Sweet and Secretary, Department of Employment and Workplace Relations (Practice and Procedure) - [2025] ARTA 237

Sweet and Secretary, Department of Employment and Workplace Relations (Practice and Procedure) [2025] ARTA 237 (13 March 2025)
Applicant:Kerry Sweet
Respondent: Secretary, Department of Employment and Workplace Relations

Tribunal Number: 2023/9681

Tribunal:General Member C Willis
Place:Melbourne
Date:13 March 2025
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration by the Respondent in accordance with orders that the Respondent address, on the basis of the evidence, the application of subparagraphs 46AA(1)(a)(i) and (ii) and paragraph 46AA(1)(b) of Schedule 1A to the HES Act to each of the units of study, and the recommendation that the Respondent have regard to the matters relating to the evidence as set out in the Tribunal’s decision.

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Catchwords
PRACTICE AND PROCEDURE – application for review of decision not to re-credit VET FEE-HELP fee balance – whether applicant has not completed requirements for unit – whether applicant is taken not to have completed requirements for unit – inconsistencies between items of evidence - whether VET provider or its agent engaged in inappropriate conduct – decision set aside and remitted for reconsideration
Legislation
Higher Education Support Act 2003 (Cth), Schedule 1A, clauses 43, 46AA
Higher Education Support (VET) Guidelines 2015 (Cth), section 58A
Cases
Bradley and Secretary, Department of Education and Training (General) [2018] AATA 1074
Cosgrave and Secretary, Department of Education, Skills and Employment [2022] AATA 1195
Last and Secretary, Department of Education and Training [2019] AATA 658
Wall and Secretary, Department of Education, Skills and Employment [2022] AATA 2391
Ward and Secretary, Department of Employment and Workplace Relations [2024] AATA
955
Statement of Reasons
INTRODUCTION

Miss Sweet (the Applicant) enrolled in a Diploma of Community Services course at Evocca college (‘Evocca’) which was a trading name of a company called ACTE Pty Ltd (‘ACTE’).[1]
[1] As the date upon which Evocca ceased operation is unknown, references to ‘Evocca’ in this decision may be references to ACTE or employees of ACTE engaging in relation to the former activities of Evocca.
The Department of Employment and Workplace Relations (the Respondent) is the government department which had responsibility for administration of the former VET FEE‑HELP scheme (‘VFH Scheme’) and which has ongoing responsibility for legacy issues relating to the VFH Scheme.
Under the VFH Scheme the Federal government provided student loans to support the higher education or traineeships of eligible applicants. The VFH Scheme ran from 2008 to 2016, although students already covered by the scheme could continue to access it until 2018.
By enrolling in the course with Evocca and signing a form requesting assistance under the VFH Scheme, the Applicant incurred a debt (the ‘VFH Balance’) which was repayable to the Commonwealth through the taxation system. That is, when a student had earned income above a certain threshold a compulsory repayment amount would be included in their taxation assessment, to be applied towards their VFH Balance. A person could also make voluntary repayments to reduce their VFH Balance.
Measures were put in place by the Commonwealth government between January 2019 and December 2023 to allow people to have all or part of their VFH Balance re-credited where they had incurred the debt due to the ‘inappropriate conduct’ of their training provider (the ‘VFH Student Redress Measures’).
After commencing her studies the Applicant became concerned about the quality of the course and its relevance to employment she wished to pursue in the social work sector. She made complaints about Evocca to various government agencies, and requested that the Respondent remove part of the VFH Balance incurred in relation to the Evocca course under the VFH Student Redress Measures.
A key element of entitlement to relief under the VFH Student Redress Measures is whether the student completed the requirements of the unit or units in relation to which they sought re-crediting of the VFH Balance. The Applicant says that she did not complete all of the units in the Evocca course and should receive a re-credit of fees for the incomplete units.
The Respondent says that the Applicant did complete all of the units in her course and therefore refused to re-credit any amount. The Applicant sought an internal review by the Respondent of its initial decision, however the Respondent confirmed that decision following internal review. The Applicant is now seeking a review by the Tribunal of the Respondent’s decision to refuse to re-credit any amount of her VFH Balance.
Although a number of factual matters relate to the activities and records of Evocca, this college apparently ceased operations some years ago. ACTE remains a registered company which operates under other trading names, however it was not asked to provide evidence by either party.
VET FEE-HELP SCHEME LEGISLATION AND STUDENT REDRESS MEASURES
The VFH Student Redress Measures were implemented through the enactment of Schedule 1A to the Higher Education Support Act 2003 (Cth) (the ‘HES Act’).
Subclause 46AA(1) of Schedule 1A to the HES Act provides that:
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.
(c)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).
The Higher Education Support (VET) Guideline 2015 (the ‘VET Guideline’) is an instrument made under the HES Act.
Section 58A of the VET Guideline is headed ‘When a person is taken not to have completed the requirements for a VET unit of study’ and says:
For the purposes of subparagraph 46AA(1)(a)(ii) of Schedule 1A to the Act, a person (the student) is taken not to have completed the requirements for a VET unit of study with a VET provider if it is reasonably likely that the student did not complete the requirements for the unit, regardless of whether the student is recorded as having completed the unit.
Students with complaints or concerns about their courses were advised to discuss these matters with their course provider in the first instance. The VET Student Loan Ombudsman (VSLO) within the Commonwealth Ombudsman’s office was then the primary contact point for a person who had a complaint about their VFH Balance which could not be resolved with the course provider. Applications for redress under the VFH Student Redress Measures were to be made via VSLO.
BACKGROUND
Findings of fact are significant in this proceeding and unfortunately the parties dispute many aspects of the factual background to this matter. The documentation that was provided to the Tribunal by the parties often raised more questions than it answered. The following chronology of events is pieced together from the limited documentary evidence available, together with the submissions of the parties to the Tribunal.
Enrolment by the Applicant in the course
Evocca was based in Queensland and provided many of its courses through online or remote delivery. The Applicant, who lives in Victoria, said that she was approached by a representative of Evocca in a shopping centre. She recalled being offered a ‘no fee’ course to study, together with a free laptop, and that around 2014 she enrolled in a Diploma of Community Services. The Applicant accepts that she most likely signed forms applying for assistance under the VFH Scheme. Neither the Applicant nor the Respondent could provide copies of these forms or, subject to some limited information set out below, any other records confirming exactly what the Applicant signed up for.
Documents provided by the Respondent suggest that the Applicant was enrolled from either:
·11 January 2013[2] according to a summary provided on 31 August 2020 by the Australian Skills Quality Authority (‘ASQA’ and the ‘ASQA Transcript’), or
·1 November 2013[3] according to a letter sent by ACTE to the Commonwealth Ombudsman on 28 May 2018 (‘ACTE 2018 Letter’).
The ASQA Transcript says that it is a summary of student records provided by ACTE, so the reason for the different enrolment dates is not clear.
[2] T10. A reference to T documents is a reference to materials that were required to be lodged by the Respondent with the Tribunal under section 37 of the former Administrative Appeals Tribunal Act 1975 (Cth) which was in force when this proceeding was commenced.
[3] T9.
The course or qualification is described as a Diploma of Community Services Work with the Qualification Code CHC 50612. There is evidence to suggest that the course that the Applicant originally enrolled in was cancelled by Evocca during 2014 and any further studies undertaken by the Applicant related to another course.[4] Neither the Applicant nor the Respondent could confirm whether the Qualification Code CHC 50612 relates to the original course or a subsequent qualification. The ACTE 2018 Letter included a screenshot of ‘qualification details’ for Qualification Code CHC 50612 which suggests that this qualification superseded an earlier course with the code CHC 50608 on 6 May 2012, and was in turn superseded by a subsequent course with the code CHC 52015 on 5 August 2015,[5] although these dates do not align with the correspondence relating to a course cancellation in 2014.
[4] See emails between Evocca and the Applicant at T6.
[5] T9, at page 49.
The ASQA Transcript lists twenty ‘Units’, each with separate ‘Unit Codes’, comprising the overall course. The ACTE 2018 Letter does not reference these units or codes but refers instead to four ‘clusters’. Subsequent analysis undertaken by VSLO[6] suggests that Cluster One comprised two ‘pre-requisite’ units, with unit codes and descriptions matching two of the subjects listed in the ASQA Transcript. Cluster Two comprised a further six units and Cluster Three another seven units, again matching unit codes and descriptions from the ASQA Transcript. Cluster Four covered the remaining five units.
[6] T7, at page 40.
The ASQA Transcript indicates that:
·the Applicant’s qualification (being Qualification Code CHC 50612) was issued on 19 June 2015.
·the Applicant completed eight of the twenty units on 20 June 2014.
·the Applicant completed the remaining twelve units on 19 June 2015.
Again, it is noted that the ASQA Transcript is stated to be drawn from records provided to it by ACTE.
The ACTE 2018 Letter states that:
·The Applicant’s enrolment ended on 21 June 2015 when she completed her training.
·Cluster One ran from 11 November 2013 to 15 December 2013.
·Cluster Two ran from 16 December 2013 to 29 March 2014.
·Cluster Three ran from 26 February 2014 to 25 June 2014.
·Cluster Four ran from 28 May 2014 to 20 August 2014.
The Applicant said that at some point Evocca cancelled or withdrew the course she had originally enrolled in, and without her consent transferred her to another course. An email from an Evocca Student Services Officer to the Applicant dated 11 March 2014[7] stated:
As per our conversation, I’ve found that the reason why your units are not showing in your my.evocca in full is because 8 of your units are Credit Transfers from your old Community Services course which is cancelled. Because of this you won’t be able to access the units or assessments that were completed during the old cancelled course.
However all of your completed assessments from either course should be in our systems. Can you let me know which assessment in particular you’re looking for and we will try to recover it and email it to you.
[7] T6.
The Applicant responded by email on the same day:[8]
What do you mean transferred exactly. I haven’t enrolled in another course and if I have been enrolled in a new one I haven’t authorised this or signed anything. You can not cancel or restart me in a new course I haven’t authorised. All of the initial ones are missing from my list and I need them please I have whs though its the ones that changed that aren’t accessible.
[8] T6.
In this email correspondence Evocca identified eight units or modules in relation to which it said the Applicant had a ‘Credit Transfer from the old course.’ The codes listed by Evocca in relation to those eight units or modules correspond to the eight units recorded as completed on 20 June 2014 in the ASQA Transcript.
On the same day the Applicant confirmed by email to Evocca that she was seeking the assessments from those eight units. She again queried why her course was cancelled and why she had credits for a new course when she only signed up for and enrolled in one course.
The Applicant also stated that she withdrew, or tried to withdraw, from the course not long after enrolling and asked how to return the provided laptop but was pressured by Evocca staff to continue her enrolment. An email dated 23 June 2014 sent to the Applicant by Evocca confirms that ‘Our records indicate that you have cancelled from your course.’ The Applicant sent an email to Evocca the following day requesting a letter of remittance for the VET FEE-HELP student loan to be withdrawn. The response from Evocca was ‘I have forwarded this onto the correct department for you.’[9]
[9] See emails extracted in document at T6.
A copy of an email dated 4 July 2014 sent to the Applicant by Lisa MacFarlane, State Manager, Queensland of Evocca[10] included the following:
I am in receipt of your message dated 24 June 2014 regarding the return of your student device…
What I am most concerned about Kerry is that you are an outstanding student and I can see you have cancelled. …
We do have a process through which we initiate legal action to obtain our devices but my preference is for you to re-enrol and continue your studies and us not take the student device recovery process any further. The full fees have been incurred and so it would be a waste not to take advantage of the opportunity to complete the whole qualification.
I would really like you to consider re-enrolling and completing your qualification…
[10] T6.
The Applicant responded by email expressing her concern that she was behind other students, might not finish by the due date and that looking at ‘the statement’, there was not much showing. The reference to a ‘statement’ appears to be a reference to a ‘Statement of Attainment.’ Further (undated) email correspondence from Evocca[11] said that they would assign a tutor to the Applicant who would ‘look into your Statement of Attainment and determine what has happened there’ and ‘review the data in your file.’
[11] T6.
Subsequent correspondence with VSLO and the Respondent suggests that a ‘Statement of Attainment’ may have been taken as a document which confirmed completion of a course or qualification, akin to a certificate or award. It appears from the above correspondence that a Statement of Attainment could also reflect partial completion or stage of progress of a course. That is, it might only evidence completion of particular units or modules within a course.
This correspondence raises the following questions which were not answered by the material filed with the Tribunal, or could not be answered by the parties at the hearing:
·Does the Qualification Code CHC 50612 which is referred to in the ASQA Transcript and the ACTE 2018 Letter represent the course in which the Applicant originally enrolled and which appears to have been ‘cancelled’, or a subsequent replacement course?[12]
·How did Evocca withdraw or cancel the original course in which the Applicant was enrolled and enrol her in another course?
·Did the form that the Applicant signed at enrolment requesting support under the VFH Scheme cover a replacement or substituted course?
·Why did Evocca tell the Applicant in July 2014 that ‘the full fees’ had been incurred when (according to the ASQA Transcript and the ACTE 2018 Letter) the course had not been completed and Evocca was saying that the Applicant had withdrawn from the course such that she would need to re-enrol to continue the course?
[12] The ACTE 2018 Letter suggests that the course that the Applicant initially enrolled in was the qualification that she was allegedly awarded in 2015.
Evocca appears to have ceased operations at some point after December 2016 and before the ACTE 2018 letter which was sent to VSLO in May 2018. The Tribunal was unable to determine exactly when it ceased operations. The Applicant stated that she made many unsuccessful attempts to contact Evocca after these email exchanges, and her subsequent complaint to VSLO noted this difficulty. Copies of media articles filed by the Applicant in the proceeding in relation to an investigation by ASQA indicated that Evocca was providing training courses as of March 2015.[13] A Notice of Debt Removal published by the Respondent in August 2021 in relation to Evocca refers to student enrolling up to 31 December 2016. The Respondent’s representative made further inquiries during an adjournment of the hearing but was also unable to confirm when Evocca ceased operation.
[13] Annexures KS1 and KS2 to the Applicant’s affidavit.
VSLO investigation and recommendation
VSLO is not a party to these proceedings and there is no decision of VSLO for review by the Tribunal. The T Documents provided by the Respondent to the Tribunal do not include all of the material considered by VSLO during the course of its investigation. However, it is relevant to have regard to the VSLO investigation process and outcome as its findings and recommendation were relied on by the Respondent in making its decision, which is the subject of the Tribunal’s review in this proceeding.
The Applicant made a complaint about the Evocca course to ASQA around March 2018. She alleged that Evocca told her that the course she enrolled in was accredited with the Australian Community Workers Association (ACWA) in Victoria, such that it would be recognised for the purposes of employment in Victoria as a social worker. After unsuccessfully applying for roles in this field, the Applicant said that she contacted ACWA directly and was advised that the Evocca course was not accredited with them. The Applicant said that she did not believe she should have a debt for what she believed was a ‘worthless and pointless’ course. She indicated that she wanted her debt cancelled and what she had already paid in interest and repayments returned to her so that she could pursue suitable qualifications with a properly registered organisation.
ASQA advised that it did not have the power to deal with the Applicant’s complaint, and the matter appears to have been transferred or advised to VSLO which was the body tasked with investigating complaints by students about VFH Scheme matters. Where a complaint related to a disagreement about a VFH Balance, VSLO would investigate and make a recommendation as to whether the Respondent should remove (by re-crediting) any of the VHF Balance.[14] VLSO could only review a matter once.
[14] Under the arrangements for the VFH Student Redress Measures, the Respondent would make its final decision based on the VSLO recommendation.

The records of VSLO suggest that there was some initial confusion about the nature of the Applicant’s complaint and which body should manage it. Initially on 19 April 2018 VSLO notes that the issue was one of ‘course quality’ and therefore ‘OOJ’ (presumably, ‘out of jurisdiction’) for VSLO. VSLO obtained ‘HEIMS data’[15] on 23 April 2018. VSLO then spoke to the Applicant on 24 April 2018 at which time they explained why ASQA was unable to deal with her complaint, and acknowledged that the Applicant’s complaint did involve a VFH Scheme debt which was within VSLO’s scope.
[15] HEIMS or ‘Higher Education Information Management System’ data was also described by the Respondent as Tertiary Collection of Student Information data at paragraph 3.21 of their submissions dated 23 September 2024
VLSO told the Applicant that she first needed to lodge a complaint with Evocca and wait 28 days for their response.[16] It is noted that Evocca appears to have ceased operations by this time. However, the Applicant did make email contact with Lesley Wemyss, who was a National Compliance and Quality Manager at ACTE.[17] In her email the Applicant outlined her concerns about the training provided by Evocca and the information given to her about the course. In particular she was upset that the studies she had undertaken were apparently not accepted by child protection agencies and ACWA. She told ACTE that she had contacted ASQA, the Ombudsman and other authorities with concerns about the studies she had undertaken with Evocca. She also noted that had encountered difficulty in contacting anyone associated with Evocca as that college had closed.
[16] See records of correspondence and calls with Applicant at T7.
[17] T8.
In her email the Applicant said:
I completed my studies and asked numerous times for the proof of this, as i couldn’t seem to get any straight answers from anyone working at Evocca and each time i contacted them i was told someone would be in touch not to worry it was all ok and they were registered ..
Basically now I have a useless piece of paper from a college no one believes is legitimate nor is it worth the paper it is printed on…
I am now lumped with a huge hex debt that i do not believe i should have to pay…
I would like nothing more than to study a field listed with the ACWA and gain employment in the field i was promised was available but i can not apply for funding as it shows i have debt and have studied. I would like my hex cancelled so i can re enrol and get the qualifications i was entitled to in the first place.
I am simply asking the hex debt be cancelled and what has been paid credited so i can go and apply to a new college with accreditation and get a hex loan to pay the fees.
VSLO wrote to ACTE seeking information about the Applicant’s claims. The ACTE 2018 Letter, which was signed by Lesley Wemyss, was sent to VSLO in response on 28 May 2018. In addition to providing the enrolment date and ‘cluster’ information set out in paragraphs 20 and 22 above, ACTE stated:
·ACTE had no evidence that the Applicant was told that the course she enrolled in was approved by ACWA. The course was never accredited with ACWA, and therefore ACTE could not provide VSLO with any literature or other material relating to accreditation. ACTE had considered applying for ACWA accreditation, but decided against it because it would have required significant additional hours of vocational placement, and would have added extra time to the course.
·The Applicant completed her course in June 2015 and then in August 2015 the course was ‘updated by the Industry Skills Council at the time who in their wisdom made “significant changes” to the units within the qualification’.[18] Her course was therefore superseded and this was why the qualification was no longer recognised by prospective employers.
·The Applicant had waited three years before making a complaint about the course.
·ACTE had assisted the Applicant with job applications.
·ACTE did not believe it had been given a fair chance to address the matters raised by the Applicant before she contacted VSLO.
·ACTE had a complaints and refund policy that had been approved by ASQA.
·VSLO should close the Applicant’s complaint in favour of ACTE.
[18] See T9 at page 48 per Lesley Wemyss of ACTE.
Somewhat unusually, the letter from ACTE to the VSLO also:
·Said that ACTE had contacted the Applicant’s most recent employer in May 2018 and been advised that she had recently left that employer.
·Implied that the Applicant’s complaint was linked to taxation matters.
·Requested that the Applicant send to ACTE copies of all applications she had made for employment in the community sector as well as copies of all rejections she had received so that ACTE could contact those entities directly.
The Applicant told the Tribunal that ACTE had not assisted her with job applications and that her complaint was not prompted by taxation matters. The basis upon which ACTE believed it was entitled to the Applicant’s job applications or other personal information, or how this might be relevant to the VFH Scheme matters, is not clear.
The VSLO records provide limited information about the steps VSLO took to verify any of the information or claims made by ACTE in the ACTE 2018 Letter. VSLO obtained a course outline from an internet archive which did not mention ACWA accreditation. The focus of VSLO’s inquiries appeared to be the ACWA accreditation which had been identified as the main concern of the Applicant in relation to the conduct of Evocca.
The VSLO investigation continued across 2018 to 2020. It is noted that these dates coincide with the circumstances of the COVID-19 pandemic. The Applicant’s case appears to have been reassigned to different case officers on multiple occasions. VSLO records of engagement with the Applicant include the following:
·There is a note dated 8 November 2019 to a ‘document’ described as ‘Unit of study – 6515960496 – 1 successfully completed 3 incomplete units.msg’ and ‘007. Unit of study’. The author and content of the document is not stated.
·On 22 January 2020, VSLO interviewed the Applicant. VSLO asked what she had been told about course census dates. She told VSLO that she had been told she had 30 days to change her mind, but when she tried to withdraw from the course approximately two and a half weeks after enrolment, was told by Evocca that she would have to return the laptop and ‘pay half the costs.’ She said she had difficulty returning the laptop and contacting Evocca.
VSLO’s records of the interview note:[19]
I said: did you complete all four units? C said: yes, and I sent all modules I had done to Swinburne and TAFE etc to see if I can RPL and no-one will accept it. I said: overall how long did you study for? C said: just under 2 years. I said: do you receive a physical diploma? C said: no, I tried to get hold of them to ask them about it but they had closed. I have a statement of attainment, its all I was given. I said: do you know if you successfully passed? C said: I had an email from my tutor saying I had…
·Later on that day the Applicant contacted VSLO to say that she was having trouble forwarding all of the email records she had found. It was agreed that she would ‘copy and paste’ them into a Word document to send to VSLO.[20]
·There is a note that further documents were received by VSLO from ACTE dated 10 February 2020. The nature and content of those documents is not indicated.
·On 9 July 2020 VSLO spoke with the Applicant and asked further questions about the ‘last few assignments’ the Applicant did, the process for communicating grades and whether the Applicant had a graduation ceremony. VSLO also asked for the Applicant’s ‘SOA’ (presumably ‘statement of attainment’). The Applicant’s response is not recorded.
·On 20 July 2020 there was a ‘briefing’ and the Applicant’s matter was ‘parked pending SIA 17/7/2020.’ The Secretary Initiated Actions or SIAs relating to Evocca are outlined below.
[19] T7, at page 35. In this record ‘I’ presumably is the VSLO officer and ‘C’ is the Applicant (complainant).
[20] This appears to be the document at T6.
There are references to other telephone conversations, emails and documents in VSLO’s records where the parties to and contents of those communications are not identified.
On 24 July 2020 the Respondent approved a Secretary Initiated Action (‘SIA’) for over 31,000 students of Evocca who commenced studies with Evocca between 1 January 2013 and 31 December 2016. The SIA was ‘based on VSLO and ASQA evidence, and data analysis demonstrating widespread lack of engagement of ACTE students and targeting of vulnerable students.’ This evidence included a volume of complaints from students, including complaints of frequently changing course structures. There was a substantial increase in unit incompletions and withdrawals, and fall in course completion rates between 2012 and 2016.[21]
[21] See discussion in Respondent’s Minute at T16. On 19 May 2023 the delegate of the Respondent approved a second SIA relating to a further 10,000 students of ACTE for that period.
On 28 August 2020 VSLO spoke with the Applicant about ‘the successfully completed units.’ The Applicant confirmed that she had ‘finished the whole course’ but did not receive a statement of attainment or certification. VSLO asked the Applicant to contact ASQA for a transcript so that VSLO could ‘see how much work has been completed.’ The ASQA Transcript was provided on 31 August 2020.
After the ASQA Transcript was received VSLO spoke to the Applicant again on 31 August 2020. She told VSLO that none of the course codes in the ASQA Transcript matched with the list of subjects she had previously been provided with by Evocca. VSLO’s records note that their officer then said to the Applicant:
I said: because you have stated you completed the course, ‘Successfully Completed’ units are not eligible for re-credit under the redress measures. You have two options Accept that the unit was completed and will not be disputed in the assessment of your complaint. Continue to pursue this unit but the recommendation will be made a No Re-credit to the department. C said: no I understand that and I will be disputing it further.
The Applicant appears to have provided VSLO with further information (a ‘list of possible completed work’) later that day.
On 4 September 2020 an officer of VSLO told the Applicant:
I have assessed all information provided by you and given to us by Evocca, and I can see here that the course has most certainly been completed by you. The modules on the ASQA records have been cross referenced with the course structure and it looks like it all adds up to be completed.
VSLO advised that they would be making a recommendation to the Respondent for no re‑credit of the Applicant’s VFH Balance and the Applicant could further dispute the matter with the Respondent. The Applicant confirmed that she would dispute the matter.
VSLO prepared a document described as ‘Statement of Reasons and Salesforce data’ dated 14 September 2020. This appears to be the one page table entitled ‘Summary of Reasons’ dated 14 September 2020 which was provided to the Respondent.[22]
[22] T11.
The VSLO Summary of Reasons references statements made by the Applicant that she had completed the course. The Summary of Reasons also expressly identifies the HEIMS data as recording the Applicant as having ‘successfully completed’ one unit of study, with two units of study recorded as ‘incomplete’ and a fourth unit of study recorded as ‘withdrew without penalty.’[23] Nevertheless under the heading ‘contradictory information’ it is recorded that there is ‘no contradictory information.’ VSLO then concludes that the Applicant did complete the course based on her verbal statements, the statement of Lesley Wemyss of ACTE in the ACTE 2018 Letter that the Applicant completed the course and the ASQA Transcript (which was based on information provided by ACTE). There is no apparent examination of the discrepancy with the HEIMS data. It is not clear whether VSLO took into account the emails provided by the Applicant or the other unspecified material provided by ACTE in February 2020.
[23] T11, referring to document ‘Doc 018. HEIMS PBI’.
VSLO emailed the Applicant on 13 November 2020 outlining the ‘proposed’ recommendation, and giving the Applicant 28 days to provide any comments in response. A VSLO officer followed up with the Applicant on 14 December 2020, who advised that she had not received VSLO’s earlier email.[24] However she confirmed that she was happy for VSLO’s recommendation to be sent to the Respondent without further submissions from her.
[24] This email was relied upon by the Respondent in their Reviewable Decision but was not included in the T Documents filed with the Tribunal. As noted, the Applicant said she did not receive this email from VSLO, and therefore was unable to provide a copy.
VSLO’s records have a note dated 15 December 2020 of ‘research’ relating to the cross referencing of the ASQA Transcript to course structure information, with information drawn from archived webpages from Evocca’s former website. It is not clear whether this research was undertaken by VSLO before or after its preparation of the Summary of Reasons.
There were further communications between the Applicant and VSLO in January and February 2021. The Applicant repeated her concerns about the apparent differences between course codes in various documents and stated that she had not completed the course. VSLO confirmed that it had provided its ‘no re-credit’ recommendation to the Respondent and that the Respondent would advise its decision within 90 days. During a telephone call on 2 February 2020 a VSLO officer said:
In relation to the course codes, the email you sent through saying they were different to what you’ve been found competent on. I had a look at this and they have included a shorter version of the course codes, so you will see that the codes match, generally the last digits/letters of the code … I can assure a thorough review was done on this and the course codes matched what you were marked competent in.
It is not clear what documents were being compared. It is correct that codes set out in emails provided by the Applicant do appear to be shorter versions of the codes set out in the ASQA Transcript. The emails provided by the Applicant indicated that she had not completed all assessments, passed or otherwise been found competent in relation to many of those module codes, whereas the ASQA Transcript said that all were marked competent.
VSLO appears to have closed its file on the Applicant’s complaint around April 2022, although the Applicant contacted them subsequently with queries about making an application to the Respondent for review.
Review by Respondent
On 28 April 2021[25] the Respondent made a decision (‘Reviewable Decision’) not to re‑credit the Applicant’s FEE-HELP balance for the units of study DBA1, DCS2, DCS3 and DCS4 reported by ACTE for a Diploma of Community Services Work.
[25] T12
The Reviewable Decision does not identify what the DBA1, DCS2, DCS3 and DCS4 ‘units’ comprise, in terms of their relationship to modules or subjects for the course CHC50612. At the hearing the Respondent’s representatives suggested that these ‘units’ most likely aligned to the ‘clusters’ described in the statement made by ACTE to VSLO in 2018, that is DBA1 aligned to Cluster One, DCS2 aligned to Cluster Two and so on. Even though the twenty modules are not spread evenly across the clusters, the same tuition fee and loan fee are charged for each cluster. That is, if the Respondent is correct that the ‘units’ align to the ‘clusters’ the same fees apply to Cluster One which comprises two subjects as to Cluster Two which comprises seven subjects.
The Reviewable Decision said that in coming to a decision the delegate considered the following:
·Evocca/ACTE’s report on whether the Applicant had completed these units in the Respondent’s HEIMS.
·The recommendation of VSLO.
·The inappropriate conduct outlined in the Applicant’s complaint was consistent with Evocca/ACTE’s or broker’s known conduct.[26]
·Any evidence provided to the Delegate indicating that the Applicant has completed the unit(s) of study or that the VHF Balance debt was not incurred through the inappropriate conduct of Evocca/ACTE or their agent.
·Any submissions made by the Applicant within 28 days of the letter from VSLO advising the Applicant of its intention to make a recommendation that the units not be re-credited.[27]
[26] It is not clear if the Respondent intended to include the word ‘whether’ before this item, or if it was making a positive statement that there was known inappropriate conduct of ACTE.
[27] The Applicant said that she did not receive the correspondence from VSLO dated November 2020.
The letter concluded:
On the basis of this evidence the Delegate is not satisfied that you meet the necessary criteria to justify a re-credit – that is, either:
(1) you have completed the requirements for the unit, or
(2) it has not been established that it is reasonably likely that the VET provider (or their agent) engaged in inappropriate conduct towards you in relation to the unit, or the VET course of study of which the unit forms a part.
Although the Applicant was presumably aware of VSLO’s recommendation to the effect that she had completed all units, the Reviewable Decision did not actually specify which of these bases applied to the Applicant, or if both applied. The Reviewable Decision did not address the particular subparagraphs of subclause 46AA(1)(a). It is possible that the Respondent intended that a positive factual finding that the Applicant completed all units would provide an answer to both subparagraphs.
Further it is not clear whether the decision delegate had also purported to make a finding in relation to the ‘inappropriate conduct’ ground, and if so, whether that finding was that Evocca or ACTE had not engaged in inappropriate conduct at all (despite the SIA approved by the Respondent in 2020) or at least had not done so in relation to the Applicant.[28]
[28] At the hearing the Respondent submitted that its position was that there had not been inappropriate conduct in relation to this particular Applicant in relation to her specific studies.
On 18 August 2021, the Respondent issued a Notice of Debt Removal for the purposes of clause 46AA(8), Schedule 1A of the HES Act. The Notice stated that for the purposes of clause 46AA(1)(a) the Respondent considered it reasonably likely that Evocca, ACTE or their agents engaged in inappropriate conduct in relation to a student’s unit of study or course. This Notice was directed to students:
·Who were enrolled by Evocca/ACTE and commenced within the period 1 January 2013 to 31 December 2016,
·For whom there is evidence that they did not complete or it is reasonably likely that they did not complete the VFH units in the course, and
·Who had a VFH debt for those incomplete units.
This was presumably not applied to the Applicant at the time because of the finding that she had completed all units in her course.
The Applicant made a request for a review of the Reviewable Decision on 10 July 2023, reiterating her claim that she had not finished the course.[29] Although a request for review should be made within 28 days of the Reviewable Decision, in this instance the Respondent agreed to consider her request because there may have been confusion as to whether earlier correspondence from the Applicant constituted a review request.[30]
[29] T13.
[30] See email correspondence between the parties at T14.
On 21 August 2023 the Respondent asked the Applicant to provide supporting evidence, including any correspondence with Evocca. The Applicant provided copies of the email correspondence from 2014 and 2018 noted above.[31]
[31] T6.

A Minute[32] dated 31 August 2023 (‘Minute’) was sent from an officer in the VFH Student Redress Team of the Respondent directed to Matthew Hardy, First Assistant Secretary, VET Data, Loans and Compliance Division of the Respondent. Mr Hardy was a review delegate of the Secretary of the Respondent for the purposes of a decision made under clause 46AA. The content of the Minute is discussed in greater detail below, however the overall recommendation was that Mr Hardy confirm the Reviewable Decision.
[32] T16.
The information provided to the decision delegate in the Minute included:
·An outline of the VSLO findings that the Applicant had fully completed her course, that she had confirmed that she had completed all units of study, that she had not provided any evidence to dispute the completion status, that Evocca had confirmed the full completion and that the ASQA Transcript also recognised completion of the course.
·An outline of the emails from Evocca indicating that the Applicant’s original course had been cancelled, and that she had subsequently withdrawn from the course which required re-enrolment.
·A copy of the ASQA Transcript from 2020, with an observation that ASQA had not responded to a request in July 2023 to provide a further copy of the Applicant’s transcript.
·The TCSI data[33] which described the Applicant as having passed only one unit, with two units marked as ongoing and one unit as ‘withdrawn.’
·A discussion of the bases for the SIAs approved by the Respondent in relation to Evocca on 24 July 2020 and 19 May 2023.
[33] The Respondent indicated at the hearing that this was the same as, or drawn from the same database as the HEIMS data.
It is not clear whether parts of this Minute may have been copied from a similar minute relating to another student. For example, at paragraph 25 the Minute refers to the completion status and a VLSO recommendation relating to a Ms M.[34]
[34] For privacy reasons the full surname of the individual will not be set out in this decision.
On 2 September 2023 the Respondent provided the Applicant with its review decision (‘Reconsidered Decision’) confirming the Reviewable Decision.[35] The accompanying Statement of Reasons said that the delegate of the Respondent (‘Decision Delegate’) had considered whether the Applicant had ‘not complete [sic], or can be taken not to have completed the requirements for the unit of study.’ The Decision Delegate considered the following material:
·The TCSI ‘records the successfully [sic] completion of the above units’.
·The recommendation of the VSLO including the original information submitted as part of the Applicant’s complaint to the VSLO.
·The ASQA Transcript[36] showing the status of the units.
·Any submissions made by the Applicant within 28 days of VSLO’s letter.
·Any evidence provided to the reviewer ‘indicating that you have completed the unit/s of study’.
·The information provided in the Applicant’s review request as it relates to the completion of the units.
[35] T17.
[36] Presumably the document originally obtained by the Applicant in 2020.
The Decision Delegate said that they had also considered:
·Whether the inappropriate conduct outlined in the Applicant’s complaint was consistent with the VET provider or broker’s known conduct.
·Any evidence provided to the reviewer indicating that the Applicant’s VFH Balance ‘was not incurred through the inappropriate conduct of [her] VET provider or their agent’.
·The additional claims and information provided by the Applicant to the Respondent.
The Decision Delegate said that on the basis of the above they were:
not satisfied that you meet the necessary criteria to justify a re-credit – that is, there was insufficient evidence for me to be satisfied that you did not complete the requirements for the units of study and were subject to inappropriate conduct.
The Decision Delegate therefore confirmed the Reviewable Decision to refuse to re‑credit any of the Applicant’s VFH Balance.
Tribunal review
On 19 December 2023 the Applicant lodged an application for review of the Reconsidered Decision[37] with the Tribunal.
[37] It is the Reconsidered Decision that is the reviewable decision for the purposes of the Administrative Review Tribunal Act 2024 (Cth). The Reviewable Decision of the Respondent refers to it being subject to internal review by the Respondent, which in this case gave rise to the Reconsidered Decision.
The Respondent asked the Applicant to provide a statement confirming whether she completed the course with Evocca, and if so when, or alternatively why she said she did not complete the course. The Applicant provided a copy of an email which she said was sent to her around 2021 from one of her former Evocca tutors.[38] This document listed modules by reference to the codes which appear to be similar to the ones used in the ASQA Transcript, identifying which ‘cluster’ they may have belonged to. It also identified assessments, work tasks and outcomes that the tutor believed had been submitted or completed.
[38] T18.
The Respondent provided the Tribunal with a Joint Tender Bundle which contained:
·The T documents.
·Further documents provided by the Applicant:
oScreenshots of emails on the Applicant’s phone from August, September and December 2023 relating to her request to the Respondent for review.
oA statement of the Applicant with covering email to the Tribunal and Respondent dated 2 February 2024.[39]
oAn email from the Applicant to the Tribunal and Respondent dated 13 February 2024.
oAn email from the Applicant to the Tribunal and Respondent dated 28 March 2024.
oA statement of the Applicant with covering email to the Tribunal and Respondent dated 30 April 2024 and attachments.
·The Statement of Facts, Issues and Contentions of the Applicant dated 8 August 2024.
·A document referred to as an affidavit of the Applicant (unsigned and undated) with Annexures.
·The Statement of Facts, Issues and Contentions of the Respondent dated 23 September 2024.
[39] T18 as described above.
ISSUES AND CONTENTIONS
The ability of the Respondent to re-credit a person’s VFH balance under subclause 46AA(1) of Schedule 1A to the HES Act is dependent on the Respondent being ‘satisfied’ that:
·Either:
oThe person ‘has not completed the requirements for the unit’ of study, or
oUnder the VET Guidelines the person ‘is taken not to have completed those requirements’, and
·It is ‘reasonably likely that’ having regard to matters prescribed by the VET Guidelines, the VET provider or its agent ‘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.’
As a matter of interpretation the Tribunal agrees with the submission of the Respondent that the ability or requirement to look at whether there was ‘inappropriate conduct’ is not engaged unless there is a finding that the person has not completed, or is taken not to have completed, the requirements for a unit of study. Therefore, if the Tribunal were to agree with the Respondent that the Applicant had completed the requirements of all units in her course, or was not ‘taken to have not completed’ those requirements, the Tribunal would not need to consider whether Evocca or ACTE engaged in inappropriate conduct towards the Applicant. This is consistent with the use of the word ‘and’ between paragraphs 46AA(1)(a) and 46AA(1)(b), and the interpretational approach adopted in several previous decisions of the Tribunal.[40]
[40] The following decisions of the Tribunal were identified by the Respondent in their submissions: Bradley and Secretary, Department of Education and Training (General) [2018] AATA 1074, Cosgrave and Secretary, Department of Education, Skills and Employment [2022] AATA 1195, Last and Secretary, Department of Education and Training [2019] AATA 658, Wall and Secretary, Department of Education, Skills and Employment [2022] AATA 2391, Ward and Secretary, Department of Employment and Workplace Relations [2024] AATA
955.
To the extent that a decision-maker was satisfied that the Applicant had not completed the requirements for a unit of study, or was taken not to have completed those requirements, subclause 46AA(1) then requires a consideration of whether it was reasonably likely Evocca engaged in inappropriate conduct towards the Applicant in relation to the unit or the course of study of which the unit forms a part.
The Respondent’s position is that the Applicant completed all four units of study for her course, and therefore it is unnecessary to consider whether Evocca engaged in inappropriate conduct towards the Applicant. However, the Respondent says that if the Tribunal were to find that the Applicant had not completed (or was taken not to have completed) the requirements of a unit, then its position is that it is not reasonably likely that Evocca engaged in inappropriate conduct towards the Applicant in relation to the unit or her course, that is, regardless of any adverse behaviour that Evocca or ACTE may have been known to have engaged in towards other persons.
The Applicant contends that she completed some, but not all, of the units or modules in the course. She is willing to take responsibility for the VFH Balance incurred in relation to those units she completed, but not for the units that she did not complete. Additionally, the Applicant has outlined her grievances with the quality of the course as provided, particularly in relation to her claim that she was told by Evocca that the course was accredited with ACWA when it was not.
The content and reliability of the evidence relating to the Applicant’s enrolment and studies is important because at the centre of this dispute is the Applicant’s contention that she did not complete all of the units, whereas the Respondent’s decision to refuse re-crediting of her VFH Balance is based on the finding that she completed the entire course. The Respondent argued that the Applicant has not provided adequate objective factual evidence and has relied on self-reporting in support of her contentions. The Respondent also queried why the Applicant did not provide better documentary evidence of non-completion.
The Applicant, who was self-represented, said that due to the time that had elapsed since her original enrolment and the fact that Evocca had ceased operations some years ago, she had difficulty in obtaining some materials. Even when Evocca was still operating, the Applicant said that they were not responsive to requests for assistance. She was not sure what evidence would be available to prove that a student had not completed assessments or other course requirements (as opposed to material confirming completion). She also referred to the confusion caused by perceived differences between the course codes set out in various documents relied upon by the Respondent.
CONSIDERATION AND ANALYSIS
Non-completion of the requirements for the units of study
Paragraph 46AA(1)(a) of Schedule 1A to the HES Act and section 58A of the VET Guideline look to whether a person has ‘not completed the requirements’ for a unit of study. In the absence of any definition of the word ‘completed’ in the HES Act or VET Guideline, it is appropriate to look to the ordinary or dictionary meaning of that term.[41]
[41] Last and Secretary, Department of Education and Training [2019] AATA 658 at [19].
The Macquarie Concise Dictionary defines the word ‘completed’ when used as a verb to mean ‘to make complete; make whole or entire’ or ‘to bring to an end; finish; fulfil.’ The word ‘complete’ connotes ‘having all its parts or elements.’
The provisions of the HES Act and VET Guideline relate to a ‘VET unit of study.’ This is a defined term[42] and may not align with a module or subject within a wider course of study. The Respondent contended that the completion of subjects should not be conflated with completion of ‘units’ and the subject of the Tribunal’s jurisdiction in this matter is ‘units.’ The Tribunal agrees with this proposition, however it also observes that the statutory provisions look to non-completion of ‘the requirements for’ the unit. There may be multiple ‘requirements’ or elements that need to be undertaken before a unit can be regarded as having been completed. This could involve completion of multiple prescribed modules within a unit, assessments or assignments that must be passed within a module or specific of hours of work placement that are mandated. Attempting but failing an assessment would ordinarily be regarded as not completing a requirement of a unit.
[42] See Schedule 1 to the HES Act.
The ASQA Transcript identified twenty separate units with individual course codes and unit descriptions indicating subject content. The Reconsidered Decision was based on findings relating to four ‘units’ identified as DBA1, DCS2, DCS3 and DCS4. The Respondent submits that the Tribunal can only have regard to these ‘units’ for the purposes of paragraph 46AA(1)(a). The Reviewable Decision and Reconsidered Decision do not explain what those units are or how they relate to the ASQA ‘unit codes’ or the ACTE ‘clusters.’ The only explanation provided to the Tribunal for how those codes might relate to the ‘clusters’ described in the ACTE 2018 Letter is a note of research logged by VSLO in December 2020. Otherwise there was no evidence provided to the Tribunal about the identification of the units. At the hearing the Respondent suggested that the Tribunal assume that each of the four units aligned to a ‘cluster’ as indicated by the VSLO research. The Applicant did not object to this and the Tribunal agrees that this is a reasonable approach to adopt.
Paragraph 46AA(1)(a) is directed to being satisfied as to whether the person has not completed or is taken not to have completed the requirements for a unit, regardless of whether the person believes they completed the unit or has been told that they have completed the unit. This is emphasised by specific language in section 58A of the VET Guideline which says that a person will be taken not to have completed the requirements for a unit if it is ‘reasonably likely’ that they did not complete the requirements for the unit ‘regardless of whether the student is recorded as having completed the unit.’
This is particularly relevant in the circumstances of the present matter where some records state that the Applicant completed all units and the Applicant agrees that she initially told VSLO that she had completed her course, however the Applicant contends that upon becoming aware of further information she questioned whether that was in fact the case.
In relation to the application of paragraph 46AA(1)(a):
·The initial Reviewable Decision found that the Applicant either had completed the requirements for each unit or there had been no appropriate conduct towards the Applicant.
·The Reconsidered Decision said that there was insufficient evidence for the Decision Delegate to be satisfied that the Applicant did not complete the requirements for the units.
·The Respondent submitted to the Tribunal that the evidence showed that the Applicant had completed the requirements for the units (and that the Reconsidered Decision said that the Applicant had successfully completed the units).
·The Tribunal assumes that the Respondent therefore applied subparagraph 46AA(1)(a)(i) in these decisions.
·Having positively found that the Applicant did complete the entire course, the Respondent may have decided that it was not necessary to address subparagraph 46AA(1)(a)(ii) and section 58A of the VET Guideline which ask whether it was reasonably likely that the Applicant did not complete the unit requirements.
The Reconsidered Decision said that there was ‘insufficient evidence’ for the Respondent to be satisfied that the Applicant did not complete the requirements of the four units of study. The reasons do not make clear whether the Respondent believes the Applicant did not provide enough evidence for it to be satisfied, or whether the content of the evidence that was provided tended against the conclusion. For the reasons given below, there are questions as to the reliability of the evidence that the Respondent took into account in reaching the conclusion that they could not be satisfied.
The Applicant acknowledges that she told VSLO that she had completed the course and previously she believed that to be the case. That is consistent with her attempts to find employment in social work settings and clarify the accreditation of the course prior to her complaint to ASQA and VSLO. The Respondent suggested that the Applicant had changed her story during the course of the VSLO investigation, from confirming that she had completed the course to a position that the course was only partially completed. However what is unusual about this matter, and where it differs from other matters decided by the Tribunal, is that during the course of the VSLO investigation the Applicant obtained further information (including the ASQA Transcript) which caused her to question her previous belief. Even though the Applicant had not been provided with a copy of a diploma or certificate, she said she had been told by Evocca staff that she had completed the course and had assumed this was correct. As a consequence of the further information, she then came to believe that she had only completed some of the course. The Tribunal believes this is a plausible explanation for why the Applicant initially told VLSO that she had completed all of the course, then stated that she had only completed part of the course immediately after receiving the ASQA Transcript.
Although the Applicant’s subjective belief about her completion of the course units may be a relevant matter for the Respondent to take into account, the test in subclause 46AA(1) is whether the Respondent could be satisfied that the Applicant had not completed the unit requirements or whether it was reasonably likely that the Applicant had not completed the requirements. This was to be considered as at the time at which the Respondent made its decision. The test is not based on the Applicant’s understanding of the circumstances. For this reason it is necessary to consider the extent and reliability of the objective evidence available.
The following matters are of concern and raise questions about the reliability of the evidence upon which the Reconsidered Decision was based:
·The Reconsidered Decision states that the TCSI records ‘successfully [sic] completion’ of the four units when they apparently do not. The TCSI records state that only one unit was passed, two are ‘ongoing’ and one is marked ‘withdrawn’. This was also noted in the Minute provided to the decision review delegate.
·The ASQA Transcript dated August 2020 and the TCSI records summary[43] are said to be drawn from the same source information, being records reported or provided by ACTE. However, these two documents reach different conclusions. The ASQA Transcript indicates that the Applicant completed the entire course, which would be all four units. The TCSI records summary states that the Applicant completed one unit, withdrew from one unit and the remaining two units were ‘ongoing.’ This was marked as ‘undated’ in the T documents, however one column headed ‘Status Date’ lists 13 July 2021 for each line item in the table, and a further column is headed ‘ATO accepted’ with the date of 29 February 2020. It is therefore likely that this document was prepared on the status of information in records as at 13 July 2021.
[43] T19.
The Respondent’s representative said she had sought instructions to clarify this discrepancy prior to the hearing. The most likely (but not certain) explanation given was that it was known that some VET providers were tardy in providing records to regulatory bodies and the Respondent hypothesised that the TCSI document might contain incomplete data. However, there is no evidence to support this. There were no reasons given as to why the Respondent (and VSLO) preferred the ASQA Transcript over the TCSI or HEIMS records, or whether the Respondent took any steps to clarify why such a significant discrepancy existed. The possibility that a VET provider (or VET providers more generally) had poor record keeping and reporting processes is hardly an adequate basis for assuming the accuracy of one particular document drawing from that information over another using the same source material.
·The Minute indicates that the Respondent had asked ASQA to provide a further copy of the ASQA Transcript summary during the course of the Respondent’s internal review of the Reviewable Decision. ASQA had not responded by the date of the Minute, and it appears that the Respondent concluded its review without that document, relying on the version provided to VSLO in 2020.
·There are clearly discrepancies between different documents provided in relation to the Applicant’s enrolment. The Applicant believes she enrolled in early 2014, but concedes she does not recall or have documentary evidence of the exact date. The ASQA Transcript, which again is stated to be based on records provided by ACTE, says that she was enrolled from January 2013, which even the Respondent acknowledges is unlikely to be the case, even having regard to census dates being different to commencement dates. The ACTE 2018 Letter said that the Applicant enrolled in November 2013, which happens to coincide with the start date for ‘cluster one.’ Aside from these two documents there was no evidence provided to the Tribunal which confirmed, leaving aside the specifics of the Applicant’s enrolment, even such basic matters as the dates when the units or course were provided.
·The Applicant provided copies of email correspondence from Evocca which confirm that in June 2014 she had withdrawn from or had cancelled her enrolment with the Evocca course. The Respondent did not appear to dispute this withdrawal or cancellation. No evidence was provided to the Tribunal of re-enrolment. An email of ‘Important Information’ sent by Evocca to the Applicant before she started her studies states that ‘Your first day of college is 21/07/2014’,[44] which the Respondent suggested might relate to re-enrolment. Otherwise, the ASQA Transcript and ACTE 2018 Letter appear to assume an ongoing enrolment in a single course.
·VSLO told the Applicant on 4 September 2020, prior to finalising their recommendation to the Respondent dated 14 September 2020, that they had[45]:
assessed all information provided by you and given to us by Evocca, and I can see here that the course most certainly has been completed by you. The modules on the ASQA records have been cross referenced with the course structure and it looks like it all adds up to be completed.
At the hearing the Respondent directed me to the evidence of this cross referencing and reconciliation having been undertaken. VSLO records indicate that this may have been done in December 2020.[46] In any event, it is not clear what was cross referenced. It is not clear what the ‘course structure’ refers to. If this was provided by ACTE, then as the ASQA Transcript was drawn from ACTE records, it would presumably be ‘cross checking’ the same source information. There does not appear to have been any reconciliation by the Respondent of this information with the TCSI or HEIMS records.
·Copies of email correspondence from Evocca to the Applicant confirm that at least in the early part of 2014 the Applicant was having difficulty accessing information and outcomes for some of the subjects she was studying, which Evocca said was due to the withdrawal of the original course which meant that access to old subjects on the portal was restricted and a staff member from Evocca needed to manually extract those records.[47]
·The Reconsidered Decision relied in part upon statements made and records provided by Evocca or ACTE, but the Respondent is unable to confirm when Evocca ceased to operate, even though it appears certain that this was prior to information being provided to VSLO for the purposes of its investigation.
·Although the question of ‘inappropriate conduct’ under paragraph 46AA(1)(b) is separate to the question of completion of units under paragraph 46AA(1)(a), in the context of the Respondent’s apparent reliance on records and data provided by ACTE, it is clear that by July 2020 the Respondent was sufficiently aware of concerns about Evocca that it approved the SIA. The concerns underlying the SIA related to the years from 2013 to 2016 and included constantly changing course structures and high rates of non-completion of courses. This raises an issue as to whether it was appropriate to rely on records and data provided by this entity for this period without further verification.
[44] T6
[45] T7, page 38
[46] T7, page 40, see log of ‘research’ dated 15 December 2020 which indicates VSLO accessed archived pages from EVOCCAs former website to find the ‘clusters’ or units to which the course codes listed in the ASQA document matched. VSLO’s recommendation was sent to the Respondent on the same date.
[47] T6.

It may be that there are logical explanations for these discrepancies, gaps and concerns. The difficulty faced by the Tribunal was that the evidence filed by the Respondent provided no suggestion as to what explanations might exist or whether attempts were made to find explanations, nor was the Respondent able to clarify these matters during the hearing. This is not intended as a criticism of the Respondent’s representatives who sought to assist the Tribunal by making further inquiries during an adjournment of the hearing and acknowledged where factual matters were not certain. However, it is relevant to the question of whether a decision-maker could be satisfied with the outcomes set out in the Reconsidered Decision.
As noted, this proceeding involves a review of a decision of the Respondent and not of VSLO’s recommendation. However, as the findings of VSLO formed a basis for the Respondent’s decision and the content of VSLO’s records were the subject of cross‑examination and submissions by the Respondent, it is relevant to make the following observations. After the Applicant made her complaint, ACTE was given the opportunity to provide a statement to VSLO. This statement was made after Evocca had ceased operating. The statement contained factual assertions relating to the Applicant’s enrolment, but also included claims which appeared directed to the integrity of the Applicant. There is nothing in the record of investigation of any conversation or other correspondence between VSLO and ACTE, particularly in relation to whether VSLO scrutinised or verified the assertions of ACTE. ACTE’s statement mentions at least one engagement with an officer of VSLO, but there is no record of this discussion.[48] It also mentions that ACTE provided VSLO with a ‘folder’ containing ‘copies of all enrolment documentation’ in response to a request from VSLO for ‘copies of enrolment forms’ but none of this material appears to be referenced in the VSLO log or provided to the Tribunal (or Respondent).[49] This is unfortunate, noting that the VSLO log recorded multiple conversations with the Applicant, which were relied upon by the Respondent as evidence relating to her enrolment and course completion in this proceeding.
[48] There is a note of ‘Section 8 Notice to ACTE Pty Ltd’ on 1 May 2018 at T7, page 32 but no other reference to engagement with ACTE.
[49] T9, pages 52 to 53.
During the hearing the Respondent’s representatives suggested that if the Tribunal took the view that the Applicant had not completed all of the units, or that it was reasonably likely that the Applicant had not completed all of the units, the Tribunal might make findings or observations in relation to any unit it believed had been completed. Despite the concerns about some evidence relied upon by the Respondent in making the Reconsidered Decision, there is sufficient reliable material to for a decision-maker to find that the Applicant did complete the unit of study DBA1. Having regard to all of the material put to the Tribunal:
·The Tribunal accepts that DBA1 corresponds to Cluster One, which comprises the two pre-requisite subjects with codes CHCCS411C and HLTHIR403C.
·Based on her records, including emails she received from her tutor, the Applicant agrees that she completed the assessments and other requirements of those two subjects.
·A copy of an email from a Student Services officer at Evocca in March 2014 indicates that the officer could view records as of that date which confirmed the Applicant had a ‘Credit Transfer for those subjects from the original course she enrolled in.[50]
·The ASQA Transcript states that the Applicant completed those subjects by 20 June 2014 (and this was not otherwise disputed by the Applicant).
·DBA1 was the unit shown in the TCSI statement as having been ‘passed.’
·The above items are consistent with the statement of ACTE that Cluster One was completed before Evocca apparently ‘cancelled’ the original course in early 2014, and also before the Applicant said that she withdrew from the course.
[50] T6
There is also sufficient material for the Tribunal to observe that the Applicant most likely completed particular subjects within the units of study DCS2 and DCS3, being CHCCOM504B, CHCCD509C, HLTHIR404D CHCLD514B, CHCLD514A and CHCAD504B. Having regard to all of the material put to the Tribunal:
·The Tribunal accepts that it is likely that DCS2 corresponds to Cluster Two and DCS3 corresponds to Cluster Three.
·Based on her email records, including the email she received from her tutor, the Applicant agrees that she completed the assessments and other requirements of those six subjects.
·The March 2014 email from the Evocca Student Services officer indicates that a ‘Credit Transfer’ was also showing for those subjects at that time.
·The ASQA Transcript states that the Applicant completed those subjects by 20 June 2014 (and this was not otherwise disputed by the Applicant).
The finding in relation to these modules or subjects also appears to align with the TCSI or HEIMS data. That is, the Applicant’s records suggest she completed some, but not all, of the modules in Cluster Two and Cluster Three, which is consistent with the TCSI data describing DCS2 and DCS3 as ‘ongoing.’
Relying on her email records, including the email from her tutor, the Applicant says that she did not complete any of the modules in Cluster Four, which might be viewed as consistent with the TCSI data description of DCS4 as ‘withdrawn’. ACTE told VSLO that this final cluster ran from late May to August 2014, which coincides with a period during which the Applicant withdrew from the course and Evocca was encouraging her to consider re‑enrolment. Against this, the ASQA Transcript records all of these subjects as completed on 19 June 2015.
The Respondent referred the Tribunal to several previous decisions of the Tribunal[51] involving requests for re-credit of VHF Debt balances, including a matter involving a former student of Evocca, in support of their contentions. As noted in paragraph 76 above, these decisions are consistent with the Respondent’s approach to the relationship between the conditions in paragraphs 46AA(1)(a) and (1)(b). However, in each of these previous cases the relevant applicant had either conceded that they had completed all of their course requirements or the matter of course completion was not seriously in contention. Accordingly these previous decisions do not assist the Tribunal in relation to the issue of whether the Applicant completed, or is taken to have completed, the requirements for her units of study.
[51]See decisions set out at footnote 40.
In summary, the Tribunal does not believe that the evidence was such that a decision‑maker could form the conclusion that the Applicant had completed or it was reasonably likely that they had completed all of the units (and in particular units DCS2, DCS3 and DCS4), such that they could adequately address whether they were ‘satisfied’ or not with the matters in paragraph 46AA(1)(a).
Inappropriate conduct by course provider
As set out above the Applicant identified a number of grievances with the behaviour of Evocca in relation to her studies. In this regard the Respondent did not lead evidence specifically rebutting these allegations, as its case was based on the position that the Applicant had completed all units of the course, although it did not accept the Applicant’s claims. The Respondent also submitted that even if Evocca or ACTE had engaged in inappropriate conduct in other contexts, it had not demonstrated inappropriate conduct towards the Applicant in relation to the units or course she had studied.
The Applicant provided the Tribunal with copies of media articles relating to student and staff complaints about Evocca and an ASQA investigation. The Tribunal agrees with the submission of the Respondent that this material is not probative of any behaviour directed towards the Applicant specifically. However, the content of the articles can be taken to indicate that investigative or audit activity was undertaken by ASQA in relation to Evocca generally during 2015, which is consistent with information provided by the Respondent[52] as well as confirming that Evocca was still in operation at that time.
[52] T16, at paragraph 22 referring to ASQA evidence.
The Applicant also provided the Tribunal with witness statements from two former students of Evocca, Ms Weeks and Ms Manuel, who outlined their experiences with the college. The Tribunal agrees with the Respondent that the Tribunal is not able to give significant evidentiary weight to their statements in this proceeding as content of the statements relate to matters specific to Ms Weeks and Ms Manuel, rather than to the Applicant’s studies.
The Tribunal is not suggesting that the Applicant gave inaccurate or misleading evidence to the Tribunal. It is just that as a matter of relevance to the statutory questions and the circumstances of the Applicant, the media articles and statements of Ms Weeks and Ms Manuel are of limited assistance.
The Tribunal does believe that the SIAs relating to Evocca and the subsequent Notice of Debt Removal for students who commenced studies with Evocca between 1 July 2013 and 31 December 2016 would be a relevant consideration should it be determined that subclause 46AA(1)(a) applied.
For the reasons given below, in light of the limited evidence and submissions provided to the Tribunal on this question, it is appropriate for the Respondent to properly reconsider these matters.
CONCLUSION
Section 105 of the Administrative Review Tribunals Act 2024 (Cth) (‘ART Act’) provides that:
In relation to the reviewable decision, the Tribunal must make a decision:
(a)affirming the reviewable decision; or
(b)varying the reviewable decision; or
(c)setting aside the reviewable decision and:
(i) making a decision in substitution for the reviewable decision; or
(ii) remitting the matter to the decision-maker for reconsideration in accordance with any orders or recommendations of the Tribunal.
In circumstances where the Tribunal finds that there are serious concerns or questions about the reliability or completeness of the evidence upon which a reviewable decision was based, the Tribunal may determine to set aside or vary the decision, or alternatively remit the decision to the decision-maker for reconsideration.
Had subclause 46AA(1) been worded in terms of the decision-maker being satisfied that the Applicant ‘had completed’ the requirements of a unit, this Tribunal would likely have made a finding that it was not so satisfied in relation to one or more of the units because of inconsistent or otherwise deficient evidence surrounding the Applicant’s enrolment and completion status. However, the legislative wording is in the negative and asks whether the decision-maker is satisfied that the Applicant ‘has not completed’ or it is ‘reasonably likely that the student did not complete the requirements.’ The Tribunal does not wish to unnecessarily prolong a dispute which has already spanned a number of years. However, as noted above, it is possible that the discrepancies and deficiencies in the evidence may be explicable and the resources to clarify these matters largely rest with the Respondent (including access to databases for verification of records or sources of information).
Should it be determined that one or more of the units was not completed by the Applicant, it would then be necessary to consider the ‘inappropriate conduct’ criteria in paragraph 46AA(1)(b). The parties provided very limited evidence and submissions to the Tribunal on this question in this proceeding, with the focus being on course completion.
Therefore the view of the Tribunal is that under subparagraph 105(c)(ii) of the ART Act:
(a)the Reconsidered Decision should be set aside.
(b)the matter should be remitted to the Respondent for reconsideration in accordance with the following orders and recommendations:
(i)An order that the Respondent address, on the basis of the evidence, the application of subparagraph 46AA(1)(a)(i) of Schedule 1A to the HES Act in relation to the units DBA1, DCS2, DCS3 and DCS4.
(ii)An order that the Respondent address, on the basis of the evidence, the application of subparagraph 46AA(1)(a)(ii) in relation to the units DBA1, DCS2, DCS3 and DCS4.
(iii)An order that if the Respondent determines that paragraph 46AA(1)(a) applies in relation to any of the units it addresses, on the basis of the evidence, the application of paragraph 46AA(1)(b) and section 58A of the VET guideline in relation to the Applicant in relation to that unit, or the course of study of which the unit formed a part.
(iv)A recommendation that Respondent should have regard to the matters relating to the evidence it relies on in reconsidering its decision as set out in paragraph 93 of this decision, and in particular take steps to verify the accuracy of and clarify any inconsistencies between different items of documentary evidence, whether the material was provided by ACTE, the Applicant or VSLO or drawn from resources available to the Respondent.
The Tribunal also notes that based on the evidence it believes that the better view is that neither of subparagraph 46AA(1)(a)(i) or (ii) applies to the Applicant in relation to the unit DBA1.