AIMT Pty Ltd and Australian Skills Quality Authority

[2018] AATA 4259

AIMT Pty Ltd and Australian Skills Quality Authority [2018] AATA 4259 (8 November 2018)

Division:GENERAL DIVISION

File Number(s):      2016/6029; 2016/6030; 2017/4914; 2017/4915

Re:AIMT Pty Ltd

Wyndham Institute Pty Ltd

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:8 November 2018

Date of written reasons:        14 November 2018

Place:Sydney

Pursuant to section 42B(1)(b), and alternatively section 42A(5)(a) and/or (b), the Tribunal dismisses each of the Applicants’ applications presently before the Tribunal.

...................[sgd]......................

Senior Member M Griffin QC

Catchwords

PRACTICE AND PROCEDURE – application for dismissal – NVR registered training organisations – decision of Australian Skills Quality Authority to cancel registration – whether applications have reasonable prospects of success – whether Applicant has failed within a reasonable time to proceed with the applications or comply with a direction – applications dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 42B(1), 42A(5)

National Vocational Education and Training Regulator Act 2011 (Cth) ss 3, 21, 26, 36, 37, 39, 155

National Vocational Education and Training Regulator Regulations 2011 (Cth) reg 5

CASES

AIMT Pty Ltd and Australian Skills Quality Authority [2017] AATA 1234

SECONDARY MATERIALS

Standards for Registered Training Organisations (RTOs) 2015

WRITTEN REASONS FOR ORAL DECISION

Senior Member M Griffin QC

14 November 2018

1. The Respondent (Australian Skills Quality Authority) is the National Vocational Education and Training Regulator established under section 155 of the National Vocational Education and Training Regulator Act 2011 (Cth) (the NVR Act). The Respondent is referred to in the NVR Act as the “National VET Regulator” by virtue of subsection 155(1) and may also be known by the name “Australian Skills Quality Authority” (ASQA) by virtue of subsection 155(2) and regulation 5 of the National Vocational Education and Training Regulator Regulations 2011 (Cth). 


2. The Applicants (Wyndham Institute Pty Ltd & AIMT Pty Ltd) were “NVR Registered Training Organisations” (RTOs) as that expression is defined in section 3 of the NVR Act.

3. On 24 November 2015 & 26 April 2016, the Applicants were granted initial registration as RTOs after an initial ASQA audit. 


4. On 2 March 2017, ASQA issued a notice to the Applicants pursuant to section 26 of the NVR Act requiring the Applicants to give information. A response to this notice was required by 10 March 2017. 


5. On 21 March 2017, ASQA received emails from GPZ Legal on behalf of the Applicants. Attached to the emails was a letter in response to the section 26 notice issued on 2 March 2017. 


6. On 11 April 2017, ASQA made a decision to give, under section 37 of the NVR Act, the Applicants notice of ASQA’s intention to cancel the Applicants’ registration under section 36(2)(f) and section 39 of the NVR Act. 


7. On 12 April 2017, the Applicants were notified of ASQA’s decision and invited to provide a written response by 15 May 2017. 


8. No response was received by ASQA by 15 May 2017. 


9. On 6 June 2017, as a result of phone conversations with Mr Abu Sarkar, the CEO of the Applicants, and Ms Jacqui Hodges, a consultant engaged by the Applicants, the notification of ASQA’s intention to cancel the Applicants’ registration under section 36(2)(f) and section 39 of the NVR Act was resent to the Applicants by emails.

10. On 28 June 2017, ASQA made the Decisions under Review. 


11. On 30 June 2017, ASQA received an email from GPZ Legal on behalf of the Applicants. Attached to the email were letters in response to the notices issued to the Applicants on 12 April 2017. 


12. On 19 July 2017, ASQA considered the letter of the Applicants dated 30 June 2017 and determined this letter did not alter the Decisions under Review. 


13. On 21 July 2017, the Applicants were notified of the Decisions under Review. 


14. The Applicants failed to provide a full and complete response in respect of all information requested in the notice issued under section 26 of the NVR Act on 2 March 2017. 


15. Section 21 of the NVR Act provides that an RTO must comply with the conditions set out in sections 22 to 28. By failing to provide a full and complete response in respect of the section 26 notice, the Applicants breached section 21 of the NVR Act and did not demonstrate any genuine willingness to comply. 


16. Clause 8.1(a) of the Standards for Registered Training Organisations (RTOs) 2015 (Standards) requires that the RTO cooperate with the VET Regulator by providing accurate and truthful responses to information requests from the VET Regulator relevant to the RTO's registration. The Applicants failed to provide evidence to demonstrate that it currently complies with Clauses 1.3, 1.13, 1.14, 1.15 and 1.16 of the Standards, as requested in the section 26 notice issued on 2 March 2017. The Applicants are therefore non-compliant with the requirements of Clause 8 of the Standards. 


17. On 25 August 2017, the Decisions under Review came into effect. 


18. The Applicants by applications dated 17 August 2017, seek review of the cancellation decisions. In the applications for review the Applicants state the basis of the review is:

    “The decision is wrong...

    There is no or no sufficient justification for the decision.

    It is not based on relevant or correct findings of the Applicants’ level of compliance with the NVR Act nor upon any other relevant consideration”. 


19. At the hearing on 8 November 2018, the Applicants admitted that part of the section 26 NVR Act notices were not complied with. 


20. That application also included an application for a stay of the decisions.

21. On 26 September 2017, Deputy President Cowdroy heard submissions from both parties and decided to reject the applications for a stay. In his oral reasons, he stated that the Applicants had had several chances to detail the reasons why they decided not to comply with the section 26 NVR Act notices and called their responses to the notices prevaricated and inadequate.

22. On 5 December 2017, the Respondent, noting that the Applicants continued to fail to comply with the section 26 NVR Act notices, requested the Tribunal list a dismissal hearing. 


23. On 8 December 2017, Associate Zuiderwyk wrote to the Applicants requesting they respond to the Application for dismissal and state their position in writing before 13 December 2017.

24. On 11 December 2017, the Applicants’ solicitor responded “I am in court. I will respond in writing tomorrow morning”. 


25. On 14 December 2017, the Respondent wrote to the Tribunal noting that the Applicants decided not to respond to the Tribunal’s request and pressed for the matters to be dismissed. 


26. Later on 14 December 2017, the Applicants wrote to the Tribunal setting out that it would provide a response the following day. 


27. Later on 14 December 2017, the Applicants sent the Tribunal a letter which set out that the Applicants oppose any application by the Respondent to dismiss the applications.


28. On 18 December 2017, the Tribunal wrote to the parties requesting submissions and evidence by close of business 22 December 2017 in relation to the dismissal application.

29. On 18 December 2017, the Respondent wrote to the Tribunal and set out that it would rely on its stay submissions and evidence and the submission that the Applicants had not taken any steps to comply with the section 26 NVR Act notice since the stay application. 


30. The Applicants did not provide any evidence or submissions. 


31. On 20 December 2017, the Tribunal made the following order:

    These proceedings will stand dismissed as at 9.00am on 26 January 2018 unless, before 5.00pm on 25 January 2018, the Applicants either:

    i. Files with the Tribunal and serves on the Respondent all evidence on which the Applicants intends to rely at the Hearing;

    or

    ii. Notifies the Tribunal and the Respondent in writing that proceedings have commenced in the Federal Court. 


32. The Applicants filed its Application on 25 January 2018 in the incorrect form and this was rejected by the Federal Court. The Applicants refiled its Application on 1 February 2018 as set out in its letter to the Respondent.

33. The Applicants applied to the Federal Court for review of the notices issued under section 26 of the NVR Act. In order to settle the matter, ASQA withdrew parts of those notices and maintained that, apart from the parts that were withdrawn, they were otherwise valid and the Applicants had yet to comply with them. 


34. The Applicants complied with the notices on 17 July 2018.

35. On 30 July 2018, in correspondence, the Respondent set out that the reason the section 26 notices were issued in the first place was that ASQA was concerned the Applicants did not have adequate facilities, training and assessment materiel, trainers or assessors or premises to operate as an RTO. To that end, ASQA sought and received summons for the same material as required under the section 26 notices and Mr Sarkar the CEO of the Applicants was required to produce that material. The summons were required to be complied with by 15 August 2018. The summons were annexed to the 30 July 2018 correspondence and express posted to Mr Sarkar’s business address. 


36. The Applicants have been on notice since 30 July 2018 that they would need to demonstrate they have the facilities, training and assessment materiel, trainers or assessors or premises to operate as an RTO.


37. On 13 August 2018, the Applicants wrote to the Respondent “The Applicants do not presently have available most of the documents sought to be produced” and stated Mr Sarkar would not be complying with the summons. 


38. The Applicants have not fully complied with the summons. 


39. The Respondent wrote to the Tribunal on the following terms:

    “The Respondent considers the applications have no prospects of success, given it does not have any resources, staff or training and assessment material and therefore does is in clear breach of its obligations under clause 1.3 of the Standards for RTOs.

    The proper course for the Applicants is to withdraw its applications and apply for an initial application to become an RTO when it is ready to begin operating”.

40. On 27 September 2018, following an interlocutory hearing Senior Member Griffin QC made the following orders: 


    1.    On or before 23 October 2018, the Applicants are to file with the Tribunal, and serve on the Respondent, the following documents:

    a.any documents evidencing compliance with each of the Standards for Registered Training Organisations (RTOs) 2015;

    b.copies of current or historical leases for each of the Applicants;

    c.copies of current or historical contracts with any trainers, assessors or other staff for each of the Applicants;

    d.copies of any documents issued by any local council entity concerning authorisation for the Applicants to operate an educational business at any of its premises’; and

    e.copies of Business Activity Statements and audited or unaudited financial accounts and/or tax returns for each of the Applicants.

    2.    The matter will be heard at the request of either party on 25 October 2018 at 9:45am and the application for dismissal filed by the Respondent will be adjourned until that date. 


41. Late on 23 October 2018, the Applicants wrote to the Tribunal setting out that it would require a further six weeks to produce material. 


42. On 25 October 2018, the Applicants conceded that if a hearing were heard on 25 October 2018 it could not possibly succeed, as it is presently not compliant with its legislative obligations. 


43. The Applicants’ representative admitted in the hearing on 25 October 2018 that there were documents in their possession that met the terms of the order and they did not produce them. 


44. The Respondent submits that these matters should be dismissed for the following reasons:

    ·The Applicants have not provided any explanation for why they did not comply with the valid parts of the section 26 notices for 18 months; 


    ·The Applicants’ CEO has decided not to comply with the summons despite admitting that there was responsive material in his possession;

    ·The Applicants’ decided not to respond to the Tribunal’s direction despite admitting at the hearing on 25 October 2018 that there was responsive material in its possession;

    ·The Applicants admit they are presently non-compliant with their legislative obligations;

    ·The Tribunal can have no confidence that the Applicants will comply with its directions given their behaviour in the past;

    ·In Mr Sarkar’s affidavit of 24 October 2018 he sets out that the supposed expert Ms Hodge as late as yesterday (23 October 2018) is able to assist to prepare the materials - there is no evidence that Ms Hodge has ever been engaged or if the materials she would prepare would demonstrate compliance material. 


45. As noted by the Applicants in their submissions of 5 November 2018, they agree that the parts of the notices that were not withdrawn, were valid and it did not comply with them. 


46. The Applicants wrote to the Respondent in relation to the summons and set out that “The Applicants do not presently have available most of the documents sought to be produced”. The Applicants’ CEO, Mr Sarkar, did have some of the material required by the Tribunal and decided not to produce it.

47. The Applicants did not comply with the Tribunal’s direction despite admitting at the hearing on 25 October 2018 that there was responsive material in its possession.

48. The Applicants set out that they do not contend they “are compliant with...one or more conditions of its registration in the NVR Act”.


49. The Applicants’ behaviour in relation to compliance with the Tribunal’s orders has, in the past, been the subject of comment by the Tribunal.

50. The Applicants admit they had responsive material to the Tribunal’s direction of 27 September 2018 and did not produce it. The Applicants have in the past also ignored directions of the Tribunal for example in the decision of AIMT Pty Ltd and Australian Skills Quality Authority [2017] AATA 1234 the Tribunal found at [5] to [16]:

    5.When the Respondent’s dismissal applications came on for hearing the Solicitor for the Applicants applied for an adjournment to enable them to file a statement of the Chief Executive Officer of the Applicants. The Respondent opposed this application.

    6.On 31 March 2017 the Tribunal made the following directions in relation to the Respondent’s applications:

    1.    by close of business on 4 April 2017, the Respondent is to lodge with the Tribunal and give to the Applicant:

    a.a brief outline of its argument in respect to the dismissal application;

    b.any witness statements or other documents on which the Respondent intends to rely at the hearing of the application; 


    2.    should the Respondent intend not to rely on any witness statements or other documents at the hearing, the Respondent shall notify the Tribunal and the Applicant of this in writing by close of business on 4 April 2017;

    3.    By close of business 21 April 2017, the Applicant is to lodge with the Tribunal and give to the Respondent, copies of any witness statements and documents on which it intends to rely at the hearing;

    4.    should the Applicant intend not to rely on any such witness statements and/or documents, the Applicant shall notify the Tribunal and the Respondent of this in writing by close of business 21 April 2017. 


    7.By email of 5 April 2017 the Tribunal requested the Solicitor for the Applicants to advise of his availability for a hearing of the dismissal applications on one of seven days in May 2017. The Solicitor did not respond to this request.

    8.By notice of 20 April 2017 the Applicants were informed that the hearing of the dismissal application would take place at 10am on 5 May 2017. This notice was forwarded to the Applicants care of their Solicitor.

    9.The Applicants did not provide any witness statements and/or documents in accordance with the Tribunal’s Direction. By email of 26 April 2017 the Respondent wrote to the Solicitor for the Applicants requesting his advice whether it was intended to provide any material in accordance with the Direction. On 26 April 2017 the Solicitor for the Applicants advised the Respondent that material would be forthcoming and that he would be in further contact the following day. 


    10.On 27 April 2017 the Respondent wrote to the Solicitor for the Applicants by email noting that no further material had been received and advising that should material not be produced by 2pm the following day it was the Respondent’s intention to seek a directions hearing in relation to the Applicants’ non-compliance.

    11.By email of 28 April 2017 the Solicitor for the Applicants advised the Respondent as follows:

    I am unable to respond to your letters about these matters, but I propose to write to you before COB today.

    12.Later that day the Solicitor for the Applicants advised the Respondent that he was attending to the filing of the Applicants’ material as a matter of urgency and that he expected to have it to the Respondent well before the hearing of the dismissal application.

    13.By letter of 1 May 2017 the Solicitor for the Applicants advised the Respondent that he had been unable to complete the Applicants’ material and requested the Respondent’s consent to an adjournment of the dismissal hearing. 


    14.At the commencement of the hearing on 5 May 2017 the Solicitor for the Applicants applied for an adjournment on the basis that the Chief Executive Officer of the Applicants had been overseas and that he (the Solicitor) had been appearing in another matter before the Tribunal on 27 and 28 April 2017. The Solicitor was unclear as to when the Chief Executive Officer had left the country. 


    15.I refused the request for an adjournment on the basis that the Applicants had ample time to prepare for the hearing. In breach of the Tribunal’s Direction of 31 March 2017 the Applicants had not filed and served material and had not advised the Tribunal that it was not intended to do so. In these circumstances the Applicants should have applied for an extension of time in which to file further material. They did not do this. 


    16.Further, the Solicitor for the Applicant was aware in advance that he would be required to appear in the Tribunal on 27 and 28 April 2017 and should have made allowance for this in preparing documents in this matter. He did not give any explanation as to why he could not contact the Chief Executive Officer while he was overseas to obtain instructions in relation to the applications. 


    CONCLUSION

51. In this application, the Respondent seeks dismissal of both Applicants’ applications pursuant to the provisions of sections 42A(5) and 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

52. In the Tribunal’s opinion, on all the material, the Applicants are not now, nor were they ever, able to demonstrate compliance as required by the Authority. In relation to the future prospects of the Applicants being able to demonstrate compliance, the Tribunal considers that future compliance, were time to be allowed, is irrelevant to the present issues before the Tribunal.

53. The proceedings instituted by the Applicants in the Tribunal related to decisions made by the Respondents and relate to the time of the making of those decisions.

54. If, however, the Tribunal is wrong about this, there is material from the Applicants which demonstrates that the Tribunal can have no confidence whatsoever that the Applicants will be capable of demonstration of compliance in the future.

55. The history of the prosecution of this matter by the Applicants demonstrates woeful unwillingness to prosecute the matters before the Tribunal.

56. Furthermore, there are inconsistencies in the timeframe requested by the Applicants for compliance. In the unsworn affidavit of Ms Hodge tendered at the hearing on 8 November 2018 that deponent referred to a timeframe requiring “at least 6 weeks” to provide the relevant documentation.

1. It is tolerably clear that the timeframe for provision of the relevant documentation by affidavit on 24 October 2018 referring to a period of “6 weeks”, has been extended not only by an extra two weeks but also by the expression “at least”. The Tribunal is of the opinion that any time frame proposed by the Applicants is clearly illusory.

2. In the result, the Tribunal is of the opinion that there is no prospect whatsoever of the Applicants’ successful prosecution of the applications before the Tribunal, that is, there are no reasonable prospects of success (section 42B(1)(b)).

3. Furthermore, and alternatively, the Tribunal is of the opinion that because of the manner in which these matters have so casually proceeded, as, for example, ignoring the orders of the Tribunal of 27 September 2018, and that the Applicants have failed to prosecute their cases in a timely manner, the Applicants’ matters should be dismissed on the basis of section 42A(5)(a) and/or (b).

4. On these two separate bases, the Tribunal accedes to the Respondent’s request for the dismissal of each Applicants’ application presently before the Tribunal.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

.....................[sgd]...............................................

Associate

Dated: 14 November 2018

Date(s) of hearing:	8 November 2018
Counsel for the Applicant:	C Dermody
Solicitors for the Applicant:	GPZ Legal
Solicitors for the Respondent:	D Cox, Australian Skills Quality Authority