Access Group Training Pty Ltd and Australian Skills Quality Authority

[2018] AATA 4080

Access Group Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 4080 (30 October 2018)

Division:GENERAL DIVISION

File Number(s):      2018/5455, 2018/5475

Re:Access Group Training Pty Ltd

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:30 October 2018

Place:Canberra

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975, an extension of time up to the date of this decision is granted for lodgement of applications for review in the matters covered by this decision.

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Mark Hyman, Member

Catchwords

PRACTICE AND PROCEDURE – extension of time – vocational education and training - cancellation of registration of registered training organisation and refusal of application to withdraw registration - governing principles – explanation for delay – prospects of success – prejudice – fairness – consequences of cancellation – extension of time granted

Legislation

Administrative Appeals Tribunal Act 1975, s 29
Administrative Decisions (Judicial Review) Act 1977, s 11
Education Services for Overseas Students Act 2000, ss 6C, 83, 93, 169AB, 169AD, 169AE, 169AG, Part 4
National Vocational Education and Training Regulator Act 2011, ss 3, 35, 35A, 36, 37, 39, 42, 155, 185, 199, 201, 203
Administrative Appeals Regulation 2015, s 23
National Vocational Education and Training Regulator Regulations 2011, s 15

Cases
Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305

Shi v Migration Agents Registration Authority [2008] HCA 31

REASONS FOR DECISION

Mark Hyman, Member

30 October 2018

1. This decision is about whether Access Group Training Pty Ltd (AGT), the applicant, should be allowed an extension of time to lodge its application to the tribunal for review of decisions by the respondent, the Australian Skills Quality Authority (ASQA), to cancel the registration of AGT as a registered training organisation (RTO) under the National Vocational Education and Training Regulator Act 2011 (the NVR Act); to cancel its registration as a registered provider under the Education Services for Overseas Students Act 2000 (the ESOS Act); and to refuse to allow it to withdraw its registration under either Act. The decisions to cancel and to refuse withdrawal of registration were taken on 14 August 2018; the decisions were notified to AGT on 22 August 2018.

2. Under subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) the deadline for AGT to seek review of the above decisions before this tribunal was 19 September 2018. On 24 September AGT lodged an application for review and on 26 September lodged an application for an extension of time to apply for review and an application for a stay. ASQA opposed the grant of an extension of time.

3. A hearing was held on 9 October 2018. AGT was represented by Mr Peter Doukas, a legal practitioner, who appeared by telephone, and Mr Jim Jane, Managing Director of AGT, who appeared in person. Ms Jacqueline Steward, a legal officer, represented ASQA. Ms Steward appeared by telephone. The tribunal had before it submissions from both parties with attachments; and statements in support of the applicant from Mr Jane, and Mr Chris Stephens, a compliance expert in the vocational education area, together with attachments. AGT stated at the hearing that it did not wish to pursue the stay application in the context of the hearing on the extension of time.

4. There are two matters listed before the tribunal (matters 2018/5455 and 2018/5475) but there are four decisions for which review is apparently sought by AGT: two decisions to cancel registration, one under the NVR Act and one under the ESOS Act; and two decisions to refuse to allow withdrawal of registration, again one under each of the Acts. I will bring to the Registrar’s attention the need for appropriate files to be made up to reflect the four decisions; and consideration may also need to be given to the exercise of the Registrar’s powers under section 23 of the Administrative Appeals Regulation 2015 regarding payment of a single fee in respect of the four applications.

   ISSUE

5. The only issue before the tribunal is whether I should grant the extension of time sought by AGT. If I were to do so, AGT would be able to have their review application heard by the tribunal.

   LEGISLATIVE PRINCIPLES

6. Section 29 of the AAT Act governs the process for making applications for review. Subsection 29(1) specifies (relevantly) that the application must be made within the prescribed time; subsection 29(2) provides that, subject to exceptions not presently relevant, the prescribed time is 28 days after the decision for which review is sought is given to the applicant. Subsection 29(7) provides that the tribunal may, on written application, extend the time for making an application for review if satisfied that “it is reasonable in all the circumstances to do so”. Subsection 29(9) allows the tribunal to ensure that a person affected by an application for an extension of time is notified of the application; and subsection 29(10) requires the tribunal to hold a hearing on an extension of time application if that application is opposed by whoever was notified under subsection 29(9).

7. The discretion to grant an extension of time established by subsection 29(7) of the AAT Act is given in the broadest terms. Similar discretion is typically available to the courts. A body of case law has developed that sets out, non-exhaustively, the considerations that influence how the discretion is exercised. Among the best known of the cases dealing with these matters is Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305 in which Wilcox J set out a number of principles (that case related to an extension of time to seek judicial review of a decision under section 11 of the Administrative Decisions (Judicial Review) Act 1977 but the principles apply equally in present circumstances).These principles include:

   ·the starting position is that an application made outside time will not in general be entertained, so there must be an acceptable explanation for the delay;

   ·the applicant must not have “rested on his rights”; an attempt by the applicant to continue agitation of the matter will be to advantage and a shorter rather than longer delay before the application is lodged is therefore to the advantage of the applicant;

   ·any prejudice to the respondent will militate against the grant of an extension, but mere absence of prejudice is not enough of itself to warrant a grant of extension;

   ·the merits of the substantial application are to be taken into account;

   ·fairness between the applicant and others in a similar position is also relevant.

8. Section 155 of the NVR Act establishes the National Vocational Education and Training Regulator (National VET Regulator). Part 8 of that Act allows for the establishment by legislative instrument of a number of framework standards and requirements for providers and courses, as agreed by the Commonwealth-State Ministerial Council, including, in section 185, standards for NVR RTOs. These Part 8 requirements, taken together, form the “VET Quality Framework”, as defined in section 3 of the Act. Section 15 of the National Vocational Education and Training Regulator Regulations 2011 specifies that the National VET Regulator may also be known as the Australian Skills Quality Authority.

9. Division 3 of Part 2 of the NVR Act provides for the National VET Regulator to ensure that RTOs remain compliant with the VET Quality Framework. Under section 35 the National VET Regulator may conduct compliance audits to assess compliance with the Act and the Framework, and may examine any aspect of an RTO’s operations to determine any systemic issues relating to educational quality. Under section 35A the regulator may direct an RTO to take action to rectify a breach of a condition of the RTO’s registration. Section 36 allows the Regulator to impose sanctions, including, in paragraph 36(2)(f), the cancellation of registration. Section 37 imposes natural justice requirements: before taking action under section 36, the Regulator must notify the RTO of the proposed action and allow time for a response; following the response, the Regulator may proceed to take the action if it considers that it should do so. Section 39 deals in more detail with cancellation; the regulator has a wide discretion to cancel an RTO’s registration. Under subsection 39(3), an RTO whose registration is cancelled may not reapply for registration as an RTO for two years (or such shorter period as the Regulator considers appropriate). Under section 42 an RTO may give notice to the regulator that it is withdrawing its registration; the Regulator has discretion whether or not to accept the withdrawal.

10. Section 199 of the NVR Act provides that certain decisions are reviewable. Under sections 201 and 203, some decisions must be reconsidered internally; once reconsidered, application may be made for such decisions to be reviewed by this tribunal; other decisions, in particular decisions made at senior level, are directly reviewable by this tribunal without internal reconsideration.

11. Section 6C of the ESOS Act lists which organisation is to be the ESOS agency for each different type of education provider. For registered VET providers, the ESOS agency is the National VET Regulator. Part 4 of the Act provides for the Minister to make a national code to establish nationally consistent standards and procedures for registered providers and their staff.

12. Section 83 of the ESOS Act allows the ESOS agency for a registered provider (“the agency”) to take action if the agency believes on reasonable grounds that the provider has breached the Act, the national code, a condition of registration, or certain applicable standards. Under subsection 83(3), among the actions available to the agency is the cancellation of the provider’s registration (for one or more courses or locations). Provisions for natural justice essentially the same as those in the NVR Act apply under section 93.

13. Section 169AB of the ESOS Act lists reviewable decisions in a table; item 9 of that table is a decision by the agency to take action against a provider under section 83. Under sections 169AD and 169AE, decisions made by a delegate of the ESOS agency may be reviewed internally; under section 169AG application may be made to this tribunal by the provider affected for review of internal review decisions and other reviewable decisions.

    FACTUAL CONTEXT

14. Under the legislative framework set out above, ASQA operates a regulatory system governing the provision of certain education services in Australia. In that framework the NVR Act and the ESOS Act have a central place. ASQA is the National VET Regulator, and it regulates VET courses and RTOs to ensure that educational standards in such courses and organisations are met. The VET Quality Framework and the Standards for Registered Training Organisations 2015 (the Standards) underpin its regulatory role. ASQA also operates under the ESOS Act in regulating the provision of education services to overseas students by VET providers. The following outline of the particular facts of the matter relies heavily on the material provided to the tribunal by ASQA. AGT has accepted that ASQA’s outline of the matter is accurate.

15. AGT has operated as a provider of education services since 2000, at first under a New South Wales regulatory framework and since 1 July 2011 (when ASQA began operations) under the national regulator. In September 2017 ASQA conducted an audit of AGT’s operations and decided that it did not comply adequately with the Standards. On 5 April 2018 ASQA advised AGT that it had failed to meet the Standards in 17 areas. AGT undertook measures to rectify the identified deficiencies, but in June 2018 ASQA identified that AGT remained non-compliant in 11 areas.

16. AGT attempted to withdraw its registration under both the NVR Act and the ESOS Act. ASQA refused to allow withdrawal of registration, taking that decision on 14 August 2018. At the same time ASQA decided to cancel AGT’s registration under both the NVR and ESOS Acts. ASQA sent notification of the decisions to AGT on 22 August 2018. The notice included advice on AGT’s rights to seek review before this tribunal, including the 28-day period in which application for review must be sought. On 3 September 2018 AGT advised ASQA that it intended to apply for review; on 24 September AGT emailed an application for review to the tribunal and also an application for a stay order; and on 26 September lodged an application for an extension of time.

    THE ARGUMENTS OF THE PARTIES

17. AGT, through Mr Doukas argued that:

    ·the application for review was lodged only six days late; this had resulted from some incorrect advice and was simply an error, which AGT had acknowledged and for which Mr Jane had taken responsibility and shown remorse;

    ·AGT was undertaking action to rectify its breaches; the report of the compliance expert, Mr Stephens, suggested that by the time of a substantive hearing AGT would have complied; the prospects of success at a hearing were therefore good;

    ·there is no substantial prejudice to ASQA or more widely; and

    ·the consequences for AGT in losing registration for an extended period would be great; the organisation has 18 years of experience in delivering VET services, including in particular to indigenous communities, and all this would be lost if the registration is cancelled.

18. For ASQA Ms Steward argued that:

    ·the explanation offered (up to that time) by AGT for the delay in applying for review was unpersuasive;

    ·the prospects of success were limited, given that compliance remained an issue even after several months and there was now a question about whether AGT was financially viable;

    ·an extension of time was inconsistent with the public expectation of order and finality in the affairs of government;

    ·and a commercial organisation like AGT should be held to higher standards than a private citizen.

    CONSIDERATION

    Explanation for delay

19. The parameters governing applications for extensions of time are well known. In this case the delay in applying for review was only a few days but as ASQA points out, that does not mean that it is automatic that an extension of time should be granted. And early on AGT did itself no favours by explaining the delay in terms of its focus on bringing its operations into compliance with the audit requirements: that may have explained its non-compliance with the NVR Act but not its failure to lodge an application for review under the AAT Act. At the hearing, however, AGT was frank in acknowledging that the failure to meet the deadline was simply an error. To my mind, the explanation for the delay would not be persuasive if the delay were longer, but for a period of six days it is probably reasonable to accept that administrative errors will sometimes occur and can be tolerated if they are quickly corrected. And because the delay was so short, it cannot be said that AGT rested on its rights. In sum, the delay is short, AGT did not rest on its rights, and it acted with expedition once the problem was recognised. These considerations weigh moderately in favour of the grant of an extension.

    Prospects of success

20. I am unpersuaded by ASQA’s contention that AGT’s prospects are poor. It is not appropriate to carry out what amounts to a preliminary hearing, but, taking AGT’s case at its highest, it certainly appears that the company has a case to put and reasonable prospects of being able to do so successfully. Mr Jane has made comments on the quality of ASQA’s audit process, but such matters can be put to one side at this stage. I do not find the compliance report by Mr Stephens especially compelling; but it appears that AGT is engaged in addressing in detailed compliance audit issues and can expect to align with the Standards by the time of a substantive hearing. Taking the evidence as a whole, I would be inclined to accept the company’s assertions that it will bring its performance into compliance, or something approaching compliance, by the time of a hearing.

21. ASQA notes that AGT has raised questions itself about its financial viability, and it does seem that the company was in some difficulty earlier this year. Mr Jane states that the AGT Board has now drawn up a new business plan and on that basis, if AGT is granted registration, he would complete a financial viability statement in accordance with ASQA rules. I am willing to accept his assurances that the company’s financial affairs will meet the requirements of the legislation if registration is granted.

22. These are all matters that can be best tested through the more extended examination that a hearing affords. I cannot see that the information available to me indicates such a fundamental weakness in AGT’s case that a review by this tribunal would be futile. And I note that, in accordance with the High Court’s ruling in Shi v Migration Agents Registration Authority [2008] HCA 31, the tribunal, when it comes to decide the matter, can take into account any further improvements in compliance that AGT may be able to make up to that time.

    Prejudice, fairness and related considerations

23. ASQA argues that there would be prejudice to certainty and finality in government decision-making if the extension were to be granted, but that is not an argument to which I attach significant weight. An extension for a delay of a few days in this particular matter does not put decision-making more widely significantly at risk.

24. I note that under section 36 of the NVR Act a number of different kinds of sanctions were available to ASQA. The most severe – cancellation – was adopted. Further, by refusing the application for withdrawal of registration ASQA ensured that subsection 39(3) applied, so that AGT would be prevented from reapplying for registration for two years, unless ASQA set a shorter period. Mr Jane’s statement further suggests that those associated with AGT would find it difficult to re-engage in the VET sphere, and that AGT would attract a stigma as a deregistered RTO. Regardless of the truth or otherwise of some of these assertions, it does appear that the consequences for AGT of ASQA’s decision are very severe.

25. Clearly the provision of educational services to those paying fees to acquire skills and training is a matter of considerable public importance, and maintaining educational standards in the VET sector is an important goal of public policy. Perhaps those standards have not always been met in the past. The powers available to ASQA no doubt reflect those kinds of concerns, including particular concerns relating to the provision of these services to overseas students. Nevertheless, the discretions given to ASQA are powerful, to be exercised with care and with due regard for their impact. The effect of the cancellation and refusal of withdrawal on AGT would be profound, and it seems reasonable to me that the opportunity for review should not be lightly denied in a case of this kind, especially where it is clear that AGT always intended to seek review and failed to do so by only a few days through some form of administrative or other error.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman

1. Taking all the above matters into consideration, it is plain that AGT’s delay was minor and it did not rest on its rights; it provided an explanation for the delay; the consequences for AGT if the decision stands would be very severe; and the merits of AGT’s case are sufficiently substantial that a hearing is unlikely to be futile. I think that in all the circumstances it is reasonable to grant the extension of time.

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   Associate

   Dated: 30 October 2018

Date(s) of hearing:

9 October 2018

Applicant:

Solicitors for the Applicant:

Mr Jim Jane, in person

Mr Peter Doukas, Denison Toyer

Solicitors for the Respondent:

Ms Jacqueline Steward, Australian Skills Quality Authority