Amana Community Services Pty Ltd and Aged Care Quality and Safety Commissioner - [2025] ARTA 1495

Amana Community Services Pty Ltd and Aged Care Quality and Safety Commissioner [2025] ARTA 1495 (6 August 2025)
Applicant/s:  Amana Community Services Pty Ltd
Respondent:  Aged Care Quality and Safety Commissioner
Tribunal Number:                2022/8777 (remitted)
Tribunal:Senior Member Jane Lye
Place:Brisbane
Date:6 August 2025
Decision:The Tribunal affirms the decision under review.

............................[Sgnd]................................
Senior Member J Lye

Catchwords
Aged care – application for approval to provide aged care services – suitability of Applicant to provide aged care services – Applicant’s experience in providing, at any time, aged care or other relevant forms of care – demonstrated understanding of the person’s responsibilities as a provider – the systems that the Applicant has, or proposes to have, in place to meet the person’s responsibilities as a provider – Applicant’s record of financial management and proposed methods to ensure sound financial management – quality of care principles – records principles – key personnel of the Applicant – manuals and policies – consultants – financial statements – under capitalisation – brokerage – NDIS
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) – Part 1, Schedule 5, items 26-28; Schedule 16, item 25 of Part 5
Aged Care Act 1997 (Cth) – s 2-1; s 3-1; s 3-3; s 3-7; s 7-1; s 54, s 56-2; s 63; s 96-1; Part 6.3
Aged Care Act 2024 (Cth) (uncommenced)
Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 (Cth) – Part 7A
Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Cth)
Aged Care Quality and Safety Commission Act 2018 (Cth) – s 5; s 7; s 8B; s 63D(2); s 63D(3); s 63D(4); s63D(6); s 74L(4).
Cases
Aged Care Quality and Safety Commissioner v Amana Community Services Pty Ltd [2024] FCA 1241
Amana Community Services and Aged Care Quality and Safety Commissioner [2024] AATA 2984 (14 August 2024)
AussieCare Foundation Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 2202 (24 July 2023)
Better Disability Care Pty Ltd and Aged Care Quality and Safety Commissioner [2024] AATA 3593
Caring Home Care Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 2901
TFG Holding Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 3809
Secondary Materials
Aged Care Quality and Safety Commission Rules 2018 (Cth)
Accountability Principles 2014 (Cth)
Charter of Aged Care Rights (Cth)
Quality of Care Principles 2014 (Cth) - s 17; Schedule 2
Records Principles 2014 (Cth)
User Rights Principles 2014 (Cth) - Part 3; Schedule 1
Proclamation pursuant to ss 2(1) Aged Care Act 2024 (Cth) (uncommenced)
Statement of Reasons
INTRODUCTION

The Applicant in this proceeding, Amana Community Services Pty Ltd, is a corporation and its figurehead and controlling mind is its Chief Executive Officer (CEO), director and shareholder, Maryana Nasour. It is currently a provider of brokerage services, National Disability Insurance Scheme (NDIS) supports and more recently, limited home support services under the Commonwealth Home Support Program (CHSP). In 2021, it sought approval from the Aged Care Quality and Safety Commissioner (the Respondent) to provide expanded home based aged care services to Arabic and Muslim community members in Sydney.
The Respondent is a Commonwealth agency established to protect and improve the safety, health, wellbeing and quality of life for people receiving aged care services. One of its functions is to approve service providers[1] to receive funding and to provide aged care services. It does so based on criteria set out in the Aged Care Quality and Safety Commission Act 2018 (Cth) (the ACQSC Act).[2]
[1] ACQSC Act, s 63D(3).

The Respondent refused to approve the Applicant to provide home based aged care services.[3] The Tribunal’s task is to independently review that decision on its merits and determine whether the Respondent’s decision to refuse the application for approval should be affirmed or set aside.

[3] Ibid s 63D2(b).

As will be seen, this dispute has had a long history, including an appeal to the Federal Court from a previous decision of the Administrative Appeals Tribunal. These reasons record the Tribunal’s decision on remittal of the application from the Federal Court.

Transition to the Administrative Review Tribunal

The Applicant’s original application for review was lodged on 21 October 2022, with the Administrative Appeals Tribunal. The Tribunal’s decision following the original hearing was delivered on 14 August 2024.

On 16 October 2024, the matter was remitted by the Federal Court for redetermination pursuant to item 25 of Part 5 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).

The Court’s orders did not place any limitation on the scope of the remittal. By virtue of s 184 of the Administrative Review Tribunal Act 2024 (Cth) (the Tribunal Act), the Tribunal in undertaking the redetermination, has had regard to evidence and transcript taken at the initial hearing of the application.

BACKGROUND FACTS

The Applicant describes itself as a provider of aged and disability care with a focus on servicing culturally and linguistically diverse communities. It has provided aged and disability care services since December 2019.[4]

[4] The Applicant was registered on 11 December 2019. Applicant's closing submissions [1.1].

The Applicant’s directors are Mrs Nasour, its Company Secretary, Dr Ramadan, its Treasurer, Dalal Kahlil (office manager), Fatima Ayoub (a registered nurse) and Paul Sadler (a consultant).

Both Mrs Nasour and Dr Ramadan are also the joint shareholders of the Applicant.

The Applicant identifies as its Key Personnel[5] Mrs Nasour, Dr Ramadan, Mrs Kahil, Mr Sadler, Ms Ayoub and its current Chief Financial Officer (CFO), Hadee Faqih.[6]

[5] ACQSC Act s 8B. The Respondent can assess suitability of the Applicant’s ‘Key Personnel’ when evaluating its suitability for approval. The Applicant gave conflicting evidence as to who were its key personnel because it identified different positions as meeting the definition of key personnel in its Manual compared to its Management Structure Diagram; Hearing Book pages 2207 to 2208 and Hearing Book page 1912.

[6] The former CFO of the Applicant was Tony Baddour.

In addition to being on the Applicant’s board of management (the board), both Mr Faqih[7] and Mr Sadler also provide additional paid services to the Applicant.[8]

[7] Mr Faqih runs his own accountancy business A2Z Taxation (A2Z), which services over 500 clients. A2Z undertakes physical management of the Applicant’s payroll each fortnight and is also responsible for its end of financial year statements and its tax returns.

[8] Mr Sadler operates a consultancy service which provides specialist aged care advice and services to aged care organisations. Mr Sadler provides advice and services to the Applicant for which he invoices and is paid consultancy fees.

The Applicant currently provides services:

(a)via brokerage arrangements[9] where potential or existing recipients of aged care services are referred to and contract with approved providers which have contractual arrangements with the Applicant;
(b)since around August 2021, under the NDIS as a registered provider; and
(c)since late October 2024, under the CHSP[10] where, as an approved provider, the Applicant receives a grant to provide limited aged care activities.
[9] Services where the Applicant contracts with service providers and matches clients with the appropriately qualified service providers.
[10] Exhibit R3, the Commonwealth Home Support Programme Manual 2024-2025, describes the CHSP as providing: “entry-level support to help older people continue to live safely and independently at home and in their communities. It is available to people aged 65 years and over, and Aboriginal and or Torres Strait Islander people aged 50 years and over. The CHSP is suitable for people who can live independently at home but need small amounts of entry-level support to do so.”

On 20 September 2021, the Applicant lodged its application under s 603B of the ACQSC Act to become an approved provider of aged care services.

The Applicant originally sought approval from the Respondent to provide both home care and flexible care. However, after commencing these proceedings, the Applicant withdrew its application for flexible care, leaving the Tribunal to determine the application in respect of home based care.[11]

[11] Exhibit A20, Correspondence from the Applicant to the Tribunal and the Respondent dated 31 March 2023. Hearing Book page 792.

On 24 May 2022, the Respondent notified the Applicant that its application had been refused under s 63D of the ACQSC Act (the 24 May 2022 decision).[12]

[12] Exhibit R1 of the original hearing (2 April 2024), Tribunal documents, Hearing Book page 557.

On 6 June 2022, the Applicant requested reconsideration of the 24 May 2022 decision.[13] As the Respondent failed to notify the Applicant of its reconsideration within the 90 day statutory period, the 24 May 2022 decision was deemed to be affirmed as of 6 September 2022 (the 6 September 2022 decision).[14]

[13] Exhibit R10, Hearing Book page 566.

[14] Tribunal documents, Hearing Book page 7; ACQSC Act s 74L(4).

On 21 October 2022, the Applicant lodged an application with the Administrative Appeals Tribunal seeking review of the 6 September 2022 decision.[15]

[15] Exhibit R1 (original hearing), Hearing Book page 1.

On 2 December 2022, the Tribunal ordered that the 6 September 2022 decision be remitted to the Respondent for reconsideration.[16]

[16] Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) s 42D. Exhibit R1, Hearing Book page 9.

On 13 January 2023, the Respondent notified the Applicant of its reconsideration of the application, affirming the 6 September 2022 decision (the decision under review).

The application was heard on 2 April 2024 and the Tribunal delivered its reasons on 14 August 2024,[17] setting aside the decision under review and approving the Applicant’s application for approval under the ACQSC Act.

[17] Amana Community Services and Aged Care Quality and Safety Commissioner [2024] AATA 2984 (14 August 2024).

On 11 September 2024, the Respondent filed an appeal against the Tribunal’s decision with the Federal Court under s 44 of the Administrative Appeals Tribunal Act (1975) (Cth) (the AAT Act).

On 16 October 2024, his Honour, Justice Lee delivered judgment, orders and reasons on the Respondent’s appeal in Aged Care Quality and Safety Commissioner v Amana Community Services Pty Ltd [2024] FCA 1241, setting aside the Tribunal’s decision and remitting the application to this Tribunal for determination.

On 23 October 2024, the Applicant received an initial grant under the CHSP to provide limited aged care activities (the CHSP grant).

On 23 May 2025, the Applicant’s CHSP grant was extended to 30 June 2027.

Between November 2024 and 14 January 2025, the Applicant onboarded 144 consumers.[18]

[18] Under the CHSP. Exhibit A12, Applicant’s Statement of Facts, Issues and Contentions (SFIC) [1.15], Hearing Book page 6167; Transcript page 23.

After allowing the parties an opportunity to file amended Statements of Facts, Issues and Contentions (SFICs) and additional evidence with the Tribunal, the remittal application was heard on 27 and 28 February 2025. A further hearing day was required to be listed for 27 March 2025 to permit Mr Faqih to attend to give evidence and be cross examined.[19]

[19] Mr Faqih was required for cross examination in February 2025 but was overseas due to family matters. The Tribunal consented to the relisting at the earliest available time following Mr Faqih’s return to Australia.

In light of the evidence produced at the 3 day remittal hearing, the parties requested an extended period to launch closing submissions with the Tribunal. Those submissions were filed on 29 April 2025 (Respondent) and on 27 May 2025 by the (Applicant).

The Respondent subsequently requested and both parties were granted an opportunity to file submissions addressing amendments to the ACQSC Act which commenced on 1 July 2025 before the Tribunal published its reasons for decision. The Tribunal consented to allow the parties to file brief further submissions addressing these amendments.

On 1 August 2025, the Respondent filed written submissions informing the Tribunal of matters relating to a new commencement date for the Aged Care Act 2024 (Cth) (the new Aged Care Act).[20] The Applicant decided not to file further submissions in reply. Specifically, the Respondent drew the Tribunal’s attention to a Proclamation made on 26 June 2025, fixing 1 November 2025 as the new commencement date for the new Aged Care Act.

[20] Respondent’s further closing submissions dated 1 August 2025.

The Respondent further alerted the Tribunal to how the transitional provisions for the ACQSC Act may apply to this application, should the Tribunal not make its decision before 1 November 2025.[21] As these reasons have been delivered well prior to 1 November 2025, these issues do not arise in respect of this decision and do not need to be further addressed in these reasons.

[21] The transitional provisions are contained in the Aged Care (Consequential and Transitional Provisions) Act 2024 (Cth).

THE STATUTORY FRAMEWORK

Older Australians and their loved ones rely on the effective provision of home based care services to allow them to live independently and with dignity in their own homes with support. Approved providers who provide these essential services are in receipt of substantial Commonwealth funds and are expected to handle them prudently and with integrity. The public reasonably expects high quality care to be provided in the aged care sector by approved professionals who respect the dignity and independence of their clients.

In such circumstances, it is unsurprising that the Commonwealth has established by law an exacting and stringent approval process both for approved aged care providers[22] as well as providing for their ongoing regulation.

[22] Exhibit R29, Respondent’s Amended Statement of Facts Issues and Contentions (ASFIC) [3.6], Hearing Book page 6189.

For the purpose of these reasons, I have collectively referred to the following laws and subordinate legislation which apply to these processes as the ‘Aged Care Laws’:

-Aged Care Act 1997 (Cth) (the Aged Care Act);
-Aged Care Quality and Safety Commission Act 2018 (Cth) (the ACQSC Act);
-Aged Care Quality and Safety Commission Rules 2018 (Cth) (the Rules);
-Aged Care Quality Standards (the Quality Standards);[23]
-Accountability Principles 2014 (Cth) (the Accountability Principles);[24]
-Charter of Aged Care Rights;[25]
-Code of Conduct;[26]
-Quality of Care Principles 2014 (the Quality of Care Principles);[27]
-Records Principles 2014 (Cth) (the Records Principles);[28] and
-User Rights Principles 2014 (Cth) (the User Rights Principles).
[23] Quality of Care Principles, Schedule 2.
[24] These reflect the obligations in Aged Care Act, s 63-1A and would apply to the Applicant, if approved to provide aged care services.
[25] User Rights Principles, Schedule 1. These reflect the obligations in Aged Care Act, s 54-1(c) and would apply to the Applicant, if approved to provide aged care services
[26] The Rules, Schedule 1.
[27] These reflect the obligations in Aged Care Act, ss 54-1(e) and s 56-2 (f),(j), (k) and (l) and would apply to the Applicant, if approved to provide aged care services.
[28] Approved providers have record keeping obligations under s 63-1 of the Aged Care Act and these are set out the Records Principles.[28]

The Aged Care Act and the principles

The objects of the Aged Care Act relevantly provide:[29]

[29] Aged Care Act, s 2-1(1).

(1) The objects of this Act are as follows:
(a) to provide for funding of *aged care that takes account of:
(i) the quality of the care; and
(ii) the *type of care and level of care provided; and

(iii) the need to ensure access to care that is affordable by, and appropriate to the needs of, people who require it;
(iv) appropriate outcomes for recipients of the care; and

(v) accountability of the providers of the care for the funding and for the outcomes for recipients;
(b) to promote a high quality of care and accommodation for the recipients of *aged care services that meets the needs of individuals;
(c) to protect the health and well-being of the recipients of aged care services;
……

The Aged Care Act specifically provides for financial support from the Commonwealth in the form of subsidies and grants to be provided to approved aged care providers.[30] A person seeking to access these financial supports must submit to the approval process under the Aged Care Laws. This includes a person seeking to provide home based care services. That approval process is administered under the ACQSC Act but remains subject to the objects and requirements of the Aged Care Act.

[30] Consistent with Aged Care Act, s 2-1(1)(a).

The responsibilities of approved providers are set out in Chapter 4 of the Aged Care Act and are subject to ongoing regulatory oversight:

3-4 Responsibilities of approved providers (Chapter 4)
Approved providers have certain responsibilities under Chapter 4. These responsibilities relate to:
(a) the quality of care they provide; and
(b) user rights for the people to whom care is provided; and
(c) accountability for the care that is provided, and the basic suitability of their *key personnel.

Failure to meet these responsibilities can lead to the imposition of sanctions on an approved provider under Part 7B of the *Quality and Safety Commission Act, which may affect amounts of *subsidy payable to the approved provider.

Section 54-1 of the Aged Care Act also relevantly requires approved aged care providers to:

(a)provide care and services as specified in the Quality of Care Principles;[31]
(b)comply with the Quality Standards;[32]
(c)provide care and services to a standard of quality consistent with the rights and principles set out in the User Rights Principles.[33]
[31] Aged Care Act s 54(1)(a), s 96-1.
[32] Aged Care Act s 54(1)(d), s 96-1; Quality Care Principles s 17.
[33] Aged Care Act s 54(1)(c), s 56-2.

The approval process

The approval process for aged care service providers is set out in Part 7A of the ACQSC Act and is administered by the Respondent.[34] The Respondent is also tasked with the ongoing regulation of approved providers.[35]

[34] See Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 (Cth), Part 7A which transferred the approval function to the Respondent.

[35] Aged Care Act, Division 3, s 3-1 and s 3-4. See also s 7-1 which provides that a subsidy cannot be paid unless the payee is an approved provider.

The objects of the ACQSC Act can be found in s 5 of the Act:

(5) The object of this Act is to establish a regulatory framework that will:
(a)protect and enhance the safety, health, well-being and quality of life of aged care consumers; and
(b)promote aged care consumers’ confidence and trust in the provision of aged care services and Commonwealth-funded aged care services; and
(c)promote engagement with aged care consumers about the quality of care and services provided by:
(a)approved providers of aged care services; and
(b)service providers of Commonwealth-funded aged care services.

The recent legislative amendments to the Aged Care Laws which were the subject of the Respondent’s further closing submissions, postdate the Applicant’s original application[36] and do not apply to the Tribunal’s evaluation of the decision under review.[37] Instead, the Tribunal is required to evaluate the Applicant’s application under the ACQSC Act as it operated prior to the commencement of these amendments and all references to the ACQSC Act in these reasons should (unless otherwise stated) be understood to refer to the pre-amendment provisions.

[36] By virtue of the Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Cth) (the Amending Act).

[37] The Amending Act, Schedule 5, items 39 and 40 and Caring Home Care Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 2901 [6] (Caring Home).

Section 63D(2) of the ACQSC Act sets out the minimum requirements for approval for a person to provide aged care:
(2) The Commissioner must not approve the person as a provider of aged care unless the Commissioner is satisfied that:
(a) the person is a corporation; and
(b) the person is suitable to provide aged care; and
(c) none of the key personnel of the person is a disqualified individual.
In this case, the only matter in dispute (and the question which the Tribunal has to determine) is whether the Applicant is suitable to provide aged care (s 63D(2)(b)).
Section 63D(3) of the ACQSC Act sets out the matters the Tribunal must have regard to in determining whether under s 63D(2)(b), the Applicant is suitable to provide aged care:
(3)In deciding whether the person is suitable to provide aged care, the Commissioner must consider the following matters:
(a) the person’s experience in providing, at any time, aged care or other relevant forms of care;
(b) the person’s demonstrated understanding of the person’s responsibilities as a provider of the type of aged care for which approval is sought;
(c)the systems that the person has, or proposes to have, in place to meet the person’s responsibilities as a provider of the type of aged care for which approval is sought;
(d) the person’s record of financial management and the methods that the person uses, or proposes to use, in order to ensure sound financial management;
(e) if, at any time, the person has been a provider of aged care or other relevant forms of care – the person’s conduct as such a provider and the person’s compliance with:
(i)      the person’s responsibilities as a provider of that care; and
(ii)the person’s obligations arising from the receipt of any payments from the   Commonwealth for providing that care;
(f)      any other matters specified in the rules.
For the purposes of determining suitability of the Applicant to provide aged care, the Tribunal may also have regard to any or all of its ‘key personnel’.[38] This means that the suitability of Mrs Nasour, Dr Ramadan, Mr Sadler, Mr Kahil, Ms Ayoub and Mr Faqih are also relevant to the Tribunal’s consideration of the factors in s 63D(3) of the ACSQC Act.
[38] ACQSC Act, s 63(4) and s 8B.
There are additional matters to note about s 63D(3) of the ACSQC Act as it applies to this application. First, subparagraph 63D(3)(f) permits the Tribunal to identify and have regard to other relevant factors, in addition to the mandatory factors listed at subparagraphs 63D(3)(a) to (e) as specified in the Rules. This is further reinforced by ss 63D(6). In this case, no additional relevant factors have been identified.
Second, subsections 3(c) and 3(d) of s 63D(3) both use the phrase ‘has or proposes to have’ which means that for some applicants, the decision maker may need to evaluate proposed systems and/or records which are not yet in place. It has been suggested but I cannot accept that the words ‘proposes to have’ are broad enough to permit an applicant for approval to discharge their onus without taking steps to formulate proposed systems or records. In any event, in this case the Applicant has attempted to formulate some proposed systems or records, so the issue does not directly arise.[39]
[39] TFG Holding Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 3809 (TFG Holding) [16]. The Tribunal made certain findings on the evidence presented in that case [49], [52].
Third, in this case, it was not disputed either initially or under reconsideration that the Applicant has met the ground in subsection 3(e).[40] However, the Respondent has made a contention in respect of this ground in its Amended Statement of Facts, Issues and Contentions (ASFIC) and also sought to make brief submissions in respect of this ground in its closing submissions.
[40] Tribunal documents, T4 [7.5], Hearing Book page 20 - the Respondent was satisfied the Applicant met this requirement.
I have briefly considered this ground below.
CONSIDERATION OF THE GROUNDS FOR APPROVAL
Ground 1 - Record of financial management and the methods the Applicant uses or proposes to use to ensure sound financial management (s 63D(3)(d))
There was significant dispute about whether the Applicant met this ground[41] and it occupied significant time during the remittal hearing. For this reason, I have given it priority in these reasons.
[41] Ibid [7.4].
There are 2 limbs to the ground in s 63D(3)(d). The first concerns the Applicant’s record of financial management. The second concerns the methods the Applicant uses or proposes to use to ensure sound financial management.
The Applicant’s previous CFO had resigned prior to the original hearing in 2024. Two statements from the new CFO, Mr Faqih[42] were in evidence at the remittal hearing and both Mrs Nasour and Mr Faqih gave evidence and were cross-examined about the Applicant’s record of and methods for financial management
The Applicant’s record of financial management
[42] Exhibit A6, the second statement of Hadee Faqih, dated 13 January 2025, Hearing Book pages 5809-12.
Before turning to the witness evidence, I should draw attention to 2 matters. First, the Applicant is a profit-making entity. This is entirely permissible under the Aged Care Laws and my evaluation of the Applicant’s financial record should not be read as being critical of the fact that a profit-making entity is seeking approval to provide aged care services.
Second, my evaluation of the financial status of the Applicant should not be read as suggesting that it is in financial difficulty. It is presently managing expansion of its services and is contemplating further expansion via its application for approval. My evaluation considers whether the Applicant is undercapitalised. There is no suggestion it is insolvent or at immediate risk of insolvency.
Turning to the ground, the Respondent contended that the Applicant had not demonstrated via its application or its evidence that it appreciated the additional constraints and burdens under which it would operate, if approved. In particular, it contended that the Applicant had not demonstrated that it could appropriately manage the additional Commonwealth funds it would receive, if approved as an aged care service provider. It also expressed concern about the Applicant’s overall financial position but particularly, its current lack of capitalisation.[43]
[43] Exhibit R29, Respondent’s ASFIC, Hearing Book page 6207 [5.23]-[4.24].
The Applicant did not agree. It contended that the Respondent had adopted a ‘broad brush approach’ when assessing the Applicant’s financial position and had failed to take into account the Applicant’s operating account balance, the support available from its 2 directors (via director loans) and the moneys it had received from the Commonwealth under the CHSP grant. It submitted there was no evidence to warrant the conclusion that it faced an uncertain financial situation.
It was undisputed that the Applicant only commenced operations in December 2019 and had in its years of operation experienced and absorbed rapid expansion, culminating in the CHSP approval in late October 2024. That approval resulted in additional funding of $314,791.30 being provided to the Applicant by the Commonwealth in the 2024/2025 financial year[44] and also led to significant expansion in clients from the additional services being offered.
[44] Exhibit A12, Applicant’s ASFIC [3.31], Hearing Book page 6176.
It was also not disputed that the Applicant had originally been established by Mrs Nasour and Dr Ramadan and that during its years of operation, director loans had been made to the company from time to time and also repaid at various times.
The Tribunal proceeded to hear evidence about the Applicant’s annual financial performance at the remittal hearing. This revealed gaps in the Applicant’s filed evidence concerning its recent financial operations. For example, while the Applicant’s financial statements for the financial years ending 30 June 2020 and 2021 were in evidence at the original hearing, the Applicant had not filed financial statements for the later financial years (2022 to 2024) in anticipation of the remittal hearing. Nor was a copy of the Applicant’s current annual budget available to the Tribunal.
In the circumstances, I was surprised that these documents had not been filed, particularly as prior versions had been produced and its CFO, Mr Faqih had filed a fresh statement. The Applicant was on notice that this issue was in dispute, because the Respondent had called out in its ASFIC the lack of evidence by way of financial statements, financial projections and business plans.[45] In such circumstances, it was open to the Tribunal to draw inferences from the Applicant’s failure to produce these documents.
[45] Exhibit R29, Respondent’s ASFIC [5.26], Hearing Book page 6208.
As it transpired, the Tribunal requested that the Applicant produce the additional financial statements, during the remittal hearing and they were promptly produced.[46] They provide a contemporaneous record of the Applicant’s financial performance and have been of assistance to the Tribunal, in evaluating this ground, particularly in the context of Mr Faqih’s evidence.
[46] Exhibits A16-A18.
No copy of the Applicant’s current budget was in evidence. I have addressed the issue of budgets below but ultimately I am unable to be satisfied such a document existed for the 2024/2025 financial year.
Mrs Nasour’s and Mr Faqih’s evidence
Mr Faqih is a certified practising accountant and is the principal of a small accounting firm, A2Z Taxation (A2Z). He has provided financial and accounting services to the Applicant for several years and has also acted as its tax agent.[47]
[47] Exhibit A6, Faqih second statement at [3] and [5].
In around April 2024 Mr Faqih was appointed CFO of the Applicant. He acknowledged he was one of the key personnel for Applicant under the ACQSC Act but curiously, told the Tribunal he didn’t know ‘whether this has been formally amended yet’.[48]
[48] Ibid at [7].
Mrs Nasour as I have already mentioned, is the Applicant’s CEO and among her responsibilities, is direct responsibility for the Applicant’s budget. Mrs Nasour also has separate and distinct legal obligations as a director of the Applicant.
Mrs Nasour was cross examined at the original hearing about the Applicant’s financial position for the 2020 and 2021 financial years. The financial statements for those years revealed the Applicant was:[49]
·in a loss position for its first year of operation[50] but reported a small profit in the second;[51]
·in a negative asset position for both financial years;
·in a negative cashflow position for the 2021 financial year; and
·historically reliant upon loans from its directors.[52]
[49] Transcript pages 30 and 31; Exhibits A16 to A18.
[50] Tribunal documents, T6, Hearing Book page 371.
[51] Ibid page 385.
[52] See for example Tribunal documents, T6, Hearing Book page 390.
Mrs Nasour’s evidence also revealed that she had difficulty interpreting the Applicant’s financial documents.[53] This, is a matter of some importance which I have addressed below.
[53] Exhibit R28, Transcript of original hearing 2 April 2024, page 30.
Mrs Nasour had told the Respondent that the Applicant had never had to take a loan to pay its employees.[54] This conflicted with her evidence to the Tribunal at the original hearing, that director loans were initially required but circumstances had improved and the Applicant was now ‘in the positive’ and able to pay its workers.[55] Mrs Nasour confirmed at the remittal hearing there was no funding agreement between her and the Applicant for such loans.[56]
[54] Exhibit R10, Hearing Book page 787.
[55] Ex R28, transcript original hearing, page 30.
[56] Ibid page 31.
Mrs Nasour’s evidence that the director loans were no longer required, was contradicted by Mr Faqih’s evidence at the remittal hearing. Mr Faqih explained that in previous financial years, the directors had loaned money to the Applicant ‘to ensure its obligations were met on time’.[57] He initially conceded under cross examination that this included payment of wages, contractors and other expenses but then qualified this evidence by saying there was always money available and set aside to pay employees.[58] When asked under cross examination if he expected that loans would continue to be required, he was slightly evasive before conceding that director loans had been required for the 2023-2024 financial year as well as in the second half of 2024.[59]
[57] Transcript pages 194, 195, 203, 204, 205, 209, 210-211. Transcript of original hearing at pages 30-31.
[58] Transcript page 210.
[59] Transcript page 225.
Mr Faqih is a qualified accountant and as would be expected of the Applicant’s tax agent and accountant, he demonstrated by his evidence, an effective and detailed working knowledge of the Applicant’s financial position. I accept and prefer Mr Faqih’s evidence about the financial operations of the Applicant, over Mrs Nasour’s. I inferred from his evidence and the matters I have discussed below that there was a material risk that the Applicant would continue to need assistance by way of further directors’ loans from time to time and particularly in the short term, while it absorbed the additional expenses associated with expansion resulting from the CHSP grant.
Mr Faqih was also able to comment in detail about the Applicant’s asset position at the remittal hearing. His evidence was corroborated by the financial statements, and I infer from these that the Applicant remains relatively asset poor, despite steadily increasing its annual income over its years of operation.[60] Mr Faqih conceded the Applicant’s only assets comprised its cash assets and trade debtors.[61] One explanation for this was the profit model and tax arrangements for the Applicant. Mr Faqih explained, and I accept, that the priority was to ensure that the Applicant (as a profit-making entity) distributed as much of its annual income as possible to Mrs Nasour as salary at the end of each financial year. This also ensured the Applicant’s end of financial year position left it with a small profit for tax purposes. As Mr Faqih explained, with reference to the increases in income and Mrs Nasour’s commensurate increases in annual salary which could be seen from the Applicant’s financial statements:[62]
Mr Faqih: Yes. And please note that the associated salary – (indistinct) person’s salary is starting increase up to one hundred and eighty-four seven dollars. So the more effort they put in the business, the more reward I get.
[60] Transcript pages 203-204. When taken to the Profit and Loss Statements for the Applicant for the years ended 30 June 2021, 2022, and 2023 in cross examination, Mr Faqih observed that the profit of the Applicant was being drawn by the director of the Applicant as salary, leaving the company to show only a small profit.
[61] Transcript page 208.
[62] Transcript page 206.
This evidence aligned with the Respondent’s contention that the Applicant was significantly under-capitalised. The Applicant was on notice that this was a key issue about which the Respondent was particularly concerned.[63] It was also on notice that the Respondent intended to challenge the correctness of it relying upon the private assets of Mrs Nasour and Dr Ramadan via director loans as evidence of its assets for the purpose of its application.
[63] Respondent’s ASFIC [5.24], Hearing Book page 6207.
Despite this, the Applicant continued to submit and Mr Faqih told the Tribunal that it should take into account the assets of the directors (and particularly Ms Nasour and Dr Ramadan) in assessing the adequacy of its operating capital.[64] I cannot accept this submission. The assets the Applicant identified are private assets which belong to Mrs Nasour and Dr Ramadan, not the Applicant. While they had previously agreed to assist the Applicant by providing loans, there was no evidence of any legal obligation or agreement for them to use their private assets to assist the Applicant to fund its operations.
[64] Transcript page 31.
Mr Faqih told the Tribunal that the Applicant had recently been experiencing substantially increased and fluctuating labour costs, mainly as a result of the CHSP funding (resulting in an increase in employees and contractors).[65] Mrs Nasour also told the Tribunal that the Applicant was growing fast.[66] I inferred from Mr Faqih’s evidence and accept that the expansion in services from the CHSP from October 2024 was imposing financial pressure on the Applicant in terms of its increased monthly payroll and contracting costs.[67] He estimated that as at the time of hearing, the Applicant faced monthly salary commitments of between $70,000 to $84,000 for 28 employees, which needed to be paid from its operating account each fortnight.[68] Added to this, he estimated there were contracting costs resulting in monthly commitments of around $100,000.[69] I accept both estimates as accurate.
[65] Transcript pages 220 to 223.
[66] Transcript page 36.
[67] Transcript pages 211, 219-222.
[68] Transcript pages 221, 223. Mr Faqih also estimated that the Applicant’s monthly combined salary and contractor expenses could be around $100,000 per month. I have relied on this evidence to infer that the Applicant was as at March 20-25, in a very tight financial position, given its recent expansion.
[69] Transcript page 221.
Despite this, there was no evidence about how the Applicant had planned for or was managing this expansion (other than the possibility of further director loans, if needed). Mr Faqih pointed to money currently in its operating account[70] and I accept his evidence that questions of timing can be important for these assessments, particularly if the Applicant is in receipt of Commonwealth funding.[71] but objectively (and as will be seen from my examination of its bank accounts, below), those cash assets reported to the Tribunal would not fund the Applicant for more than a short period given its monthly expenses.
[70] Transcript pages 215-219.
[71] Transcript page 209.
Neither Mr Faqih or Mrs Nasour explained how the Applicant had used its experience from previous expansions to plan for and support this most recent expansion, or was planning for even greater expansion, if approved. Instead, the Tribunal was told it should accept that the Applicant had successfully absorbed these past expansions and so it should assume the Applicant could equally survive future expansion, including, if approved as an aged care services provider.
I inferred from the evidence that the Applicant’s approach to expansion in the past had been reactionary and was adopting a similar posture to the current financial pressures it was facing. Mr Faqih’s evidence painted a picture of a company which was managing but which was presently operating from payroll period to payroll period to meet its increased expenses. Despite this and the application for approval, I could not discern from the evidence that Mr Faqih or Mrs Nasour or the board had considered or determined there was any need to amend the Applicant’s profit model or take steps to increase its capital base.
The Applicant took issue with the Respondent’s warning that approval as an aged care service provider would bring a substantial increase in expenses and regulation for the Applicant. It seemed content to rely on its prior record in managing absorption of both the brokerage services and the NDIS services in answer to this contention. The key difference between the prior brokerage and NDIS endeavours and the CHSP expansion was that (as Mr Faqih said) the latest expansion was placing pressure on the Applicant from additional expenses which were much larger than in previous years (for example, salaries and contracting). While the Applicant may have been able to manage prior smaller expansions in its operations using director loans, the Tribunal could not simply assume that the same process could be relied upon to support both the CHSP expansion and approval under the Aged Care Laws.

Based on the evidence, I was not persuaded that the Applicant had demonstrated it presently had sufficient capital reserves to absorb the additional expense associated with any further expansion resulting from an approval to provide aged care services. I was also not satisfied it had undertaken planning sufficient to be able to manage the further increase in financial operations and expenses associated with an approval.
The Applicant’s bank accounts and the director loans
As of 9 January 2025, the Applicant had the following accounts and told the Tribunal it had the following balances in its name:[72]
[72] The Applicant did not produce bank account statements to the Tribunal with its evidence, so the Tribunal was required to rely upon the Applicant’s evidence as to the balances. Transcript page 60.

Bank

Name

Number

Balance[73]

NAB Transaction

ACS

xxxxxx967

$55,095.13

NAB Transaction

ACS

xxxxxx363

$130,314.56

NAB Savings

ACS

xxxxxx342

$12,655.08

NAB Visa

ACS

xxxxx6045

($345.59)

NAB Visa

ACS

xxxxx2378

$11,815.42

[73] As per the evidence before the Tribunal.

A summary of the balances of 2 Westpac bank accounts in Mr Ramadan’s name was also lodged with the Tribunal[74] reporting a joint balance of $222,783.93 as of 3 June 2022. These were private assets and so are not relevant to my assessment of the company’s accounts.
[74] Tribunal documents, T1.8(f), Hearing Book page 584. Applicant's closing submissions, 1.1.
As of 3 June 2022, Mr Ramadan also had a National Australia Bank account xxxxxx967 in his name with a balance of $56,899.56.[75] It appeared that the name of the account holder for this account had subsequently been changed to the Applicant. Mr Faqih told the Tribunal under cross examination that this account was currently the day to day banking account for the Applicant.
[75] Exhibit R11.
Examination of the Applicant’s bank accounts reinforced my view that the Applicant was presently in a very tight financial position following its recent expansion when one considered Mr Faqih’s evidence about the Applicant’s monthly payroll and contracting expenses.
Mrs Nasour’s evidence
Mrs Nasour identified in her evidence, a number of additional personnel who would or could be engaged if approval were granted.[76]
[76] See for example Transcript page 131.
I was not confident on the evidence that the Applicant could presently afford these new staff, and no evidence was presented of any consideration of the costs of the additional staff.[77] My concern deepened when Mrs Nasour told the Tribunal, ‘Every week I [sic] interviewing at least three people – four people. Every week.’[78] My strong impression from this evidence was that Mrs Nasour and Mr Faqih seemed to have 2 very different views of the Applicant’s current financial situation and did not appear to be working together to manage the Applicant’s employment related expenses. New staff need to be paid.
[77] Transcript page 128. The Applicant’s proposed policies did make provision for workforce planning but are not yet operational.
[78] Transcript pages 35-36.
To add to this, Mrs Nasour did not seem to have a precise idea of how many people were currently employed by the Applicant. The Applicant, in its SFIC had told the Tribunal there were 50 employees.[79] During the remittal hearing, Mrs Nasour told the Tribunal there were 35 employees and explained the discrepancy with the SFIC by saying that the rest ‘are sub-contractors’.[80] This was contradicted by Mr Faqih who told the Tribunal and I accept, that there were 28 employees and around 12-15 contractors.[81] I found it implausible that as CEO, Mrs Nasour would not know how many people were employed by the Applicant. This is particularly the case given she told the Tribunal she was constantly hiring new people and had plans to hire even more.
[79] Applicant’s ASFIC [3.39], Hearing Book page 6178.
[80] Transcript pages 147-148.
[81] Transcript pages 182, 222.
All this recruitment did not appear to be underpinned by evidence of any planning. In the circumstances, I was not persuaded the Applicant presently had any costed plan for recruitment or growth. That is a matter which is relevant to the next aspect I will consider in respect of the ground.
The methods that the Applicant uses, or proposes to use, in order to ensure sound financial management
This aspect of the ground requires the Tribunal to consider the Applicant’s existing as well as proposed methods for financial management.
The Respondent submitted that the Applicant had not demonstrated it had projections or plans which demonstrated that its assumption that it could successfully manage approval was realistic.
The Applicant disagreed. It pointed to:[82]
-the appointment of Mr Faqih as its CFO;
-the unjustness of the suggestion that Mr Faqih would not operate as CFO given his evidence; and
-Mr Faqih’s performance as CFO and the critical management decisions he had made as well as his oversight of payroll, conduct of budget revisions and pay runs and his strategies and methods for management of financial risk.
[82] Applicant’s ASFIC [3.34], Hearing Book page 6177.
In this aspect of the ground, I will not repeat but have given consideration to the planning matters I raised above in respect of recruitment planning.
The Applicant’s accounting processes
Mr Faqih told the Tribunal in evidence that since the Applicant is ‘already operating in the aged care space’, it has developed various methods of financial management to ensure it is operating to a high standard, including dedicated accounting software and client management systems, using contractors such as A2Z and developing bespoke financial management policies.
Mrs Nasour pointed to the Applicant’s ability to distinguish between different sources of funding and told the Tribunal it had more recently established separate bank accounts.[83] Mrs Nasour also told the Tribunal that the Applicant uses MYOB but originally operated a single bank account for both its brokerage and NDIS transactions and funding. When asked if there was a problem with all Commonwealth funds being held in one account, she initially told the Tribunal ‘No’ because the Applicant had an NDIS plan for each client.[84] She later clarified that a separate CHSP account had been created on advice from Mr Faqih.[85] I infer this was a recent step given the CHSP grant was only made in late October 2024.
[83] Transcript page 58.
[84] Transcript page 58.
[85] Transcript page 63
Mr Faqih told the Tribunal that the Applicant undertook a process to ‘dissect’ its CHSP and NDIS payments to transfer funds as appropriate for payroll and contractor payments using a software application linked to MYOB. [86]
[86] Transcript page 225.
Mrs Nasour told the Tribunal that an accounts officer assisted with the payroll statements for the Applicant and that A2Z processed its payroll.[87]
[87] Transcript page 48.
On the available evidence, I am satisfied that the Applicant has recently developed a means by which NDIS and CHSP funds are currently recorded and managed. However, it is reasonable to assume this process would become much more complex if the Applicant were also approved for aged care services. The Applicant did not lead evidence to show what accounting plans were in place or proposed to transition to that more complex environment. My concern, again, was that the Applicant’s approach here would be reactionary, if approved.
I was satisfied that the Applicant currently has a process in place for its payroll which is largely outsourced to Y2Z (another expense). However, there was no evidence of forward planning for this, in anticipation of a much larger workforce.
The CFO role and strategic financial planning
Mr Faqih confirmed that since his appointment A2Z continued to provide external accounting and bookkeeping services to the Applicant.[88] He told the Tribunal in his statement that as CFO, his responsibilities as CFO relevantly included:[89]
-attending quarterly board meetings and weekly finance committee meetings;
-setting strategic direction and strategic financial planning;
-developing and monitoring the applicant’s budget and contributing to the development of business plans;
-administering the applicant’s payroll and compliance functions and financial compliance requirements;
-ensuring financial policies and procedures are regularly updated; and
-providing regular financial reports to the board and preparing the applicant’s financial accounts.
[88] Exhibit A6, Faqih second statement [11].
[89] Ibid at [8].
However, under cross-examination, Mr Faqih conceded:
-he has no current experience in the aged care sector apart from preparing the Applicant’s financial accounts and tax returns;[90]
-in addition to his appointment as CFO, he retains responsibility for his accounting firm which presently services approximately 500 clients (including the Applicant) and his business takes 5-6 days per week to run;[91]
-he had not participated in the preparation of the Applicant’s policies or manuals, as far as they related to financial matters;[92]
-despite having been cross examined about the Applicant’s financial position in some detail at the original hearing,[93] he did not think to produce to the Tribunal any projections or business plans[94] which showed the projected financial position of the Applicant. Nor had he thought to produce any financial accounts to the Tribunal;
-despite telling the Tribunal in his second statement that a budget had been prepared for 2025, he also had not produced any budgets to the Tribunal;[95]
-despite being appointed in April 2024, he had not yet attended a single board meeting of the Applicant;[96]
-he had not participated in reviews of the Applicant’s financial policies and procedures;[97] and
-the Applicant’s ‘weekly finance committee meetings’ had only recently been scheduled, but he had attended one in the prior week.[98]
[90] Transcript page 167.
[91] Transcript page 171.
[92] Transcript page 189.
[93] Transcript pages 175-176.
[94] Mr Faqih conceded a business plan had been prepared in December 2024; Transcript pages 177-178.
[95] Transcript page 177.
[96] Transcript page 172.
[97] Transcript page 231.
[98] Transcript page 184.
While Mr Faqih presented as a very capable tax agent and accountant, I was not persuaded by his evidence that he was currently fulfilling his responsibilities as CFO. Given Mr Faqih’s evidence about the Applicant’s rapid expansion and tight finances, it seemed reasonable to assume that he would be actively managing the current situation while also taking steps to address its operating capital deficit and planning for approval under the Aged Care Laws. Instead, he told the Tribunal, he was not presently aware of the obligations which would arise under the Aged Care Laws. He said the time for these would be if approval were granted. [99]
[99] Transcript page 189.
This observation caused me to question the accuracy of Mr Faqih’s evidence in his first statement that the Applicant had ‘consistently demonstrated a commendable adherence to Australian laws governing the aged care sector’.[100] It also called into question the accuracy of his evidence in his second statement about the Applicant’s ‘strict obligations’ under the Aged Care Laws and the steps he was taking to ensure the Applicant’s financial management remains up to date, compliance and transparent and aligned with industry standards.[101]
[100] Exhibit A5, first statement of Hadee Faqih dated 9 February 2025 [4].
[101] Exhibit A6, Second Faqih statement [10].
I was also not persuaded from his evidence that Mr Faqih would ever be able to fulfill the CFO role to the extent identified by his role responsibilities, given his evidence that he expected to maintain his ongoing commitments to his accounting business, Y2Z and its 500 clients. My concern was not alleviated by Mr Faqih’s estimate that his role of CFO should only take ‘a fraction of his time’, ‘probably five percent’.[102] That estimate was completely unrealistic given the responsibilities he had identified in his second statement, and was concerning given the Applicant’s recent expansion, the resulting financial constraints and its application for approval.
[102] Transcript page 192.
I was also concerned to hear Mr Faqih tell the Tribunal that in the 11 months since being appointed as CFO, he had not attended a board meeting for the Applicant and that while he had recently attended a weekly finance meeting, it had been held on a Saturday morning.[103] The finance meeting seemed to have been scheduled to engage with Mr Faqih around his existing commitments with Y2Z. Mrs Nasour also conceded under cross-examination that the finance meetings had not, until recently been occurring regularly.[104]
[103] Transcript page 184.
[104] Ibid.
Finally, I was concerned that despite being appointed as CFO in April 2024 and conceding he had a role in development and revision of financial policy and procedure, Mr Faqih seemed unfamiliar with the Applicant’s existing and proposed financial policies and procedures. He also seemed not to have been involved in revisions to policies which had occurred since his appointment, and it was not even acknowledged in the Applicant’s organisational documents that it had a CFO.[105]
[105] Transcript pages 226-231.
My overall assessment was that Mr Faqih was still operating as an external provider of accounting and taxation services to the Applicant rather than as its CFO.[106] In making this assessment, I note that in its closing submissions, the Applicant purported to give to the Tribunal examples of ‘some of the matters that Mr Faqih has been involved in or assisted Amana with’. These submissions were not supported by any references to evidence the Applicant led in the proceeding so I cannot attach much weight to them.
Budgets
[106] Applicant’s closing submissions at [7.5].
This was Mrs Nasour’s responsibility as CEO. She had difficulty recalling when the most recent budget had been prepared for the Applicant, even though it was her responsibility as CEO to monitor it.[107] I found her answers to questions about the budget under cross examination to be evasive and implausible.[108] Mr Faqih told the Tribunal that a budget had been prepared and that it was a document he would have a role in preparing as CFO if approved.[109] He conceded the Applicant had not provided it to the Tribunal. He could not explain why this had not been done.[110]
[107] Transcript page 83 and exhibit A6, Faqih second statement at [8].
[108] Transcript page 47.
[109] Transcript pages 173, 232.
[110] Transcript page 173.
In the circumstances, I could not be satisfied that a budget had been prepared for the 2024/2025 financial year and infer from the lack of production of any budget that a finalised version did not exist. Even if that assumption were incorrect, Mrs Nasour did not demonstrate by her evidence that she had any knowledge of the budget and Mr Faqih did not offer any evidence to the Tribunal about the budget or the budget process. I infer in the alternate that whatever had been prepared would not have assisted the Applicant in its application.
Evaluation of the first ground
The Applicant submits that it has operated a profitable business since the financial year ended 30 June 2021. It refers to the decision of the Tribunal in AussieCare Foundation Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 2202 (24 July 2023) (AussieCare)[111] to suggest that the Tribunal has ‘probative information to suggest the Applicant is running an effective and profitable business and there is no information to suggest there is uncertainty about its financial situation’.
[111] At [155].
I cannot agree with this submission. First, while the Applicant does not appear to be in immediate danger of insolvency, I am satisfied from its own evidence that it is currently experiencing significant growth and rapid increase in its expenses and is very carefully ‘timing’ its payments to manage its finances while it beds down the expansion resulting from the CHSP grant. Its evidence also suggests it will be looking for further director loans in the short term because it is undercapitalised. These facts are different to those in AussieCare.
Second, there was a lack of evidence as to how the Applicant would manage both its current risks and plan for further expansion. Mrs Nasour, as CEO and a director of the Applicant, has particular obligations which require her to be aware of and closely manage the Applicant’s financial position. I am not satisfied on the evidence that Mrs Nasour currently possesses those skills, but she could obtain them in time. In the short term however, there is no experienced fulltime CFO supporting her to manage these risks.
Third, the current profit model for the Applicant (as described by Mr Faqih) prioritises the distribution of its income by way of salary. The more recent financial statements corroborate this and reinforce the Respondent’s assertion that the Applicant is significantly under capitalised. On the available evidence, I cannot be satisfied that the Applicant currently has sufficient assets and capital to manage the expansion which would arise if it were approved as a provider of aged care services.
It follows from my evaluation of this ground alone, that I cannot be satisfied that the Applicant is presently suitable to provide aged care under s 63D(2) of the ACQSC Act. However, in the event that I am wrong, in my assessment of this ground, I have proceeded to consider the other relevant grounds under s 63D(3) of the ACQSC Act.
Ground 2 - The Applicant’s experience in providing, aged care or other relevant forms of care (section 63D(3)(a))
In respect of this ground, it was not disputed that the Applicant already has some experience in providing aged care and other forms of care.[112] The Applicant submitted:
(a)it has a high degree of relevant experience, and this experience is exemplified given the experience of its key personnel;
(b)it has a robust track record of providing aged care[113] and its team, ‘including our key personnel, possesses a comprehensive and up-to-date understanding of our obligations as an aged care provider’[114]
(c)the Applicant’s demonstrated experience arises from the services it currently provides;
(d)of these, the brokerage services allow the Applicant to be highly involved in the provision of services, under the guidance of existing approved providers which has also exposed it to those providers’ regulatory obligations under the Aged Care Laws;
(e)in the NDIS space, the Applicant has been exposed to aged care as well as other forms of care. The Applicant did not dispute that this experience was not of itself determinative of its suitability.[115] However it submitted it was highly relevant.[116] Once again, it pointed to its exposure to the relevant regulatory operations in this space as particularly relevant;
(f)Under the CHSP, it is not disputed that the Applicant has to a degree been providing overlapping services to those it would provide if approved.[117] The Applicant contends it has presented evidence of this service provision and points to the oral evidence of Ms Nasour that the Applicant has provided 500 hours of services,[118] is servicing 400 to 500 individuals,[119] has onboarded 144 consumers,[120] has arrangements for separate bank accounts,[121] and has been approved to extend its CHSP grant for 2 years.
[112] Respondent’s closing submissions [5.6].
[113] Exhibit R10, Hearing Book page 1122.
[114] Ibid.
[115] Applicant’s closing submissions [4.6].
[116] Ibid [4.6]; AussieCare [100].
[117] Respondent’s closing submissions [5.18
[118] Transcript page 19.
The Respondent, for its part, contends that while the Applicant has demonstrated some experience in the aged care sector, it is necessary for the Tribunal to assess the nature and degree of that experience with reference to the evidence which has been provided to the Tribunal. Relevant to this are the following:
(a)the Applicant produced non-current and non-executed brokerage agreements to the Tribunal which makes assessment of this area more difficult;[122]
(b)under cross-examination, Ms Nasour’s evidence that the Applicant conducts care or provides care plans was challenged as an exaggeration on the basis that any such activities were all undertaken at the direction of an approved provider;[123]
(c)it was not clear how many clients the Applicant currently provides services to under the NDIS.[124] The conceded view resulting from the latest NDIS Audit report was that while services were operating effectively, there were a very small number of clients.[125] Further, the Applicant’s experience in this area cannot of itself be a determinative factor in the application;[126]
(d)Ms Nasour also conceded under cross examination that the Applicant is not currently providing a significant amount of nursing care but is instead providing ‘incontinence assessments and other kinds of services;[127]
(e)the Applicant did not provide evidence in the form of corroborating records about the services it provides under the CHSP[128] and its own continuous feedback and improvement plan identified a need for the better scheduling and streamlining of domestic assistance and home maintenance services and improved service delivery. However, the Applicant had not produced records of that feedback for the Tribunal to consider.[129]
[122] Respondent’s closing submissions [5.7].
[123] Ibid [5.10] with reference to Transcript pages 28-29.
[124] Respondent’s closing submissions [5.2] and [5.13]. the Respondent contended that Ms Nasour’s suggestion that the Applicant had more than 40 NDIS clients was not up to date and that an NDIS audit in June 2024 suggested the Applicant only had 8 current clients. See Exhibit R26, Hearing Book page 5523.
[125] Ibid.
[126] Respondent’s closing submissions [5.14], the Respondent referred the Tribunal to AussieCare [100].
[127] Ibid [5.11] referring to Transcript page 128.
[128] Respondent’s closing submissions [5.17]-[5.18]; Exhibit R7 page 6144; Transcript page 24.
[129] Exhibit 19, Hearing Book page 5391; Transcript pages 142-144.

I accept on the evidence that the Applicant has not demonstrated that it has a high degree of directly relevant experience. However, I do accept it has demonstrated prior relevant or related experience to some degree in provision of aged care or related services but note it has never run an aged care service.
In this regard I note the NDIS audit report generally found the Applicant’s operations to be acceptable but very limited in size. I cannot accept this is comparable to the requirements which would be imposed on the Applicant if approved to provide aged care services. As the Tribunal observed in Better Disability Care Pty Ltd and Aged Care Quality and Safety Commissioner [2024] AATA 3593 Better Disability Care), experience and provision of services in the NDIS space are not sufficient to support a finding that personnel are suitably qualified under s 63D(3)(a) of the ACQS Act.[130]
[130] Better Disability Care [21].
I also accept its CHSP grant has also been extended but that it provides a limited range of services. I am unable to assess the current brokerage agreements given those provided are out of date.
Overall, I am satisfied on the evidence that the Applicant:
·     has been providing brokerage services and in doing so has worked alongside approved providers and is likely learning by observing them but is not itself providing these services;
·     has been satisfactorily providing NDIS services since 2021 (4 years) but appears to only be servicing an exceedingly small number of clients[131] and these alone do not substantiate the Applicant’s necessary expertise; and
·     for a short time has been providing a limited range of CHSP services and is experiencing some growing pains and has identified areas for improvement in that area.
[131] The 2024 Audit Report says there were only 8 clients, exhibit R26, Hearing Book page 5523.
The expertise of key personnel of the Applicant
Both parties referred to the qualifications and experience of the nominated key personnel as relevant to the Tribunal’s assessment of the grounds but in particular ground 2. I have addressed these in tandem below, identifying the various points of agreement and contention in respect of each person.
Maryana Nasour (CEO and director)
It was accepted by both parties that Mrs Nasour had relevant qualifications and more than 12 years’ experience in the aged care sector.[132]
[132] Respondent‘s closing submissions [5.22].
Mrs Nasour is the CEO of a growing company and a director with significant financial and legal responsibilities under the Corporations Act 2001 (Cth). The Tribunal was left in no doubt of Mrs Nasour’s strong commitment to her company (the Applicant) and her desire to obtain approval.
The Respondent’s criticism of Ms Nasour which I have already discussed and accept in ground 1 is her demonstrated lack of financial literacy and her lack of attendance to financial planning (such as budgets) in the context of this sector and the stringent regulatory obligations which will be imposed if it is approved.
Dr Ramadan (director)
The Applicant submitted that Dr Ramadan, while engaged in the (unrelated) academic field of medical imaging, was nonetheless equipped with strong leadership, analytical skills and evidence based decision making which would assist the Applicant if approved as an aged care provider.[133]
[133] Applicant’s closing submissions [2.17].
Dr Ramadan did not provide a statement to the Tribunal and was not cross examined. The Respondent called attention to Dr Ramadan’s lack of relevant experience in the provision of aged or other forms of care but accepted that his experience with the Applicant in its years of operation will have caused him to be familiar in a general sense with the provision of related forms of care.[134]
[134] Respondent’s closing submissions at [5.25]-[5.26].
I accept the Respondent’s concession and also infer from Dr Ramadan’s professional expertise that he likely has some experience in management generally and management of staff. However, in the absence of any direct evidence, I could not be satisfied with greater particularity about the suitability of Dr Ramadan.
It would have been useful to test whether Dr Ramadan possessed a better understanding of financial matters given his directorship and membership of the Board. In the absence of such evidence, the Tribunal cannot assume he possessed such skills or experience.[135]
Mr Faqih (CFO and board member)
[135] The Applicant submitted that ‘Dr. Ramadan is in charge of all financial affairs of ACS and approves all ACS invoices and employees’ payroll and is in constant interface with the accountant. He is also responsible with Mrs Nasour for financial strategic planning and budgeting for ACS services.’
I have addressed Mr Faqih’s evidence in ground 1 and would note that my evaluation of Mr Faqih’s skills and concerns about his ability to fill the CFO role given his skills, his other obligations and his lack of familiarity with the Aged Care Laws are also relevant to this ground.
Mr Sadler (director, consultant and board member)
It was not disputed by the Respondent, and I accept, that Mr Sadler possesses relevant qualifications and extensive experience in policy relating to the aged care sector.[136] Mr Sadler is an aged care consultant and runs a consultancy business which has operated since February 2021. As I have already noted, Mr Sadler continues to run that consultancy in addition to his board membership of the Applicant.[137]
[136] Respondent’s closing submissions [5.41]. Exhibit A7, Statement of Paul Sadler dated 7 February 2024 (Sadler statement) and in particular [2]-[9].
[137] Exhibit A7, Sadler statement [2].
The Respondent contended that Mr Sadler had presided over deficiencies in the Applicant’s proposed policies which had been purchased from a third party. Mr Sadler did not seek to deny that the original policies he had assisted the Applicant to prepare had required revision and improvement.[138] I have evaluated the Applicant’s policies in ground 3 (below).
[138] Respondent’s closing submissions [5.41] and Exhibit A7, Sadler statement [20]-[31].
The Respondent suggests that Mr Sadler has only been appointed to the Applicant’s board to strengthen the Applicant’s application. On a principled basis, I cannot see anything remarkable about this. It would be sensible for the Applicant to engage key personnel who possess relevant experience in the aged care sector. [139] However, I acknowledge that the Tribunal, in prior decisions has drawn adverse inferences where it has detected that paid consultants are being used to replace or obscure deficiencies in knowledge and experience which should reside within an applicant for approval.[140]
[139] Transcript page 20.
[140] Better Disability Care [18].
In the present case, I cannot be satisfied on the available evidence as to the nature and extent of Mr Sadler’s ongoing role and his independence.
In this regard, Mr Sadler told the Tribunal that his engagement both as a director and board member was a voluntary position.[141] Mrs Nasour told the Tribunal that the Board meets quarterly.[142] This does not suggest a high level of involvement by Mr Sadler with the Applicant and conflicts with the Applicant’s assertion that Mr Sadler is actively involved in the Applicant’s day to day operations as was suggested in the Applicant’s Amended SFIC.[143] I note that no other evidence was advanced in support of the assertion that as a board member, Mr Sadler is heavily involved with the Applicant.
[141] Transcript pages 14, 125.
[142] Transcript page 124.
[143] Exhibit A12, Applicant’s ASFIC [3.12], Hearing Book page 6171.
As a paid consultant, it appears Mr Sadler could be engaged by Mrs Nasour via email to provide services to the Applicant at any time.[144] This is a different role for Mr Sadler, who in this instance, would be instructed by the CEO as an independent contractor to provide specific services and/or advice to the Applicant for financial reward and without responsibilities under the Aged Care Laws. This is not an independent role and it does not demonstrate the expertise of the Applicant’s key personnel.[145]
[144] Transcript page 32.
[145] Better Disability Care [25].
There appeared to be significant potential for conflict between Mr Sadler’s 2 roles with the Applicant. I am not satisfied that Mrs Nasour appreciated the distinction between these and their potential for conflict.[146] Indeed, Mrs Nasour’s evidence suggests she counted Mr Sadler’s paid consultancy work for the Applicant as evidence of his high level of involvement. That is not appropriate for the reasons I have already explained.
[146] Transcript page 124.
On the evidence, I also cannot be satisfied that the Applicant has arrangements in place to manage this issue of potential conflict.[147]
[147] Ms Nasour did clarify under cross examination that Mr Sadler sat out of board discussions where there might be a conflict but did not otherwise explain how this was formally managed by the board. She explained that Mr Sadler was engaged by email as required to undertake paid work. See Transcript page 32.
Mrs Khalil (treasurer and board member)
Mrs Khalil did not provide a statement to the Tribunal about her qualifications or experience.[148] On the available evidence, Mrs Khalil does not possess qualifications or specific experience in the aged care sector. The Tribunal was told she is a bookkeeper and that she worked for an accounting firm.
[148] Transcript page 31.
The Respondent contends and I accept that it is not clear from the evidence presented, how Mrs Khalil’s role is proposed to be distinguished from the CFO role, particularly given the Applicant’s contention that ‘Dalal plays a key role in financial planning, budgeting, and resource allocation’.[149]
[149] Exhibit A12, Applicant’s ASFIC, Hearing Book page 6168.
The Tribunal cannot be satisfied as to the scope of Ms Khalil’s role as Treasurer from the Applicant’s evidence[150] but I would observe that the role of Treasurer in any organisation is usually a significant one. On the available evidence, I cannot be satisfied Mrs Kahlil possesses the necessary experience or skills for that position and I also cannot be satisfied whether she proposes to work in this role fulltime or part time or periodically e.g. by attending quarterly board meetings.
[150] See Exhibit A13, Applicant’s Reply to Respondent’s ASFIC, Hearing Book pages 1138-1139.
Mrs Ayoub (director and board member)
Ms Ayoub did not provide a statement to the Tribunal about her qualifications or experience.[151] It was suggested that Mrs Ayoub would be employed as the Applicant’s registered nurse, should it be approved to provide aged care services.[152] Mrs Nasour told the Tribunal she was the Applicant’s clinical representative at its board meetings.[153]
[151] Transcript page 31.
[152] Exhibit A12, Applicant’s ASFIC [3.12], Hearing Book page 6171.
[153] Transcript page 124.
The Applicant described Mrs Ayoub as ‘a registered nurse experienced in providing home care nursing’.[154] In fact, Mrs Ayoub is a trained mid-wife, and her CV filed with the Tribunal in the original hearing does not disclose any expertise or experience in aged care.[155]
[154] Applicant’s closing submissions [2.17]. Exhibit A12, Applicant’s ASFIC [1.16].
[155] Tribunal documents T8, Hearing Book pages 631-632.
Under cross examination, Mrs Nasour conceded that the main way that Mrs Ayoub was currently involved in the Applicant’s operations was in attending its quarterly board meetings as a clinical representative.[156] She also conceded the role of registered nurse for the Applicant, if approved, would be time consuming.[157]
[156] Transcript page 124.
[157] Transcript page 131.
The Tribunal was told that Mrs Ayoub works at least 3 days per week in a hospital. The Applicant did not disclose in such circumstances, how it was proposed that Mrs Ayoub would manage this together with the position of registered nurse for the Applicant.[158] Mrs Nasour conceded that Mrs Ayoub would only be able to work part time[159] but then suggested there was an additional nurse already employed by the Applicant although he was not identified by the Applicant as ‘key personnel’.[160] Ultimately, Mrs Nasour told the Tribunal that ‘if we need another nurse more than Mouhamad and Fatima, then we will be employing more nurses as needed.’[161]
[158] Transcript pages 130-131.
[159] Transcript page 131.
[160] Transcript page 130.
[161] Transcript page 131.
The Applicant did not explain how it was currently resourcing the nursing tasks associated with its current services. Nor was a particular plan disclosed for the hiring of additional resources. Nor was it clear whether they would all be registered nurses.
On the available evidence, I could not be satisfied that Mrs Ayoub possessed sufficient skills or capacity to undertake the role of registered nurse for the Applicant, if it were approved.
Other positions
In evidence was a diagram depicting the Applicant’s proposed management structure.[162] These provided for an IT, Data Support and procurement officer, a human resources and WHS officer, a marketing and rostering officer and a team leader HCP.
[162] Exhibit R17, Hearing Book page 1905-1912.
The Tribunal was told that the IT position has been filled by an external consultant, Sam Zebib of Call IT Solutions.[163] Mrs Nasour also told the Tribunal that the Applicant intended to appoint an existing employee named Nadani to the position of team leader HCP if approved.[164] Finally, she confirmed that the Applicant would be appointing someone to have oversight of human resources if approved. She told the Tribunal an employee named ‘Sofia’ was currently assisting with human resources matters.[165] From Mrs Nasour’s description of the tasks being performed, I infer Sofia was not a manager.
[163] Transcript page 132.
[164] Transcript page 131.
[165] Transcript page 131.
The Respondent submitted and I accept that the diagram filed by the Applicant did not appear to accurately reflect the Applicant’s proposed structure because there was no provision made for a CFO[166] and the Applicant did not appear to have made provision for a marketing person (as depicted in the diagram).
[166] Respondent’s closing submissions [5.47].
Evaluation of the ground
In this ground, the Applicant is not limited to demonstrating that it already has experience in providing aged care services alone. The test permits assessment of ‘other forms of care’ which are or have been provided.
Both parties urged to the Tribunal to carefully examine the Applicant’s experience in the context of the services it already provides (including that of its key personnel). Based on the evidence presented, the Tribunal:
i.Is satisfied that the Applicant has demonstrated some prior experience in providing related aged care services (since November 2024) and related forms of care (for a longer period);
ii.Is not satisfied on the evidence that the Applicant has demonstrated experience in providing aged care services or related services to a consistently ‘high degree’ because:
i.it has not previously run an aged care service. It has provided some brokerage services;
ii.it has very recent experience in providing a limited range of services which are still being implemented and improved (CHSP) and there is some client feedback seeking improvements to that service;[167]
iii.in the NDIS space, while acknowledging positive feedback to the Applicant on its audit report for June 2024 and the finding that was generally effective,[168] the Applicant is providing a limited range of NDIS services to a very small number of clients;
iv.is satisfied there are some key personnel of the Applicant who are highly qualified and experienced in the aged care sector (Mrs Nasour and Mr Sadler);
v.is not satisfied that other key personnel have demonstrated relevant qualifications and experience in aged care or related fields (Mrs Ayoub and Mrs Khalil);
vi.is not satisfied that Mrs Nasour currently possesses sufficient training and expertise to effectively discharge her responsibilities as CEO of an aged care service;
vii.is not satisfied that some key personnel have demonstrated they are or will be available to effectively support the Applicant either in its current endeavours or to provide aged care services (Mr Faqih, Mr Sadler, Mrs Ayoub and Mrs Khalil). In this regard, I note that Mrs Nasour seems to be the only one of the key personnel who I can be satisfied is available, fulltime to support the Applicant;
viii.is not persuaded all the significant roles in the Applicant have been filled (regardless of whether the Applicant is approved); and
ix.is not persuaded the Applicant has demonstrated it is currently adequately resourced for the services it is providing across its areas of operation.[169]
[167] Exhibit R19, Hearing Book page 5391.
[168] Exhibit R26, Hearing Book page 5522.
[169] See in particular Transcript page 182 which suggests the Applicant may be providing staff and contractors on a ratio of 43 to 400-500 clients.
Based on my findings on this ground, I cannot be satisfied the Applicant is presently suitable to provide aged care under s 63D(2) of the ACQSC Act.
GROUND 3 - THE EXISTING OR PROPOSED SYSTEMS TO MEET THE APPLICANT’S RESPONSIBILITIES AS AN AGED CARE PROVIDER (s 63D(3)(c))
Another point of contention between the parties concerned this ground and in particular, the Respondent’s allegation that the Applicant’s policies and manuals were inadequate and concerning.[170] In particular, the Respondent drew attention to the fact that the Applicant’s Policies and Procedures Manual (the Manual) was purchased as a template under licence from a paid Consultancy (GGJ Consultants).[171] It had been amended a number of times with paid assistance from Mr Sadler since the original application for approval was lodged but the Respondent complains these various amendments only occurred after it pointed out deficiencies to the Applicant.
[170] Respondent’s closing submissions [5.56]-[5.68].
[171] Exhibit R29 Respondent’s ASFIC, Hearing Book page 6200. For example, Mr Sadler conceded that a previous version of the Manual incorrectly referred to ‘residential care’ which was not relevant to the Applicant. Transcript page 9.The Applicant has a subscription with GGJ Consultancy which provides updates to the Manual for a fee which are intended to ensure compliance with the Aged Care Laws. Transcript page 19.
Despite these amendments, the Respondent remains of the view that the Manual is deficient. It contends:
(a)the Manual raises concerns about the Applicant’s ability to comply with s 54-1(1)(b) of the Aged Care Act and Quality Standard 8(3)(c)(iv) because while it refers to the development of a Workforce Plan, one does not appear to have been prepared. In this respect this contention builds on the concerns I have expressed earlier in these reasons – that the Applicant’s staff numbers appear to be increasing without any current evidence of planning ;[172]
(b)Policy 2.3.6 in the Manual does not appear to comply with Quality Standard 2(3) requiring the safe and effective delivery of care and services because it does not necessarily provide for a registered nurse to perform the initial aged care consumer assessments;[173]
(c)Policies 2.3.8 and 2.5.1[174] of the Manual are concerning regarding the role played by the coordinator/registered nurse assisting an aged care consumer in respect of Advanced Care Directives given the coordinator is not described as being required to be a registered nurse;
(d)Policies 2.5 and 3.2.2 of the Manual appear not to comply with Quality Standard 3(3)(f) by not being sufficiently clear about how the Applicant proposes to ensure that referrals of aged care consumers to other services etc are timely and appropriate;[175]
(e)Policy 6.2 of the Manual[176] appears to lack critical detail such that it may not meet the requirements of Quality Standard 6(3) and in particular 6(3)(c);
(f)Policy 8.3 of the Manual[177] appears to lack sufficient clarity about the roles of the bodies sitting underneath the governing body of the Applicant such that it may not comply with Quality Standard 8(3) which requires a provider to have effective systems and practices to ensure the governing body is accountable for the delivery of safe and quality care and services;
(g)Policy 8.6.3 of the Manual does not sufficiently address the question of management and expenditure of home care package funds such that it may not comply with s 54-1(1)(a) and (h) of the Aged Care Act and Part 3 of the Quality of Care Principles and s 13 and Schedule 3 to the Principles. The Respondent contends the risk in this regard is that money may be spent on items which do not accord with the Principles;
(h)Policies 7.3.7 and 8.2.12 of the Manual[178] may not comply with ss 54-1 (1)(g) and (ga) of the Aged Care Act because they do not establish a system to ensure key personnel of the Applicant, staff and contractors comply with the relevant Code of Conduct which the Respondent contends address issues going to the core of provision of aged care e.g. ensuring the dignity of people receiving care;
(i)Policy 8.2.11 of the Manual[179] fails to provide for annual review of the suitability of Key Personnel at least every 12 months or to keep records of the reviews and so may not comply with s 63-1A of the Aged Care Act and s 53, Accountability Principles;[180]
(j)The Manual fails to address record keeping in a comprehensive or centralised manner such that it may not comply with s 7 of the Records Principles;[181]
[172] Exhibit R16, Hearing Book page 2154; Exhibit R27 pages 5800-5801.
[173] Exhibit R16, Hearing Book page 2065. See also the description of the role of Coordinator, Hearing Book page 2326.
[174] Exhibit R16, Hearing Book pages 2074 and 2077.
[175] Exhibit R16, Hearing Book pages 2077 and 2097.
[176] Exhibit R16, Hearing Book pages 2143-2144.
[177] Exhibit R16, Hearing Book pages 2213 and 2249-60; Exhibit R17 (ACS Governance Structure), Hearing Book page 1907.
[178] Exhibit R16, Hearing Book page 2161 and 2210.
[179] Exhibit R16, Hearing Book page 2208.
[180] See also Transcript pages 145-146 where Mrs Nasour was cross examined about the Applicant’s record keeping policies.
[181] The Respondent acknowledges Exhibit R16, Hearing Book pages 2281, but contends the Manual does not explain how any draft forms it has developed are to be actioned.

The Respondent argues that these deficiencies all concern potential non-compliance with the Aged Care Laws and their cumulative effect is that the Applicant has not demonstrated its suitability for approval under this ground.
Various versions of the Manual were in evidence before the Tribunal. In fact, the Tribunal was presented with a confusing jumble of versions of proposed documents which even Mrs Nasour seemed to find difficult to pinpoint and navigate during the remittal hearing.[182]
[182] See for example, Transcript pages 81-83.
The Applicant did not directly address the above contentions about the Manual but instead contended as follows:[183]
[183] Applicant’s closing submissions [6.1]-[6.8].
(a)it is clear it has existing systems in place that would allow it to meet its responsibilities as an approved provider;
(b)the Respondent is attacking the Applicant’s policies and procedures by finding minor errors or omissions which is not appropriate – see the Tribunal’s observations in AussieCare;[184]
[184] AussieCare [80].
(c)while it has systems and proposed policies already in place, the Tribunal’s decision in TFG Holding is authority for the fact that approval can be given under the Aged Care Laws even if systems are not in place. It is therefore sufficient that the Manual can be readily edited to suit situations which may arise;[185]
[185] TFG Holding [16], [49].
(d)the Applicant already has in place:
a.a CRM system – Nightingale;
b.a strict record keeping procedure; and
c.an internal audit system;
(e)the Tribunal decision in AussieCare is authority for the fact that an electronic management system can meet an Applicant’s requirements under this ground while not being solely determinative but can be highly relevant and must be weighed against other facts;
(f)the Applicant is an active outlet on the My Aged Care portal as a provider of CHSP funded services;
(g)the Applicant has an extensive and tailored suite of policies and procedures and will use its subscription with GGJ Consultants to keep these updated; and
(h)the Applicant has taken a number of steps to ensure it remains up to date with its regulatory requirements – such as membership of relevant associations, subscription to education and training platforms, GGJ Consultants and Sector Support and Development programs.
Evaluation of the ground
Two fundamentally different and irreconcilable approaches underpin the parties’ contentions on this ground.
The tenor of the Applicant’s submissions is that the Respondent is being pedantic in its criticisms of its policies and procedures. While it has developed and revised the Manual, it contends that it should not be required to demonstrate that final policies and processes are in place in order to obtain approval. In this regard, the Applicant has relied on previous decisions of the Tribunal to contend that unimplemented, incomplete or incorrect policies and procedures should not of themselves be fatal to its application for approval, particularly where any errors are minor.[186]
[186] Applicant’s closing submissions [5.6], [6.7].
The Respondent argues that the Manual is an important document and further that the deficiencies it has identified are not trivial because they demonstrate that the processes the Applicant currently proposes may not comply with the Aged Care Laws. Further, it argues these cumulative deficiencies are not minor and demonstrate that the Applicant does not properly understand its obligations under the Aged Care Laws.[187]
[187] Respondent’s closing submissions [5.57].
The role of this Tribunal is to make findings of fact based on the evidence presented to it in each case. However, as an independent reviewer, the Tribunal must apply the relevant statutory test/s to reach the correct or preferable decision on the evidence which is presented. While the Tribunal can be guided by previous decisions of the Tribunal and may find them persuasive if relevant, it is not bound by precedent to follow them.
The Tribunal’s task under s 63D(3)(c) is to consider the systems that the (Applicant) has or proposes to have, in place to meet the person’s responsibilities as a provider of the relevant aged care services. This is a mandatory consideration. It is for the Applicant to demonstrate under this ground that it is suitable to provide aged care services. It discharges its evidentiary onus by producing evidence in support of the ground.
The evidence which has been presented means the Tribunal needs to critically evaluate the proposed Manual and associated policies against the criticisms identified by the Respondent.
Manuals are crucial documents for any organisation. They both reflect and determine how that organisation operates. They are not trivial because they provide detailed guidance to those working for the organisation and they also contemporaneously record for third parties how the organisation actually operates.
Manuals are of particular importance in a regulatory environment because they both assist an organisation to comply with the relevant law/s and the regulator to assess their compliance with those laws. Manuals are not trivial and are not intended to provide window dressing for an organisation. Should a compliance issue arise, the organisation can rely upon the Manual as evidence of its processes. It may also be held to account by such a document.
To be accurate and effective, a document such as this should, ideally be built from the ‘ground up’ and must reflect the Applicant’s structure and operations. It is also particularly important that it is compliant with the operative law/s.
Mr Sadler conceded under cross examination at the original hearing that there were a number of examples in versions of the Manual where services were referred to which were not proposed to be provided by the Applicant, where definitions did not comply with the Respondent’s better practice guides and processes which effectively had the same group of people reporting to themselves.[188] I conclude from his evidence that the Applicant having purchased a template manual did not take steps to ensure the template was appropriately adapted to reflect its own systems and structures.
[188] Transcript pages 9-13.
I cannot agree that this failure is a trivial matter given the nature and extent of the deficiencies which have been identified by the Respondent.
Having considered them, I am satisfied they give rise to a material risk (if the Applicant were to be operational as an approved aged care service) of non-compliance with the Aged Care Laws. I cannot accept that the Respondent (which is the regulator) is pointing out ‘minor errors or omissions’ or ‘nit-picking’[189] when it points out errors or omissions matters which risk non-compliance with the Aged Care Laws. To cite just one example, it has pointed out matters which ensure compliance with a Code of Conduct to ensure the dignity of people receiving care services.
[189] Transcript page 9.
These are matters with which any older Australian receiving aged care services would reasonably expect compliance. They are not trivial.
I accept the Applicant’s submission that it is not required to demonstrate to the Tribunal that its policies and procedures are presently operational for the purposes of the approval process. However, the wording of the ground in s 63D(3)(c) means that the steps it has taken to establish processes and procedures, and the content of its proposed procedures are relevant to the Tribunal’s consideration of its application. It is not the case that it can simply disavow the Manual revisions or the deficiencies as part of the approval process.
Even it I were wrong in this view; I cannot accept that the wording of s 63D(3)(c) or the Tribunal’s reasoning in TFG Holding gives an Applicant permission to seek approval without evidence of having formulated policies or procedures in anticipation of seeking approval.
Mr Sadler has conceded, and I accept that there were errors in different versions of the Manual. I am satisfied on the evidence that a number of revisions have been attempted with feedback from the Respondent, but there remain deficiencies with the Manual.
I accept that the Applicant, if approved, could further revise the Manual along with its other policies and forms before becoming operational. Despite this, given the history and extent of the revisions, the deficiencies in the current version and the Applicant’s current posture, I am not satisfied its key personnel presently appreciate the significance of these issues. In such circumstances, I cannot presently be satisfied it could be relied upon to put compliant procedures in place.
Financial policies
For completeness, I refer to and repeat my concerns about Mr Faqih’s lack of involvement in development of the Applicant’s financial policies. This adds weight to my view that the Applicant does not properly appreciate the importance of these documents or its onus in these proceedings.
For these reasons, I cannot be satisfied based on this ground that the Applicant is presently suitable to provide aged care under s 63D(2) of the ACQSC Act.
Ground 4 - demonstrated conduct in providing other relevant forms of care
In respect of this ground, the Respondent made brief submissions about the Applicant’s conduct as an NDIS provider and its obligations as a recipient of Commonwealth funds.[190] The Respondent contended there was insufficient probative evidence to consider whether the Applicant was compliant with its obligations as an NDIS provider and so recommended this ground be considered neutrally.
[190] Respondent’s closing submissions [5.81].
The Applicant disagrees. It refers to its provision of services under the NDIS and CHSP and disputed the Respondent’s contention given the NDIS Audit reports and renewal of its CHSP grant.
I would repeat my early observation that the NDIS Audit Report[191] suggests the Applicant was compliant at those times but with very few clients. I have already considered the Applicant’s performance in respect of NDIS services in detail above but would acknowledge that while there is no more recent evidence to determine whether it is currently compliant, the report suggests it was, as at June 2024.
[191] Exhibit R26, Hearing Book page 5582.
I also acknowledge that the CHSP grant has been renewed. There is no detailed evidence before the Tribunal about the Applicant’s compliance there, but I can infer from the renewal that it must be regarded as operating satisfactorily. I should note that at the time of hearing the Applicant was limited to providing home maintenance and domestic assistance services under the CHSP.[192]
[192] Transcript page 24.
I acknowledge a single letter of support from a consumer, Hala Hammoud on behalf of her mother and son. This letter is dated 1 February 2024 and so is also not contemporaneous but reflects well upon Mrs Nasour.
The lack of detailed contemporaneous evidence makes proper assessment of this ground difficult. I say this because this ground requires assessment of the Applicant’s conduct, responsibilities for those programs and their obligations arising from payments from the Commonwealth. There is insufficient contemporaneous evidence to permit the Tribunal to form a concluded view about this ground for the purposes of satisfying itself under s 63D(2) of the ACQSC Act, but ultimately, that will not affect the ultimate finding given my concluded views on the other grounds.
Ground 5 – demonstrated understanding of aged care responsibilities (s 63D(3)(b))
I have addressed this ground last because, relevant to my consideration of whether the Applicant has a demonstrated understanding of aged care responsibilities are many of the facts and events which have underpinned my reasons on the other three grounds and in particular, ground 3.
The Applicant contends:
(a)it has in providing brokerage and NDIS services, demonstrated its relevant understanding;
(b)the experience and integrity of its personnel are relevant, and the experience of Mrs Nasour, Mr Sadler and Mr Faqih demonstrate its relevant understanding;[193]
(c)the Applicant is not required to have policies and procedures in place before being approved but the fact it has some is in its favour;
(d)the Respondent should not engage in findings of minor errors and omissions; and
(e)any deficiencies in the Applicant’s documents are less relevant because the Applicant has a history as an NDIS provider.[194]
[193] The Applicant referred the Tribunal to TFG Holding [50].
[194] The Applicant referred the Tribunal to AussieCare [112].
The Respondent refers to its contentions on ground 3 to argue that the Applicant has not demonstrated a sufficient understanding of its responsibilities under the Aged Care Laws. It particularly calls into question its ability to comply with the Quality Standards given its lack of accurate and correct governance documents.[195]
[195] The Respondent pointed to Standard 8(3)(3)(c)(v) which requires a provider to establish and maintain effective organisation wide governance systems relating to regulatory compliance; Respondent’s closing submissions [5.50].
I have accepted that some of the Applicant’s key personnel have demonstrated experience in the sector (particularly Mrs Nasour and Mr Sadler). However, I have not been satisfied with other aspects of their evidence and have expressed concerns about the current performance of Mrs Nasour, Mr Sadler and Mr Faqih in their roles with the Applicant.
I have also accepted that the Applicant has some experience from its existing service offerings. However, I cannot accept that this alone satisfactorily demonstrates the necessary understanding.
I have not been satisfied on the evidence that the Applicant satisfied s 63D(2) on the basis of my consideration of grounds 1, 2 or 3. These findings and in particular, my findings on ground 3 cause me concern about the Applicant’s overall understanding of its responsibilities under and need to comply with the Aged Care Laws.
I cannot accept the Applicant’s submission that any deficiencies in the Applicant’s policies are less relevant because it currently provides NDIS services. With respect, that misapprehends the nature of the Tribunal’s task. I acknowledge that in AussieCare, the Tribunal accepted that prior or existing NDIS service provision is relevant not determinative.[196] On the evidence presented in that case, the Tribunal found that it was otherwise on balance satisfied that the Applicant would have adequate processes and systems in place.[197]
[196] AussieCare [100].
[197] AussieCare [112].
In the present case, the deficiencies in the Applicant’s records and policies are material. The Applicant’s obligations under the Aged Care Laws are specific to the services it hopes to provide to older Australians on this application. I have found that the deficiencies in its Manual risk non-compliance with the Aged Care Laws and that it has not adequately demonstrated how it will manage its financial obligations if approved.
I am forced to agree with the Respondent that the Applicant’s own evidence suggests it does not fully appreciate the regulatory environment in which it would be required to operate if approved.
In such circumstances, I am not satisfied, based on ground 4, that the Applicant is suitable for the purposes of s 63D of the ACQSC Act.
CONCLUSION
On the basis of my findings on grounds 1-3 and 5 which reflect ss 63D(3)(a)-(d) of the ACQSC Act, the Tribunal is not satisfied that the Applicant is suitable to provide aged care services in the form of home care services and therefore does not approve its application under s 63D(2) of the Act.
This decision would not and should not prevent the Applicant from making a future application to the Respondent for approval. It is hoped that these reasons provide guidance to the Applicant about the steps it might take in that regard before seeking to further expand its operations.
The decision under review is affirmed.

Date(s) of hearing: 27 and 28 February and 27 March 2025

Date final submissions received: 8 August 2025

Solicitors for the Applicant: Self-represented

Solicitors for the Respondent:
Sparke Helmore

*Bank*	*Name*	*Number*	*Balance*[73]
NAB Transaction	ACS	xxxxxx967	$55,095.13
NAB Transaction	ACS	xxxxxx363	$130,314.56
NAB Savings	ACS	xxxxxx342	$12,655.08
NAB Visa	ACS	xxxxx6045	($345.59)
NAB Visa	ACS	xxxxx2378	$11,815.42

Date(s) of hearing:	27 and 28 February and 27 March 2025
Date final submissions received:	8 August 2025
Solicitors for the Applicant:	Self-represented
Solicitors for the Respondent:	Sparke Helmore