Federal Court of Australia

Montenegro v Secretary, Department of Education [2020] FCAFC 210

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to amend the Further Amended Notice of Appeal in the form of the Second Further Amended Notice of Appeal dated 5 November 2020.

2.    The Notice of objection to competency filed on 9 April 2020 is dismissed.

3.    The appeal be allowed.

4.    The judgment and orders of the primary judge made on 13 March 2020 be set aside.

5.    The decision of the Administrative Appeals Tribunal dated 9 July 2019 be set aside.

6.    The matter be remitted to the Administrative Appeals Tribunal differently constituted to be dealt with in accordance with law.

7.    The Respondent pay the costs of the Appellant of the proceedings before the primary judge and of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK J:

1    The Appellant in the present proceeding, Mr Cesar Montenegro, enrolled at the University of Sydney (the “University”) in a Graduate Diploma in Law. As part of that Course, in December 2016 he enrolled in four units of study, including a unit (taught on an intensive basis) titled Interpreting Commercial Contracts. The course requirements involved two essay assessment tasks and attendance at 70% of classes which were to occur on 16, 17, 20 and 21 February 2017.

2    Mr Montenegro was unable to meet the course requirements due to a medical condition.

3    On 5 July 2017, he applied to the University seeking the re-crediting of his FEE-HELP debt under s 104-25(1) of the Higher Education Support Act 2003 (Cth) (the “Higher Education Support Act”). That application was rejected. On 5 September 2017, he applied to the University for review of its decision. On 21 September 2017, he was informed that his application for review was rejected on the same terms as the initial rejection. Mr Montenegro then sought review of the 21 September 2017 decision by the Administrative Appeals Tribunal (the “Tribunal”). In July 2019, the Tribunal affirmed the University’s decision: Re PSVN and Secretary, Department of Education and Training [2019] AATA 1912.

4    On 10 July 2019, Mr Montenegro filed in this Court a Notice of appeal from a tribunal. On 13 March 2020, a Judge of this Court published reasons and made an order dismissing the appeal: Montenegro v Secretary, Department of Education [2020] FCA 325. Those reasons record that an application made by Mr Montenegro to continue to be referred to by the pseudonym “PSVN” was no longer pressed: [2020] FCA 325 at [105] to [107].

5    A Notice of Appeal from the primary Judge’s decision was filed on 25 March 2020. Thereafter an Amended Notice of Appeal was filed on 3 April 2020. A Notice of objection to competency was filed on 9 April 2020. A Further Amended Notice of Appeal was filed on 30 September 2020. The Grounds set forth in that document broadly stated contend that the Tribunal erred by reason of its failure:

    to take into account the Higher Education Support Act 2003 – Administration Guidelines 2012 (Cth) (the “Administration Guidelines”); and/or

    to apply those Guidelines and, in particular, whether Mr Montenegro had established “special circumstances” warranting a decision that he be re-credited with his FEE-HELP balance.

It is further contended in the Grounds that the primary Judge erred in not finding error on the part of the Tribunal. During the course of the hearing of the appeal a further question arose, albeit not a question presented to the primary Judge for resolution, as to whether:

    the Tribunal had failed to provide adequate reasons and findings in support of its decision.

The primary Judge rejected the two issues that were previously relied upon. The question to be resolved on appeal is whether in doing so her Honour committed appellable error. Also to be resolved is the fate of the application to rely upon an additional Ground, namely the adequacy of the Tribunal’s reasons.

6    Given that the Further Amended Notice of Appeal adequately addressed the issues to be resolved, the Notice of objection to competency was not pressed. It can be dismissed. In respect to the appeal, and in very summary form, it has been concluded that the decision of the Tribunal:

    did not comply with the requirements imposed by the Higher Education Support Act, including the Administration Guidelines; and

    failed to properly apply the Administration Guidelines.

The decision of the primary Judge, with great respect, was in error in not so concluding. In the event that either of those conclusions be erroneous, it has been further concluded that:

    leave should be granted to amend the Further Amended Notice of Appeal in the form of the Second Further Amended Notice of Appeal dated 5 November 2020; and that

    the Tribunal erred in not providing adequate reasons and findings for its conclusions.

7    The appeal is also to be allowed. As agreed between the parties, costs should follow the event.

8    To explain these conclusions, it is necessary to briefly set forth:

    the centrally relevant legislative provisions and the terms of the Administration Guidelines;

    the reasoning of the Tribunal;

    the manner in which the Tribunal failed to comply with the requirements imposed by the Higher Education Support Act;

    the manner in which the Tribunal failed to apply the Administration Guidelines; and

    the necessity for the Tribunal to adequately make findings and provide reasons for its decision and the manner in which it failed to do so.

The Higher Education Support Act & Guidelines

9    The Long Title to the Higher Education Support Act provides that it is:

An Act relating to the funding of higher education, and for other purposes.

10    The Objects of the Act are set forth in s 2-1 as follows:

Objects of this Act

The objects of this Act are:

(a)    to support a higher education system that:

(i)    is characterised by quality, diversity and equity of access; and

(ii)    contributes to the development of cultural and intellectual life in Australia; and

(iii)    is appropriate to meet Australia’s social and economic needs for a highly educated and skilled population; and

(iv)    promotes and protects free intellectual inquiry in learning, teaching and research; and

(b)    to support the distinctive purposes of universities, which are:

(i)    the education of persons, enabling them to take a leadership role in the intellectual, cultural, economic and social development of their communities; and

(ii)    the creation and advancement of knowledge; and

(iii)    the application of knowledge and discoveries to the betterment of communities in Australia and internationally;

recognising that universities are established under laws of the Commonwealth, the States and the Territories that empower them to achieve their objectives as autonomous institutions through governing bodies that are responsible for both the university’s overall performance and its ongoing independence; and

(c)    to strengthen Australia’s knowledge base, and enhance the contribution of Australia's research capabilities to national economic development, international competitiveness and the attainment of social goals; and

(d)    to support students undertaking higher education and certain vocational education and training.

11    Section 3-1 provides the following general “Overview of this Act”:

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).

12    Within this very broadly expressed structure, Part 3-3 of the Higher Education Support Act expressly addresses what is there referred to as “FEE-HELP Assistance”. Within that Part, s 101-1 sets forth an outline as to “What this Part is about” and s 101-5 provides that “FEE HELP assistance is also dealt with in the FEE-HELP GUIDELINES”. Subdivision 104-A sets forth “Basic rules” as to the entitlement to FEE-HELP assistance.

13    In attempting to describe the program given effect by Schedule 1A of the Act, Perram J in Australian Competition and Consumer Commission v Unique International College [2017] FCA 727 said:

[5] VET FEE-HELP is a shorthand for Vocational Education and Training FEE Higher Education Loan Program. During the relevant period, which spanned some 15 months, the VET FEE-HELP scheme had these pertinent features:

*    it was available to Australian citizens or holders of a permanent humanitarian visa who were resident in Australia, provided that they were enrolled in a full fee paying course approved for VET FEE-HELP …;

*    the Commonwealth would pay in full whatever the tuition fee was for each unit of the approved course and would treat the combined amounts as a loan to the student;

*    the loan would be repayable through the tax system once the student began to earn more than the ‘minimum repayment income’ …;

*    each person had a maximum lifetime amount which could be borrowed through this and other related schemes (such as HECS). …;

*    there was a 20% loan fee on top of the tuition fee which was also payable to the Commonwealth and which was debited to the student’s FEE-HELP balance; and

*    the amount of the student’s FEE-HELP balance was indexed to the Consumer Price Index… .

14    The provisions of the Higher Education Support Act of most immediate relevance to the present proceeding, however, are ss 104-25 and 104-30. Section 104-25 provides in relevant part as follows:

Main case of re-crediting a person's HELP balance in relation to FEE-HELP assistance

…

(1)    A higher education provider must, on the Secretary's behalf, re-credit a person's HELP balance with an amount equal to the amounts of FEE-HELP assistance that the person received for a unit of study if:

…

(c)    the provider is satisfied that special circumstances apply to the person (see section 104-30); and

…

Section 104-30 provides as follows:

Special circumstances

(1)    For the purposes of paragraphs 104-1A(2)(b) and 104-25(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that:

(a)    are beyond the person's control; and

(b)    do not make their full impact on the person until on or after the census date for the unit of study in question; and

(c)    make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake the unit.

(2)    If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36-21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.

…

The “Administration Guidelines” to which reference is made in s 104-30(2) are further addressed in ss 159-5 and 238-10 as follows:

159-5    The Administration Guidelines

Administrative matters are also dealt with in the Administration Guidelines. The provisions of this Chapter may indicate when a particular matter is or may be dealt with in these Guidelines.

Section 238-10 provides in relevant part as follows:

Guidelines

(1)    The Minister may, by legislative instrument, make Guidelines, specified in the second column of the table, providing for matters:

(a)    required or permitted by the corresponding Chapter, Part or section specified in the third column of the table to be provided; or

(b)    necessary or convenient to be provided in order to carry out or give effect to that Chapter, Part or section.

15    The Administration Guidelines 2012 are expressed to have been made under s 238-10 and provide in relevant part as follows:

CHAPTER 3 SPECIAL CIRCUMSTANCES

3.1    PURPOSE

3.1.1.    The purpose of this chapter is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:

    (a)    are beyond the person’s control (paragraph 36-21(1)(a) of the Act);

(b)    do not make their full impact on the person until on or after the census date for the unit of study in question (paragraph 36-21(1)(b) of the Act); and

(c)    make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit (paragraph 36-21(1)(c) of the Act).

3.5    CIRCUMSTANCES BEYOND A PERSON’S CONTROL

3.5.1    A higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.

3.5.5    The situation referred to in paragraph 3.5.5 must be unusual, uncommon or abnormal.

3.10    CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE

3.10.1    A higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person’s circumstances occur;

(a)    before the census date, but worsen after that day; or

(b)    before the census date, but the full effect or magnitude does not become apparent until on or after that day; or

(c)    on or after the census date.

3.15    CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS

3.15.1    A higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit if circumstances such as the following occur:

(a)    medical circumstances. For example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying; or

…

A person is unable to complete the requirements for a unit if the person is unable to:

(a)    undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or

(b)    complete the required assessable work; or

(c)    sit the required examinations; or

(d)    complete any other course requirements because of their inability to meet (a), (b) and (c) above.

The reasons of the Tribunal – the Guidelines & special circumstances

16    The reasons and findings of the Tribunal separately address what it identifies as:

    the Background (at paras [1] to [7]);

    the Facts (at paras [8] to [19]);

    The Law (at paras [20] to [21]);

    Discussion (at paras [22] to [32]).

Although it is somewhat cumbersome, it is necessary to reproduce those parts of these findings and reasons which assumed relevance on the appeal.

17    When identifying the Facts, those parts of the Tribunal’s reasons which the Respondent maintained assumed relevance were the following:

[12]    The unit commenced on 23 January 2017 and on 16 February 2017 the applicant submitted his first essay. He also submitted an email request to be exempted from the requirement to attend classes on the basis of his skin condition which had flared up again.

…

[14]    On 17 February 2017, the applicant submitted an application for Special Consideration for exemption from the attendance requirements of the course on the basis of his skin condition.

[15]    The census date was in fact 24 February 2017 not 28 February 2017 as stated by the postgraduate team leader. Had the applicant sought to withdraw on 28 February 2017 as a result and been refused I would have accepted his withdrawal as a result of him being given the wrong date. However, nothing turns on this as he set his heart on pursuing his application for Special Consideration, which the University refused on 2 March 2017 and which he promptly appealed and was again unsuccessful on 8 March 2017. The Associate Dean of Postgraduate Coursework on 9 March 2017 also indicated to the applicant by email that he too was unable to exempt him from the attendance requirements but that it was appropriate to grant the applicant a Discontinue – Fail Grade.

…

[18]    Counsel for the respondent also during the course of the hearing conceded that there was no way the applicant could have been expected to attend the classes on 16, 17, 20 and 21 February 2017 due to his ailments. The problem was that his inability to attend to his studies occurred prior to, rather than after, the cut off period of 24 or 28 February 2017 (whichever date one wished to apply due to the postgraduate team leader’s error.)

18    Reference should also be made to the Tribunal’s exposition of The Law to be applied. That exposition was somewhat compendious and (in its entirety) was as follows (without alteration):

THE LAW

[20]    Paragraph 104-25(1)(c) of the Act provides that “A higher education provider must (emphasis added) on the Secretary's behalf, re-credit a person’s FEE-HELP balance with an amount equal to the amounts of FEE-HELP assistance that the person received for a unit of study if...the provider is satisfied that special circumstances apply to the person.”

[21] Subsection 104-30(1) of the Act goes on to say that “special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that:

(a)    are beyond the persons control; and

(b)    do not make their full impact on the person until on or after the census date for the unit of study in question; and

(c)    make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook ,or was to undertake the unit of study.”

19    Immediately following upon its exposition of The Law, the Tribunal sets forth its Discussion as follows:

DISCUSSION

[22]    As indicated to the parties towards the end of submissions, it was obvious from the evidence that the applicant’s medical condition made it impossible for him to complete the course requirements prior to the census date and therefore, whilst beyond his control, they did make their full impact apparent from before the census date, namely from about 13 February 2017 onwards, and thus made it impracticable for him to complete the requirements of his unit from that time onwards. Accordingly his medical circumstances are not special in this instance.

[23]    Further, whilst his application for exemption is an understandable reason for him not withdrawing before the census date, he was reliant on it being successful. Whilst it was apparent he felt he was not well served by the postgraduate team leader, apart from her error as to the census date, I cannot find anything else she did wrong. She even advised him on 16 February 2017 to consider withdrawing before the census date. He had indeed had experience in doing so before due to his ailment on other occasions with other units.

[24]    He took a chance on his application. I’m satisfied he did so with his eyes wide open as to risks. Unfortunately it did not work and the circumstances around it do not in themselves amount to special circumstances. Accordingly he fails on that ground.

[25]    However, at first blush, the fact that the course ultimately is not offered again in Australia could perhaps be construed as a special circumstance. That decision is beyond his control, its full impact on him is not apparent until well after the census date (although it may not have had any bearing on making it impracticable for him to complete the requirements for the unit in the period he undertook or was to undertake the unit save as to effecting his future ability to undertake a similar unit in future).

[26]    Unless there are some other considerations, this fact, which only cropped up months after the census date, appears to have some legs.

[27]    The tribunal has carefully considered the submissions of the parties on this issue.

[28]    Unfortunately for the applicant there are several points against him. To start with the definition of “unit of study” in Schedule 1 of the Act includes the following: “If a higher education provider provides the same subject or unit in respect of more than one period, the subject or unit is taken to be a different unit of study in respect of each period” (emphasis added). So, the effect of this is to deem the same unit being offered in an impossible location like the UK a “different unit of study”, just as it would be if it was offered in 2018 at the University.

[29]    I am further persuaded by the example given by the respondent in their further submissions on this point, namely where the respondent gave the hypothetical example of “John” who enrols in trimester 1 in a unit of contract law, fails his final exam and thus fails the unit and incurs a FEE-HELP debt because he was enrolled in the course after the census date. He then enrols in the unit again in trimester 2, becomes ill and withdraws before the census date and as a result does not incur a FEE-HELP liability for the trimester 2 unit. John enrols again in the same unit in trimester 3 and passes the exam thus passing the unit. John incurs a FEE-HELP liability for the trimester 3 unit in addition to his trimester 1 liability.

[30]    I must agree with the respondent’s submissions on this point.

[31]    Had the applicant taken the prudent course he would have withdrawn whilst he could. He had done it before and he was not guaranteed success by just relying on his application for dispensation. Unfortunately, there are no legally applicable special circumstances in this case.

[32]    Unfortunately, for the applicant, for the reasons given above, his appeal is unsuccessful and the decision appealed from is affirmed.

(emphasis on original)

A decision “in accordance with” the Guidelines

20    The first of the two issues relied upon by the Appellant was characterised in the Outline of Submissions filed on his behalf as a “failure to consider or apply the… Guidelines”. This failure was further characterised as a failure “to consider mandatory considerations”.

21    However expressed, such reasons as have been provided by the Tribunal expose the fact that it did not undertake the statutory task required by s 104-30.

22    The starting point in the statutory task required to be performed is s 104-25(1)(c), namely the requirement that a “higher education provider must … re-credit a person’s … HELP balance … if … the provider is satisfied that special circumstances apply to the person…”. The first of the issues to be resolved may be restated as being whether the Tribunal reached its state of “satisfaction” in the manner set forth in s 104-30.

23    Section 104-30(1) identifies the circumstances when “special circumstances apply to the person… ”. Section 104-30(2) provides that “any decision of a higher education provider … must be in accordance with any [Administration] Guidelines…”. And those Guidelines identify the circumstances in which “a higher education provider will be satisfied that special circumstances apply to the person…”. Those circumstances are set forth in the Administration Guidelines at paras 3.1, 3.5, 3.10 and 3.15.

24    When determining the content of the phrase “in accordance with…” as it arose in the context of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), Mortimer J in Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178, (2018) 260 FCR 1 at 51 to 53 concluded:

[202]    The applicant, and the interveners, all submitted the phrase “in accordance with” meant “consistently with”, “in conformity with” or “in compliance with”. They submitted that was also how the phrase was used elsewhere in the Act. I agree.

[203]    The applicant and interveners referred to authorities dealing with other statutory schemes where the phrase has been given a meaning that carries with it the need for more than a connection between two matters, but rather a need for conduct to be compliant. …

…

[209]    In all these examples, the meaning which is given to “in accordance with” is one which requires the content of the document, or regulation, or rule to be ascertained, and then for the conduct to be measured against that content. That is the essential distinction between the meaning for which VicForests contends, and the meaning for which the applicant and the interveners contend.

[210]    The contentions of the applicant and the interveners are also more consistent with the context of s 38(1), as one of several exceptions and exemptions in Pt 4 of Ch 2. As I have set out above, throughout Pt 4 of the EPBC Act, where the scheme uses the phrase “in accordance with” it does so as a method of picking up, by a cross-reference, the content of another document or agreement. It is in that other document or agreement where all of the protections which are otherwise provided by the scheme of controlling provisions in Pt 9 of the EPBC Act are found. How actions are regulated is set out in those other documents or agreement. By using the technique of requiring actions to be “in accordance with” those other documents or agreements, the Parliament is picking up the content of those other documents or agreements, insofar as (and only insofar as) they regulate the taking of an action. In that way, the EPBC Act allows for the substitute of its own approval processes with other processes (generally at State level), those processes having been approved and accredited as ones which can themselves regulate the taking of actions. No general or lasting immunity from having to take an action in a way that complies with whatever scheme of environmental regulation has been chosen is given.

[211]    Once that meaning is given, then like the other instances of its use in this scheme, Parliament’s use of that phrase is a textual indication that it intends those who carry out actions to comply with whatever substitute regime is nominated by a particular provision.

This approach to the construction of the statutory phrase “in accordance with” has been applied in different legislative contexts: e.g., Decleah Investments Pty Ltd and Prince Removal and Storage Pty Ltd v Commissioner of Taxation [2018] FCA 717 at [12], (2018) 107 ATR 815 at 821 per Steward J.

25    It is a construction, with respect, which should also be applied to s 104-30(2) of the Higher Education Support Act. Where a provision thus requires that something is to be done “in accordance with” the Administration Guidelines, what is required is that those Guidelines themselves become a “substitute regime” which is to be complied with.

26    No express reference is made in the Tribunal’s reasons to the Administration Guidelines and, necessarily, no express reference to any of those factual matters the subject of paras 3.1, 3.5, 3.10 and 3.15 of those Guidelines. The Guidelines are made pursuant to the Act and clearly give detailed content to the Act, including (in particular) when a “higher education provider will be satisfied that special circumstances apply” (para 3.1.1) and when such a provider “will be satisfied that a person’s circumstances are beyond that person’s control” (para 3.5.1). The Administration Guidelines not only provide a list of factual matters which promote consistency in administrative decision-making between many different “higher education providers”, those Guidelines also serve as a discipline upon the reasoning process of an administrative decision-maker. “Inconsistency” in administrative decision-meaning, it has been said, “is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness, which is incompatible with commonly accepted notions of justice”: Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639 per Brennan J.

27    Assuming without deciding that it is not necessary for the Tribunal to make such express references to the Guidelines or the factual matters in respect to which it must be “satisfied”, the simple fact is that the Tribunal’s reasons do not disclose any decision-making process whereby it made its decision “in accordance with” the “substitute regime” set forth in those Guidelines. Although the failure on the part of an administrative decision-maker to expressly refer to a particular matter may not necessarily lead to a conclusion that it was not taken into account (cf. Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 at 184 per Toohey J), the absence of an express reference to the Guidelines at least provides a starting point for an inquiry as to whether a decision was made “in accordance with” those Guidelines.

28    Without being exhaustive, there is nothing – either express or implicit – in the reasons of the Tribunal to disclose it giving active consideration to such matters as to:

    what was in fact the “situation” to which it was directing attention,

and whether the Tribunal was satisfied that that “situation” was one:

    “which a reasonable person would consider is not due to the person’s action or inaction…” (para 3.5.1); or

    which was “unusual, uncommon or abnormal” (para 3.5.5).

There is similarly nothing – again either express or implied – in the reasons going to any of the matters raised in para 3.10.1(a), (b) or (c), although perhaps para [23] of the Tribunal’s reasons may implicitly address (in part) para 3.5.1.

29    Whether the Administration Guidelines were or were not a “mandatory relevant consideration”, no conclusion is open to this Court that the Tribunal made a decision “in accordance with” those Guidelines where there was not one, but a series of matters in respect to which the Tribunal was required to reach a state of “satisfaction”, and in respect to which there was no identifiable finding of any relevance.

30    The primary Judge, with the greatest of respect, was in error in rejecting a like argument. Grounds 1 and 2A of the Second Further Amended Notice of Appeal should thus be upheld.

Special circumstances

31    Although addressed separately, the first and second of the issues to be resolved considerably overlapped – indeed, on one view, it would only be necessary to resolve the second of the two issues.

32    But one aspect of the conclusion that in order for the Tribunal to make a decision “in accordance with” the Guidelines is that the Tribunal was required to be “satisfied” as to whether the “situation” was one “which a reasonable person would consider [was] not due to [his] action or inaction…”. The conclusion that has been reached is that the Tribunal’s reasons gave no express or implicit consideration of this issue as an issue in need of resolution. Nor did the Tribunal make any findings which could be invoked to support a conclusion that it was so “satisfied”.

33    Counsel for the Respondent resisted this conclusion upon the basis that that issue was one implicitly addressed in paras [12], [14], [15], [18], [22] to [24] and [31] of the Tribunal’s reasons.

34    Rejected at the outset is any proposition that a decision-maker can discharge the task of making a decision as to “special circumstances” if a series of discrete findings not directed to that issue can nevertheless be discerned from the reasons provided, and thereafter relied upon to justify or support an ultimate finding or conclusion. The requirement to make a decision “in accordance with” published Guidelines requires a discipline of thought processes which exposes a decision-maker at least directing attention to the facts necessary to reach its conclusions and directing attention as to why those facts are of relevance to the statutory task being discharged. A series of discrete facts not directed to any identifiable statutory requirement, and not relied upon by an administrative decision-maker as part of the statutory task being undertaken, cannot be retrospectively and opportunistically relied upon by someone other than the decision-maker – such as Counsel for a party – to provide the reasons not provided by the decision-maker.

35    Even if that be erroneous, the paragraphs of the Tribunal’s reasons which have been relied upon fall well short of even implicitly supporting any conclusion that the Tribunal addressed and resolved the issue identified in para 3.5.1. Its decision was one not made “in accordance” with the Guidelines.

36    Although this is but one of the failures on the part of the Tribunal to adequately address the question as to whether “special circumstances” had been established, it is of itself sufficient to uphold Grounds 2B and 3 of the Further Amended Notice of Appeal.

37    Also rejected is a submission advanced by Counsel on behalf of the Respondent that para 3.5.5 of the Guidelines only arises for resolution if a finding were to be made in respect to para 3.5.1. The reference in para 3.5.5 to “paragraph 3.5.5”, it may be noted is presumably erroneous and the reference should be to “paragraph 3.5.1”. Paragraphs 3.5.1 and 3.5.5 are, properly construed, two separate but complementary requirements. The relevance of properly construing para 3.5.1 is that there is similarly no express (or implied) consideration given by the Tribunal to whether the “situation” referred to in para 3.5.1 was “unusual, uncommon or abnormal”. Of immediate relevance is the fact that the Tribunal’s reasons do not expose any finding being made as to whether the “situation” was “unusual, uncommon or abnormal”.

The inadequacy of the reasons & findings provided

38    The question as to any adequacy in the reasoning of the Tribunal arose not before the primary Judge but only on appeal. An application was made by Counsel for the Appellant to amend the existing Further Amended Notice of Appeal to raise this additional argument. Leave to raise a new argument on appeal, including an “appeal” from a decision of the Tribunal, may be granted in circumstances where it is in the interests of the administration of justice: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46], (2004) 238 FCR 588 at 598 per Kiefel J (as her Honour then was), Weinberg and Stone JJ. See also: Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [90], (2016) 243 FCR 220 at 47 per Flick and Rangiah JJ. As but one instance of where leave may be granted are those cases in which the question sought to be raised is a question as to whether the Tribunal has applied “the true construction and application of legislation”: Repatriation Commission v Warren [2008] FCAFC 64 at [78], (2008) 167 FCR 511 at 530 per Lindgren and Bennett JJ. Leave to amend should be granted. The question to be resolved depended exclusively upon a review of the Tribunal’s reasons construed by reference to legislative provisions.

39    Given the conclusions already reached, it is unnecessary to resolve this additional Ground. It is nevertheless prudent to express some brief reasons to resolve that question in favour of Mr Montenegro.

40    In doing so, it is necessarily recognised that this further Ground calls forth perhaps but a different way of expressing the same conclusions as those reached in respect to the first two issues.

41    The starting point for the argument is s 43(2) and (2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “Administrative Appeals Tribunal Act”) which provide in relevant part as follows:

(2)    Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

…

(2B)    Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

A failure to comply with s 43(2) raises a “question of law” for the purposes of the appeal provisions in s 44 of the Act: Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180 at [111] to [116], (2014) 319 ALR 1 at 31-32 per Bennett, Nicholas and Griffiths JJ. And s 43(2B), it will be noted, imposes an obligation to not only provide “reasons” but also an obligation to include the Tribunal’s “findings on material questions of fact”. Both obligations are equally as important: Comcare v Davies [2008] FCA 393 at [34], (2008) 173 IR 294 at 303 per Flick J.

42    The general principles surrounding the application of s 43(2B) are relatively well-settled. “Sufficient reasons”, it is thus accepted, must be provided “to make the system of appeals effective”: Roncevich v Repatriation Commission [2005] HCA 40 at [62], (2005) 222 CLR 115 at 135 per Kirby J. Similarly, it is well-accepted that “[o]ne of the central objects behind the statutory obligation to give reasons is to expose the tribunal’s reasoning process which may facilitate appeals on a question of law or judicial review”: Summers v Repatriation Commission [2015] FCAFC 36 at [110], (2015) 145 ALD 30 at 60 per Kenny, Murphy and Beach JJ. It must thus be possible “to discern from the reasons given the actual reasoning process adopted”: Comcare Australia v Mathieson [2004] FCA 212 at [61], 79 ALD 518 at 531 per Weinberg J. When a Judge of this Court, French J similarly observed that the “tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case”: Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 at [40], (2006) 91 ALD 103 at 111.

43    Counsel for the Respondent contended that s 43(2B) had in fact been complied with by the Tribunal, at least on a proper reading of the reasons provided. Those reasons, Counsel emphasised, were to be read not with “an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Although recourse is oft had to these observations by those seeking to deny the existence of error, it is equally well-established that the eyes of a reader “should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case”: Soliman v University of Technology, Sydney [2012] FCAFC 146 at [57], (2012) 207 FCR 277 at 295-296 per Marshall, North and Flick JJ. See also: FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [91] per Thawley J; Lifestyle Investments 1 Pty Ltd v Commissioner of State Revenue [2020] VSC 397 at [104] per Nichols J.

44    Although it may readily be accepted that reasons for an administrative decision must be construed in a practical and common sense manner, and in recognition of the fact that those writing such reasons may well have experience and qualifications in areas of discipline other than the law, the difficulty in the path of Counsel for the Respondent is that it is the reasons and findings of the decision-maker which must always remain the focus of scrutiny. A course to be shunned is a course whereby Counsel for a decision-maker seeks to opportunistically select from the entirety of the reasons and findings provided those statements which could potentially have founded the ultimate conclusion, and seeks to then rely upon those statements to assert an absence of error or “material” error. Such a course divorces those statements from the context in which they have been made, and potentially seeks to attribute to those statements a course of reasoning different to that of the decision-maker. It is not for Counsel to propose a possible course of reasoning different to the one pursued by the decision-maker. It is not the reasoning process of Counsel which assumes relevance. The task is forever to scrutinise the reasons in fact provided by the decision-maker to ascertain whether those reasons and those findings on “material questions of fact” sufficiently set forth the reasoning process of the decision-maker. If the course of reasoning is not so disclosed, there has been non-compliance with s 43(2B). And that is so even if Counsel could propound a course of reasoning different to that in fact pursued by the decision-maker which could have arrived at the same result, given the findings made.

45    The question as to any potential inadequacy of the reasoning process may again be tested by reference to whether the Tribunal made its decision “in accordance with” the Administration Guidelines and in particular “in accordance with” para 3.5.1 of those Guidelines.

46    Even if the findings of fact in paras [12], [14], [15], [18], [22] to [24] and [31] of the Tribunal’s reasons could found a conclusion that a “reasonable person would consider” that the “situation” was one which was “not due to the person’s action or inaction”, the course of reasoning leading to such a conclusion – it is respectfully concluded – has not been set forth by the Tribunal. It is thus far from self-evident, for example, that the course of reasoning pursued by the Tribunal in the present proceeding was that the “situation” in which the Appellant found himself was one in which:

    he had commenced his course and submitted an essay and a request for exemption (para [12]);

    he had submitted an application for special consideration (at para [14]);

    he was unable “to attend his studies … prior to … the cut-off period” (at paras [18] and [22]); and

    that application had not been resolved.

If the course of analysis be paused at that point, it is far from self-evident that what the Tribunal was doing in those paragraphs was directing its attention to the Facts of relevance to identifying the “situation” in which the Appellant found himself. Albeit not decisive, the statements in those paragraphs of the Tribunal’s reasons do not purport to be the Facts to which the Discussion is thereafter addressed. Even if it were nevertheless to be assumed that the Tribunal was there directing its attention to para 3.5.1 and the reasoning discipline imposed by that paragraph, the decision-making task thereafter to be pursued was that of identifying those facts of relevance to what a “reasonable person would consider”. But there is no finding of fact directed to that issue. In particular the following paragraphs fall short of such a finding, namely:

    para [23] – that paragraph simply stating that it was “understandable” for the Appellant not to withdraw; and

    para [24] – that paragraph simply stating that the Appellant “took a chance” and stating that the Appellant did so “with his eyes wide open”.

Those paragraphs are not identified by the Tribunal as findings as to the Facts (at paras [8] to [19]) but are, relevantly, observations all directed to the steps being taken (or not taken) by the Appellant. None of those findings are directed to whether a “reasonable person” in the situation confronting the Appellant would have done likewise, and the conclusion as to “the prudent course” in para [31] is likewise directed to the steps taken by the Appellant. Paragraph [30] may perhaps be taken as a cryptic encapsulation by the Tribunal of the Respondent’s submissions – but it certainly contains no “finding”.

47    The same analysis of the Tribunal’s statement of findings and reasons can be undertaken in respect to the consideration given by the Tribunal to para 3.5.5 of the Guidelines. There is, accordingly, no finding of fact directed to whether the “situation” confronting the Appellant was “unusual, uncommon or abnormal”.

CONCLUSIONS

48    It is thus concluded that:

    leave should be granted to further amend the Amended Notice of Appeal.

It is further concluded that:

    the decision of the Tribunal failed to comply with s 104-30 of the Higher Education Support Act in that the Tribunal decision was not a decision made “in accordance with” the Administration Guidelines.

In the alternative, it is further concluded that:

    the decision of the Tribunal that there were “no legally applicable special circumstances” failed to address and resolve (inter alia) paras 3.5.1 and 3.5.5 of the Administration Guidelines.

If necessary to resolve, it would have been further concluded that:

    the reasons of the Tribunal failed to comply with s 43(2B) of the Administrative Appeals Tribunal Act.

The Tribunal decision should thus have been set aside.

49    The primary Judge erred in not reaching the same conclusion.

50    The appeal should be allowed with costs.

51    It is proposed that the orders to be made should be as follows:

(1)    Leave be granted to amend the Further Amended Notice of Appeal in the form of the Second Further Amended Notice of Appeal dated 5 November 2020.

(2)    The Notice of objection to competency filed on 9 April 2020 is dismissed.

(3)    The appeal be allowed.

(4)    The decision of the Administrative Appeals Tribunal dated 9 July 2019 be set aside.

(5)    The matter be remitted to the Administrative Appeals Tribunal to be dealt with in accordance with law.

(6)    The Respondent pay the costs of the Appellant.

Associate:     

Dated:    26 November 2020

REASONS FOR JUDGMENT

RANGIAH J:

52    I have had the benefit of reading the judgments of Flick J and Charlesworth J in draft. I agree with the reasons of Flick J and also agree with the additional comments of Charlesworth J concerning the first and second grounds of appeal.

53    I agree with the orders proposed by Flick J.

Associate:    

Dated:    26 November 2020

REASONS FOR JUDGMENT

CHARLESWORTH J:

54    I have had the considerable benefit of reading the reasons for judgment of Flick J in draft.

55    I generally agree with his Honour’s reasons for upholding the second ground of appeal. I add the following in relation to that ground.

56    In performing its task on review, the Administrative Appeals Tribunal stood in the shoes of the original decision-maker (here the higher education provider). Its task was to determine whether the requirements of s 104-25(1)(c) of the Higher Education Support Act 2003 (Cth) were satisfied. Section 104-30 circumscribed that task and so conditioned the Tribunal’s powers to decide the application for review. Section 104-30(1)(a) of the Act required that the Tribunal determine whether circumstances applied to the appellant that were beyond his control. Section 104-30(2) imposed a requirement that the decision be made in accordance with the Administration Guidelines 2012 (Cth).

57    Section 3.5.1 of the Guidelines required that the Tribunal ask itself whether a “situation” had occurred which a reasonable person would consider was not due to the appellant’s action or inaction, either direct or indirect, and for which the appellant was not responsible. The test erected by s 3.5.1 of the Guidelines could not be applied without first correctly conceiving the “situation” the appellant was confronted with, having regard to all of the relevant facts and circumstances. The “situation” does not equate merely to the circumstance that the appellant had a medical condition which he claimed affected his ability to attend classes. In my view, the medical condition was the starting point in a series of events culminating in the “situation” that fell to be considered. Properly conceived, the “situation” that occurred was as follows:

    the appellant had completed substantial academic requirements for a unit of study;

    unless granted an exemption, the appellant was required to attend a certain amount of classes in order to successfully complete the unit of study;

    the appellant had a medical condition forming a reasonable basis to apply for an exemption for the class attendance requirement;

    the appellant had applied (without delay) for an exemption from that requirement;

    as at the census date, the appellant’s exemption application had not been decided, despite his efforts to agitate for a decision on it before the census date arose.

58    The upshot of all of that was that when the census date arrived the appellant did not know whether or not his medical condition would render him unable to fulfil the requirements of the unit of study. Whether the condition would have that impact would not be known until his application for an exemption from attendance at classes was determined.

59    The Tribunal made no finding to the effect that the exemption application was not a bona fide application. Nor did the Tribunal suggest that there was no reasonable factual basis for making it. Nor did the Tribunal find that the failure to decide the exemption application before the census date arrived was the fault of the appellant. Plainly it was not.

60    The reasons of the Tribunal do not disclose any consideration being given to whether a reasonable person would consider the appellant’s situation (properly conceived) to not be “due to” the appellant’s action or inaction. In the absence of any reference in the Tribunal’s reasons to the Guidelines at all, I am not prepared to infer that the Tribunal in fact reasoned toward its ultimate conclusion in the manner that s 3.5.1 of the Guidelines required. It did not direct itself to do so, and did not do so in fact.

61    The Tribunal’s conclusion that the appellant could have withdrawn from the unit of study before the census date does not support the inference that the Tribunal applied the correct test. It is axiomatic that a person in the appellant’s position could avoid incurring a financial liability by withdrawing from a unit of study before the census date. But that obvious statement does not provide an answer to the question posed in s 3.5.1 of the Guidelines. Of themselves, the Guidelines do not require a person with a medical condition to take all available steps to avoid a financial liability by withdrawing from a course of study before the census date arrives, notwithstanding that the full impact of the condition on the person’s ability to successfully complete course requirements are not then known. The Tribunal did not identify or grapple with the relevant situation, and so could not have applied the objective requirement of reasonableness to it. It follows that the decision was not made in accordance with the Guidelines as s 104-30 of the Act mandated.

62    It was open to the Tribunal to make a decision in accordance with the Guidelines that was favourable to the appellant on the material before it. In the circumstances, the failure to make the decision in accordance with the Guidelines deprived the appellant of the possibility of a successful outcome and so may be characterised as jurisdictional:  Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123.

63    The second ground of appeal should be upheld on that basis.

64    I do not consider it necessary to determine the first ground of appeal. For my part I do not consider the Guidelines to be “relevant considerations” in the sense advanced by counsel for the appellant in the course of submissions. Rather, they form a part of the statutory scheme that conferred, defined and conditioned the decision-maker’s powers. If I am wrong in describing the Guidelines in that way, it would remain necessary for the appellant to show that any failure by the Tribunal to “consider” the Guidelines was material to the outcome. In my view, such a failure could only be material if the decision could be shown to have been made other than in accordance with the Guidelines. The second ground of appeal is dispositive of that question, thus rendering the first ground otiose.

65    Nor do I consider it necessary to determine the application for leave to rely on the third ground of appeal. The circumstance that the appellant was legally represented at first instance weighs heavily against the grant of leave to introduce the new argument:  Raibevu v Minister for Home Affairs [2020] FCAFC 35. In addition, I do not consider the case to be one in which the Tribunal failed to disclose its reasoning. The path of reasoning adopted by the Tribunal is fairly disclosed on the face of its reasons. So expressed, the reasons expose jurisdictional error for the reasons I have explained.

66    There should be orders allowing the appeal and remitting the application for review to the Tribunal for determination in accordance with the law.

Associate:

Dated:    26 November 2020