Sooaemalelagi and Bruce Hartwig Flying School Pty Ltd

[2016] AATA 412

Sooaemalelagi and Bruce Hartwig Flying School Pty Ltd [2016] AATA 412 (22 June 2016)

Division	GENERAL DIVISION
File Number	2015/6079
Re	Fanaafi Nuanua Claire Sooaemalelagi
APPLICANT
And	Bruce Hartwig Flying School Pty Ltd
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	22 June 2016
Place	Adelaide

The application is dismissed for lack of jurisdiction.

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Deputy President K Bean

CATCHWORDS

PRACTICE AND PROCEDURE – Jurisdiction – Re-crediting of VET FEE-HELP balance on the grounds of “special circumstances” – No valid request for re-crediting in writing – No primary or reconsideration decisions – Tribunal does not have jurisdiction – Application dismissed.

LEGISLATION

Higher Education Support Act 2003, Schedule 1A, clauses 46, 46A, 51, 91, 94, 96 and 97

Higher Education Support Amendment (VET FEE-HELP Reform) Act 2015

CASES

Re Coombs and Hartwig Air Group Pty Ltd [2016] AATA 173

REASONS FOR DECISION

Deputy President K Bean

22 June 2016

1. The respondent, Bruce Hartwig Flying School Pty Ltd (“BHFS”), is a vocational education and training provider which is approved under the Higher Education Support Act 2003.  As BHFS is approved under that Act, students are eligible for Commonwealth assistance in respect of courses undertaken with the respondent.

2. The applicant, Ms Sooaemalelagi, enrolled with BHFS in the course Advanced Diploma of Aviation in December 2013.  The census date was 24 March 2014 and the completion date for the course was 23 June 2015.  The total tuition fees for the course were $114,900.00.  However as Ms Sooaemalelagi sought and obtained Commonwealth assistance with respect to these tuition fees, the amount of $93,204.00 was deferred through the VET FEE-HELP Scheme pursuant to the Act, and became a VET FEE-HELP debt owed by her.

3. In circumstances which I do not need to explore in detail here, Ms Sooaemalelagi did not ultimately complete and graduate from the course.

4. On 8 July 2015 Ms Sooaemalelagi wrote to the respondent disputing “the course cost gap” and on 24 August 2015, she again wrote to the respondent seeking waiver of her “Student Gap Payment” and outlining “special circumstances” beyond her control.

5. BHFS replied to that request by letter dated 15 September 2015, indicating that as Ms Sooaemalelagi’s complaints had previously been responded to on 4 August 2015, BHFS would not “engage in further discourse” and the request was rejected.

6. On 19 November 2015, Mr Johnston, the director of the respondent, also sent an email to Ms Sooaemalelagi stating:

   “I can confirm on behalf of the School:

   ·You have followed the internal RTO Complaint Process to its completion;

   ·We have had multiple face-to-face meetings;

   ·After careful consideration, we have concluded there are no grounds for a VET FEE-HELP refund as your case does not meet the definition of “Special Circumstances”; and

   ·Your gap balance for the Advanced Diploma remains outstanding.”

7. On 23 November 2015, Ms Sooaemalelagi filed an application for review with the Tribunal, seeking review of the respondent’s decision of 19 November 2015.

8. In light of uncertainty and disagreement as to whether the Tribunal had jurisdiction to review that decision, the matter was listed for a hearing on 22 March 2016 to consider whether the Tribunal had jurisdiction with respect to Ms Sooaemalelagi’s application, and if so, to what extent.  In the event, a subsequent Telephone Directions Hearing was also held on 26 April 2016 at which some additional issues were canvassed.

   STATUTORY FRAMEWORK

9. The starting point in addressing the jurisdiction issue is the legislation conferring an entitlement on students to seek re-crediting of their FEE-HELP balance, and also conferring the Tribunal’s jurisdiction in this area.  Having reviewed the relevant parts of the Higher Education Support Act 2003 (the Act), I consider the most relevant provisions to be clauses 46, 46A, 51, 91, 94, 96 and 97 of Schedule 1A.

10. Clause 46 confers an entitlement on students to seek re-crediting of their FEE-HELP balance in certain circumstances, and relevantly provides as follows:

    46     Main case of re-crediting a person’s FEE-HELP balance

    …

    (2)A VET provider must, on the Secretary’s behalf, re-credit a person’s FEE-HELP balance with an amount equal to the amounts of VET FEE-HELP assistance that the person received for a VET unit of study if:     

    (a)the person has been enrolled in the unit with the provider; and

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

    (c)the provider is satisfied that special circumstances apply to the person (see clause 48); and

    (d)the person applies in writing to the provider for re-crediting of the FEE-HELP balance; and

    (e)either:

    (i)the application is made before the end of the application period under clause 49; or

    (ii)the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.

11. Clause 46A provides for re-crediting in the case of unacceptable conduct by a provider, and relevantly provides that:

    46ARe-crediting a person’s FEE-HELP balance—unacceptable conduct by provider or provider’s agent

    Decision to re-credit due to unacceptable conduct

    (1)The Secretary must re-credit a person’s FEE-HELP balance with an amount equal to the amounts of VET FEE-HELP assistance that the person received for a VET unit of study if the Secretary is satisfied that:

    (a)the person has been enrolled in the unit with a VET provider; and

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

    (c)circumstances exist, of a kind specified in the VET Guidelines for the purposes of this paragraph, involving unacceptable conduct by the VET provider (or an agent of the VET provider) relating to the person’s request for Commonwealth assistance relating to:

    (i)the unit; or

    (ii)the VET course of study of which the unit forms a part; and

    (d)the person has applied in writing to the Secretary for re-crediting of the FEE-HELP balance under this subclause; and

    (e)the application is in the form approved by the Secretary, and is accompanied by such information as the Secretary requests; and

    (f)either:

    (i)the application was made during the first 3 years after the period during which the person undertook, or was to undertake, the unit; or

    (ii)it would not be, or was not, possible for the application to be made during those 3 years.

    Note:A VET FEE-HELP debt relating to a VET unit of study will be remitted if the FEE-HELP balance in relation to the unit is re-credited: see section 137-18.

    …

12. Clause 51 also provides for re-crediting in circumstances where the provider has ceased to provide the course of which the relevant unit forms part, and relevantly provides as follows:

    51Re-crediting a person’s FEE-HELP balance if provider ceases to provide course of which unit forms part

    (1)A VET provider must, on the Secretary’s behalf, re-credit a person’s FEE-HELP balance with an amount equal to the amounts of VET FEE-HELP assistance that the person received for a VET unit of study if:

    (a)the person has been enrolled in the unit with the provider; and

    (b)the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit because the provider ceased to provide the unit as a result of ceasing to provide the course of which the unit formed part;

    …

13. Clause 91 sets out which decisions made under the Act are reviewable and who the decision-maker is in respect of reviewable decisions.  The Table as set out in clause 91 relevantly provides as follows:

Reviewable VET decisions
Item	Decision	Provision under which decision is made	Decision maker
…
1	Refusal to re-credit a person’s FEE-HELP balance	subclause 46(2)	(a) the VET provider with whom the student is enrolled in the unit; or (b) if the Secretary made the decision to refuse the re-crediting—the Secretary
2	Refusal to re-credit a person’s FEE-HELP balance	subclause 46A(1)	the Secretary
3	Re-crediting a person’s FEE-HELP balance	subclause 46A(1)	the Secretary

1. Subclause 94(1) also relevantly provides as follows:

   94     Reviewer of decisions

   (1)     The reviewer of a reviewable VET decision is:

   (a)if the decision maker was a VET provider acting on behalf of the Secretary—the Secretary; or

   (b)in any other case—the decision maker, but see subclause (2).

   …

   Note:The Secretary may delegate to a review officer of a VET provider the power to reconsider reviewable VET decisions made under Part 2: see subclause 98(2).

2. Clause 95 provides for a reviewer to reconsider a reviewable VET decision at their own initiative, and clause 96 sets out how a person affected may seek reconsideration of a reviewable VET decision.  It relevantly provides as follows:

   96     Reconsideration of reviewable VET decisions on request

   (1)A person whose interests are affected by a reviewable VET 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.

   …

3. Clause 97 of the Act confers a limited jurisdiction on the Tribunal to review certain decisions, as follows:

   97     AAT review of reviewable VET decisions

   An application may be made to the Administrative Appeals Tribunal for the review of a reviewable VET decision that has been confirmed, varied or set aside under clause 95 or 96.

4. It is relevant to note at this stage that one effect of the above provisions is that the Tribunal does not have jurisdiction with respect to requests for re-crediting made under clause 51 on the basis that the provider ceased to provide the course.  The only jurisdiction the Tribunal has in this area is to review a decision refusing to re-credit a person’s FEE-HELP balance under clause 46 or clause 46A, or a decision to re-credit under Clause 46A.  However, the Tribunal does not have jurisdiction until a clause 46 decision has been made by the provider and reconsidered by the Secretary or his or her delegate, or until a clause 46A decision has been made by a delegate of the Secretary and reconsidered by the Secretary or a different delegate.

   CONSIDERATION

5. On my analysis, what has occurred to date in this matter is that by letters dated 8 July 2015 and 24 August 2015 to the respondent, Ms Sooaemalelagi sought reduction or waiver of her “student gap payment”, being the amount she had paid for her tuition fees, rather than the amount paid pursuant to the FEE-HELP Scheme.  Although she referred in the second of those letters to “special circumstances … beyond [her] control”, I am not satisfied that either letter can be construed as a request for re-crediting of her FEE-HELP balance pursuant to clause 46.

6. Ms Sooaemalelagi’s request for reduction or waiver of her student “gap” payment was refused by the respondent on 4 August 2015 and again on 15 September 2015, with that refusal arguably being confirmed or reiterated in the email of 19 November 2015.  As noted above, that email contained the sentence: “After careful consideration, we have concluded that there are no grounds for a VET FEE-HELP refund as your case does not meet the definition of “Special Circumstances”.  However, it also said “Your gap balance for the Advanced Diploma remains outstanding”.

7. If there had been a valid request for re-crediting pursuant to clause 46 in writing prior to that email, it may have been possible to construe that email as a rejection of the request.  However, in circumstances where no such request in writing was made prior to that email, and noting that the Act requires a request for re-crediting pursuant to clause 46 to be made in writing, I have concluded that that email cannot be construed as a primary decision pursuant to clause 46, rejecting Ms Sooaemalelagi’s request for re-crediting. 

8. I should acknowledge that I initially entertained the possibility that Ms Sooaemalelagi’s letter of 24 August 2015 amounted to a request for re-crediting under clause 46.  This in turn led me to consider the appropriate review pathway and where any request for reconsideration would need to have been directed.  The Commonwealth Department of Education and Training ultimately provided copies of relevant delegations to assist with this issue, and a representative of the Department, Mr Mason, appeared at the Telephone Directions Hearing on 26 April 2016 and provided further assistance as to the effect of the delegations.

9. I am grateful for this assistance from the Department.  In the event, however, I have concluded that the question of the precise review pathway does not squarely arise.  That is because, on the view I have reached of the relevant correspondence, Ms Sooaemalelagi did not make a valid clause 46 request before lodging her application with the Tribunal.

10. It follows that, when Ms Sooaemalelagi lodged her request for review with the Tribunal on 23 November 2015, there had been no request in writing for re-crediting pursuant to clause 46, no primary decision with respect to that request, and no reconsideration decision.  As the Tribunal only has jurisdiction to review a reconsideration decision, and no such decision had been made when the application for review was lodged, it follows that the Tribunal has no jurisdiction with respect to that application.

11. I note that Ms Sooaemalelagi has subsequently written to the respondent and the Tribunal, referring to clause 51 and also clause 46A, and the respondent has purported to determine the clause 51 request.  However, as noted above and as I explained in my decision in Re Coombs and Hartwig Air Group Pty Ltd [2016] AATA 137, the Act does not confer any jurisdiction on the Tribunal with respect to decisions under clause 51. The Tribunal does have jurisdiction with respect to clause 46A decisions, however clause 46A only applies to conduct on or after 1 January 2016.[1]  Therefore, that provision is not available to Ms Sooaemalelagi.

    [1]     Higher Education Support Amendment (VET FEE-HELP Reform) Act 2015.

12. I note further that on or about 15 April this year, Ms Sooaemalelagi also made a clause 46 request to the respondent and I expect that, following the handing down of this Decision, the respondent will proceed to consider and determine that request.  Based on the information supplied by the Department, I note that a Review Officer of the respondent holds a delegation to reconsider any primary clause 46 decision.[2]  As I have explained above, this Tribunal would have jurisdiction to review any such reconsideration decision by a Review Officer if requested to do so.

    [2]     Mr Johnston indicated at the Telephone Directions Hearing on 26 April 2016 that the respondent did not currently have a Review Officer, but one would be appointed if required. 

13. However, for the reasons I have given, I am satisfied that the Tribunal does not have jurisdiction with respect to Ms Sooaemalelagi’s current application.

    DECISION

14. The application is dismissed for lack of jurisdiction.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

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Associate

Dated  22 June 2016

Dates of hearing	22 March 2016 and 26 April 2016
Applicant	In person
Respondent	In person