Wilson and Secretary, Department of Education

[2021] AATA 1554

Wilson and Secretary, Department of Education [2021] AATA 1554 (2 June 2021)

Division:GENERAL DIVISION

File Number:          2021/2419

Re:Ranen Wilson

APPLICANT

AndSecretary, Department of Education

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:2 June 2021  

Place:Melbourne

The Tribunal refuses the application under section 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge this application for review of a decision.

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

R Cameron, Senior Member

Catchwords

PRACTICE AND PROCEDURE – extension of time application – no reasonable prospect of success – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Higher Education Support Act 2003 (Cth)

Cases

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344

Last and Secretary, Department of Education and Training [2019] AATA 658

REASONS FOR DECISION

R Cameron, Senior Member

2 June 2021

INTRODUCTION

1. The Applicant seeks an extension of time until 15 April 2021 to make an application for review of a decision by a delegate of the Respondent on 5 January 2021 refusing to remove a VET FEE-HELP debt (by re-credit of his FEE-HELP balance) owed by him (“the reviewable decision”).[1]

   [1] Annexure F to the Respondent's submissions of 29 April 2021.

2. In 2015, the Applicant enrolled in a Diploma of Fitness offered by a Registered Training Organisation known as the “Sage Institute”.

3. The Diploma of Fitness undertaken by the Applicant was funded by a VET FEE-HELP loan consisting of a tuition fee of $15,500 and a loan fee of $3,100.[2]

   [2] Annexure D to the Respondent's submissions of 29 April 2021.

4. The documentary evidence before the Tribunal revealed that the Applicant successfully completed the Diploma of Fitness.[3] The Applicant conceded this at the hearing of this application.

   [3] Annexure B to the Respondent's submissions of 29 April 2021.

5. Prior to agreeing to enrol in the course for a Diploma of Fitness, the Applicant asserts that a number of promises or representations were made to him by the Sage Institute. These representations or promises included that he would be obtaining a market leading qualification, with a top line qualification that would stand out from the crowd. He was informed that the qualification would be nationally recognised and make him highly qualified for employment in the fitness industry. The Applicant asserts that the representations and promises were false. He asserts that he did not receive a diploma and that the fact he has completed the course has not been recognised by any universities for the purposes of admission. In short, he says that the Diploma of Fitness course he undertook has given him nothing but a large debt; he did not get what he paid for.[4]

   [4] Specific details of the representations, promises and other conduct alleged by the Applicant on the part of Sage can be found in his application lodged with the Tribunal under the heading "Reasons for the application". He also made submissions to the Tribunal at the hearing of this application to similar effect.

   APPLICABLE LEGISLATION

6. To be eligible for a re-credit of a FEE-HELP balance, the Applicant must satisfy the provisions of clause 46AA(1) of Schedule 1A of the Higher Education Support Act 2003 (“the Act”).

7. The section 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.

   CONSIDERATION

8. The Applicant did not lodge this application within 28 days after the reviewable decision was made on 5 January 2021.

9. The Tribunal has a power under section 29(7) of the Administrative Appeals Tribunal Act 1975 to extend the time for the making of an application. The provision need not be reproduced for the purposes of these reasons.

10. Instead of making the application to this Tribunal within the prescribed time, the Applicant raised the matter with his local member of Parliament. He stated that he allowed the deadline to pass in the belief that the member of Parliament might be able to assist. The member of Parliament referred the matter back to the Respondent which led to further communication from an Acting Assistant Secretary of the Respondent dated 1 February 2021 reiterating its position.[5] Unfortunately, that letter recorded that the Diploma of Fitness that the Applicant undertook had since been superseded, and has been deemed “not equivalent”, meaning no Registered Training Organisation will be able to issue him with the same specific qualification. It was suggested to him that he may consider, for the purposes of obtaining a certificate, approaching another Registered Training Organisation to seek credit transfer in recognition of prior learning towards a current qualification. The Tribunal has to observe that this is most unsatisfactory indeed. One can see from this response why the Applicant feels aggrieved.

    [5] Annexure H to the Respondent's submissions of 29 April 2021.

11. The Applicant then made enquiries about fee reductions in this Tribunal, the results of which are not clear. Eventually, on 15 April 2021 he made the application to the Tribunal that is the subject of these reasons.

12. It should be observed that the Applicant has not at any time sought or received legal advice concerning these matters.

13. When considering an application of this kind, the Federal Court has articulated several factors that should be taken into account by the decision-maker. A case that is most frequently cited is Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment.[6] Those factors include the following:

    (a)It is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained. It is a precondition of the exercise of discretion in the applicant’s favour that the applicant for an extension show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.

    (b)Whether the applicant has taken any action other than making an application for review may be taken into account. It may go to the adequacy of the explanation for the delay.

    (c)The apparent merit (or lack of merit) of the substantial application may be taken into account in considering whether an extension of time should be granted.

    [6] (1984) 3 FCR 344.

14. The Respondent opposes the application for an extension of time on the grounds that the application has no reasonable prospect of success.

15. The grounds relied upon by the Respondent are that section 46AA(1) of Schedule 1A of the Act (that the person has not completed or is taken not to have completed the requirements of the unit in issue) does not apply to the Applicant because he has completed the requirements of the units leading to completion of the course, and therefore does not meet the threshold requirement of the clause.

16. The question was recently considered helpfully by Senior Member Puplick of this Tribunal in Last and Secretary, Department of Education and Training.[7]

    [7] [2019] AATA 658.

17. The Senior Member commenced by considering the meaning of completion of a course. He accepted a definition which was the successful completion of all academic requirements of the course of study. This Tribunal agrees with that definition and finds that on the evidence before it there can be no doubt that the Applicant completed the units of study for a Diploma of Fitness for which the relevant FEE-HELP debt was incurred.

18. Subsections 46AA(1)(a) and (b) of the Act are conjunctive. Unless both conditions are satisfied, the Secretary cannot re-credit a person’s HELP balance with an amount equal to the amounts of the VET FEE-HELP assistance that the person received for a VET unit of study with a VET provider. Therefore, as contended for by the Respondent, because the Applicant completed the qualification of Diploma of Fitness, the first condition is not satisfied and there is no legislative power to direct the refund, or more accurately a re-credit.

19. It was put by the Respondent in another way to the same effect, that completion and conferral of a passing grade by the Applicant is an effective bar to fee remission as the Applicant does not satisfy the threshold requirement of section 46AA(1)(a) of Schedule 1A of the Act. To satisfy that section, and consequently be eligible to seek a re-credit, a student must not have completed the requirements of the units. In this case, the Applicant did complete the Diploma of Fitness.

20. For these reasons, the application has no prospects of success. Given this fact, the Tribunal sees no utility in granting an extension of time. Accordingly, the application is refused.

21. The Tribunal should observe in conclusion that it has considerable sympathy for the Applicant’s predicament. It does seem, without expressing any concluded view on the topic, that he does have the potential causes of action in breach of contract, together with misleading and deceptive conduct and unconscionable conduct under the Australian Consumer Law. However, those causes of action are not matters that can be ventilated before this Tribunal.

    DECISION

22. The Tribunal refuses the application under section 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge this application for review of a decision.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

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

Associate

Dated: 2 June 2021

Dates of hearing:	24 May 2021
The Applicant:	By telephone
Advocate for the Respondent:	Fiona Baker