Yael Sayers and Secretary, Department of Education, Employment and Workplace Relations

[2012] AATA 229

[2012] AATA  229

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/0908
Re	Yael Sayers
APPLICANT
And	Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	19 April 2012
Date of written reasons	20 April 2012
Place	Sydney

For the reasons given orally at the hearing on 19 April 2012, the application for an extension of time is refused.

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

Senior Member J F Toohey

CATCHWORDS

PRACTICE AND PROCEDURE – EXTENSION OF TIME – JURISDICTION – application for review of decision concerning applicant’s liability for HECS-HELP debt incurred over two semesters – applicant believed she was seeking review of decisions concerning both semesters – reviewable decision concerned one semester only – no reviewable decision made in respect of second semester – no jurisdiction to deal with decision concerning second semester – as no jurisdiction, application for extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975

Higher Education Support Act 2003

REASONS FOR DECISION

Senior Member J F Toohey

20 April 2012

1. These written reasons reflect reasons given orally at a hearing on 19 April 2012 of an application by Ms Yael Sayers for an extension of time in which to lodge an application for review of a decision made by the respondent.

   BACKGROUND

2. This matter concerns an application by Yael Sayers for review of a decision made by the University of Queensland on behalf of the respondent not to re-credit her Student Learning Entitlement (SLE) for units in which she was enrolled in 2008.

3. By reason of her personal circumstances at the time, Ms Sayers did not attend any of the courses in which she was enrolled in Semesters One and Two, 2008.  The effect of the decision not to re-credit her SLE is that she has incurred a HECS-HELP debt under the Higher Education Support Act 2003 (the HES Act).  She seeks to be relieved of that liability.

   MS SAYERS’ APPLICATION TO THE UNIVERSITY

4. On 31 August 2011, the University received from Ms Sayers an “Application for Removal of Financial Liability Due to Special Circumstances”.  On the application form, Ms Sayers identified the courses in respect of which she was applying.  She identified, by Course Code, four courses in Semester One of 2008. 

5. Ms Sayers did not identify courses in Semester Two on the application form.  However, on 22 September 2011, the university sent two letters in virtually identical terms to Ms Sayers, one referring to her application in respect of Semester One, 2008 and the other referring to her application in respect of Semester Two, 2008.  In each case, her application for removal of the student contribution liability and re-crediting of her SLE was refused.

6. On 16 October 2011, Ms Sayers sent a letter to the University, the relevant parts of which stated:

   Student number: 41743980

   Reference number: HH1503

   Request Review for a Removal of Financial Liability Decision

   Dear Sirs,

   In reply to your letter dated 22 September 2011 regarding your Notice of Decision of Removal of Student Contribution Liability, I would like to dispute the decision issued by Maureen Bowen with regards to fees for courses/subjects to which I have never attended.

   As previously stated in my numerous letters and phone calls with your services, I was not able to attend any classes I was enrolled in for Semester 1 and 2 of the Year (sic) 2008.

7. The letter went on to outline Ms Sayers’ personal circumstances during 2008 which she said meant she was unable to attend “any course”. 

8. Over the course of her correspondence with the University about her application in respect of her HECS-HELP liability, Ms Sayers submitted a number of medical reports supporting her claim to have undergone very difficult circumstances in 2008.  It is apparent that, throughout, she was seeking to be relived of her liability in respect of Semesters One and Two.

9. In my view, given the background to Ms Sayers’ applications, and given that two decisions dated 22 September 2011 were sent to her, a fair reading of her letter of 16 October 2011 would construe it as seeking review of both decisions, particularly as her letter referred specifically to Semesters One and Two.  However, because the heading of the letter referred only to “Reference number: HH1503” (being the reference number in respect of Semester One), the University treated her letter as an application for review of the decision concerning Semester One only.  No decision was made concerning Semester Two.

10. On 18 November 2011, the University wrote to Ms Sayers:

    Thank you for your request for review received on 20 October 2011 for removal of your HECS-HELP liability and re-credit of student learning entitlement (SLE) for the following courses:

Course Code	Units	EFTSL	Semester and Year	Census Date
EVNT2000	2	0.125	Semester One, 2008	31 March 2008
HOSP1005	2	0.125	Semester One, 2008	31 March 2008
HOSP2001	2	0.125	Semester One, 2008	31 March 2008
MGTS1301	2	0.125	Semester One, 2008	31 March 2008

The letter advised Ms Sayers of the decision to refuse her application.  The attached Statement of Reasons shows that the documents considered in the course of the review included a statement and correspondence from Ms Sayers describing her circumstances throughout 2008, and a letter from her psychologist which concerned the second half of 2008.

1. The notice of decision and statement of reasons dated 18 November 2011 clearly concern Semester One 2008 only.  Whether or not they arose from a fair reading of Ms Sayers’ letter of 16 October 2011, they cannot reasonably be construed as a decision in respect of Semester Two 2008.

   MS SAYER’S APPLICATION TO THE TRIBUNAL

2. On 12 December 2011, Ms Sayers sought review by the Tribunal of the University’s decision.  Not unreasonably, she believed she was seeking review of a decision in respect of both semesters. It was only when she attended a preliminary conference at the Tribunal that she was advised that there did not appear to be a reviewable decision in respect of Semester Two.

   HAS THE TRIBUNAL JURISDICTION TO DEAL WITH MS SAYERS’ APPLICATION

3. The HES Act governs grants and other payments to assist with higher education.  Part 5‑7 concerns review of decisions made under the Act.  Decisions made at first instance may be reconsidered on the decision maker's own initiative (s 209.5) or at the request of a person whose interests are affected by the decision (s 209.10).  In both cases, the reviewer must affirm or vary the decision, or set it aside and substitute a new decision.  The decision on review is a “reviewable decision”.

4. By s 212.1, an application may be made to the Tribunal for the review of a reviewable decision that has been confirmed, varied or set aside under ss 209.5 or 209.10.

5. The Tribunal’s jurisdiction relies on power being conferred on it by an enactment: s 25 Administrative Appeals Tribunal Act1975.  In this case, the Tribunal’s power is confined to reviewing a “reviewable decision” as defined in the HES Act.

   CONCLUSION

6. It is not hard to see why Ms Sayers found the process confusing and why she believed she had sought review of a decision in respect to Semester

   
   

   Two.  Despite her original application identifying only courses in Semester One, it was apparently treated as an application in respect of both semesters because, on 22 September 2011, she was notified of decisions made in respect of both semesters.  It was not unreasonable for her to assume, when she wrote to the University on 16 October 2011, that she was seeking review in respect to both semesters.

7. Despite this, and unfortunately for Ms Sayers, as no reviewable decision was made in respect of her application concerning Semester Two 2008, there is no decision which this Tribunal can review.

8. As there is no decision which the Tribunal can review, an extension of time can have no application and must be refused.

I certify that the preceding 44 (forty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.

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

Associate

Dated 20 April 2012

Date(s) of hearing	19 April 2012
Applicant	In person
Solicitors for the Respondent	Ms Shireen Delaney, Department of Education, Employment and Workplace Relations