Background
Daniel Avati withdrew in September 2018 from a Diploma of Aviation delivered through Sydney Flight College in partnership with TAFE NSW. His course fees had been funded through the VET Student Loan Scheme. In December 2019, he sought a re-credit of his HELP balance under s 68 of the VET Student Loans Act 2016 (Cth), but TAFE NSW refused the request in December 2020 and again on reconsideration in February 2021, finding that he had not established “special circumstances.”
The reconsideration decision notified Mr Avati of his right to seek Administrative Appeals Tribunal review within 28 days. He did not apply for review until December 2025, nearly five years late. The Administrative Review Tribunal refused his April 2026 application for an extension of time. Mr Avati appealed to the Federal Court under s 172 of the Administrative Review Tribunal Act 2024 (Cth), alleging errors in the Tribunal’s exercise of discretion, its merits assessment, and procedural fairness.
The Court’s Holding
Stewart J dismissed the appeal. The Court held that an appeal under s 172 is confined to questions of law, and several of Mr Avati’s complaints were instead challenges to factual findings or the weight given to evidence. The Tribunal had not treated the five-year delay as automatically decisive: it had considered the delay alongside Mr Avati’s disabilities, his other attempts to resolve the issue, and other circumstances.
The Court also held that s 19(2) permits the Tribunal, when deciding whether an extension is reasonable in all the circumstances, to consider the merits of the underlying re-credit application in any relevant manner. The Tribunal’s assessment that the underlying claim lacked merit was only one significant factor, not the sole basis for refusal. Nor was there procedural unfairness: the Tribunal had not made adverse findings from Mr Avati’s post-hearing medical material, and it was not required to give him a running commentary on its view of the evidence. Mr Avati was ordered to pay the Secretary’s costs.
Key Takeaways
- An appeal from the Administrative Review Tribunal under s 172 must identify a question of law; disputes about factual weight will not suffice.
- A long delay can be highly significant on an extension application, but the decision-maker must still consider all relevant circumstances.
- Under s 19(2), the Tribunal may consider the merits of the underlying review application when deciding whether an extension of time is reasonable.
Why It Matters
The decision clarifies the breadth of the ART’s discretion under s 19(2) and confirms that merits may be a substantial consideration in an extension-of-time application, particularly when combined with an extreme delay. It also distinguishes that statutory setting from authorities governing other extension powers.
For litigants, the case underscores the importance of acting promptly on review rights and framing any Federal Court appeal as a genuine legal error rather than a disagreement with the Tribunal’s factual assessment.