Ward and Secretary, Department of Employment and Workplace Relations

[2024] AATA 955

Ward and Secretary, Department of Employment and Workplace Relations [2024] AATA 955 (19 April 2024)

Division:                  GENERAL DIVISION

File Number:          2024/0313

Re:Emily Ward

APPLICANT

AndSecretary, Department of Employment and Workplace Relations

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:19 April 2024

Date of Written Reasons:      3 May 2024

Place:Sydney

For the reasons given orally during the directions hearing on 19 April 2024, the Tribunal is satisfied that the application for review of the decision dated 30 November 2023, filed on 17 January 2024, has no reasonable prospects of success, and therefore dismisses the application pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act1975 (Cth).

...................................[sgd].....................................

Mrs J C Kelly, Senior Member

CATCHWORDS

HIGHER EDUCATION SUPPORT – VET FEE-HELP debt – application to re-credit Applicant’s VET FEE-HELP balance – dismissal application – no reasonable prospects of success

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Higher Education Support Act 2003 (Cth)

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

3 May 2024

Introduction

1. At a directions hearing held on 19 April 2024, I gave oral reasons for finding that the application for review of the decision dated 30 November 2023 (the Decision), filed on 17 January 2024, has no reasonable prospects of success, and therefore dismissed the application pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).  

2. After the parties were notified of the decision, the Respondent requested written reasons for the oral decision. These are the written reasons.

   Legal and factual background

3. On 30 November 2023, the Respondent confirmed the primary decision, dated 5 September 2023, to refuse to re-credit the Applicant’s VET FEE-HELP balance for the following units:

   (a)CUV50311 - 2015DIPLGD - tuition fee of $21,680.00 (and loan fee of $4,336.00)

   (b)CUV50311 - GDDYEAR2 - tuition fee of $39,522.00 (and loan fee of $7,904.40)

4. The Applicant’s grievance is that she believes that the provider had incorrectly charged her for her second-year course because she believed that she had been advised that the tuition fee should be the same as for the first year.

5. The Secretary may re-credit a FEE-HELP balance under clause 46AA(1) of Schedule 1A of the Higher Education Support Act 2003 (Cth) (HESA) which provides:

   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 (emphasis added)

   (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.

6. The parties accept that the Applicant has completed the requirements of all the units during the period she undertook them and has completed her course. The Respondent provided a copy of her Diploma of Graphic Design dated 16 December 2016.

7. Therefore, the Applicant does not satisfy clause 46AA(1)(a)(i) of Schedule 1A because she has successfully completed the units.

8. Regarding clause 46AA(1)(a)(ii)), it is very clear to me, and it is not in dispute, that neither of the sub-clauses of clause 46AA(1)(a) applied because the Applicant has completed the units required for and has been awarded the diploma.

9. Therefore, the application has no reasonable prospects of success.

10. Although not necessary to finalise this matter, but perhaps to assist the Applicant and her father to feel less aggrieved by the provider, I refer to two documents provided to the Respondent by the provider and which the Respondent provided to the Tribunal and the Applicant for the purposes of the present application. 

11. For context, I note that the Applicant’s father tried to contact the provider to obtain documents but found that it had gone into liquidation. He was unable to find any person who could assist him to obtain such documents. Therefore, the only documents before the Tribunal are those the provider gave to the Respondent. It is unlikely that any other relevant documents would be available from any other source. In any event, the documents before the Tribunal are contemporaneous records and persuasive.

12. Although the Applicant believes that she was told that the fees for the relevant second year courses would be the same as the fees in the first year, in small writing on the bottom of the last page of the 2015 Enrolment Form which the Applicant signed on 21 December 2014, is the following sentence:

    ·Please note:  Tuition fees are subject to change. Please refer to the website for up to date fee schedule. 

13. The tuition fee schedule for the Diploma set out the tuition fees for Semesters 1 and 2 (to be undertaken in 2015) and the tuition fees for Semesters 3 and 4 (to be undertaken in 2016) were the same - $21,960.  However, the fee schedule advised readers to refer to the 2016 tuition fee schedule for the 2016 calendar year fees. That latter calendar is not in evidence.

14. The Tertiary Collection of Student Information data records show that the Applicant was charged $73,442.40 for the Diploma as follows:

    (a)For Year 1 - $21,680 tuition fee, plus $4,336.00 loan fee; and

    (b)For Year 2 - $39,522.00 tuition fee, plus $7,904.40 loan fee.

15. The enrolment form and the tuition fee schedule for 2015 put students on notice that fees may increase and students should check whether they had.

16. The Applicant’s, and perhaps her father’s recollection, is that she/they had been told that the fees would be the same in 2016 as they were in 2015. However, the evidence that the fees may rise and students should check whether they had, is contemporaneous and persuasive. 

17. The Applicant only became aware of her HELP balance when she was reviewing her debt online for tax purposes, early in 2022, years after she signed the enrolment application form and more than five years after completing the Diploma. It obviously came as a very unwelcome shock.

18. As I said during the hearing, unfortunately this Tribunal cannot assist her.

    DECISION

19. For the above reasons, I dismiss the application for review pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

....................................[sgd]....................................

Associate

Dated: 3 May 2024

Date of hearing:

19 April 2024

Applicant:

Advocate for the Applicant:

In person

Mr R Ward, Friend/Relative

Solicitors for the Respondent:

Ms S Miller, Sparke Helmore