individual matters. In relation to the OAIC’s email of 30 May 2014, about your request for review of ASQA’s decision on your FOI request, I have formed the view that it was open to the OAIC to decide to give you the choice whether to have your request finalised under s 54W(b) of the FOI Act, or to try to finalise it informally. In my view, having regard to the government’s decision to abolish the OAIC from 31 December 2014, the OAIC’s decision was not unreasonable. I am also satisfied that, in making this decision, the OAIC has properly considered and applied relevant provisions of the FOI Act. In making my decision, I have formed the view that the OAIC has treated you fairly. It has informed you of the time limits for seeking review by the Administrative Appeals Tribunal (AAT), and has provided you with a summary of AAT filing fees.

21. I have noted the reasons for the delay in applying for a review which Mr Devkota has given, and am not satisfied that they weigh in favour of an extension of time. 

22. I respectfully agree with Senior Member Isenberg in Zhang that:

    [10] Time limits for review of administrative action should be observed in order to assist the proper administration of government agencies. There is also a public expectation that there be degree of certainty regarding time limits. The Tribunal finds that this factor weighs against granting an extension of time.

    Whether the Applicant has rested on his rights

23. I am satisfied that the Applicant did not rest on his rights in regard to his application for review of ASQA’s decision of 11 July 2014. Rather, he randomly wrote to various agencies, including the Commonwealth Ombudsman and the Department of Fair Trading seeking compensation for what he considered maladministration.

    Prejudice to the Respondent and/or any wider prejudice to the general public

24. ASQA submitted that it was in the same position as the Respondent in Zhang, where Senior Member Isenberg stated:

    [9] There was no evidence to suggest that the respondent would suffer significant prejudice if an extension of time were granted. The Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.

    [10] Time limits for review of administrative action should be observed in order to assist the proper administration of government agencies. There is also a public expectation that there be degree of certainty regarding time limits. The Tribunal finds that this factor weighs against granting an extension of time.

25. I agree that neither the Respondent nor the wider public would suffer prejudice if an extension of time were to be granted for Mr Devkota to lodge his application for review of the decision of 11 July 2014. However as was pointed out in Zhang: There is also a public expectation that there be degree of certainty regarding time limits. The Tribunal finds that this factor weighs against granting an extension of time.

    Merits of the case

26. In regard to the merits of the case, Mr Devkota wrote as follows:

    During hearing date I have informed Senior member Ettinger and Mr.Cribb that ASQA has provided me MOU and work place agreement form but not complete one. It is incomplete document which ASQA sent to me. If senior Member Ettinger looks on my Work place agreement form it starts from 20/08/2010 and the requirement was  just for 14 weeks and it should have finished by the end of December 2010 but I left Australia on 8 October 2011. I am seeking document after 2010. ASQA has not provided me the documents after 2010. It means I was abused in Australia after 2010. I have also asked curriculum for my study after 2010(Begnning from 2011) but ASQA has not able to provide it to me. Under FOI act they says it does not exist.

27. ASQA wrote to Mr Devkota on 10 March 2015 in relation to the does not exist document, being unaware of an incompleteness issue in relation to either of the two other categories document as follows:

    In relation to your request for “curriculum for [your] study”, the officer making ASQA’s decision of 11 March 2014 wrote:

    I have decided to refuse access to the ‘curriculum for [your] study’ in accordance with section 24A of the FOI Act, on the ground that all reasonable steps have been taken to find the document and I am satisfied that the document does not exist.

28. I am satisfied that Mr Devkota’s requests under the FOI legislation have been complied with. He was provided with the MOU and Work Place Agreement as requested, and informed that the curriculum does not exist.

1. Accordingly Mr Devkota’s request for an extension of time to have the decision of 11 July 2014 reviewed is without merit.

   Considerations of fairness between the Applicant and other persons in a similar position

2. I am satisfied that there was nothing unusual or unique in Mr Devkota’s application which would impact upon considerations of fairness between him and other persons in a similar position.

   CONCLUSION

3. In considering whether the discretion in section 29(7) of the AAT Act should be exercised, I find that in this case, the most relevant consideration is the merits of the case.

4. Mr Devkota’s case is without merit, and in the circumstances it is not reasonable to grant an extension of time for him to lodge his application for the review of this decision at the AAT.

5. Having taken all the circumstances into account, and the indicia for granting an extension of time to apply for review of the decision of ASQA of 11 July 2014, I find that it would not be reasonable to exercise the discretion to grant Mr Devkota an extension of time.

   DECISION

6. The Tribunal refuses to grant an extension of time for Mr Ritesh Devkota to apply for review of the decision of the Australian Skills Quality Authority of 11 July 2014.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

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

Associate

Dated 22 May 2015

Hearing by phone	12 March 2015
Date final submissions received	17 April 2015
Applicant	Mr R Devkota

Solicitors for the Respondents         Mr P Cribb,  Australian Skills Quality Authority