Vu and Secretary, Department of Education
[2020] AATA 358
•2 March 2020
Vu and Secretary, Department of Education [2020] AATA 358 (2 March 2020)
Division:GENERAL DIVISION
File Number: 2019/6013
Re:Nguyen Vu
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:2 March 2020
Place:Melbourne
The Tribunal is satisfied that the decision is not reviewable by the Tribunal. Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application.
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Member K. Parker
Catchwords
PRACTICE AND PROCEDURE – student seeking remission of higher education loan program debt and refund of tuition fees – University refused application – student’s request for reconsideration of University’s refusal decision made out of time – University refused student’s request for an extension of time to request reconsideration – decision by University not to provide student with extension of time is not reviewable by this Tribunal – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 42A(4)
Administrative Decisions (Judicial Review) Act 1977 (Cth)Higher Education Support Act 2003 (Cth), s 36-20, 36-21, 36-23, 206-1, 209-5, 209-10, 212-1.
REASONS FOR DECISION
Member K. Parker
2 March 2020
INTRODUCTION
The Respondent, Australian Catholic University (ACU), made a decision on behalf of the Secretary, Department of Education (Secretary), to refuse an application by the Applicant, Mr Nguyen Vu, for remission of a Higher Education Loan Program (HELP) debt (also known as FEE-HELP or HECS-HELP) and to obtain a refund of student fees for two units he was unable to complete due to personal circumstances and withdrew from after the census date. Mr Vu requested a reconsideration of the ACU’s refusal decision, but he did so after the expiry of the 28-day statutory time limit for making such a request.
Subsequently, Mr Vu requested that the ACU exercise its discretion to extend the time limit for him to make his request for reconsideration. The ACU refused to do so.
Mr Vu lodged an application to this Tribunal seeking review of the ACU’s decision to refuse to extend the time for Mr Vu to make a request for reconsideration.
ISSUE
The issue for determination in this application is whether the Tribunal has jurisdiction to review the decision of the ACU to refuse to extend the time for Mr Vu to make a request for reconsideration of its decision to refuse remission of Mr Vu’s HELP debt and to refund his student fees in relation to two units he withdrew from after the census date.
BACKGROUND AND CONSIDERATION
Mr Vu was enrolled as a student at the ACU in Semester 1 of 2019. On 30 April 2019, Mr Vu wrote to the ACU to advise that he wished to withdraw from two units “with Re-credit of Units and Refund of Fees”, due to his medical conditions. He explained that he had been suffering from anxiety and depression “with a few suicidal attempts”. He said his relationship with his girlfriend had broken down and that she had experienced an ectopic pregnancy.
Section 36-20(1) of the Higher Education Support Act 2003 (Cth) (HESA) provides that a higher education provider must determine that s 36-20 applies to a student if:
(a)they are enrolled in a unit of study with the provider that would, if completed, form part of a course of study;
(b)the unit was not completed by the student;
(c)special circumstances applied as prescribed in s 36-21 of the HESA; and
(d)the person has made an application for repayment of student fees and/or remission of their HECS-HELP debt within the specified time frame (or in circumstances where the provider has waived such requirement).
Section 36-21 specifies that “special circumstances” apply to a person “if and only if” the provider is satisfied that the following circumstances apply to the person:
(a)the circumstances are beyond the person’s control; and
(b)the circumstances did not make their full impact on the person until on or after the census dated for the unit of study; and
(c)the circumstances made it impracticable for the person to complete the requirements of the unit during the period during which the person undertook, or was to undertake, the unit.
On 13 May 2019, the ACU wrote to Mr Vu to inform him that it was “unable to approve” his application for re-credit of units and refund of fees because the supporting documentation had not sufficiently demonstrated the specified criteria. The Tribunal regards this email as constituting the ACU’s decision that s 36-20(1) did not apply to Mr Vu (original decision). This email also contained the ACU’s statement of reasons as required to be given to Mr Vu under s 36-23 of the HESA. Specifically, the ACU stated in this letter that the statement provided by Dr Asher Freilich did not outline how Mr Vu’s special circumstances impacted on his ability to study in Semester 1 of 2019 and did not demonstrate how his condition made its full impact on Mr Vu “until on or after the census date”.
The Tribunal notes that a decision that “s 36-20 of the HESA does not apply to a person” is a decision included in the Table of reviewable decisions set out in s 206-1 of the HESA.Accordingly, the Tribunal finds that the ACU’s decision recorded in its letter dated 13 May 2019 is a “reviewable decision” under s 206-1 of the HESA.
In turn, s 209-10 of the HESA provides a person whose interests are affected by a reviewable decision with a right to request “the reviewer to reconsider the decision”. Subsection 209-10 establishes a time limit within which the person must make this request being “within 28 days, or such longer period as the reviewer allows, after the day on which the person first received notice of the decision”. In that regard, the ACU’s letter dated 13 May 2019 explained to Mr Vu that if he wanted to have the ACU’s decision reviewed, he must submit an “Application for Formal Review under Student Appeals Policy Form” within 20 working days from the date of that email to the ACU.
Taking into account the Queen’s Birthday public holiday, the statutory time limit under s 209-10(2) of the HESA in Mr Vu’s case expired on 11 June 2019. On 22 June 2019, Mr Vu sent his request to the ACU by email setting out the reasons for making the request. This meant that Mr Vu was 11 days late in making a request for reconsideration of the original decision. Further to the reasons expressed to the ACU in his earlier application, Mr Vu also stated that his grandfather had been in a critical condition and had passed away one month earlier. He explained that he had “re-done” the application and had asked another doctor to fill in the forms because Dr Freilich was away on holidays. Mr Vu undertook to ask Dr Freilich to fill in the forms upon his return and that the assessment of the two doctors “should be enough to reassure” the ACU. He also provided a copy of his grandfather’s death certificate.
Another month passed and on 22 July 2019 Mr Vu called the ACU to follow up his request for reconsideration. He was told that the ACU had not received his request. Mr Vu sent a screenshot showing an acknowledgement from the email address “[email protected]” and the date “22 June 2019”. The ACU seemed to dispute having received Mr Vu’s request on this date, although the evidence provided by Mr Vu comprising the acknowledgement email was indeed compelling and seemed to indicate that he had done so. Further, Mr Vu struck the Tribunal at the hearing to be a credible witness and that his account of events was truthful. It remains that irrespective of whether Mr Vu’s request was received by the ACU on 22 June 2019 or at some later date, it was made after the end of the 28-day statutory time limit provided for in s 209-10(2) of the HESA.
One month later (on 26 August 2019), the Associate Director of Student Administration of the ACU wrote to Mr Vu to advise him as follows:
I would like to advise that your Application for Formal Review under the Student Appeals Policy (RV), received 30 July 2019, has not been accepted.
As per the Student Appeals Policy and Procedures, any formal application for review should be lodged within 20 working days of notification of the decision on which this application for review is lodged. As the notification of the outcome of your application for a Re-credit of Unit/s and Refund of Fees in Special Circumstances (RE) was issued on 13 May 2019 the receipt of your RV is well outside the specified timeframe.
I recognise that you contacted AskACU on 22 July 2019 seeking an update on your appeal and believed you had submitted and were then advised an appeal was not received. However, there are no records of an appeal being received or proof of one being submitted within the 20 working day period.
If you wish to appeal this decision you must lodge an application with the Administrative Appeals Tribunal (AAT) within 28 days of receiving this email.
The Tribunal considers that a fair characterisation of this letter from ACU is that it constitutes a decision by ACU not to “allow” a longer time frame to Mr Vu to make his request for reconsideration, as it had the discretion to do under subsection 209-10(2) of the HESA. The only reason provided in this email by the Associate Director for this decision is that Mr Vu’s request is “well outside the specified timeframe” based on her view that the request was received by the ACU on 30 July 2019 and not when Mr Vu asserted that he made it, being 22 June 2019.
Notably, there was no acknowledgment in this letter by the ACU about the further steps Mr Vu had taken to obtain the further medical evidence in response to the ACU’s earlier indication that it had made its original decision due to insufficient medical evidence. There was no acknowledgment that Mr Vu’s usual treating doctor was away on holidays and had presented a challenge to him obtaining the medical evidence that was required. There was no acknowledgement that Mr Vu had lost his grandfather in or about mid-June 2019 and the impact that may have had on Mr Vu in relation to attending to making of the request for reconsideration in a timely manner. Instead, the ACU’s response seemed clinical and dismissive in circumstances that warranted a different approach.
Further, this ACU’s email response on 26 August 2019 included in it information which was incorrect and has lead Mr Vu down a path. It mistakenly identified a right of review of “this decision” (being the ACU’s decision not to accept Mr Vu’s request for reconsideration), to this Tribunal and advises Mr Vu that if he wished to appeal, he must do so within 28 days. However, the Secretary’s very position in this application is that Mr Vu does not have any right of review before this Tribunal in relation to the ACU’s decision not to accept his request for reconsideration.
This brings us back to the jurisdictional question that is before this Tribunal. As indicated at the hearing, the Tribunal has considered and accepts the submissions of the Secretary as set out in the Secretary’s Statement of Position dated 3 February 2020 and finds that this Tribunal does not have jurisdiction to review the decision of the ACU as set out in its email to Mr Vu dated 26 August 2019 not to accept his request for reconsideration on the basis that it did not “allow” that it be made outside of the 28-day statutory time frame provided in subsection 209-10(2) of the HESA.
The reason for this decision is that s 212-1 of the HESA provides that the Tribunal may only review “a reviewable decision that has been confirmed, varied or set aside under section 209-5 or 209-10”. This requirement is not met because while it is true that the ACU made a “reviewable decision” under s 206-1 of the HESA on 13 May 2019, the second requirement of this decision having been “confirmed, varied or set aside under s 209-5 or 209-10” had not been met. Mr Vu attempted to seek a reconsideration of the decision on 13 May 2019 so that it could be confirmed, varied or set aside under s 209-10; however, this has not taken place because the ACU did not exercise its discretion to accept Mr Vu’s request for reconsideration under s 209-10 outside of the statutory time limit.
As unfair as this may seem to Mr Vu (and the Tribunal sympathises with him given his challenging circumstances which included experiencing significant personal losses and the impact of mental health issues), the Tribunal does not have jurisdiction to review the decision of the ACU made on 26 August 2019; nor does it have jurisdiction to review the decision made on 13 May 2019 until such time as it is reconsidered by a reviewer at the ACU under s 209-10 and either confirmed, varied or set aside.
Given the circumstances of this case, at the hearing, the Tribunal informed Mr Vu that, despite this Tribunal’s decision, he was at liberty to explore the following:
(a)to approach the ACU once more to request that it reconsider its refusal to allow Mr Vu to request a reconsideration of the original decision outside of the 28-day time frame. It is possible that after the ACU is provided with a copy of this decision concluding that Mr Vu does not have a right of review to this Tribunal (as ACU had mistakenly advised to Mr Vu in its letter dated 26 August 2019), it may be prepared to reconsider its decision to allow for the reconsideration process to take place in the knowledge that Mr Vu does not have this alternative avenue open to him at the present time. Perhaps the reason why the ACU was seemingly quick to refuse Mr Vu’s request for reconsideration was because it genuinely, but mistakenly, believed that he had a right to take matters up at this Tribunal if he chose to do so (which is not the case); or
(b)to seek legal advice about whether Mr Vu has any alternative right of review in the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of the ACU’s decision, made on behalf of the Secretary, on 26 August 2019, should the ACU decide not to reconsider and change this decision following any further approach Mr Vu may wish to make to the ACU.
CONCLUSION
For the reasons outlined above, the Tribunal is satisfied that the decision is not reviewable by the Tribunal. Pursuant to subsection 42A(4) of the AAT Act, the Tribunal dismisses the application.
I certify that the preceding 21 (twenty one) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker
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Associate
Dated: 2 March 2020
Date of hearing: 27 February 2020 Applicant: In person by telephone Advocate for the Respondent: Ms Kristina Mihalic Solicitors for the Respondent: HWL Ebsworth Lawyers
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