Slavnic and Secretary, Department of Education, Skills and Employment

[2022] AATA 450

Slavnic and Secretary, Department of Education, Skills and Employment [2022] AATA 450 (16 February 2022)

Division:GENERAL DIVISION

File Number:          2021/3341

Re:Zoran Slavnic

APPLICANT

AndSecretary, Department of Education, Skills and Employment

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:16 February 2022

Date of written reasons:        16 March 2022           

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

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

Mr A. Maryniak QC, Member

Catchwords

HIGHER EDUCATION SUPPORT – FEE HELP – debt – application for re-crediting of HEPP-FEE balance – consideration of whether VET provider engaged in inappropriate conduct – decision not to recredit affirmed

Legislation

Higher Education Support Act 2003 (Cth)

Secondary Materials

Higher Education Support VET Guidelines 2015

REASONS FOR DECISION

Mr A. Maryniak QC, Member

16 March 2022

1. At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.

2. The oral reasons for that decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the edited transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.

4.       I certify that the following 24 (twenty-four) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member

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

Associate

Dated: 16 March 2022

Date of hearing:	15, 16 February 2022
Advocate for the Applicant:	Mrs Dana Slavnic
Advocate for the Respondent:	Mr Jonathon Hutton
Solicitors for the Respondent:	Australian Government Solicitor

ANNEXURE A

1. MEMBER: In this matter, the Applicant seeks by application lodged 23 May 2021, a review of a decision of a delegate of the Respondent refusing to recredit the Applicant's VET FEE-HELP balance due to alleged inappropriate conduct of the VET provider, being TAFE NSW, under clause 46AA(1) of Schedule 1A to the Higher Education Support Act 2003 (Cth) (the Act).

2. On 5 May 2021, a delegate of the Respondent made a decision refusing to recredit the Applicant's VET FEE-HELP balance under that clause in respect of the following units:

   (a)15RDW00027, a tuition fee of $10,500 and a loan fee of $2,100;

   (b)15RDW00030, tuition fee of $10,500 and a loan fee of $2,100; and

   (c)16RDW00004, a tuition fee of $10,500 and a loan fee of $2,100.

3. The decision to refuse to recredit the Applicant’s VET FEE-HELP balance under clause 46AA(1) of Schedule 1A of the Act is a reviewable decision in accordance with Division 16, Part 3 of Schedule 1 of the Act. The discretion under the relevant clause is only enlivened if both clause 46AA(1)(a) and (b) are met.

4. Importantly, the parties have informed the Tribunal that it is not in issue that the Applicant has not completed or is not taken to have completed the requirements for the three units which are in issue. Further, the parties agree that the sole issue for determination by the Tribunal is whether there was inappropriate conduct by TAFE NSW towards the Applicant in relation to those three units for the purposes of clause 46AA(1)(b) of the Act.

5. Subclause 46AA(1) and (2) of Schedule 1A provides as follows:

   46AA Re-crediting a person’s HELP balance in relation to VET FEE-HELP assistance—inappropriate conduct by provider or provider’s agent Re-crediting

   (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.

   (2) The *VET Guidelines may prescribe matters for the purposes of paragraph (1)(b) that are also prescribed for the purposes of paragraph 46A(1)(c) (circumstances involving unacceptable conduct).

6. The Tribunal has to find that it is reasonably likely that TAFE NSW, being an education provider, engaged in inappropriate conduct towards the Applicant in relation to a unit or course of study, in order for s 46(1)(b) to be satisfied.

7. The reference to VET Guidelines in clause 46AA(1)(a)(ii) and (2) is to the Higher Education Support VET Guidelines 2015. For the purposes of subclause 46AA(1)(b), these Guidelines provide as follows. 

   58AB Prescribed matters for inappropriate conduct
   
   (1) For the purposes of paragraph 46AA(1)(b) of Schedule 1A to the Act, in determining whether it is reasonably likely that a VET provider (or an agent of the VET provider) engaged in inappropriate conduct towards a person (the student) in relation to a VET unit of study, or a VET course of study of which the unit forms a part, the matters that the Secretary must have regard to are the following:

   (a)  whether the provider engaged in conduct towards the student that involved treating the student as being entitled to VET FEE‑HELP assistance under clause 43 of Schedule 1A to the Act, when the student was not entitled to that assistance;

   (b)  whether the provider or agent engaged in any of the following conduct:

   (i) unconscionable conduct;

   (ii) systemic conduct, or a pattern of behaviour, that is unconscionable;

   (iii) misleading or deceptive conduct;

   (iv) making a representation about a future matter (for example, doing, or refusing to do, any act) where there were no reasonable grounds for making the representation;

   (v) advertising tuition fees for the course where there were reasonable grounds for believing that the provider would not be able to provide the course for those fees;

   (vi) the use of physical force, harassment or coercion;

   (c)   whether any of the circumstances involving unacceptable conduct specified in Division 2 of this Part (other than sections 53, 57 and 58) exist;

   (d)  whether any of the circumstances involving unacceptable conduct specified in section 53, 57 or 58 exist on or after 1 January 2016;

   (e) whether the provider or agent failed to comply with a requirement under Division 2 of Part 3‑2 of Chapter 3 of the Australian Consumer Law (unsolicited consumer agreements);

   (f)    whether the provider has financial, administrative or other barriers that prevented the student from fulfilling an expressed intention to withdraw from the VET unit of study before the census date;

   (g)  whether the student was a vulnerable person;

   (h) any recommendation made by the VET Student Loans Ombudsman under paragraph 20ZM(1)(ca) of the Ombudsman Act 1976 regarding the student or any other student of the provider;

   (i)    the provider’s (or the agent’s) history of compliance with:

   (i) the Act and the regulations; and

   (ii) this Guideline; and

   (iii) any conditions imposed on the provider’s approval as a VET provider; and

   (iv) the National Vocational Education and Training Regulator Act 2011; in relation to the provider’s (or the agent’s) conduct towards any student;

   (j)    any other matter that the Secretary considers relevant.

8. The Tribunal has considered the documentary evidence put before it, compromising a witness statement of the Applicant's wife dated 3 November 2021, documents lodged by the Applicant, the T-Documents, the Supplementary T-Documents, and the Respondent's Tender Bundle. 

9. The Tribunal has also considered the oral evidence of the Applicant, who was cross-examined, together with the oral evidence and the submissions of the Applicant's wife and the submissions of the Respondent. At the outset, the Tribunal notes that the Applicant is not a particularly impressive witness. It was evident during the hearing that the Applicant had difficulties, understandably in one sense, remembering the details of various conversations and other matters whilst giving evidence and volunteered the fact that his memory had faded since the events around the period 2015 to 2017.

10. On balance, the Tribunal considers that the mostly contemporaneous documentary evidence before it has greater weight, and that where inconsistencies exist with the Applicant's oral evidence, such documentary evidence is preferred.

11. In January 2019, the Applicant lodged a complaint with the VET Student Loans Ombudsman. The result was a finding that there was no evidence that TAFE NSW issued a Commonwealth Assistance (CAN) Notice to the Applicant in the required timeframe in respect of a fourth unit of study, being unit code 15RDW00122 and in its preliminary view, this represented inappropriate conduct.

12. A remittance of that unit's debt was processed, despite only a preliminary view being reached. The Applicant accepts that the same problem of lack of a timely CAN does not arise with respect to the three units in issue. The Tribunal does not accept that this is a valid reason to remit fees in respect of the three units in issue which are not similarly affected by that discrete problem and therefore finds that no remittance should be made pursuant to clause 46AA(1)(b) of the Act.

13. Upon considering the evidence before the Tribunal, the Tribunal finds:

    (a)On 7 April 2014, the Applicant emailed TAFE NSW to enquire about enrolling in the Advanced Diploma of Dental Prosthetics (Advanced Diploma) at Sydney Randwick on the basis of overseas qualifications.

    (b)On the same day, TAFE NSW asked the Applicant to clarify whether he wanted to enrol in the Diploma of Dental Technology or an Advanced Diploma of Dental Prosthetics. The Applicant clarified that he was interested in the Advanced Diploma of Dental Prosthetics.

    (c)Between 8 April 2014 and 20 October 2014, the Applicant communicated with Ms Jennifer Smith of TAFE NSW regarding his overseas qualifications and the entry requirements for enrolment in the Advanced Diploma. 

    (d)It was an entry requirement for the Advanced Diploma that a candidate demonstrate competency through a recognised training program or recognition process in core units of competency or their equivalent from the Diploma of Dental Technology.

    (e)On 20 October 2014, Ms Smith invited the Applicant to attend a skills test on 15 November 2014 and submit a recognition of prior learning application for and in respect of a diploma.

    (f)On 4 November 2014, the Applicant submitted a recognition of prior learning form with supporting material including a resume, overseas qualifications, and employer references from the dental industry, including that he had worked as a dental technician in the former Yugoslavia from 1988 to 2013 and in Melbourne from 1993 to 2012.

    (g)On 15 November 2014, the Applicant completed a general English language assessment and technical skills test. The results of the technical skills test were not acceptable, and Ms Smith provided the Applicant with details about whether his practical skills were up to the required standard. However, given the Applicant’s work experience as a dental technician, she provided him with another opportunity to demonstrate the technical skills required by providing photograph evidence of the work that he had done in Melbourne.

    (h)On 24 November 2014, the Applicant made a Statutory Declaration providing photographs of dental prosthetics work completed. On or about 28 November 2014, Ms Smith advised the Applicant that he qualified for entry and would be enrolled in the Advanced Diploma and such an enrolment was confirmed on 4 March 2015.

    (i)Through 2015 to 2016, the Applicant participated in the Advanced Diploma. On 3 June 2016, the Applicant emailed Mr Ismail Larney, acting head teacher of TAFE NSW, claiming that he had advised the Applicant that he would not be able to graduate from the Advanced Diploma until he applied for and paid and completed a Diploma of Dental Technology, even though he was accepted into the Advanced Diploma on the basis of his overseas qualifications. Here, the Tribunal notes that there is no evidence, other than the claim from the Applicant, that the Applicant had to pay for and complete the Diploma of Dental Technology in order to graduate with the Advanced Diploma. Furthermore, the Applicant accepted during the hearing that he did not take any steps to follow up this matter with anyone but instead continued in the study of the Advanced Diploma. Such actions were contrary to the Applicant’s claim. In such circumstances, the Tribunal finds it Is not reasonably likely that any inappropriate conduct occurred in this regard.

    (j)The Applicant participated in stage four of the Advanced Diploma during semester two of 2016. Stage four involved two theory exams, A&P folder, research and present, assessment cases (in F/F, F/P, P/P5 plus extras), and case studies (in F/F, F/P, P/P plus extras). The Applicant did not successfully complete those theory exams or other aspects of stage four and the Tribunal notes that it is agreed that those three units remain incomplete.

    (k)Throughout 2016 the Applicant made several complaints against teachers when his work was marked, including against Mr Larney, Ms Bradburn and Mr Brett Davis. The Applicant variously alleged that he was bullied, racially vilified, subjected to aggressive behaviour and unfair treatment and that teachers sabotaged his dental prosthetic work. Between 6 October 2016 and 21 October 2016, the Applicant claimed that he was being prevented from completing the course requirements and that he should be allowed to complete his portfolio and assessment of patients. Whilst the Tribunal notes that these allegations are made, as discussed further below, the Tribunal does not find that such allegations are made out on the evidence. The Tribunal also notes the infection control report dated 24 November 2016 and further findings in relation to this are made below. 

    (l)TAFE NSW records indicate that on 9 June 2017, that the Applicant requested that he redo a clinical assessment and parts of A and B of his theory exams.  He rejected an offer to redo his tuition for the semester if no fee incurred, instead opting to re-sit the assessments he had previously failed. Throughout 2017, various opportunities were given to the Applicant by TAFE NSW to make attempts to complete the units that unsatisfactory progress had been made on. The Tribunal notes a reassessment timetable which was to commence from 17 June 2017 to 11 September 2017 and the engagement of an independent assessor. The Tribunal also notes a further proposed updated timetable dated 3 October 2017. Despite these offers and some attempts by the Applicant, the progress of the Applicant on the incomplete units was not satisfactory. On 16 October 2017, the Applicant failed to attend a part B theory exam scheduled at 8.30am. Ms McCleary of TAFE NSW attempted to contact the Applicant and the Applicant's wife answered the phone and whilst there is some dispute about what was said during that conversation, the reality is that the Applicant did not return to TAFE NSW after he failed to attend for the scheduled exam on 16 October 2017.

14. Again, the Tribunal notes that that is not in issue that the relevant three units have not been completed and under the relevant clause of the Act, the Tribunal needs to be satisfied on the material before it that it is reasonably likely that TAFE NSW engaged in inappropriate conduct towards the Applicant.

15. Having regard to the matters set out in the VET Guidelines referred to above, the Tribunal must be persuaded on the evidence it is reasonably likely that any alleged matters have occurred. Further to the findings above, the Applicant asserts inappropriate conduct by TAFE NSW in allowing him to enrol in the Advanced Diploma of on the basis of his overseas qualifications and despite him not having first obtained the Diploma of Dental Technology. This assertion is not supported by the evidence. The entry requirements of the Advanced Diploma permit a demonstration of competence through a recognition process of recognised prior learning and the Applicant expressly sought enrolment on this basis, relying upon his prior work experience and overseas qualifications.

16. It is apparent that during the Applicant's attempts to obtain various technical competencies during the Advanced Diploma, it was suggested by Mr Larney of TAFE NSW in about June 2016 that the Applicant should consider completing the Diploma, perhaps as a way of assisting him in resolving the impasse regarding his technical competencies. However, as discussed above, there is no evidence that the Applicant ever followed up this issue and the Applicant continued with his Advanced Diploma regardless. The Applicant confirmed this during his oral evidence to the Tribunal. Accordingly, the Tribunal finds that no misleading or deceptive conduct is reasonably likely to have occurred in this regard.

17. The Applicant also asserts general and wide-ranging allegations of racial vilification, document tampering, document removal, bullying, harassment and academic sabotage.  Needless to say, these are serious allegations. He further asserts that TAFE NSW did not want him to graduate.

18. On balance, considering both the Applicant's oral evidence and the documentary evidence before the Tribunal, the Tribunal finds that such allegations are not made out as being reasonably likely to have occurred, or indeed, to have occurred at all. The documentary evidence is given greater weight than the uncorroborated evidence of the Applicant.

19. The preponderance of evidence indicates that the Applicant had numerous difficulties in achieving technical competency in various aspects of the Advanced Diploma. Many instances are set out in the documentary evidence. One important example was a stage four practical assessment regarding compliance with infection control policies and procedures which the Applicant participated in on 24 November 2016. The observation assessment checklist completed by Mr Larney on that day noted, inter alia, that the Applicant did not wash his hands and handed a denture to a patient without wearing gloves. 

20. In oral evidence, the Applicant denied that these technical incompetencies had occurred and said that they must have been written in falsely on the checklist after the event. However, the Applicant during cross-examination had no satisfactory explanation as to why he refused to sign the 24 November 2016 assessment checklist. The Tribunal also notes Mr Larney's note, “Candidate's posture is aggressive and he refused to sign”.

21. Save for the Applicant's oral evidence, there is no corroborative evidence to establish that the Applicant was treated by TAFE NSW in any inappropriate way as asserted. The documentary evidence is contrary to the Applicant's assertions. The Tribunal finds that the Applicant was extended every opportunity to overcome his incompetencies in the Advanced Diploma. In the end he elected not to pursue those opportunities.

22. During the hearing, it was asserted that the Applicant may have been misled by an email from Linda Perez of TAFE NSW dated 1 December 2016. There is no evidence of this beyond the assertion of Applicant and the preponderance of evidence before the Tribunal establishes that the Applicant was always aware of the units he had to satisfactorily complete to obtain the Advanced Diploma.

1. Further, the Tribunal finds that there was no inappropriate conduct directed towards the Applicant due to any asserted financial or social vulnerability. No corroborative or indeed cogent evidence supports such an assertion. 

2. In these circumstances, the correct or preferable decision is that the decision under review be affirmed.