VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z450/2023	
CATCHWORDS	
Review and Regulation List – Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 4, 71, 126 – Whether refusal to process application for teaching registration is a reviewable decision – Whether extension of time should be granted.	

APPLICANT	Christine Arnaud	
RESPONDENT	Victorian Institute of Teaching	
WHERE HELD	Melbourne	
BEFORE	R Tang AM, Senior Member	
HEARING TYPE	Hearing (review of rejection)	
DATE OF HEARING	18 September 2023	
date of Further submissions	2 October 2023 (respondent) and 16 October 2023 (applicant)	
DATE OF ORDER and reasons	2 November 2023	
CITATION	Arnaud v Victorian Institute of Teaching (Review and Regulation) [2023] VCAT 1221	

Orders

1	Under section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’), the Tribunal declares that the respondent’s decision not to process the applicant’s application for provisional registration as a teacher (as communicated by email dated 31 January 2023) is a determination refusing the applicant’s application for registration for the purposes of section 2.6.55(1)(a) of the Education and Training Reform Act 2006 (Vic) (‘Relevant Decision’).
2	Under section 126 of the VCAT Act, VCAT extends the time for the commencement of this proceeding to the date of the applicant’s application for review of the Relevant Decision.
3	Under section 71(5)(b) of the VCAT Act, the principal registrar is ordered to accept the application for review.
4	The application is listed for a telephone directions hearing starting at 11:00 am on 16 January 2024.
5	The parties must be available to participate in the telephone directions hearing which may start at or after the scheduled start time. Parties must remain available until the directions hearing ends.
6	The respondent must send to VCAT and the applicant a statement of reasons for the decision under review and all other documents required under s 49 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’). The Tribunal expects the applicant to be familiar with the s 49 materials before the directions hearing.

Why has VCAT listed the directions hearing?
At the directions hearing VCAT will:
(i)	explain how hearings or compulsory conferences are conducted by the Tribunal;
(ii)	answer any procedural questions such as how and what you need to do to prepare your case for a compulsory conference or hearing; and
(iii)	set a date [called an administrative mention] by which the parties will be required to jointly send to VCAT all of the material to be relied upon to enable the Tribunal to set a date for a compulsory conference or hearing. 

R Tang, AM
Senior Member			

APPEARANCES:		
For Applicant 	Ms C Arnaud, in person	
For Respondent	Ms J Baggio and Ms B Roscoe, solicitors	

Reasons
1	The applicant, Ms Christine Arnaud, wishes to be registered as a teacher.  On 24 January 2023, she made an application to the Victorian Institute of Teaching (‘Institute’) for provisional registration.  On 31 January 2023, an officer from the Institute emailed Ms Arnaud to indicate that, as she did not satisfy the education requirements for initial teacher registration (‘ITE Requirements’), she was not eligible to be registered and her application fee would be refunded (‘Purported Decision’). 
2	On 13 June 2023, Ms Arnaud applied to VCAT for review of the Purported Decision (‘Original Application’).  In accordance with usual practices, the Tribunal’s registry asked Ms Arnaud to provide a copy of a decision letter from the Institute to establish jurisdiction.  Of course, Ms Arnaud had only received an email from the Institute and, as such, was unable to provide any decision letter.
3	On 14 July 2023, a registrar of the Tribunal wrote to Ms Arnaud, rejecting her application for review under section 71 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) on the basis that ‘from the information contained in [her] application form VCAT does not have the jurisdiction or power to make the orders nor grant the relief [she is] seeking’ (‘Section 71 Decision’).
4	On 31 July 2023, Ms Arnaud made an application under section 71(2) of the VCAT Act for the principal registrar to refer the matter to the Tribunal for review of the Section 71 Decision.  These reasons concern that application (‘Review of Rejection Application’).
5	It is the usual practice for any review of a rejection to be heard on an ex parte basis, with the named respondent only informed if the Tribunal directs the principal registrar to accept the application.  However, having regard to the history of the matter (including the Institute being aware of Mr Arnaud’s application), when the Review of Rejection Application was being set down for hearing, the principal registrar was directed to send a copy of the orders to the Institute, with a notation that the Institute’s presence ‘might assist the parties and VCAT’.
6	At the hearing, the Institute maintained its position – which it had previously communicated to Ms Arnaud – that the Purported Decision was not a reviewable decision under the Education and Training Reform Act 2006 (Vic) (‘ETR Act’).  
7	When I raised the operation of section 4 of the VCAT Act, which identifies when a decision is made for the purposes of review proceedings, the Institute sought (and I granted) leave for the parties to file further submissions in relation to that matter, as well as to address the question of whether an extension of time should be given to Ms Arnaud (as her Original Application to the Tribunal was made more than 28 days after the Purported Decision).
8	For the reasons which follow, I declare that the Purported Decision is a reviewable decision and have determined to grant the extension of time to Ms Arnaud.  As such, I direct the principal registrar to accept the application and have made further orders to convene a first directions hearing in the proceeding.   
Framework for review 
9	Under section 71(5) of the VCAT Act, on review, the Tribunal may either confirm the rejection of an application or order the principal registrar to accept the application.  The Tribunal undertakes a fresh review having regard to the evidence before it, with a view to making the correct or preferable decision in the circumstances.
10	Under section 71(1), an application to the Tribunal may be rejected in various circumstances, including where the application ‘is made by a person not entitled to make it’.  
11	The primary issue is whether Ms Arnaud is entitled to make an application to VCAT in respect of the Purported Decision.
12	As I indicated in Myers v Department of Education and Training:
unlike the Supreme Court of Victoria, the Tribunal does not have any inherent jurisdiction to hear matters or undertake judicial review.  Rather, applications for review of decisions are made in the Tribunal’s ‘review jurisdiction’ under sections 42 and 48 of the VCAT Act.  Relevantly, that section refers to jurisdiction being conferred on the Tribunal ‘under an enabling enactment’ and requires that jurisdiction be invoked by ‘a person who is entitled to do so by or under an enabling enactment’.  
13	Under section 2.6.55(1) of the ETR Act, a person may apply to VCAT for review of a determination refusing the person’s application for registration.
14	When assessing whether such a decision has been made, it is necessary to have regard to section 4 of the VCAT Act which provides that, for the purposes of both the VCAT Act and an enabling enactment (such as the ETR Act), a person makes a decision if the person ‘makes … or refuses to make a decision [or] determination … (including a decision not to make a decision [or] determination)’.  Further, if a decision-maker refuses to make a decision on the basis that ‘the decision-maker considers that the decision cannot lawfully be made [under an enactment, the refusal] is deemed to be a decision made under [the] enactment to refuse to make the decision’.
15	In Hi Quality Quarry Products Pty Ltd v Environment Protection Authority (‘Hi Quality’), Deputy President Gibson viewed section 4 of the VCAT Act as being ‘sufficiently broad’ to cover the authority’s decision not to consider an application to amend a licence and to refuse to consider an application for a works approval, giving rise to a right of review under the relevant environmental protection legislation.  She also observed that the section:
operates to cut the ‘Gordian Knot’ of an argument such as that put forward by the EPA [that] if the Authority refuses to make a decision about an application and there is no specific right of review of that refusal, then the Tribunal has no jurisdiction to review the application made to the Authority either on the basis of its refusal (or failure) or on its merits, thereby avoiding any scrutiny of the Authority’s refusal to make a decision.  
16	Another ground for rejecting an application is that the application has been ‘lodged after the expiry of the period specified in the enabling enactment’.  If a reviewable decision exists, but is made out of time (as in this case), it is also necessary to consider whether the Tribunal should exercise its discretion to extend time under section 126 of the VCAT Act.  Of course, when considering whether to exercise that discretion, the Tribunal has regard to the so-called ‘Hunter Valley factors’, namely: 
•	whether the applicant for extension can show an acceptable explanation for the delay;
•	whether it is fair and equitable in the circumstances to extend time;
•	whether the applicant has continued to make the decision-maker aware that he or she contests the finality of the decision;
•	whether the respondent has been prejudiced by delay; 
•	whether the granting of the extension may result in the unsettling of other people or established practices;
•	the merits of the substantive application; and
•	considerations of fairness as between the applicant and other persons in a like position.
Is the Purported Decision reviewable?
Institute’s Submissions
17	The Respondent’s Outline of Submissions dated 2 October 2023 (‘Institute’s Submissions’) includes a detailed outline of the regulatory framework for registration of teachers.  In particular, the Institute highlights that:
•	Under section 2.6.7 of the ETR Act, an individual can apply for registration as a teacher, with the application required to be accompanied by evidence that the applicant is qualified for registration.
•	Under section 2.6.8, a person is qualified to be registered as a teacher if the person has satisfactorily completed either:
-	an initial teacher education program; or 
-	a program or course of study leading to qualifications for entry to teaching that is determined by the Institute to be equivalent to an initial teacher education program that is appropriate for entry to teaching.
•	An initial teacher education program is defined in section 2.6.1 as a program or course of study ‘leading to qualification for entry to teaching’ and which is ‘approved by the Institute’ under the ETR Act.  When that section is read with the Institute’s qualifications policy, a program or course of study will only satisfy the ITE Requirements if it is one of the four programs or courses of study set out in the Annexure to these Reasons.
•	Under section 2.6.9, the Institute may: 
-	register an applicant as a teacher if the applicant is qualified for registration (i.e. under s section 2.6.8) and meets certain other requirements; or
-	refuse to grant registration on certain specified grounds, essentially relating to an applicant’s fitness or suitability to teach.
•	Under section 2.6.16, once the Institute determines an application for registration, it ‘must notify the applicant as to whether or not registration … has been granted’ and, if not granted, ‘the reasons why is has not been granted’.
18	The Institute submits that the Hi Quality decision is distinguishable having regard to the specific legislative scheme relating to teacher registration and ‘it did not make a determination enlivening VCAT’s jurisdiction’.  The basis for this submission is that: 
•	section 2.6.7 requires an application to be accompanied by evidence that a person is qualified for registration;
•	Ms Arnaud’s application for provisional registration as a teacher ‘was clearly not accompanied by evidence that she was qualified for registration in accordance with section 2.6.8’ because she did not satisfy the ITE Requirements;
•	section 2.6.9 provides that the Institute is ‘only empowered to grant registration’ where an applicant satisfies the requirements of section 2.6.7 and is qualified for registration under s.2.6.8.  However, it ‘does not refer to the [failure to provide] evidence that an applicant has completed a qualifying ITE program or equivalent program’ as a ground for refusal of an application; 
•	when these provisions are considered together and in the context of Division 3 of the ETR Act (concerning registration of teachers) as a whole, it is: 
evident that an application must first meet the preconditions in sections 2.6.7 and 2.6.8 of the Act before the Institute could proceed to consideration of matters relating to fitness and suitability, under section 2.6.9 of the Act. 
•	as Ms Arnaud did not meet the preconditions, the Institute ‘was not required to, nor did it proceed to the step of exercising its discretion to grant registration under section 2.6.9 of the Act’; and
•	Institute is ‘not empowered to make a determination refusing an application where that application fails only to meet the preconditions set out in sections 2.6.7 and 2.6.8 of the Act’. 
19	The Institute adds that it ‘receives thousands of applications for registration, many of which clearly do not contain evidence of an applicant’s eligibility for registration’ and it would be ‘impossibly onerous’ to undertake a formal review of applications that are obviously incomplete or defective, with reasons and notice of appeal rights.  It suggests that providing applicants with an opportunity to address any defects in their application provides a ‘fairer and more a pragmatic approach’, as was the case with Ms Arnaud (i.e. in the 31 January 2023 email, the Institute explained that the reason her application could not be processed is that she did not satisfy the ITE Requirements). 
Ms Arnaud’s submissions
20	In her submissions dated 16 October 2023 (‘Applicant’s Submissions’), Ms Arnaud contends that the Purported Decision ‘enlivened the VCAT’s review jurisdiction on 31 January 2023 under … section 4(1)(a) [of the VCAT Act]’.  
21	Ms Arnaud observes that, under section 2.6.15 of the ETR Act, the Institute was obliged (but failed) to give her an opportunity to ‘forward further supporting information about her qualifications to support her application and provide more depth for the respondent’s consideration’.  Instead, she submits the Institute: 
•	‘made quick assumptions about the applicant’s qualifications and those assumptions were neither rigorous nor robust’; and
•	‘slammed the door shut’ on her, ‘failing to answer any of her concerns nor giving her any opportunity to communicate with them after their decision to close her application’. 
22	Ms Arnaud denies that there was ‘any offer or opportunity to provide anything further’ after the Institute ‘closed the application and the respondent refused to further communicate with her’.  Similarly, she denies having received any calls or voicemail messages from the Institute after lodging her application.
Analysis
23	The drafting of section 4 of the VCAT Act is broad, and intentionally so, given that the definition of a decision is required to apply across the more than 100 different enabling enactments that confer rights on a person to apply to VCAT to review a decision of an agency.  
24	I agree with Deputy President Gibson’s view in Hi Quality that the purpose of including such broad drafting is to cut the proverbial Gordian Knot.  The cost and delay associated with fine contests as to jurisdiction are inconsistent with the Tribunal’s obligation to ‘act according to the substantial merits of the case’ and resolve disputes with ‘as little formality and technicality’ and ‘as much speed’ as possible. 
25	While the ETR Act does not specifically mention that a ground for refusal of an application for teaching registration includes an applicant’s failure to meet the relevant qualification requirements, that does not mean that there is no decision as such, or that any decision is intended to be immune from review.     
26	The availability of review can be seen to be particularly important in circumstances where an agency is vested with a discretion, as the Institute clearly is under the ETR Act in the case of teacher registration.  In this regard, under section 2.6.8(a)(i), the Institute must determine whether a person’s qualifications (not meeting the definition of an initial teacher education program) are nevertheless to be regarded as being ‘equivalent to an initial teacher education program’ and a qualification that is ‘appropriate for entry to teaching’.  
27	Of course, where the Tribunal has jurisdiction, the Tribunal’s functions include ‘all the functions of the decision-maker’.  If applicable to a decision about teaching registration, this extends to consideration of whether any given applicant’s qualifications are to be regarded as being equivalent and appropriate for entry to teaching.  That is a matter that goes to the merits of the person’s application as much as their fitness and suitability.  This is not novel, given that the Tribunal regularly considers the appropriateness of a person’s qualifications to engage in regulated activities.
28	Importantly, while the Institute apparently considers itself bound by its qualifications policy in exercising its discretion, where the Tribunal is vested with jurisdiction to review a decision, the Tribunal may, but is not required, to apply any policy of the decision-maker. 
29	If the legislature wished to exclude a decision about qualifications from the purview of the review right set out in section 2.6.55 of the ETR Act, then it could have been expected to do so explicitly.  In the absence of such expression, there is in my view no case for reading down the broad operation of section 4 of the VCAT Act. 
30	As in Hi Quality, I consider that section 4(1)(a) alone – or in combination with section 4(2)(c) – is sufficiently broad to render the Purported Decision a reviewable decision.  I will make a declaration to this effect.  
Should an extension of time be granted?
Institute’s Submissions
31	While the Institute accepts that: 
•	it did not provide Ms Arnaud with a ‘formal decision letter’ or ‘a statement of her appeal rights’ (i.e. on the basis of its view that the Purported Decision was not a decision to refuse registration); and
•	she made attempts to clarify this, 
it submits that the following matters ‘should be considered (determinatively) in favour of refusing to grant an extension’:
a.	Even where the applicant is granted an extension of time, her application for registration would be rejected given that she has not provided evidence of appropriate tertiary ITE qualifications, a basic precondition for registration as a teacher in Victoria. 
b.	Despite ample opportunity to do so, the applicant has failed to provide further evidence that would overcome the deficiencies in her application. 
c.	Since the VCAT proceedings have commenced, the Institute has made numerous [six] attempts to contact Ms Arnaud in order to progress or resolve the matter with no success. 
d.	It is open to the applicant to complete a new application for registration. 
e.	Flowing from the above, the applicant would not suffer any prejudice from a refusal to provide an extension of time. 
f.	As noted above, it would be impossibly onerous for the Institute to undertake a formal review of all applications that are obviously incomplete or defective like the applicant’s, provide full reasons for its findings, and notice of appeal rights given the sheer volume of obviously defective applications. 
32	In relation to the first point, the Institute adds that the application is ‘obviously hopeless, obviously unsustainable in fact or law, or on no reasonable view can justify relief, or is bound to fail’.
Ms Arnaud’s Submissions
33	Ms Arnaud submits that an extension of time should be granted ‘due to the [Institute]’s failure to follow their legislation’ i.e. to notify the outcome of the application under section 2.6.16 of the ETR Act, including confirming her right to seek review and the time limits for doing so.  She adds that she ‘did not sit back’ after the Purported Decision, but rather ‘made many unsuccessful attempts to work with the respondent’.
Analysis
34	Having regard to the Hunter Valley factors, I consider that an extension of time should be granted to the date on which the Original Application was made.  Addressing each of the considerations:
•	Ms Arnaud has an acceptable explanation for the delay in making her application because she was never informed of her rights to seek review.  Instead, she was (unintentionally) misled to believe that there was no reviewable decision.  
•	Given the preceding point, I consider it is fair and equitable in the circumstances to extend time.
•	There is little doubt that Ms Arnaud continued to make the Institute aware that she contested the finality of the decision and wished the Institute to consider her education and other qualifications in greater detail.
•	The Institute has not pointed to any prejudice occasioned by the delay and it is hard to see that there would be any prejudice given the relatively short delay. 
•	While the granting of the extension will result in the ‘unsettling’ of the Institute’s ‘established practices’ – i.e. refusing to make a decision on an application where a teacher does not meet its qualifications policy – that practice is misguided and so does not point away from the grant of an extension of time.
•	The merits of the substantive application will obviously need to be determined by an appropriately constituted Tribunal in due course, having regard to all of the evidence.  However, the mere fact that Ms Arnaud’s qualifications do not fit within the Institute’s qualifications policy is not a basis to suggest that her position is ‘obviously hopeless, obviously unsustainable in fact or law, or on no reasonable view can justify relief, or is bound to fail’.  Although she may or may not ultimately succeed, in my view this is a neutral factor.
•	Given the manner in which the Institute dealt with her application for teaching registration, there is no unfairness, as between Ms Arnaud and other applicants for review, in granting an extension of time.  That the Institute may have convinced other applicants with qualifications that do not meet its qualifications policy to reapply after undertaking further study (rather than seek review) does not result in relevant unfairness.
Conclusion and orders to be made
35	In conclusion, I consider that, having regard to the breadth of section 4 of the VCAT Act, the Purported Decision should be regarded as a decision to refuse registration enlivening Ms Arnaud’s right to seek review under section 2.6.55 of the ETR Act.  I have made a declaration to this effect.
36	Further, having regard to the Hunter Valley factors, I consider that it is appropriate to exercise the discretion reposed in the Tribunal under section 126 of the VCAT Act and have extended the time for the making of the Original Application to the date on which it was made. 
37	For these reasons, I have directed the principal register to accept the Original Application and made further orders for a first directions hearing to discuss the future conduct of the proceeding.

R Tang, AM
Senior Member			

Annexure – Approved Initial Teacher Education Requirements

(a)	An approved four-year (full-time or equivalent) teaching qualification undertaken at a higher education institution which includes an initial course of primary and/or secondary teacher education of at least one year’s duration (full-time or equivalent) inclusive of teaching methods and at least 45 days of supervised practice teaching.

(b) 	Four years of full-time or equivalent higher education study which includes an approved initial primary and/or secondary teaching qualification of at least one year’s duration (full-time or equivalent) inclusive of teaching methods and at least 45 days of supervised practice teaching; and

(i)	the award of an approved academic degree or diploma of at least three years duration; or

(ii)	 approved academic and/or teaching certificates, degrees, or diplomas totalling at least three years of higher education study.

(c)	An approved Certificate of Proficiency/Completion in a trade together with:

(i)	relevant industrial experience such that the period of apprenticeship and the industrial experience totals not less than eight years; and

(ii)	an approved trade technician course or an approved equivalent program of post-apprenticeship studies equivalent to one year of full-time study;

(iii)	an approved initial course of secondary teacher education of at least one year’s duration (full-time or equivalent), which includes approved teaching methods and supervised practice teaching; or

(iv)	where (ii) is not included, an approved initial course of secondary teacher education of at least two years’ duration (full-time or equivalent), which includes approved teaching methods and supervised practice teaching.

(d) 	An approved Certificate of Technology or equivalent qualification together with:

(i)	six years of relevant industrial experience; and

(ii)	an approved trade technician course or approved studies equivalent to one year of full-time study; and
(iii)	an approved initial course of secondary teacher education of at least one year’s duration (full-time or equivalent), which includes approved teaching methods and supervised practice teaching; or

(iv)	where (ii) is not included, an approved initial course of secondary teacher education of at least two years duration (full-time or equivalent), which includes approved teaching methods and supervised practice teaching.