Wall and Secretary, Department of Education, Skills and Employment
[2022] AATA 2391
•29 July 2022
Wall and Secretary, Department of Education, Skills and Employment [2022] AATA 2391 (29 July 2022)
Division:GENERAL DIVISION
File Number: 2022/2587
Re:Susan Wall
APPLICANT
AndSecretary, Department of Education, Skills and Employment
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:29 July 2022
Place:Brisbane
The application for review is dismissed pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
..............[SGD]..........................................................
Deputy President J Sosso
CATCHWORDS
PRACTICE AND PROCEDURE – application for review – re-creditation of VET FEE-HELP fees – whether the unit requirements of the course were completed – whether VET provider engaged in inappropriate conduct – whether there are any reasonable prospects of success – application for dismissal granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Higher Education Support Act 2003 (Cth)
Tertiary Education and Quality Assurance Agency Act 2011 (Cth)
CASES
Al-Hir and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 595
Bradley and Secretary, Department of Education and Training (General) [2018] AATA 1074
Cosgrove and Secretary, Department of Education, Skills and Employment [2022] AATA 1195
Filsell and Comcare (2009) 109 ALD 198
Last and Secretary, Department of Education and Training [2019] AATA 658
Mayhew and Secretary, Department of Education [2021] AATA 914
REASONS FOR DECISION
Deputy President J Sosso
29 July 2022
INTRODUCTION
The Secretary, Department of Education, Skills and Employment (the Respondent) has requested that an Application for Review of Decision made by Ms Susan Elizabeth Wall (the Applicant) of 30 March 2022 be dismissed pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) because the application has no reasonable prospect of success.
In 2016, the Applicant enrolled in a Diploma of Counselling course at Community Training Australia Pty Ltd (CTA), with a course commencement of 1 September 2016 and conclusion of 2 June 2017. Unfortunately, CTA went into receivership on or around 9 January 2017, and in order to complete her course, the Applicant enrolled in TAFE Queensland North (TAFE QN), signing a Request for a VET FEE-HELP Loan Form. That course had a start date of 30 January 2017 and an end date of 20 July 2017.
On or around 20 July 2017, the Applicant successfully completed the course, and the Tribunal has been presented with documentation which verifies this, including a Diploma of Counselling from TAFE QLD. The Applicant, moreover, has not denied that she completed the course.
In submissions dated 10 June 2022, the Respondent provided the following information to the Tribunal – paras 30 – 36, pp. 7 – 8:
(a)the Diploma of Counselling (CHC51015) has been a nationally recognised qualification since 7 December 2015;
(b)the course requires the completion of 17 units of competency, including 13 CORE units and up to either 4 units from prescribed electives or up to 4 units from any endorsed Training Package or accredited course that are relevant to the work outcome;
(c)the Applicant completed 17 units of competency which are set out in Table 1 of the 10 June 2022 submissions at para 36 pp. 7 – 8; and
(d)the completion of the 17 units fulfilled the requirements of the course and resulted in the Applicant being awarded her Diploma.
The Applicant was issued two Commonwealth Assistance Notices (CAN) relating to the units of study for her course, with a total VET FEE-HELP debt of $13,440 – para 10, p. 2:
(a)CAN for units of study EA3SSJB711/12 dated 20 April 2017 with a HELP debt of $6,720.00; and
(b)CAN for units of study EA3SSJC713/14/15/16/17/18/19 dated 20 April 2017 with a HELP debt of $6,720.00.
On or around 5 August 2020, the Applicant applied to the VET Student Loan’s Ombudsman (VSLO) seeking a re-credit of her HELP balance in relation to the VET FEE-HELP assistance on the basis of inappropriate conduct by VET providers, namely CTA and TAFE QN.
In a series of decisions between 11 May and 25 October 2021, the VSLO determined not to re-credit either the Applicant’s CTA or TAFE units of study on the following grounds:
“• you have completed the requirements for the unit; or
• 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 which the unit forms a part.”
On 25 October 2021, the Applicant sought clarification of this decision, and made the following submission:
“I have not signed any physical contract with either CTA or Queensland TAFE for any amount of money and the amounts that are being quoted do not reflect what is showing against the Student Loan currently. On recent inquires with other Education Providers the current cost to complete a Diploma of Counselling is under $4000 for a 9-month course. Would you please clarify your correspondence below in writing so I can best address this reply as I do not feel my complaint is being addressed?”
On 17 November 2021, the VSLO reaffirmed the decision. The Applicant subsequently made submissions to the Executive Government, and on 9 March 2022, a Delegate of the Respondent reaffirmed the decisions of the VSLO. The central feature of the decision was that the Delegate was satisfied that the Applicant had completed the requirements for the units of study.
The Applicant claims that she was significantly overcharged for her Diploma of Counselling. She contends that it was her understanding that she would be charged $6,720 for the course, but instead, has been charged $20,160.
I convened an Interlocutory Hearing in Brisbane on 1 June 2022. At that Hearing, the Applicant repeated her concern that she had been overcharged, and, in addition, submitted that the original Request for a VET FEE-HELP Loan form 1296A was adjusted by $16,800, in handwriting, by an unknown party on transfer of the course from CTA to TAFE QN.
At the Interlocutory Hearing, the Applicant raised a number of issues, and it was manifestly clear that she felt aggrieved by the manner she treated by CTA and TAFE QN, and that subsequently, her serious concerns about possible improper conduct by CTA and TAFE QN had not been properly investigated and considered.
LEGISLATIVE BACKGROUND
As explained above, the Applicant sought a re-credit of her HELP balance in relation to VET FEE-HELP assistance due to alleged inappropriate conduct by two VET providers.
FEE-HELP is, in effect, a loan paid by the Commonwealth to educational institutions to cover student tuition fees for certain courses. This scheme is established under the Higher Education Support Act 2003 (Cth) (the HES Act). Loans are repayable to the Commonwealth once the course of study has been completed, unless a recipient makes an application for the debt to be remitted.
Set out below are the general provisions explaining the operation of the HES Act in so far as VET FEE-HELP assistance is concerned:
“3‑1 General
This Act primarily provides for the Commonwealth to give financial support for higher education and certain vocational education and training:
(a) through grants and other payments made largely to higher education providers; and
(b) through financial assistance to students (usually in the form of loans).
3‑5 Grants for higher education assistance etc. (Chapter 2)
(1) Chapter 2 sets out who are higher education providers, and provides for the following grants and payments:
(a) grants under the Commonwealth Grant Scheme;
(aa) grants for assisting Indigenous persons;
(b) other grants for particular purposes;
(c) grants for Commonwealth scholarships.
(2) Higher education providers will be universities, self‑accrediting entities or non self‑accrediting entities.
(3) Chapter 2 also provides for the direct payment to students of certain Commonwealth scholarships.
3‑10 Assistance to students (Chapter 3)
Chapter 3 provides for the following assistance to students:
(a) HECS‑HELP assistance for student contribution amounts;
(b) FEE‑HELP assistance for tuition fees;
(c) OS‑HELP assistance for overseas study;
(d) SA‑HELP assistance for meeting student services and amenities fees imposed by higher education providers.
Chapter 3 also deals with a person’s Student Learning Entitlement.
3‑15 Repayment of loans (Chapter 4)
Chapter 4 sets out how debts are incurred and worked out in relation to loans made under Chapter 3, and provides for their repayment.
3‑20 Administration (Chapter 5)
Chapter 5 provides for several administrative matters relating to the operation of this Act.
3‑30 VET FEE‑HELP Assistance Scheme (Schedule 1A)
Schedule 1A provides for financial assistance to students undertaking certain accredited vocational education and training (VET) courses.”
In terms of a student incurring a FEE-HELP debt, s 137-10 of the HES Act provides as follows:
“137‑10 FEE‑HELP debts
Incurring FEE‑HELP debts
(1) A person incurs a debt to the Commonwealth if, under section 110‑1, the Commonwealth:
(a) makes a loan to the person; and
(b) uses the amount lent to make a payment in discharge of the person’s liability to pay his or her *tuition fee for a unit of study.
The debt is a FEE‑HELP debt.
(2) The amount of the *FEE‑HELP debt is:
(a) if the loan relates to *FEE‑HELP assistance for a unit of study provided by a Table B provider—the amount of the loan; or
(b) if paragraph (a) does not apply and the loan relates to FEE‑HELP assistance for a unit of study that forms part of an *undergraduate course of study:
(i) for a unit of study with a *census date between 1 April 2020 and 31 December 2021—the amount of the loan; or
(ia) for a unit of study with a census date on or after 1 January 2022—an amount equal to 120% of the loan; or
(ii) otherwise—an amount equal to 125% of the loan; or
(c) if neither paragraph (a) nor (b) applies—the amount of the loan.
When FEE‑HELP debts are incurred
(3) A *FEE‑HELP debt is taken to have been incurred by a person immediately after the *census date for the unit, whether or not the Commonwealth has made a payment in respect of the person’s *tuition fee for the unit.
Remission of FEE‑HELP debts
(4) A person’s *FEE‑HELP debt in relation to a unit of study is taken to be remitted if the person’s *HELP balance is re‑credited under section 104‑25, 104‑27, 104‑42, 104‑43 or 104‑44 in relation to the unit.
Note: The debt is taken to be remitted even if the person’s HELP balance is not increased by an amount equal to the amount re‑credited.”
It will be noted that s 137-10 provides that a person incurs a debt to the Commonwealth if a loan is made to that person and the amount lent is made in payment in discharge of that person’s liability for tuition fees in relation to “a unit of study”. Payments are not made for a course or for a period of study, but for particular units. Further, remission of a FEE-HELP debt is possible in relation to a unit of study, but only in accordance with the particular provisions of the HES Act.
Schedule 1A of the HES Act sets out, in detail, provisions relating to VET FEE-HELP debts and recovery. Relevant provisions are set out below:
“55 Payments
(1) If a student is entitled to an amount of *VET FEE‑HELP assistance for a *VET unit of study with a *VET provider, the Commonwealth must:
(a) as a benefit to the student, lend to the student the amount of VET FEE‑HELP assistance; and
(b) pay the amount lent to the provider in discharge of the student’s liability to pay his or her *VET tuition fee for the unit.
Note: Amounts of assistance under this Part may form part of a person’s HELP debts that the Commonwealth recovers under Chapter 4.
(2) However, the Commonwealth must not pay an amount to a provider under paragraph (1)(b) in respect of a *VET unit of study unless the provider has given the Minister notice of the student’s liability to pay his or her *VET tuition fee for the unit, including the amount of the liability, before the reporting deadline for the unit.
(3) The amount paid to a provider for a unit under paragraph (1)(b) must not exceed the amount notified for the purposes of subclause (2) before the reporting deadline for the unit.
(4) If the Commonwealth does not pay an amount to a provider because of the operation of subclause (2), the student is discharged from all liability to pay or account for so much of the student’s *VET tuition fee for the *VET unit of study as is equal to that amount.
(5) For the purposes of this clause, the reporting deadline for a unit is:
(a) for a unit with a *census date before 1 January 2018—before 1 July 2021; or
(b) for any other unit—before 1 January 2022.”
Specific provision is made for a student to apply for a re-credit of their HELP balance in respect of VET FEE-HELP assistance where there is inappropriate conduct by a VET provider or its agent. Clause 46AA of Schedule 1A provides as follows:
“46AA Re‑crediting a person’s HELP balance in relation to VET FEE‑HELP assistance—inappropriate conduct by provider or provider’s agent
Re‑crediting
(1) The *Secretary may, on application under subclause (3) or on the Secretary’s own initiative, re‑credit a person’s *HELP balance with an amount equal to the amounts of *VET FEE‑HELP assistance that the person received for a *VET unit of study with a *VET provider, if the Secretary is satisfied that:
(a) either:
(i) the person has not completed the requirements for the unit during the period the person undertook, or was to undertake, the unit; or
(ii) under *VET Guidelines prescribed for the purposes of this subparagraph, the person is taken not to have completed those requirements during that period; and
(b) it is reasonably likely that, having regard to any matters prescribed by the *VET Guidelines for the purposes of this paragraph, the VET provider (or an agent of the VET provider) engaged in inappropriate conduct towards the person in relation to the unit, or the *VET course of study of which the unit forms a part.
Note 1: A VET FEE‑HELP debt relating to a VET unit of study will be remitted if the HELP balance in relation to the unit is re‑credited: see section 137‑18.
Note 2: The VET provider may be required to repay an amount to the Commonwealth under subclause 56(4), depending on the nature of the inappropriate conduct.
(2) The *VET Guidelines may prescribe matters for the purposes of paragraph (1)(b) that are also prescribed for the purposes of paragraph 46A(1)(c) (circumstances involving unacceptable conduct).
(3) A person may apply to the *Secretary for the person’s *HELP balance to be re‑credited under subclause (1). The application must:
(a) be in writing; and
(b) be in the form (if any) approved by the Secretary and accompanied by the information (if any) required by the Secretary; and
(c) meet any requirements prescribed by the *VET Guidelines for the purposes of this paragraph.
Submissions by applicants before refusal to re‑credit
(4) Before making a decision to refuse a person’s application under subclause (3) for re‑crediting of the person’s *HELP balance, the Secretary must give the person a notice in writing:
(a) stating that the Secretary is considering making the decision; and
(b) stating the reasons why the Secretary is considering making the decision; and
(c) inviting the person to make written submissions to the Secretary, within 28 days, about why that decision should not be made; and
(d) informing the person that, if no submissions are received within the 28 day period, the Secretary may proceed to make the decision.
(5) In deciding whether to re‑credit the *HELP balance, the *Secretary must take into account any submissions received from the person within the 28 day period.
Submissions by providers before decision to re‑credit in circumstances requiring repayment by provider
(6) Before making a decision to re‑credit a person’s *HELP balance to which subclause 56(4) applies, the Secretary must give the *VET provider a notice in writing:
(a) stating that the Secretary is considering making the decision; and
(b) stating that, if the Secretary makes the decision, the VET provider will be required to pay an amount to the Commonwealth under subclause 56(4) in relation to the re‑crediting; and
(c) stating the reasons why the Secretary is considering making the decision; and
(d) inviting the VET provider to make written submissions to the Secretary, within 28 days, about why that decision should not be made; and
(e) informing the VET provider that, if no submissions are received within the 28 day period, the Secretary may proceed to make the decision.
(7) In deciding whether to re‑credit the *HELP balance, the *Secretary must take into account any submissions received from the *VET provider within the 28 day period.
Written notice of decision
(8) If the *Secretary re‑credits a person’s *HELP balance under subclause (1), the Secretary must, as soon as practicable, give written notice of the Secretary’s decision and the reasons for it to:
(a) the person; and
(b) if subclause 56(4) applies to the decision—the *VET provider.
Final date for re‑crediting
(9) The *Secretary must not re‑credit a person’s *HELP balance under subclause (1) on the Secretary’s own initiative, after:
(a) 31 December 2020; or
(b) if a later day is prescribed by the *VET Guidelines for the purposes of this paragraph—that later day.
(10) The *Secretary must not re‑credit a person’s *HELP balance under subclause (1) on application made by the person, if the application is made after:
(a) 31 December 2020; or
(b) if a later day is prescribed by the *VET Guidelines for the purposes of this paragraph—that later day.”
It will be noted that cl 46AA(1) specifically requires, as a condition precedent to the re-crediting of a HELP balance, that the person has not completed the requirements of the unit. Previous Tribunal determinations have pointed out that the word “completed” is not defined in the HES Act. This matter was the subject of learned exposition by Senior Member Puplick in Last and Secretary, Department of Education and Training [2019] AATA 658 (Last):
“[17] The best that can be offered in this case, as far as any definition of completion is concerned is the definition given by the Tertiary Education and Quality Assurance Agency which is the national regulator of tertiary education standards under the Tertiary Education and Quality Assurance Agency Act 2011. It defines ‘course completion’, in part as:
the successful completion of all of the academic requirements of a course of study. This includes any required attendance, assignments, examinations, assessments, dissertations, practical experience and work experience in industry…
…
[19] In the absence of any clear definition in the Act, there must be reliance upon the ordinary meaning of the word…
…
[25] The Macquarie Concise Dictionary gives:
1.having all its parts or elements; whole, entire, full. 2. Finished, ended, concluded…”
CONSIDERATION
Introduction
The key issue before the Tribunal is whether the Applicant’s application should be dismissed pursuant to s 42B(1)(b) of the Act. However, before reaching a decision on that issue, it is appropriate to canvass some of the issues raised by the Applicant, as it was tolerably clear that she feels aggrieved by the way she was charged fees and has raised some serious ethical questions.
Before dealing with a serious allegation made by the Applicant with respect to TAFE QN, it is important to note that the Respondent properly concedes that the Tribunal’s jurisdiction to consider this application is properly enlivened. There is a reviewable decision before the Tribunal, namely, whether or not cl 46AA of Schedule 1A of the HES Act applies. In determining whether cl 46AA applies to the Applicant’s case, a threshold question is whether the Applicant has not completed, or ought to be taken not to have completed, the relevant units of study required to complete her Diploma of Counselling.
The Tribunal accepts that its jurisdiction is limited to reviewing the reviewable decision, namely, a decision by the Delegate of the Respondent not to re-credit the Applicant’s VET FEE-HELP balance under cl 46AA of Schedule 1A.
The Tribunal does not have a charter to examine every claim made by an applicant which transcends a reviewable decision. The Tribunal is not a royal commission or commission of inquiry with a broad charter to examine and rule on every claim made by an applicant which goes beyond a reviewable decision, but which is said to be somehow related to it. Not only are there obvious procedural fairness issues concerning persons affected by such a course of action who are not joined as parties, but there is an immediate and fundamental obstacle to such a course of action. The Tribunal is a creature of statute, and its review function is prescribed by the terms of the Act. The Act does not give to the Tribunal a plenary power to inquire into matters for which it has no jurisdiction. In such cases, the proper course is for the Tribunal to decline the request to go beyond its powers and to make an appropriate determination to that effect.
The Respondent, properly, drew the Tribunal’s attention to s 25(1) of the Act. That subsection provides that an enactment may provide that applications may be made to the Tribunal for:
(a)a review of decisions made in the exercise of powers conferred by that enactment; or
(b)a review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
In this matter, the only enactment conferring power on the Tribunal to review decisions by VET providers (which, in this instance, is CTA and TAFE QN) is the HES Act, and the Tribunal is confined to the specific exercise of powers conferred by that enactment. In short, the four corners of the Tribunal’s jurisdiction is mapped out by the statutory scheme of the HES Act, and the conferral and exercise of powers under that enactment.
It is with this understanding of the limitations on the scope of the Tribunal’s jurisdiction that the discussion below is predicated.
Was the Applicant overcharged?
The Respondent, in a submission dated 10 June 2022, has provided the Tribunal (and the Applicant) with key information which has been of assistance.
The Respondent referred the Tribunal to an archived version of the CTA website from the period that the Applicant was enrolled, showing the total cost of the course as being $5,600 per stage (totalling $16,800) plus 20% loan fees, amounting to $20,160 in total – para 7, p. 2.
The Respondent also drew the Tribunal’s attention to TAFE’s Schedule of Fees that was provided to students of CTA, consisting of – para 8, p. 2:
(a)stage 1 – 8 units of competency costing $700 each in tuition fees – $5,600 plus $1,120 in VET HELP loan fees, for a total of $6,720;
(b)stage 2 – 2 units of competency costing $2,800 each in tuition fees – $5,600 plus $1,120 in VET HELP loan fees, for a total of $6,720; and
(c)stage 3 – 7 units of competency costing $800 each in tuition fees – $5,600 plus $1,120 in VET HELP loan fees for a total of $6,720.
The total figure of $16,800 for the three stages is, the Respondent contends, consistent with the fee amount specified in the Applicant’s Request for a VET FEE-HELP Loan form 1296A – para 9, p. 2.
The Respondent drew the Tribunal’s attention to two CANs issued on 20 April 2017, indicating an aggregate VET FEE-HELP liability of $13,440. It was also contended that TAFE QN claims that it appropriately notified the Applicant of course fees and she had sufficient opportunity to query those fees at the time the CANs were issued – para 10, p. 2.
The Tribunal has also been provided with a screenshot of the archived CTA website from the time of the Applicant’s enrolment, which has a clear breakdown of course fees. The screenshot indicates a course of three stages, with each stage costing $5,600 for a total cost of $16,800 plus loan fees – paras 11 – 12, p. 3.
Again, the Applicant’s original Request for a VET FEE-HELP Loan form 1296A, signed on 9 March 2017, specifies the total course cost as $16,800 – para 14, p. 3.
Of particular concern to the Tribunal was the Applicant’s contention that the $16,800 fee was inserted into the Request for a VET FEE-HELP Loan form by an unknown party on transfer of the course from CTA to TAFE QN, subsequent to the Applicant signing the Request for a VET FEE-HELP Loan form, and without her knowledge or approval.
The Tribunal, at the Interlocutory Hearing of 1 June 2022, expressed its concern about this serious allegation, and sought the assistance of the Respondent to have this matter appropriately explored. The reason for this was not with respect to the resolution of the substantive question of whether the application should be dismissed pursuant to s 42B(1)(b), but to ensure that such a serious and potentially troubling allegation was not ignored and was investigated.
In its submissions of 10 June 2022, the Respondent provided the following information about its investigations – paras 16 – 19, pp. 4 – 5:
“16. Due to its gravity, the Respondent has previously sought an explanation from TAFE QLD in relation to this specific allegation, and received the following response on 18 February 2022…
• It was common practice within the VET FEE-HELP rules for providers to pre-fill a CAF with basic information. Providers were not allowed to pre-fill the student's tax file number.
• TAFE Qld routinely pre-filled things like course code, location and estimated cost because students would get those wrong, rendering the CAF useless once they had signed it and sent it back. To save having to do that again, TAFE Qld preferred to fill that information first. It also meant the student was agreeing to sign the CAF with the correct information.
• TAFE Qld does not have any images of the paper CAF before it was posted to the student to compare with what was sent back by the student. If the course cost was blank when Ms Wall signed the form, TAFE Qld would have expected Ms Wall to contact them to ask what the value to fill in because the form instructed the student to ask their provider for this information.
• After the form was signed, the student was provided with a fee schedule, fee notices and CANs which all clearly displayed the tuition fees she was to incur. The student did not query these at the time.
17. The VET FEE HELP Redress Section within the Department has advised, consistent with the process undertaken by TAFE QLD, that it is standard practice for CAFs to be prefilled by providers with course information generally, including the estimated cost of a course. Without the estimation of course costs, a FEE-HELP loan cannot be approved, and providers are best placed to provide an indicative figure. It is then incumbent upon students to verify any such information if they consider it to be inaccurate before signing the form. Both the paper-based and electronic CAF forms instruct students to check all detailed course amounts with the provider before submitting their loan form. If for any reason the normative process had not been followed and the estimated amount field been blank at the time of the Applicant signed the form, the reasonable expectation is for a student would have been to made enquiries with administration as to the appropriate amount to insert before executing a form agreeing to a loan.
18. The Respondent appreciates that the Applicant is alleging that the cost figure was inserted after she signed the form. However, as TAFE QLD has not retained a copy of the hard-copy CAF in the from [sic] sent to the student, neither TAFE QLD nor the Department is able to further investigate the veracity of the Applicant’s claim around ex post facto adjustments to the content of the form.
19. In the absence of direct evidence to controvert the allegation, the Respondent submits that:
a) When CAF form is submitted by a student to the Department as an application for a loan, it does not go back to the provider for any adjustment. As such, the estimated amount contained on the form is as a student would have sighted at the time of execution.
b) The issue regarding the alleged discrepancy on the face of the form was brought to the attention of TAFE QLD in response to which it found no evidence to substantiate any claim of retrospective fee adjustment.
c) There is no cogent evidence to support the proposition that TAFE QLD by its authorised officers altered the CAF.
d) There are no internal inconsistencies in terms of the fees charged between what is recorded as the estimated costs on the CAF and what is recorded on the CANs provided to the Applicant at the material time.
e) A claim that a provider has falsified the content of a loan form is a serious allegation to be levelled against TAFE QLD and its staff, who are not parties to this proceeding and are not able to make submissions against such allegations. If this claim were to be ventilated under the auspices of inappropriate conduct (which would be the next line of inquiry for the Tribunal if the Tribunal is satisfied that the Applicant did not complete the units), then, while the civil standard of proof applies, the Respondent submits that the serious nature of the allegation may warrant the so called Briginshaw modification to the civil standard. That is: cogent evidence will be required to establish the facts on which the Applicant’s allegations depend; and satisfaction that such serious conduct as has been alleged here has been proved will not be achieved by inexact proofs, indefinite testimony, or indirect inferences. While the Tribunal is not bound to apply the Briginshaw standard, there is no prohibition on it applying that standard in relevant cases.”
(footnotes omitted)
In an email of 14 June 2022, the Applicant replied as follows:
“…I am disputing that I was overcharged well above $6,720 the quoted fee to end up with >$20,000 charge. The form… clearly shows two different sets of handwriting. My handwriting is shown as TFN, name, DOB, USI and my signature. The dollar amount has been filled in after I handed in this Form without my knowledge or approval. That is what we were asked to fill in as part of transfer from Community Training to TAFE Queensland in what was suppose [sic] to be a transparent and seamless change for a College put into liquidation. At that point I was totally under the understanding and assured by all parties there would not be any additional charges from the original quoted price of $6,720 to complete this basic course – this charge is not in dispute. I was not provided any detailed breakdown of charges from Community Training only a price over the phone at commencement of the Course. None of the process has turned out to be transparent and seamless.
I was not aware of charges on a Website I can no longer even view. However, I can report there are other similar Counselling courses available currently for $5,000. Community Training encouraged quick sign up as the Training was commencing and filling quickly they stated – there where [sic] only about 8 people in attendance at the time of commencement.
I suspect Community Training already knew they were being closed down at that point. I needed to upskill so signed up based on the price quoted…”
(emphasis in original)
As previously stated, the Tribunal is not unsympathetic to the Applicant’s plight, and has set out her submissions to highlight the concerns that she has raised.
However, as the Respondent submits, the Tribunal’s jurisdiction is limited to a review of the reviewable decision and does not extend to the other matters raised by the Applicant. In short, the Tribunal’s jurisdiction does not extend to determining the question of whether documents have been falsified, or whether the quoted fee for her Diploma of Counselling course was or was not $6,720. This is because the reviewable decision is limited to a decision not to re-credit the Applicant’s VET FEE-HELP balance pursuant to cl 46AA. In turn, that decision was predicated on the Applicant having completed the requirements for the unit during the period the Applicant undertook the unit.
Clause 46AA can only be of assistance if a person has not completed the requirements of the unit or units undertaken. In short, if a person has completed their studies, then cl 46AA cannot be enlivened to assist them.
This is the predicament faced by the Tribunal. It does not have jurisdiction to consider whether there has been inappropriate conduct, because that field of inquiry is time limited. In the same email of 14 June 2022, the Applicant stated at the outset:
“As stated numerous times I am not disputing that I did not complete the training, a Diploma 9 module training course over 10 months (1 day per week).”
In these circumstances, the Tribunal does not have jurisdiction to consider the Applicant’s claims of inappropriate conduct by CTA and TAFE QN, and the Tribunal makes no findings on these matters other than noting the submissions received by both the Applicant and the Respondent.
Jurisdictional issue
It is not contested that cl 46AA(1) of Schedule 1A does not apply to the Applicant because she has completed the requirements of the units leading to the issuing of her Diploma of Counselling and, therefore, does not meet the threshold requirements of an inquiry pursuant to cl 46AA(1).
There are copious documents to this effect, and, as the Applicant properly conceded in her email of 14 June 2022, she had completed her Diploma of Counselling training course.
The Respondent, in the submissions of 10 June 2022, provided the Tribunal with documentation to prove this point, and to put this matter beyond any doubt, the Tribunal refers to the material in para 36, pp. 7 – 8 of the submissions of 10 June 2022, together with the various Annexures to those submissions.
In this matter, then, the Tribunal accepts that the Applicant has completed the 17 units of competency to enable her to receive the Diploma of Counselling (CHC51015).
Earlier, reference was made to the Tribunal determination in Last. In that matter, the applicant had completed the units for study, but sought fee remission on the basis that the academic quality of the units was low. Senior Member Puplick referred to the applicant’s concerns but addressed the central issue of whether the applicant had completed the requisite units of study. Having satisfied himself that the applicant in that matter had completed the requisite units of study, Senior Member Puplick made the following observations:
“[39] However the Tribunal has previously come to the conclusion that the Applicant had completed the units of study in which she was enrolled, even if, as she saw them, they were not what she contemplated as a student, and she did not learn from them what she expected.
…
[41] Again, there may be some sympathy for the Applicant’s position in not withdrawing from the course before the census date. That date was only some two weeks from the commencement date and it may well have been that the Applicant’s appreciation of her concerns about the course were not apparent to her by that time.
…
[44] However, failure to withdraw from Study Period 1 within what is the legislatively prescribed time and her obvious completion of the units in Study Period 1 leaves the Applicant’s case without a firm foundation. Given this, her application for remittal of her debt cannot be considered because such consideration is, legislatively, not available to her.”
Also of relevance to this matter is Mayhew and Secretary, Department of Education [2021] AATA 914. The facts of this matter closely mirror those in these proceedings. It was uncontested that Ms Mayhew enrolled in a Diploma course, obtained VET FEE-HELP assistance, funds were paid to a training College, Ms Mayhew completed her course, and a certificate to this effect was issued by the Australian Skills Quality Authority. Ms Mayhew complained of misleading behaviour by the College, of the quality of the course, and her ignorance of the application for FEE-HELP submitted on her behalf by the College.
In dismissing Ms Mayhew’s review application, Senior Member Puplick made the following observations:
“[18] There is no doubt that Ms Mayhew completed the course in question. There are clear records and documentary evidence to that effect and she herself does not, and never has contested the fact.
[19]Ms Mayhew cannot be granted a re-credit of her FEE-HELP balance because the legislation specifically prohibits any applicant who has completed their course of study from doing so. There is no discretion in the matter.
[20] Given that, were the matter to proceed to a full hearing before the Tribunal the outcome cannot be anything other than the dismissal of her application, therefore the requirements of section 42B(1)(b) of the AAT Act are fulfilled.”
In addition to these Tribunal decisions, reference can also be made to Bradley and Secretary, Department of Education and Training (General) [2018] AATA 1074 and Al-Hir and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 595 which also reached the same conclusions in similar (although, not identical) proceedings.
As explained above, the material before the Tribunal is to the effect that the Applicant successfully completed 17 units and, as a result, completed her course on or around 20 July 2017. As a result of this, the Applicant was awarded a Diploma of Counselling.
In the recent determination of Cosgrove and Secretary, Department of Education, Skills and Employment [2022] AATA 1195, Member Mitchell pointed out (at [45]) that the purpose of cl 46AA is to provide redress for those students who have accumulated a VET FEE-HELP debt in the absence of deriving a benefit from the course. Member Mitchell also observed (at [44]) that the only avenue open for re-crediting a FEE-HELP debt is pursuant to cl 46AA.
It flows from the above determinations, and a reading of cl 46AA, that the completion of units comprising a course, and subsequent awarding of a Diploma, precludes the re-crediting of a FEE-HELP debt. The discretion vested in a decision-maker by cl 46AA is predicated on a person not having completed a unit of study that comprise a course. If a person has successfully completed a unit of a recognised course, or, as in this matter, all of the units that comprise a course, they cannot seek relief under cl 46AA.
The Respondent contends, in these circumstances, that the application for review has no reasonable prospects for success.
In Filsell and Comcare (2009) 109 ALD 198, Deputy President Jarvis made the following observations – at [33]:
“The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously… However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.”
The Tribunal is aware of the numerous authorities that remind decision-makers that summary termination powers must not be exercised lightly. However, where, as in this matter, a threshold statutory requirement cannot be met, and where the review application is without any legislative basis, it is proper, and desirable, that the application be dismissed pursuant to s 42B(1)(b) of the Act. It is desirable because otherwise, the Respondent will be required to use valuable time and resources on proceedings that cannot succeed. It is also desirable because the Applicant will otherwise be engaged in a futile exercise which only deviates her from seeking redress in another forum.
For the reasons outlined above, the Tribunal is satisfied that these proceedings should be dismissed pursuant to s 42B(1)(b) of the Act, as they have no reasonable prospects of success.
DECISION
The application for review is dismissed pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
| I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso |
.............[SGD]........................................
Associate
Dated: 29/07/2022
Date of Interlocutory Hearing: 1 June 2022 Applicant: By telephone
Solicitor for the Respondent: Ms Sonia Harris
Department of Education, Skills and Employment
1
5
3