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Froemmcke and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 1050 (25 November 2010)

Last Updated: 24 December 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1050

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4437

Applicant

Respondent

DECISION

Date 25 November 2010

Place Brisbane

..............................................
Senior Member

CATCHWORDS

HIGHER EDUCATION LEARNING – whether Tribunal has jurisdiction to hear the application – no confirmed, varied or set aside decision for the Tribunal to consider – no jurisdiction.

Higher Education Support Act 2003 (Cth), ss 209-5, 209-10, 212-1

Aged Care Standards and Accreditation Agency Ltd v Administrative Appeals Tribunal [2009] FCA 1514

REASONS FOR DECISION

1. The Tribunal decided on 25 November 2010 that it did not have jurisdiction to deal with Ms Froemmcke’s application for review. I gave oral reasons for that decision at the conclusion of the telephone hearing of jurisdiction. The respondent subsequently asked for written reasons for the decision. I have prepared these written reasons from my notes.
2. Ms Froemmcke’s application for review relates to a decision of James Cook University on behalf of the respondent made on 26 March 2009. In that decision, the University decided not to re-credit Ms Froeemcke’s Student Learning Entitlement and remit her HECS-HELP debt under s 79-1 of the Higher Education Support Act 2003 (“the Act”) in respect of three subjects that were commenced during the relevant study period. Ms Froemmcke claims she withdrew from the subjects before the applicable deadline but the University was not satisfied this was so. She was subsequently informed in writing that her application had been declined. She was advised that could seek internal review of the decision within 42 days of receiving the letter.
3. There is some confusion over the precise dates when the 42 day period began and ended because the letter appears to have been incorrectly dated. But that was ultimately irrelevant because Ms Froemmcke did not seek reconsideration of the decision until 30 August 2010, some 16 months after the date on which she probably received the decision.
4. The University declined to reconsider the earlier decision given the delay. In its letter dated 28 September 2010, the University added that Ms Froemmcke could seek a review of its decision before the Tribunal.
5. Notwithstanding the University’s advice that Ms Froemmcke could seek a review in the Tribunal, the respondent says there is no jurisdiction to entertain the appeal.

REVIEWABLE DECISIONS

6. The Tribunal only has power to deal with reviewable decisions. Section 212-1 of the Act provides that a reviewable decision in this case is “a reviewable decision that has been confirmed, varied or set aside under s 209-5 or 209-10.” There is no doubt that a decision not to re-credit some or all of a person’s Student Learning Entitlement is a reviewable decision, but s 212-1 contemplate a further step before it can be taken up before the Tribunal: the decision must be confirmed, varied or set aside upon reconsideration, whether on the decision-maker’s own motion (s 209-5) or at the request of the applicant (s 209-10).
7. In this case, the University did not reconsider the decision under s 209-10 because the request was made out of time. The respondent says that, as a result, there is no confirmed, varied or set aside decision for the Tribunal to consider. The decision-maker merely refused an extension of time, and decisions in relation to extensions of time are not listed as a reviewable decision under the Act.
8. The Federal Court’s decision in Aged Care Standards and Accreditation Agency Ltd v Administrative Appeals Tribunal [2009] FCA 1514 reminds us that the Tribunal must conscientiously observe the provisions in a statute which confer jurisdiction. I accept that the provisions referred to by the respondent have the contended effect. It follows the Tribunal does not have jurisdiction to deal with Ms Froeemcke’s application.

CONCLUSION

9. The Tribunal does not have jurisdiction to deal with the application for review.
   

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ...........................................................................

Patrick MacDonald

Date of Hearing 25 November 2010

Date of Written Reasons 22 December 2010

Applicant Self-represented

Solicitor for the Respondent Ms R De Hossen, Department of Education, Employment and Workplace Relations