Federal Court of Australia

Avati v Secretary, Department of Employment and Workplace Relations [2026] FCA 1597

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    In September 2018, the applicant withdrew from enrolment in a Diploma of Aviation (Commercial Pilot Licence – Aeroplane) which was delivered through Sydney Flight College in partnership with TAFE NSW. The applicant’s course costs were funded through the VET Student Loan Scheme administered under the VET Student Loans Act 2016 (Cth). The reason he cited for his withdrawal was “limited time left – theory won’t be finished on time”.

2    More than a year later, in December 2019, the applicant lodged an application to TAFE NSW seeking a re-credit of his HELP balance under s 68(1) of the VET Student Loans Act. Subject to other criteria also being met, that section relevantly requires that a course provider re-credit a student’s HELP balance if “the provider is satisfied that special circumstances prevented, or will prevent, the student from completing the requirements for the course, or the part of the course”. Section 68(3) lists three necessary elements that amount to “special circumstances”.

3    A year later, in December 2020, the applicant’s request was refused by TAFE NSW on the basis that the teaching section confirmed there was attendance and participation in the units of study, with the last date of attendance recorded as 26 September 2018, and the circumstances did not meet the criteria for “special circumstances” so as to warrant a re-credit.

4    The applicant lodged an application with TAFE NSW for review of that decision. In a “Reconsideration Decision” on 12 February 2021, TAFE NSW refused to re-credit the applicant’s HELP balance. Once again, the conclusion was that the applicant did not meet the criteria for “special circumstances” under s 68 of the VET Student Loans Act. The Reconsideration Decision also provided information to the applicant about his review rights to the Administrative Appeals Tribunal, including relevant contact details and the 28-day time limit that applied.

5    By the operation of s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act), any application to the Administrative Appeals Tribunal was required to have been brought within 28 days of 12 February 2021, ie by 12 March 2021.

6    The applicant did not apply to the Administrative Review Tribunal – which by then had replaced the Administrative Appeals Tribunal under the Administrative Review Tribunal Act 2024 (Cth) (ART Act) (and other related legislation) – until 9 December 2025. That was nearly five years out of time. On 18 April 2026, the applicant applied to the Tribunal for an extension of time. The Tribunal refused that application on 18 June 2026.

7    The applicant now appeals under s 172 of the ART Act for the setting aside of the Tribunal’s decision and for the matter to be remitted to the Tribunal.

The grounds of appeal

8    An appeal from a decision of the Tribunal under s 172 of the ART Act is restricted to being “on a question of law”.

9    Rule 33.12(2) of the Federal Court Rules 2011 (Cth) relevantly requires that an appellant’s notice of appeal state “the precise question or questions of law to be raised on the appeal” and “briefly but specifically, the grounds relied on in support of the relief or variation sought”.

10    Prior authority dealing with the restrictions imposed by the “question of law” requirement in s 44 of the AAT Act apply equally to that requirement in s 172 of the ART Act: eSafety Commissioner v Baumgarten [2026] FCAFC 12; 315 FCR 44 at [48] (Mortimer CJ and Beach J, Horan J agreeing). The Court identified a number of relevant principles, including:

(1)    The subject matter of the Court’s jurisdiction is confined to a question or questions of law, but this should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.

(2)    A question of law within s 172 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.

(3)    The statement of the question of law with sufficient precision is a matter of importance to the efficient and effective hearing and determination of appeals from the Tribunal.

11    The grounds of appeal in the applicant’s notice of appeal have to be considered with those restrictions in mind.

12    By ground 1, the applicant contends that the Tribunal erred in law by failing to properly consider relevant evidence concerning the applicant’s disabilities and their effect upon the applicant’s ability to understand and exercise statutory review rights.

13    By ground 2, the applicant contends that the Tribunal erred in law by failing to properly apply s 19(2) of the ART Act and by failing to adequately consider whether, in all the circumstances, it was reasonable to grant an extension of time.

14    By ground 3, the applicant contends that the Tribunal’s reasons disclose jurisdictional error in that the Tribunal gave determinative weight to its preliminary assessment of the merits of the substantive application and failed to properly exercise the discretion conferred by s 19(2) of the ART Act.

15    Ground 1 does not identify or raise a question of law. It is incompetent and must fail. I will return to grounds 2 and 3.

16    The applicant’s written submissions identify seven “grounds” of appeal. The respondent opposes any leave being granted to the applicant to advance and rely on any of those grounds to the extent that they do not identify or raise a question of law, but does not otherwise oppose such leave being granted.

17    Ground 1 in the applicant’s submissions coincides with ground 2 in the notice of appeal. I will henceforth refer to that as ground 1. The applicant does not require leave to advance that ground.

18    Ground 2 in the submissions is essentially the same as ground 1 in the notice of appeal. By it the applicant contends that the Tribunal failed to properly consider the effect of his disabilities (being Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder). He submits that the Tribunal’s reasoning does not adequately address the distinction between undertaking an administrative inquiry or complaint and understanding and exercising a statutory right of review in considering the role played by his disabilities in explaining the delay. This ground does not identify or raise any question of law. As with ground 1 in the notice of appeal, this ground addresses questions of weight and factual reasoning. As explained, it is not a competent ground under s 172(1) of the ART Act. The ground therefore fails or, to the extent that it goes beyond ground 1 in the notice of appeal, I decline to grant the applicant leave to advance it.

19    Ground 3 in the submissions overlaps with ground 3 in the notice of appeal. By it the applicant contends that the Tribunal erred in exercising the s 19(2) discretion by considering “the lack of merit in the Applicant’s substantive application to be a decisively dominant factor” (at [43]). This ground potentially raises a question of law and can be advanced.

20    By ground 4 in the submissions, the applicant contends that the Tribunal failed to adequately analyse the factual foundation necessary to apply s 68(3) of the VET Student Loans Act, and failed to identify certain matters with “sufficient precision”. This ground potentially raises a question of law. The applicant should have leave for it to be advanced.

21    By ground 5 in the submissions, the applicant contends that the Tribunal gave “improper weight” to his engagement with the Commonwealth Ombudsman and the ATO, and that the Tribunal improperly treated it this engagement as evidence that he was capable of pursuing other courses of action, rather than as evidence that he was continuously attempting to resolve the underlying dispute. This ground deals with questions of weight and reasoning from the facts. It does not identify or raise a question of law. It is incompetent. I decline to grant the applicant leave to advance this ground.

22    By ground 6 in the submissions, the applicant complains about the Tribunal’s analysis of alternative remedies available to the applicant. This ground does not identify or raise a question of law. It is incompetent. I decline to grant the applicant leave to advance this ground.

23    By ground 7 in the submissions, the applicant contends that the Tribunal denied him procedural fairness by relying on post-hearing medical evidence in a manner adverse to him, without giving him an opportunity to address the conclusions the Tribunal proposed to draw from that evidence. This ground is competent. The applicant should have leave to advance it.

24    Thus, with reference to the grounds as numbered in the applicant’s submissions, the following grounds remain to be considered: 1, 3, 4 and 7. I will consider each in turn.

Appeal ground 1: error in the exercise of the s 19(2) discretion

25    It will be recalled that this is ground 2 in the notice of appeal and ground 1 in the applicant’s submissions.

26    Section 19(2) of the ART Act empowers the Tribunal to extend the period during which an applicant may apply to the Tribunal for review of a decision if the Tribunal considers that it is “reasonable in all the circumstances to do so”. There is no doubt that the Tribunal appreciated the nature of that power, describing it as “a broad discretion to extend time … [if] ‘it is reasonable in all the circumstances to do so’” (at [13]).

27    The applicant focuses on the Tribunal having stated that “a five-year delay is simply not reasonable” (at [24]) in contending that the Tribunal erred in its exercise of the discretion. He submits that that statement reveals that the Tribunal treated the duration of the delay as effectively determinative rather than asking whether an extension was reasonable having regard to the totality of the circumstances.

28    I do not accept that submission. The Tribunal considered a number of matters including the length of the delay. Clearly the length of the delay is relevant, and the longer the delay the more significant the other considerations may need to be to justify an extension of time being reasonable in all the circumstances. The Tribunal’s reasons do not support a finding that the Tribunal treated the length of the delay as determinative in the sense of being determinative in and of itself. Indeed, the Tribunal stated that “no single factor is determinative” (at [14]) and that “the length of an extension sought is not determinative of the outcome” (at [22]).

29    The length of the delay clearly played a significant role in the Tribunal’s reasons, and it might be regarded as having been determinative in the sense that the other considerations within the totality of the circumstances considered by the Tribunal that weighed in the applicant’s favour were insufficient to persuade the Tribunal that to grant an extension of time was reasonable. The nature of the multifactorial inquiry is such that there will invariably be cases where the gravity of one factor (eg delay) will be so great and will set the bar for the applicant so high that, as a general proposition, it will be unlikely that the factual matrix will be one where it is “reasonable in all the circumstances” for the Tribunal to exercise its discretion under s 19(2). There may even cases where the delay is so great (and the gravity is so strong) that it is difficult to envision how any combination of factors or factual circumstances could overcome it. But of course, and as the Tribunal certainly appreciated, each case turns on its own facts. There is no legal error in the Tribunal’s reasoning on this aspect.

30    Under this ground, the applicant also submits that the circumstances that the Tribunal was required to consider included the applicant’s disabilities, their effect on his ability to process formal correspondence, his understanding of the review pathway, his attempts to resolve the underlying problem through other government avenues, his later discovery of the continuing HELP debt, the significance of that debt and the nature of the underlying statutory issue. He submits that the Tribunal did not lawfully weigh those matters together.

31    As explained, matters of weight do not raise a question of law. Insofar as the submission is that the Tribunal did not consider matters that it was required to have considered, none of those matters could be regarded as a mandatory relevant consideration. In any event, the Tribunal did consider those matters (at [24] and [36]).

32    There is no substance to ground 1. It fails.

Appeal ground 3: error in the treatment of the substantive merits

33    One of the matters considered by the Tribunal was the merits of the applicant’s application to have his HELP debt re-credited. The Tribunal referred to s 68(1) of the VET Student Loans Act and in particular the requirement in para (c) that the decision-maker “is satisfied that special circumstances prevented … the student from completing the requirements for the course, or the part of the course” (emphasis added). The Tribunal set out the cumulative elements in s 68(3) which make the circumstances of the case “special circumstances”. The Tribunal then considered each of those matters.

34    The Tribunal cautioned itself against dismissing the extension of time application too readily when “special considerations” are part of the substantive issue to be resolved on appeal, with reference to Wallis v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 45; 119 ALD 675 at [23] per Jarvis DP (at [42]). Nonetheless, in this particular case the Tribunal considered “the lack of merit in the Applicant’s substantive application to be a decisively dominant factor” (at [43]).

35    The applicant does not suggest that it was an error by the Tribunal to take account of its assessment of the substantive merits. Rather, he submits that because the Tribunal did not have all the evidence, which it acknowledged, and in light of the caution in Wallis, to which it referred, “the Tribunal went beyond an appropriate assessment of whether [his] substantive case had sufficient arguable merit and instead effectively conducted a preliminary merits determination on incomplete evidence”.

36    Just what manner of consideration of the “merits” of the underlying decision is appropriate or permitted is an important question that needs to be approached with some caution. In particular, attention needs to be paid to the statutory power that is being invoked in the application for an extension of time. The authorities do not always distinguish between the different sources of power and how that may affect consideration of the merits.

37    In Mentink v Minister for Home Affairs [2013] FCAFC 113, the relevant provision was s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) concerning the period within which an application for judicial review of the relevant decision had to be lodged, or “within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows”. The Court (Griffiths J, Edmonds J agreeing) reasoned that appropriate caution is required in assessing the merits of a substantive application at the stage of considering an extension of time to bring the proceeding (at [37]). The reasoning of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 12; 48 FCR 83 at 98 culminating in the dictum that “a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it” was approved (at [37]). That would appear to be the governing authority in that context.

38    The fundamental importance of distinguishing between the different statutory contexts in which there is a power to extend time to bring a proceeding is demonstrated by Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579. The provision in question was s 477A(2) of the Migration Act 1958 (Cth) which had as one criterion for the extension of time in question being that the Court “is satisfied that it is necessary in the interests of the administration of justice to make the order” (s 477A(2)(b)). It was held that “French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b)” (at [17]). The Court held that in the context of the power in question which has the interests of the administration of justice as a touchstone, it is permissible for the court to have regard to the merits “in such manner as it considers appropriate in the circumstances” (at [19]).

39    The breadth of the statutory discretion in s 19(2) of the ART Act to extend time, including the basis for its exercise, namely that the Tribunal considers that “it is reasonable in all the circumstances”, means that it is open to the Tribunal to take into account the merits of the underlying application for review in any manner that it considers relevant in much the same way as explained in relation to s 477A(2) of the Migration Act in Tu’uta Katoa.

40    In the authorities, the caution about how the merits of the substantive application is taken into consideration is that, as a general proposition, an application for an extension of time should not be refused for no reason other than that the merits are poor although if a cursory examination of the merits reveals “the proceeding as being conspicuously devoid of merit, the application might well be rejected upon the ground that the prosecution of it would, in effect, be pointless”: Lukac v Linfox Armaguard Pty Ltd [2010] FCA 740 at [12]-[13] per Reeves J, quoting from Culley v Australian Securities and Investments Commission [2008] FCA 1784 at [6] per Jessup J.

41    In the present case, the merits was only one of several considerations. Once again, the Tribunal’s assessment of the merits was not determinative in the sense of being a factor which on its own decided the result; rather, it was a significant factor which taken together with others, in particular the length of the delay, determined the result. There is no error on a question of law in the approach taken by the Tribunal.

42    Appeal ground 3 accordingly fails.

Appeal ground 4: failure to properly address the s 68(3) elements

43    As mentioned, the Tribunal set out the three cumulative elements of s 68(3) of the VET Student Loans Act that are required to be established to amount to “special circumstances” for a re-credit.

44    The applicant submits that the Tribunal did not adequately analyse the factual foundation necessary to apply the statutory requirements. He submits that the Tribunal did not identify with sufficient precision the circumstances the Tribunal considered to have affected him, when those circumstances began, when their full impact became apparent, whether the circumstances existing before the census day increased or changed after the census day, why those circumstances did or did not become impractical only after the relevant census day, and the causal connection between those circumstances and his ability to complete the requirements.

45    I do not accept that it was necessary for the Tribunal to consider all those matters. In substance, the applicant’s complaint is about how the Tribunal assessed the facts leading to its conclusion that his application for a re-credit lacked merit. No legal question arises from, and there is no legal error in, the Tribunal’s assessment of the facts.

46    There is no substance to appeal ground 4. It fails.

Appeal ground 7: procedural fairness

47    The hearing before the Tribunal on the applicant’s extension of time application was on 20 May 2026. On 24 May 2026, the applicant emailed about 40 pages of material to the Tribunal providing additional evidence in support of his application with this explanation:

As discussed, I am now attaching my supporting medical and professional documents. These include evidence relating to my language impairment and other disabilities, together with reports and letters from my doctors, psychologists, and gambling counsellors. I am also providing documents concerning the investment scams that have significantly affected my situation.

48    In its reasons, the Tribunal acknowledged receipt of that material. The Tribunal accepted the material as evidence showing that the applicant is a person with a disability, but did not consider that it supports the applicant’s claim of “special circumstances” (at [36]).

49    The applicant submits that “if the Tribunal used that material to make adverse findings without giving [him] an opportunity to address those findings, the statutory requirement of a reasonable opportunity to present [his] case may not have been satisfied”. The statutory requirement referred to is the requirement in s 55(1) of the ART Act that the Tribunal ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to present their case, access any information or documents to which the Tribunal proposes to have regard and make submissions and adduce evidence.

50    There is no basis in the Tribunal’s reasons or the evidence to suggest that the Tribunal used the post-hearing material to make adverse findings against the applicant. This ground fails on that basis alone. In any event, “[p]rocedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [48].

51    There is no identified or discernible unfairness in the procedure adopted by the Tribunal in reaching its decision. This ground accordingly fails.

Disposition

52    For those reasons, the proceeding must be dismissed.

53    The respondent seeks an order for costs. The applicant resists such an order on the basis that he brought the proceeding because he genuinely believed that the Tribunal’s decision involved legal error, he did not bring it for an improper purpose and that the decision is one that has had significant consequences for his “education, finances and career”. The applicant also submits that he does not have the financial capacity to meet an adverse costs order.

54    I do not consider that those factors are particularly significant in the exercise of the costs discretion. They are not such as to displace the usual rule that the costs follow the result. In my assessment, fairness in this case requires that the applicant pay the respondent’s costs. The respondent has been brought to court to defend an unmeritorious application, and it should have its costs in the usual way.

Associate:

Dated:    27 October 2026