Toben and Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education

[2013] AATA 614

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/1200

Re

Gerald Frederick Toben

APPLICANT

And

Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education

RESPONDENT

DECISION

Tribunal
Deputy President K Bean

Date 30 August 2013

Place Adelaide
Dr Toben's application for an extension of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 is refused.
……… [Sgd] ……………..
Deputy President K Bean
CATCHWORDS
PRACTICE AND PROCEDURE - Extension of time - Jurisdiction - Whether applicant made a request for remission of his HECS-HELP debt due to "special circumstances" - Whether reviewable decision - Applicant's correspondence properly construed as a complaint rather than request for remission - No reviewable decision - No jurisdiction - Application for extension of time refused.
LEGISLATION
Higher Education Support Act 2003 (as in force at 31 August 2006), ss 76-1, 79-1, 79-10, 209-10 and 212-1
Administrative Appeals Tribunal Act 1975 (Cth), s 29(7)
SECONDARY MATERIALS
Pearce DC, Administrative Appeals Tribunal (3rd ed, LexisNexis Butterworths, 2013)
REASONS FOR DECISION
Deputy President K Bean
30 August 2013
INTRODUCTION

This matter concerns an application by Dr Toben for an extension of time to seek review of a decision or apparent decision of the University of Adelaide (UA). That decision related to the raising of a debt against Dr Toben in respect of three law courses he enrolled in in 2006, but did not complete.
The reason Dr Toben requires an extension of time in order to pursue his application to this Tribunal is because s 29 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) requires an application for review of a decision to be lodged within 28 days of the decision being given to the applicant. However, as Dr Toben’s application was lodged on 18 March 2013, it was lodged approximately five months after he was advised of what appears to have been the relevant decision by UA, which was made on 24 October 2012.
Where, as in this case, an application is sought to be lodged outside the prescribed 28 day period, s 29(7) of the AAT Act provides that the Tribunal may grant an extension of time allowing the application to proceed “if the tribunal is satisfied that it is reasonable in all the circumstances to do so”. Therefore in general terms the issue currently before the Tribunal is whether Dr Toben should be granted an extension of time pursuant to that provision.
Before addressing that issue more directly however, I will first set out the relevant factual background and the legal framework relevant to the decision of which Dr Toben seeks review.
THE FACTUAL BACKGROUND
In February 2006, Dr Toben enrolled in the following units of study at the UA as part of his study toward a law degree:
(a)LAW 2006 – Australian Legal History, with a census date of 31 August 2006;
(b)LAW 1007 – Advanced Torts, with a census date of 31 August 2006; and
(c)LAW 2122 – Criminology, with a census date of 31 August 2006.
On or about 13 September 2006, Dr Toben was issued with a Commonwealth Assistance Notice[1] in relation to these units recording the student learning entitlement (SLE) used and the HECS-HELP[2] debt incurred for each unit. Over the ensuing two years, he also received a number of statements and letters from the Australian Taxation Office (ATO) in relation to the debt he had incurred in respect of these units of study.
[1] Exhibit 1, Annexure B to the Respondent’s Notice of Opposing Application for Extension of Time for Lodging Application for Review of Decision dated 18 April 2013 (the Respondent’s Notice).
[2] HECS-HELP is a loan program which assists Commonwealth Supported Students to pay their student contribution amounts for a study period. As defined in the Commonwealth Supported Students Information Booklet, HELP stands for Higher Education Loan Program, and was previously known as HECS, which stands for Higher Education Contribution Scheme.
It appears there was then a lengthy hiatus in communications relating to the debt. However, on 18 July 2012, Dr Toben wrote to the ATO about the debt. In his email, Dr Toben contended that he had withdrawn from the relevant courses before the required date. He referred to correspondence he had received from the ATO on 20 December 2007, 14 February 2008 and 21 July 2008 and stated, in part:
“… This matter began with a message from The University of Adelaide sending out a circular to students about their HELP payments needing to be attended to by 18 August 2006. I responded per email on 13 September 2006 wherein I state: ‘Please be advised that I advised before this date that I would be withdrawing from Semester Two!’”[3]
[3] Exhibit 2, Attachment C to the Respondent’s Notice, p 17.
After some further communications between Dr Toben and UA which I will set out and discuss in more detail below, UA wrote to Dr Toben by email dated 26 September 2012, advising him that upon further investigation of his enrolment activity, it held several records of his enrolment in the units referred to above but no record of his withdrawal from the units. UA advised Dr Toben that he remained liable for the HECS-HELP debt for the units.
Following a further email from Dr Toben, Mr David Lamb of UA wrote to him again by email dated 24 October 2012 advising him that he had “exhausted all avenues of complaint at the University”.[4]
[4] Exhibits 4 and 5, Attachment E to the Respondent’s Notice, p 31.
On 18 March 2013, Dr Toben accordingly lodged his application for review with this Tribunal, in which he identified the decisions of which he sought review as having been made on 20 December 2007, 14 February 2008 or 21 July 2008. He also indicated that the relevant decision was received by him on 20 December 2007.
On 19 March 2013, he also lodged an application for an extension of time, in which he identified the decision of which he sought review as the decision of Mr David Lamb, UA, dated 24 October 2012. However in the “Reasons for Application” section of the form, he also referred to the “decisions” of the ATO in December 2007, July 2008 and June 2012.
THE STATUTORY FRAMEWORK
Although it has subsequently been amended, the applicable version of the Higher Education Support Act 2003 (the Act) is the version which applied to units of study with a census date occurring prior to 1 January 2012.[5]
[5] Higher Education Support Amendment (Demand Driven Funding System & Other Measures) Act 2011, s 38.
The relevant provisions of that Act for the purposes of this matter are the following:
“76-1 Reducing a person’s SLE
(1)    A person’s SLE is reduced if:
(a)at the end of the census date for a unit of study with a higher education provider, the person is enrolled in the unit; and
(b)the person is enrolled in the unit as part of a course of study (other than an enabling course); and
(c)the person is a Commonwealth supported student in relation to the unit; and
(d)the person has, on or before the census date, completed, signed and given to an appropriate officer of the provider a request for Commonwealth assistance in relation to:
(i)      the unit; or
(ii)     where the course of study of which the unit forms a part is undertaken with the provider—the course of study.
(2)    The amount of the reduction is an amount equal to the EFTSL value of the unit of study.
(3)    The reduction takes effect immediately after the census date for the unit of study.
(4)    This section does not apply if the unit of study consists wholly of work experience in industry.
(5)    This section does not apply to a unit that is a replacement unit within the meaning of the tuition assurance requirements.
…
79-1 Main case of re-crediting a person’s SLE
(1)    A higher education provider must, on the Secretary’s behalf, re-credit a person’s SLE with an amount equal to the EFTSL value of a unit of study if:
(a)the person has been enrolled in the unit with the provider; and
(aa)the unit would, if completed, form part of a course of study undertaken with that provider or another higher education provider; and
(ab)the unit does not wholly consist of work experience in industry; 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 section 79-5); and
(d)the person applies in writing to the provider for re-crediting of the SLE; and
(e)either:
(i)      the application is made before the end of the application period under section 79-10; 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.
Note: A HECS-HELP debt relating to a unit of study will be remitted if the SLE in relation to the unit is re-credited; see subsection 137-5(4). In addition, it is a condition of the higher education provider’s funding under Part 2-2 that payments for the unit must be repaid; see section 36-20.
(2)    If the provider is unable to act for any one or more of the purposes of subsection (1), or section 79-5, 79-10 or 79-15, the Secretary may act as if any one or more of the references in those provisions to the provider were a reference to the Secretary.
…
79-5 Special circumstances
(1)    For the purposes of paragraph 79-1(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that:
(a) are beyond the person’s control; and
(b)do not make their full impact on the person until on or after the census date for the unit of study in question; and
(c)make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.
(2)    The Student Learning Entitlement Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.
…
79-10 Application period
(1)    If:
(a) the person applying under paragraph 79-1(1)(d) for the re-crediting of the person’s SLE in relation to a unit of study has withdrawn his or her enrolment in the unit; and
(b)the higher education provider gives notice to the person that the withdrawal has taken effect;
the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.
(2)    If subsection (1) does not apply, the application period for the application is the period of 12 months after the end of the period during which the person undertook, or was to undertake, the unit.
Section 206-1 also provides that a decision not to re-credit some or all of a person’s SLE pursuant to s 79-1 is a reviewable decision for the purposes of the Act, and section 209-10 provides for reconsideration of reviewable decisions as follows:
209-10 Reconsideration of reviewable decisions on request
(1)    A person whose interests are affected by a reviewable 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.
(5)    The reviewer’s decision (the decision on review) to confirm, vary or set aside the decision takes effect:
(a)on the day specified in the decision on review;
(b)if a day is not specified – on the day on which the decision on review was made.
(5A)The reviewer must give the person written notice of the decision on review.
(5B)The notice:
(a)must be given within a reasonable period after the decision on review is made; and
(b)must contain a statement of the reasons for the decision on review.
(6)    The reviewer is taken, for the purposes of this Part, to have confirmed the decision if the reviewer does not give notice of a decision to the person within 45 days after receiving the person’s request.
Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.”
Section 212-1 also confers jurisdiction on this Tribunal to review some reviewable decisions which have been reconsidered as follows:
212-1 AAT review of reviewable decisions
An application may be made to the Administrative Appeals Tribunal for the review of a reviewable decision that has been confirmed, varied or set aside under section 209‑5 or 209‑10.
THE RESPONDENT’S POSITION AND MY PROPOSED APPROACH
In the context of this application, the respondent says there is no record of Dr Toben withdrawing from the three courses in question prior to the census date. The respondent also says that the University has not received anything from Dr Toben which it regarded as being a request for re-crediting of his SLE or remission of his HECS-HELP debt in respect of these courses and, accordingly, even if an extension of time were granted, the Tribunal would not have jurisdiction with respect to Dr Toben’s substantive application.
In these circumstances, I have concluded that the first question I should address is whether, if an extension of time were granted, this Tribunal would have jurisdiction to review the decision of which Dr Toben seeks review. That is because clearly if the Tribunal would not have jurisdiction, there would be no utility in granting Dr Toben an extension of time.
I have also concluded that in all the circumstances, it is appropriate for me to address this issue in sufficient detail to resolve it. I have reached that conclusion on the basis that the respondent squarely raised this question in a detailed written response to Dr Toben’s extension of time application, and Dr Toben had every opportunity to address it at the hearing. In these circumstances, I consider it appropriate for me to resolve the jurisdiction issue, albeit that it has arisen in the context of Dr Toben’s application for an extension of time and that it is not entirely clear cut. Given that the respondent has squarely raised the jurisdiction issue, it would be inappropriate in my view to defer detailed consideration of that question, with the attendant possibility that Dr Toben may be granted an extension of time, only for the Tribunal to later determine that it has no jurisdiction with respect to his application.
DOES THE TRIBUNAL HAVE JURISDICTION?
In order to answer this question, it is necessary for me to consider in some detail the relevant exchanges between Dr Toben and UA.
The relevant communications
The relevant email exchange commences with the email from Dr Toben dated 18 July 2012 addressed to Ms Margaret Van of the Australian Taxation Office and referred to above, in which he relevantly stated as follows:
1. This matter began with a message from The University of Adelaide sending out a circular to students about their HELP payments needing to be attended to by 18 August 2006. I respondent per email on 13 September 2006 wherein I state: ‘Please be advised that I advised before this date that I would be withdrawing from Semester Two!’
2. On 20 December 2007 I received a statement from the ATO detailing the 31 August 2006 [sic] owed the additional sum of $4,083.00 for Semester Two.
3. I responded on 31 December 2007 advising the ATO that I attended only Term One of my Law course.
4. On 14 February 2008 the ATO responded that it received advice from The University of Adelaide that I had indeed withdrawn from the course but that I remained enrolled in other courses beyond the census date.
5. On 9 July 2008 I wrote a letter requesting that it be noted this is a spurious claim of my withdrawing from the course, then remaining enrolled in other courses.
6. On 21 July 2008 the ATO responded that this was not their business and it was up to me to get matters sorted out with The University of Adelaide.
7. On 23 July 2008 I wrote an email to Corinne Balding ending with: ‘4. I would be pleased if you could correct this matter so that the ATO, Albury, can be advised accordingly.’
Since that time nothing happened until this year.
Please advise.[6]
[6] Exhibit 2, p 17.
In response to that email, Ms Van advised Dr Toben that “disputes of the HELP debt need to be with University of Adelaide as ATO can not revise a debt unless we receive written advice to do so”.[7]
[7] Exhibit 2, p 17.
Dr Toben then wrote back to Ms Van with a copy of the email being sent to the Vice Chancellor of UA, relevantly stating:
4. The dispute about the HELP debt has become trivial and I am tired of running around at the university. When in 2006 I decided to begin a law course at the university but then I failed Australian Law by four marks, I decided not to continue with second semester law...[8]
[8] Exhibit 2, p 16.
Dr Toben was subsequently advised that his correspondence had been referred to Mr David Lamb, General Manager, Student Services and Administration, and Mr Lamb wrote to Dr Toben on 19 September 2012, relevantly stating as follows:
Dear Mr Toben,
I apologise for the delay in responding to your 19 July 2012 email copied to the Vice-Chancellor regarding your HELP [HECS-HELP?] debt for Bachelor of Laws courses/subjects for Semester 2, 2006.
In your related email of 18 July 2012 to Ms Margaret Van of the Australian Taxation Office (ATO), you suggest that, after receiving “a message from The University of Adelaide sending out a circular to students about their HELP payments needing to be attended to by 18 August 2006. I responded per email on 13 September 2006 wherein I state: ‘Please be advised that I advised before this date that I would be withdrawing from Semester Two!’”
In that email you also suggest that, “On 23 July 2008 I wrote an email to Corinne Balding ending with: ‘4. I would be pleased of you could correct this matter so that the ATO, Albury, can be advised accordingly.’ Since that time nothing happened until this year.”
The University has no record of your withdrawing during this period, so I contacted relevant staff in the Law School, asking them to search for any record of emails or other correspondence with you from this period which could help substantiate your claims.
Three Law School staff members have now replied to me – including Ms Corinne Walding (rather than Corinne Balding). They all state that they can find no record of any such correspondence.
It is a condition of entering the University that students are responsible for managing their own enrolment. This includes formally withdrawing from courses/subjects they no longer wish to study, before the relevant Census date (31 March for Semester 1, 31 August for Semester 2). After this date, for each course in which the student remains enrolled, enduring liability for the applicable HELP debt is incurred.
Your academic transcript (attached) states that for Semester 2, 2006, you enrolled in 3 courses: Advanced Torts, Australian Legal History and Criminology. As I say, the University holds no record of your withdrawing from any of these courses before 31 August, 2006. This is confirmed by the zero-Fail grade showing on your transcript for each course.
From the University’s perspective, this means that you are legally liable for the HELP debt for these courses, as recorded by the ATO.[9]
[9] Exhibit 3, Attachment D to the Respondent’s Notice, pp 21 – 22.

Later that day, Dr Toben relevantly responded to Mr Lamb by email as follows:
…
4. Further, I advised in writing the lecturer who during Semester 2 conducted Criminology that I was withdrawing from his course. From memory it was at the end of the second week into Semester 2 that we visited the Adelaide City Remand Centre, and then I verbally stated to him that I would not be continuing with the law course because [name omitted] had from 1996-2000 overseen my case before the Human Rights and Equal Opportunity Commission, and that I would not make it through the course.
5. Also, the Advanced Torts lecturer advised that on account of my Semester 1 failure I could still continue into Semester 2, but I verbally advised him that I had conferences to attend: in August in the USA and in December the Holocaust Conference in Teheran [sic], Iran, for which I needed to prepare myself by being in the country by October 2006 and at the latest by early November 2006.
6. I also contacted the student adviser about my August 2006 withdrawal from the course. It is news to me that I was actually enrolled until the end of the year.
…
8. I would be pleased if you could further investigate this matter for me by contacting the lecturers concerned, and for the record perhaps you could attach for me the mentioned academic transcript that you failed to attach to your email. …[10]
[10] Exhibit 3, p 24.
That same day, Dr Toben also forwarded a further email to Mr Lamb in which he relevantly stated:
…
2. Please be advised that I cannot understand how I was allegedly carried through a whole semester’s work without anyone of the lecturers or student services personnel enquiring as to what has happened to my progress or development. After all, it is quite a privilege being enrolled in a law course and one could assume anyone who manages to get into such a course would show due diligence towards both the work and towards tutors and lecturers.
3. This viewpoint then raises the issue of basic principles of ‘duty of care’ to which a university needs to attend when a student is allegedly enrolled, then does not attend lectures or tutorials.
4. From my own tertiary experience as a tutor and lecturer I always saw it as my duty to ensure that students who did not attend lectures and tutorials were contacted my [sic] myself or other faculty members, or by student services, so that we could inform ourselves as to what was causing such a situation to endure for a whole semester. It implies that staff did not care and only operated on the materialistic-monetary-profit-gain principle.
5. Also, bearing in mind the antagonism that arose in 1996 out of my enrolling as a student in the Adelaide Law Faculty I can only assume that this affair is more than just a bureaucratic mishap. In all fairness I must state that I did not feel any antagonism coming from those faculty members teaching Torts! On the contrary, it is from this sector that I realized how factionalized and politicized the Law Faculty was in 2006, and that my Semester 1 examination failures was a signal for my departure as a student from the faculty.
6. These reflections of mine cause me to expect an amicable settlement of our dispute, and especially in light of the shocking ‘academic transcript’ I expect that my alleged second semester record be deleted. …[11]
[11] Exhibit 3, pp 22 – 23.
Mr Lamb subsequently wrote to Dr Toben by further email dated 26 September 2012, relevantly stating as follows:
You repeat your claim that “I responded per email on 13 September 2006 wherein I state: ‘Please be advised that I advised before this date that I would be withdrawing from Semester Two!’” However you again provide no evidence in support of it, and the University can find no record of it.
…
You also make what appear to be new claims that:
·you advised, verbally and in writing, the lecturer for one of your courses that you were “withdrawing from his course”;
·you verbally advised the lecturer for another of your courses that you had international conferences to attend during Semester 2, 2006;
·you “contacted the student adviser about my August 2006 withdrawal from the course”.
You provide no evidence in support of any of these claims, and so I am not inclined to accede to your request to “further investigate” them. This is not only because you have not sufficiently identified the staff members involved – and so I don’t even know whether they’re still employed by the University – but also because no matter what your intentions were at the time, you are responsible for your own enrolment actions, and the University holds no record of your having dropped the Semester 2, 2006 courses that are the subject of your complaint.
However I have requested a report on your enrolment activity for the duration of your time at the University. The report is attached here. The “Term” column lists the academic term for each enrolment action (typically “Enrol: or “Drop”), with the code 2610 referring to course enrolments/drops for Semester 1, 2006, and the code 2620 referring to those for Semester 2, 2006. The “OPRID” column lists the person responsible for taking each Enrol or Drop action. The “SAHASYS” code in this column indicates that you, the client, were responsible for the corresponding actions. The a1000498 code in this column indicates that a staff member of the Law School was responsible for the corresponding actions.
In summary, the report shows that during 2006: on 2 February, you enrolled in 4 courses for Semester 1, and 4 courses for Semester 2; on 9 June, you dropped one of the courses for Semester 2; on 11 July, you enrolled in an additional course for Semester 2; and on 21 July, a Law School staff member simultaneously dropped your Selected Issues in Law of Crime enrolment (Enrolment Request ID No. 0001257337), and enrolled you instead in Criminology (Enrolment Request ID No. 0001257357).
The report does not provide the precise reasons for the course swap indicated by the latter two enrolment actions on 21 July 2006. However consultations with Law School staff have revealed that they were related to a request from you sent from your Adelaide Institute account – see attached 21 July 2012 email, titled “Semester II, 2006, study plan”.
So the situation remains that we hold several records indicating that you enrolled in or were notified of the three course enrolments for Semester 2, 2006; and hold no records indicating that you dropped any of them before the Census date for that semester (31 August 2006). You have provided no evidence to support your claims that you dropped any of the three courses, or that we somehow mis-recorded your enrolment actions, or that “this affair is more than just a bureaucratic mishap”. This means that you remain responsible for each course enrolment record, and liable for the HECS-HELP debt associated with each of them.
We are unable to simply delete these courses from your academic transcript. Your academic transcript is an accurate, formal record of the history of your course enrolments and academic performance at the University, for each teaching term and so I cannot assist you further with this matter.
If you wished to further proceed with your complaint, you would need to do so through an agency external to the University. Our Student Grievance Resolution Process provides a list of external agencies (including contact details) that might be able to help you in this regard, at …[12]
[12] Exhibit 3, pp 19 – 21.
Following a further email from Dr Toben dated 16 October 2012[13] requesting that the matter be internally resolved, Mr Lamb wrote to Dr Toben by email dated 24 October 2012 relevantly stating:
[13] Exhibit 3, p 32.
The matter of your remission for the three law courses in which you were enrolled during Semester 2, 2006, has been dealt with by the University of Adelaide, in accordance with Stage 2, Student Grievance Resolution Process ( student/grievance/process/stage-two/administrative/#refunds).
If a student is not satisfied with the outcome of Stage 2 they may appeal to the Administrative Appeals Tribunal in accord with Stage 4: External review or appeal. By law there is no option for internal appeal (Stage 3). (Higher Education Support Act 2003, ss. 19-45, 19-50, 19-55, 209-1 and 209-10).
I reviewed your grievance in relation to your HECS-HELP debt, even though it was well outside the timeframe for such reviews. You provided me with no supporting documentation to back your claims. Neither could my investigations find any information to confirm your claims that you contacted academic staff on 13 September 2006 to inform them that you were withdrawing from your studies in second semester of that year. Nor could I find confirmation that you contacted Corinne Walding on 23 July 2008, requesting that she correct the matter of your enrolment for 2006.
In my e-mail of 26 September 2012, I conveyed to you that you had exhausted all avenues of complaint at the University and consequently, I directed you to Stage 4 of the Student Grievance Resolution Process ( I had assumed that you would take your grievance to the Administrative Appeals Tribunal, which is specifically set up to hear complaints such as yours.
“For domestic students with a grievance about decisions on their Student Learning Entitlement HECS-HELP, FEE-HELP or OS-HELP debts, or Student Contribution refunds.
Administrative Appeals Tribunal
Web site: may wish to consider this option as the most appropriate means towards reaching a resolution regarding your grievance. …[14]
[14] Exhibit 4, p 31.
Having regard to this material, and the relevant statutory provisions, the respondent submits that immediately after the census date for the relevant units, Dr Toben’s SLE was reduced and Dr Toben incurred a HECS-HELP debt in respect of the units. As I have indicated above, the respondent further contends that Dr Toben had not withdrawn from the units on or before the census date and, further, there is no evidence of Dr Toben having made an application in writing to UA for re-crediting of his SLE for the relevant units at any time prior to 2012.
The respondent further contends that Dr Toben’s emails of 19 July 2012, 19 September 2012 and 16 October 2012 did not amount to requests for re-crediting of Dr Toben’s SLE for the units pursuant to paragraph 79-1(1)(d) of the Act, or a request for reconsideration of a reviewable decision pursuant to s 209-10 of the Act. The respondent also contends that the emails dated 19 September 2012, 26 September 2012 and 24 October 2012 from UA to Dr Toben do not disclose a decision in fact, or a decision purporting to be made, according to ss 79-1, 209-5 and/or 209-10 of the Act, and accordingly the Tribunal does not have jurisdiction in the matter pursuant to s 212-1 of the Act.
Consideration
As alluded to above, I have found the question of whether Dr Toben requested remission of his debt and re-crediting of his SLE, and whether Mr Lamb decided upon and subsequently reconsidered his decision in relation to that request, not an entirely straightforward one to determine.
Certainly some of the correspondence between Dr Toben and Mr Lamb is consistent with this issue having been raised and decided by Mr Lamb. For example, in his email of 24 October 2012, Mr Lamb stated “The matter of your remission for the three law courses in which you were enrolled during Semester 2, 2006, has been dealt with by the University of Adelaide … in accordance with Stage 2, Student Grievance Resolution Process … If a student is not satisfied with the outcome of Stage 2 they may appeal to the Administrative Appeals Tribunal … .” He also stated, “I reviewed your grievance in relation to your HECS-HELP debt, even though it was well outside the timeframe for such reviews.”[15]
[15] Exhibit 4, p 31.
However in none of his communications with Mr Lamb did Dr Toben request remission of his debt or re-crediting of his SLE. Rather, all of his communications appear to have been directed toward establishing that he did in fact withdraw from the relevant courses prior to the census date, in which case s 79-1 would not have been applicable to him as there would have been no proper basis for his SLE to be debited or for a debt to have been raised against him.
In effect, my reading of Dr Toben’s communications with Mr Lamb indicates that Dr Toben’s objective was to establish that he had withdrawn from the relevant courses before the census date, rendering s 79-1 irrelevant, not that his debt should be remitted and SLE re-credited due to “special circumstances”. Further, I consider that it was logical for him to approach the matter in this way given that he has not at any time referred to any circumstances occurring after the census date which were beyond his control and which made it impracticable for him to complete the courses, so as to potentially invoke s 79-1 of the Act. Rather, at all times he has simply maintained that he made a decision to withdraw from the courses before the census date, and did so.
Similarly, in substantive terms, Mr Lamb’s communications to Dr Toben relate almost entirely to the question of whether Dr Toben withdrew from the courses prior to the census date, or at all. There is no substantive consideration in Mr Lamb’s communications to Dr Toben of whether Dr Toben’s circumstances were “special” and whether he satisfied the terms of s 79-1.
In these circumstances, whilst I acknowledge that the extracts from Mr Lamb’s email of 24 October 2012 quoted above would support the opposite conclusion, I have concluded that, taken as a whole, the correspondence between Dr Toben and Mr Lamb does not allow me to be satisfied either that Dr Toben made a request in writing for remission and re-crediting, or that Mr Lamb made decisions or purported decisions pursuant to s 79-1 or s 209-10 of the Act in relation to that request. Rather I have concluded that, in substantive terms, the correspondence between Dr Toben and Mr Lamb related to a grievance raised by Dr Toben to the effect that UA had failed to properly action his withdrawal from the relevant courses. Dr Toben sought to have this remedied, in the hope that this in turn would lead to the removal of his HECS-HELP debt since, if he had withdrawn from the relevant courses before the census date, there would no longer be a basis for that debt. Therefore, in substance, the correspondence related to Dr Toben raising this grievance and Mr Lamb addressing it. Accordingly even though Mr Lamb referred in his email of 24 October 2012 to remission of Dr Toben’s debt, I am not satisfied that in substantive terms Mr Lamb made decisions pursuant to s 79-1 and s 209-10 of the Act, or that Dr Toben asked him to make such decisions.
For completeness, I should also add that I am not satisfied that any of the letters from the ATO referred to by Dr Toben, dated 20 December 2007, 14 February 2008, 21 July 2008 or 8 June 2012 disclosed a decision which this Tribunal has jurisdiction to review, and I note that neither party directed me to any provision potentially conferring jurisdiction on this Tribunal to review any decision disclosed by any of those letters.
Accordingly, in the absence of a reviewable decision, either pursuant to s 209-10 of the Act or pursuant to any other provision, it follows that this Tribunal would not have jurisdiction to consider Dr Toben’s application if an extension of time were granted, pursuant to s 212-1 of the Act, or otherwise. In those circumstances, I have concluded that it would not be reasonable to grant Dr Toben an extension of time and I have decided not to do so.
THE MERITS OF DR TOBEN’S SUBSTANTIVE APPLICATION
However, even if I am wrong in my conclusion in respect of the Tribunal’s jurisdiction to review Mr Lamb’s decision of 24 October 2012, I would not have been disposed to grant Dr Toben an extension of time to pursue his application to this Tribunal in respect of that decision. That is because, even though the delay between Mr Lamb’s decision and Dr Toben’s application to this Tribunal was not great, I consider the merits of Dr Toben’s substantive application to be extremely weak.
Even if Dr Toben was considered to have made a written application for re-crediting of his SLE, as required by s 79-1(1)(d), it is clear that he did not make that application within the required period of 12 months after the ending of the relevant courses, in the second semester of 2006. Therefore in order to satisfy the terms of s 79-1(1)(e), he would also need to establish that it was “not possible” for him to have made that application within the required period, such that the requirement that he do so should be waived.
Notwithstanding the Commonwealth Assistance Notice issued to him in September 2006, Dr Toben says that until he received the statement from the ATO in December 2007, he believed he had successfully withdrawn from the relevant courses and therefore did not realise he had incurred a debt with respect to them. However, in all the circumstances, I doubt that his mistaken state of mind in this regard could properly be said to have rendered it “not possible” for him to have made his application for re-crediting within the requisite period. Accordingly, on the material before me, I consider that he has poor prospects of satisfying s 79-1(1)(e).
In addition, Dr Toben has not put forward any circumstances which appear capable of amounting to “special circumstances” within the meaning of s 79-5. As I have alluded to above, all of the material before me is to the effect that there were no special circumstances applying to Dr Toben such that he could not withdraw from the relevant courses, or was unable to complete them. On the contrary, Dr Toben says that he had decided before the census date that he did not wish to continue with those courses, and withdrew from them. However the difficulty for him is that despite having investigated the matter, UA has not found any evidence of Dr Toben withdrawing from the relevant courses. Further, whilst he has consistently asserted that he withdrew from the courses, Dr Toben has provided no evidence of having done so.
The fundamental problem for Dr Toben therefore is that his circumstances do not fall within those contemplated by s 79-5. His is not a case of a person who intended to complete a course but was unable to do so by reason of “special circumstances” which were “beyond [his] control”. Rather it appears on the material before me that he formed an intention to withdraw from his courses before the census date, but failed to effectively do so. That is a different situation from that which s 79-1 is intended to address. If Dr Toben had been able to establish to UA’s satisfaction that he withdrew from the relevant courses, it seems reasonable to assume that his situation would have been remedied without resort to s 79-1, since if his academic record was amended to reflect the fact that he had withdrawn from the relevant courses, his SLE would have been re-credited and his debt eliminated without resort to s 79-1.
However whilst it may still be open to Dr Toben to seek to satisfy UA that he did withdraw from the relevant courses, I see no realistic prospect of him establishing the existence of “special circumstances” within the meaning of s 79-5 in the context of this application. Put simply, Dr Toben does not assert the existence of any “special circumstances” within the meaning of s 79-5 and nor are any disclosed in the material before me. Dr Toben’s debt is due to the fact that he appears to have failed to effectively withdraw from the three courses, with the result that s 76-1 was invoked. However he did not fail to complete the courses due to circumstances which could potentially be described as “special circumstances” within the meaning of s 79-5. He appears to have failed to complete the courses because he wrongly believed that he had withdrawn from them, and failed to ensure that he had actually done so.

In these circumstances, I have concluded that Dr Toben has no realistic prospect of establishing that the circumstances he relies on constitute “special circumstances” within the meaning of s 79-5 of the Act justifying re-crediting of his SLE pursuant to s 79-1. Accordingly, whilst none of the other relevant considerations[16] would militate significantly against the granting of an extension of time, even if I had concluded that this Tribunal had jurisdiction to review Mr Lamb’s decision of 24 October 2012, I would also have concluded that it would be inappropriate to grant Dr Toben an extension of time in which to seek review of that decision.
[16] Pearce DC, Administrative Appeals Tribunal (3^rded, LexisNexis Butterworths, 2013), pp 66 – 73.
DECISION
Dr Toben’s application for an extension of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 is refused.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean
......[Sgd]......
Associate
Dated 30 August 2013

Date of hearing 21 May 2013

Applicant In person

Counsel for the Respondent
Mr S Maundrell

Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education

[2013] AATA 614

30 August 2013

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Limitation Periods

Standing

Appeal

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1200
Re	Gerald Frederick Toben
APPLICANT
And	Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education
RESPONDENT

Tribunal	Deputy President K Bean
Date	30 August 2013
Place	Adelaide