Angel Investments Group Pty Ltd (trading as Sacred (Practice and procedure)
[2025] ARTA 1011
•15 July 2025
Angel Investments Group Pty Ltd (trading as Sacred (Practice and procedure) [2025] ARTA 1011 (15 July 2025)
Decision and Reasons for Decision
Heart International College) and Australian Skills Quality Authority
Applicant/s: Angel Investments Group Pty Ltd (trading as Sacred
Heart International College) A.C.N 166 920 583
Respondent: Australian Skills Quality Authority
Tribunal Number: 2025/3281, 2025/3331, 2025/3332, 2025/3333, 2025/3335
Tribunal: General Member R Smith
Place: Adelaide
Date: 15 July 2025
Decision:1. Pursuant to s 32(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), the decisions of the Respondent subject to review made on 27 March 2025 are stayed until the final hearing and determination of the review or until further order;
2. Pursuant to s 32(3) of the ART Act, the stay is subject to the following conditions:
(a) The total number of students enrolled with the Applicant must not exceed 500 students at any time during the stay;
(b) The Applicant must maintain and produce to the Respondent class rolls for each class containing the name of the student scheduled to attend the class, signed by each student who did attend that class, and signed by each trainer/assessor training or assessing in that class, for all courses on the last day of the month, for that month;
(c) The Applicant must retain and produce to the Respondent on request all training and assessment records for all VET students for all VET courses for the period of the stay;
(d) The Applicant must notify existing students, and prospective students before finalising any enrolment, that their registrations have been terminated; they have applied to the Tribunal for review of the termination decisions; and the Tribunal has stayed the implementation of the termination decisions until determination or the review or further order. The letter is to be approved by the Respondent;
(e) The Applicant must not provide students with any further explanation about the stays other than the Tribunal’s reasons for these stay decisions without the prior written consent of the Respondent;
(f) The Applicant must comply with all the directions of the Tribunal made in these proceedings.
3.The stay order will lapse if the Applicant fails to comply with paragraph (2) of these orders.
4.The interim stay order is discharged.
5.There be liberty to the parties to apply on 2 days’ notice to the other parties.
..........................[sgnd].............................
General Member R Smith
Catchwords
PRACTICE AND PROCEDURE – application to stay decision – decision to cancel registration – rejection of renewal application – non-renewal of registration – non-enrolment condition - whether desirable to for the purpose of ensuring the effectiveness of the review
- consideration of factors – prospects of success – consequences to the Applicant – public interest – whether review rendered nugatory – stay granted with conditions
Legislation
Administrative Appeal Tribunal Act 1975 (Cth) s 42 Administrative Review Tribunal Act 2024 (Cth) s 32
National Vocational Education and Training Regulator Act 2011 (Cth) ss 3, 21-29,31, 36-39 Education Services for Overseas Students Act 2000 (Cth)ss 6C, 9, 10, 10D, 10E, 10F, 11, 83F
Cases
ACTA College Pty Ltd and Australian Skills Authority [2019] AATA 4250
Australia International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097
Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority [2018] AATA 4875
Bayahow and Australian Skills Quality Authority [2025] ARTA 176
Barkly International College Pty Ltd and Australian Skills Quality Authority [2025] ARTA 242 Cassidy and Australian Securities and Investment Commission [2020] AATA 66 Greenfield Education Pty Ltd and Australian Skills Quality Authority [ 2018] AATA 4210 Le’Sam Accounting Pty Ltd and Tax Practitioners Board [2020] AATA 890
Metro College of Technology Pty Ltd v Australian Skills Quality Authority unreported decision of Deputy President McCabe in application number 2015/6137
Panganiban and Australian Securities and Investment Commissioner [2016] AATA 703 Poidevin and Australian Securities and Investments Commission [2009] AATA 798
Re Birdseye and Tax Practitioners Board [2020] AATA 1250
Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380 Re Oaklands and Australian Securities and Investment Commission [2011] AATA 199
Rust-Oleum Australia Pty Ltd v Australian Pesticides and Veterinary Medicines Authority [2017] AATA 298
Scott v Australian and Securities and Investment Commission [2009] AATA 798 Sher-e-Punjab Pty Ltd v Australian Skills Quality Authority [2018] AATA 46
Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].
Technical Education Australia Pty Ltd and Australian Skills Quality Authority2018] AATA 3047 at [60]
Trades College Australia Pty Ltd and Australian Skills Authority [2020] AATA 812
Secondary Materials
Explanatory Memorandum to the Administrative Review Tribunal Bill 2023 (Cth)
Statement of Reasons
This is an application by Angel Investments Group Pty Ltd (trading as Sacred Heart International College) A.C.N 166 920 (SHIC or the Applicant) for an unconditional stay of the decisions made by the Australian Skills Quality Authority (ASQA or the Respondent) to:
(b) cancel its registration under the National Vocational Education and Training Regulator Act 2011 (the NVR Act);
(c)to cancel its registration under the Education Services for Overseas Students Act 2000
(Cth) (the ESOS Act);
(d) to reject an application for renewal of registration as a Registered Training Organisation (RTO) under the NVR Act;
(e) to reject an application for renewal of registration to provide courses to overseas students under the ESOS Act;
(f) reject an application to change the scope of registration to add a location under the ESOS Act; and
(g) Impose a condition from the date of the decision until the cancelation comes into effect, that the Applicant not enrol any new students.
(Collectively the Decisions)
PROCEDURAL HISTORY
On 22 February 2024, SHIC applied to renew its registrations under the NVR Act and ESOS Act.
On 17 April 2024 SHIC submitted an application to change the scope of its registration under the ESOS Act to increase the capacity of students and to add a permanent delivery site.
On 22 May 2024 the Respondent conducted an opening meeting and advised SHIC that an audit would be conducted.
On 10 July 205, the Respondent sent a notice of non-compliance to the Applicant. Over the following months, SHIC provided evidence of compliance and responded to the various queries to that evidence from ASQA.
On 12 November 2024, ASQA conducted a virtual walk-through of the Applicant’s premises at 62 Newquay Promenade. Following the visit, ASQA expressed concern regarding the kitchen facility. ASQA explained its concerns and provided an opportunity to submit further evidence.
On 27 November 2024, the Applicant submitted a Financial Viability Risk Assessment and supporting documents.
On 11 December 2024, the Respondent issued a notice of its intention to cancel the Applicant’s registrations and reject its applications. SHIC was given until 18 December 2024 to provide a response. A request to extend this timeframe to mid-January 2025 was refused by the Respondent. ASQA agreed to only slightly increase the response period to 23 December 2024. The Applicant provided their response within the time provided.
On 28 March 2025, the Respondent made the Decisions and notified the Applicant by way of a letter together with a statement of reasons.
On 28 March 2025, the Respondent also made a decision to impose a condition under s 29(1) of the NVR Act that SHIC put on hold the delivery of three hospitality qualifications. That decision is not the subject of an application for review.
On 15 April 2025 the Applicant filed an application with the Tribunal seeking review of the Respondent’s decision to cancel the Applicant’s registration under the NVR and ESOS Acts, to reject the renewal of the registrations under the NVR and ESOS Acts and the decision to reject an application to change the scope of the registration. A stay of the implementation of those decisions was also sought.
On 16 April 2025 the Applicant filed an application with the Tribunal seeking review of the Respondent’s decision to impose a condition on the Applicant’s registration that until cancellation of the registration the Applicant cannot enrol any new students. A stay of the implementation of that decision was also sought.
On 2 May 2025, the Tribunal granted an interim stay of the Decisions subject to a condition that the Applicant does not enrol any new students and that the hospitality courses are put on hold at all locations.
A stay of the Decisions is opposed by the Respondent.
LEGISLATIVE FRAMEWORK
ASQA is the national vocational education and training (VET) regulator responsible for the registration of RTOs and monitoring their compliance under the NVR Act. This is achieved, in part, through the VET Quality Framework, which is defined in s 3 of the NVR Act and comprises the Standards,1 the Quality Standards,2 the Australian Qualifications Framework, the Fit and Proper Person Requirements,3 the Financial Viability Assessment Requirements4 and the Data Provision Requirements.5
Training organisations must meet the VET Quality Framework should they wish to join the national registration system and become an RTO6. In deciding whether to grant the application, the National VET regulator must consider whether the Applicant is complying
1 Section 185 of the NVR Act
2 Section 231A of the NVR Act
3 Section 186 of the NVR Act
4 Section 158 of the NVR Act
5 Section 187 of the NVR Act.
6 Section 17 of the NVR Act.
or will comply with the VET Quality Framework and any conditions of registration. The conditions of registration are set out in ss 21 to 29 of the NVR Act.
Renewals of registration are dealt with in section 31 of the NVR Act. If an RTO’s registration would, apart from subsection (3) expire before the organisation's application is decided, then the organisation's registration is taken to continue in force until a refusal decision takes effect or the day after a renewal is decided.
The Respondent is responsible for enforcement under the NVR Act and the relevant enforcement provisions begin in s 36 which provide as follows:
Sanctions
(1)This Subdivision applies if:
(a) after natural justice requirements have been satisfied, the National VET Regulator is satisfied that it is appropriate to impose one or more sanctions on an NVR registered training organisation; or
(b) in exceptional circumstances, the National VET Regulator is satisfied that it is appropriate to impose one or more sanctions on an NVR registered training organisation without satisfying natural justice requirements.
(2)The National VET Regulator may do one or more of the following:
(b) give a written direction to an NVR registered training organisation requiring the organisation to notify its VET students, in writing, of a matter set out in the direction;
(c) shorten the period of an NVR registered training organisation's registration;
(d)amend an NVR registered training organisation's scope of registration;
(e) suspend all or part of an NVR registered training organisation's scope of registration under section 38;
(f) cancel an NVR registered training organisation's registration under section 39.
(3) In determining what action to take in relation to an NVR registered training organisation, the National VET Regulator may have regard to:
(a) the organisation's conduct, or circumstances existing, before the Regulator had cause to consider imposing a sanction on the organisation (including before the commencement of this section); and
(b) if section 37 applies--the organisation's conduct, or circumstances existing, since the Regulator gave the organisation a written notice as mentioned in that section.
Section 37 sets out the natural justice requirements which is the relevant precondition to being satisfied that it is appropriate to impose a sanction. Sections 38 and 39 deal with the
specific powers to suspend or cancel registration. Although the Respondent’s discretion to cancel is broad, it must be exercised for the purposes of the Act and in the context of the regulatory regime.7
The ESOS Act
ASQA is the “ESOS agency” for VET RTOs and is responsible for granting and renewing registration for courses under the ESOS Act.8
A provider may apply to be registered to provide a course or courses at a location or locations to the ESOS agency.9 ASQA may renew the providers registration if the provider meets the registration requirements.10
Sections 10D, 10E and 10F of the ESOS Act deal with registration renewals. It prescribes that the ESOS Agency must use a risk management approach when considering whether to renew the registration of the provider. If a registered provider makes an application under section 10D and the ESOS agency has not made a decision on the application before the end of the day on which the provider's registration is due to expire, the provider's registration continues until the agency's decision on the application is stated to take effect.
Section 11 sets out the registration requirements. Subparagraph (b) includes a requirement that the ESOS agency is satisfied that the provider is complying, or will comply with, the ESOS Act and the National Code.
The Respondent is responsible for enforcement under the ESOS Act. Section 83(1) provides as follows:
Circumstances in which ESOS agency may take action
(1) The ESOS agency for a registered provider make take once of more actions mentioned in subsection (3) against the provider, or an associate or high managerial agent of the provider, is breaching or has breached:
(a)This Act; or
(b)The national code; or
7 Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority [2018] AATA 4875 [38]
8 s 6 of the ESOS Act
9 Section 9 of the ESOS Act
10 Section 10 of the ESOS Act
(c)If the ELICOS Standards or Foundation Program Standards apply in relation to the provider – those Standards-; or
(d)A condition of the provider’s registration
Subsection (3) sets out the actions available which include imposing conditions, suspension or cancelation. Once ASQA believes on reasonable grounds that a registered provider is breaching or has breached the ESOS Act, the power to take action against that provider is enlivened. Although ASQA has a broad discretion as to the action it can take, the discretion is not unfettered and must be exercised for the purposes of the ESOS Act and in the context of the regulatory regime.
Stay applications
Making an application to the Tribunal seeking a review of a decision does not affect the operation of the decision.11 The Tribunal will only make an order staying or otherwise affecting the implementation of the decision following an application by the Applicant, where it is desirable to do so for the purpose of ensuring the effectiveness of the review.12 A stay order can be subject to conditions13 and commonly has effect until the decision of the Tribunal on the application for review comes into operation.14
Although s 32 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) is expressed in slightly different terms to s 42 of the Administrative Appeal Tribunal Act 1975, the Explanatory Memorandum to the Administrative Review Tribunal Bill 2023 (Cth) clarifies that those changes are simply to reflect “modern drafting practices” and not the operation of the stay power. The authorities which consider the application of s 42 of the AAT Act therefore remain relevant.
Section 32(7) of the ART Act provides that the Tribunal must not make an order staying the decision unless the Tribunal has given the parties to the proceeding a reasonable opportunity to make submissions to the Tribunal. Further, in determining whether to grant a stay, the Tribunal should not simply focus on the interests of the Applicant. Section
11 Section 32(1) of the ART Act
12 Section 32(2) of the ART Act.
13 Section 32(3) of the ART Act
14 Section 32(4)
32(7)(b) of the ART Act prescribes that the Tribunal must consider the interests of any person who may be affected by the review of the decision.
The determinative criterion for the exercise of the Tribunal stay power, being to secure the effectiveness of the review, is not subject to an exhaustive list of permissibly relevant considerations.15 Relevant factors identified through the case law16 are as follows:
·the prospects of success;
·the consequences to the Applicant;
·the public interest;
·the consequences for the Respondent in carrying out its functions depending on whether a stay is granted or not;
·whether the application for review would be rendered nugatory if a stay were not granted; and
·any other relevant matter.
As the Tribunal observed in Technical Education Australia Pty Ltd and Australian Skills Quality Authority:17
Whilst the matters identified by Downes J in Re Scott are relevant to the exercise by the Tribunal of the discretion conferred upon it by section 42(2), they are not a complete code or a “checklist” that limits or fetters the exercise of such discretion.
While no party has a specific onus of proof, it is for the Applicant to satisfy the Tribunal that a stay is desirable to secure the effectiveness of the review, and the Tribunal must have sufficient evidence before it can draw that conclusion.18
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had the benefit of the following material in respect of the stay application:
15 Panganiban and Australian Securities and Investment Commissioner [2016] AATA 703 at [7]
16 The cases frequently cited being Re Scott and Australian Securities and Investments Commission (2009) 51 AAR 114 and Poidevin and Australian Securities and Investments Commission [2009] AATA 798
17 [2018] AATA 3047 at [60]
18 Re Oaklands and Australian Securities and Investment Commission [2011] AATA 199 at [11]
·Affidavit of Bhallinder Singh dated 2 June 2025;
·Affidavit of Katya Holker dated 2 June 2025;
·Affidavit of Manpreet Singh dated 25 June 2025;
·Affidavit of Bhallinder Singh dated 25 June 2025
·The Tribunal documents; and
·Written submissions from both the Applicant and the Respondent.
Mr Bhallinder Singh (Mr Singh), who is the CEO of the Applicant, gave evidence as to the following facts in his two affidavits:
·Mr Singh was appointed the CEO of SHIC in March 2022;
·As at the date of the affidavit, there were 431 current students all of whom were international students. SHIC had also issued confirmation of enrolments (COEs) for 309 courses of study which comprised of both new international students and current students intending to move to an Advanced Diploma upon completion of a Diploma;
·SHIC offers rolling intakes throughout the year. Students are required to pay tuition fees progressively as they move through the course. There have been no enrolments since March 2025 due to the non-enrolment condition;
·SHIC has continued to work on addressing the alleged non-compliance since they were notified of the Decisions and they intend to deliver a comprehensive response in the form of a Rectification Evidence Table. Based on the rectification efforts, he believes they have good prospects of success at the hearing;
·SHIC has been subject to a no new enrolment condition since March 2024. Based on past average enrolments and the average gross revenue for a student who enrols in a Diploma, followed by an Advanced Diploma, this translates to a loss of
$2,346,000 in gross student fees. This lost revenue will not be recovered as prospective students will make arrangements with an alternate provider. Revenue has also been lost as a result certain hospitality qualifications being placed on hold. Similar ongoing irrecoverable losses will be suffered by the Applicant should a stay not be granted or be made subject to a non-enrolment condition;
·Evidence directed to the financial position of the Applicant was exhibited to the affidavit including financial statements, bank statements, lease agreements, a spreadsheet of redundancy entitlements and financial projection reports under different stay scenarios;
·Should a stay not be granted, the Applicant:
owill be unable to meet its ongoing obligations in 4-6 weeks;
owill be required to terminate all the essential members of its workforce and this would involve immediately terminating the employment or contract arrangement with 16 of its 24 workers. The remaining workers will be terminated once SHIC runs out of cash reserves. This will be personally devastating for those employees and contractors.
ocurrent students will be disrupted. All of them will be required to relocate to an alternative RTO to complete their qualification. Any student who is not able to secure an alternate enrolment within three months could face having their Visa cancelled;
oA significant portion of the current and future student cohort have been referred by education agents who in turn receive a commission for the referral. Should a stay not be granted, those professional relationships will be damaged;
·Should a stay be granted subject to a non-enrolment clause, Mr Singh estimates the Applicant will be unable to meet its ongoing obligations in three months;
·Given the significant work undertaken by SHIC there is minimal risk to students from continued delivery of training because the alleged non-compliances will be remedied within a short time frame and they do not seek a stay of the decision to put on hold the hospitality courses.
Ms Katya Holker (Ms Holker) is the co-founder and director of Hawk-eye Consultancy Pty Ltd (Hawkeye), who provide consultancy and project management specializing in the VET sector. In her affidavit she gave evidence as to the following matters:
·Hawkeye was retained initially to assist the Applicant with its renewal applications. It also provided advice and consulting services during the audit including assisting
with the preparation of rectification evidence provided in August and November 2024;
·ASQAs reasons for decision contain factual errors in respect of missing or omitted evidence which was in fact submitted. Her affidavit includes three specific examples;
·ASQAs reasons for decision include statements that are not supported by evidence. Her affidavit includes two specific examples;
·ASQAs reasons assert that SHIC has not undertaken any rectification, when she considers they have done so; and
·Significant rectification work has been undertaken by the Applicant with the assistance of Hawkeye which is outlined in the Rectification Evidence Table (RET) exhibited to the affidavit. She also deposes to having sighted the rectification evidence directed to the alleged non-compliance with Clause 1.2, 1.3. 1.8. and
11.2 of the Standards; and
·That upon SHIC completing the remaining tasks as set out in the RET, the Applicant will have satisfactorily addressed the alleged non-compliances.
Mr Manpreet Singh is the Principal of SSK Accountants, who have been the accountants of the Applicant since 2013. In his affidavit he gave evidence as to the following matters:
·The total redundancy payments should all employees of the Applicant be made redundant would be $62,566.48. If key staff were retained, the total redundancy payments would be $34,897.11;
·Subject to some minor corrections, the historical financial information referred to by Mr Singh was consistent with his knowledge of the Applicant’s financial circumstances generally;
·He agreed with the conclusion expressed by Mr Singh as to the timing in which the Applicant would be unable to meet its operating costs should a stay not be granted or a stay granted subject to the condition that SHIC not enroll any new students.
·An updated profit and loss statement was prepared for the period July 2024 to May 2025 which records consecutive losses for March, April and May 2025. Over the entire period the Applicant recorded a net profit of $156,427.19.
The Respondent did not seek to cross-examine the witnesses.
CONSIDERATION OF FACTORS
Prospects of success
The Tribunal acknowledges that in considering whether to grant a stay, it is not appropriate to undertake a ‘mini trial’19 of the substantive application, especially in circumstances where there are a number of factual matters in dispute and the evidence before the Tribunal is untested.
In the matter of Greenfield Education Pty Ltd and Australian Skills Quality Authority,20
Senior Member Poljak explained:
The authorities establish that a consideration of the prospects of success of an application and so the merits of a substantive application must not involve the Tribunal undertaking a full consideration of those merits. While it is neither necessary or appropriate for me to determine the substantive matter on an interlocutory application, I must be satisfied that the applicant has some prospects of success.
The Tribunal must arrive at its opinion on the basis of the material before it at the time of the stay hearing, some of which may not have been before the original decision-maker at the time when the reviewable decision was made.21 In circumstances where the stay is being considered at a very early stage in the review process, it follows that some caution should be exercised by the Tribunal given the incomplete body of relevant evidence.22 The Tribunal need only be persuaded that the Applicant has established there is sufficient evidence to call into question the merits of ASQA’s Decisions.
The Applicant argued there is some doubt as to whether the Tribunal should consider the prospects of success in determining a stay application.23 Should the Tribunal consider it to
19 Le’Sam Accounting Pty Ltd and Tax Practitioners Board [2020] AATA 890 at [13]; Cassidy and Australian Securities and Investment Commission [2020] AATA 66 at [11].
20 [2018] AATA 4210 at [7]
21 Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].
22 Bayahow and Australian Skills Quality Authority [2025] ARTA 176 at [36]
23 See ACTA College Pty Ltd and Australian Skills Authority [2019] AATA 4250 at [21], citing Rust-Oleum Australia Pty Ltd v Australian Pesticides and Veterinary Medicines Authority [2017] AATA 298 at [33]-[36]
be a relevant consideration, the applications for review are not clearly hopeless in circumstances where:
·A number of the factual matters underlying the findings of ASQA are disputed;
·Some of the matters raised by ASQA in their Decision were matters the Applicant considers to be new issues and insufficient time was allowed for those matters to be fully addressed;
·SHIC has engaged in significant rectification work, with the assistance of an external consultant since December 2024 and those activities have not been considered by ASQA.
The Respondent argued the Applicant’s prospects of success in the review are poor. ASQA says that having regard to the evidence provided during the compliance process and the review, SHIC cannot satisfy the Tribunal it has reached a satisfactory state of compliance to overturn the cancellation decisions or otherwise meet the conditions of registration.
The Respondent also points to the lack of co-operation with the regulator and past provision of what it describes as misleading information, which they say should inform the Tribunal as to the poor compliance culture of the Applicant. In this context the Tribunal cannot be satisfied the Applicant will remain compliant without external intervention.
In Trades College Australia Pty Ltd and Australian Skills Authority 24 the Tribunal observed that where there is a contest about non-compliance, it should not be assumed that ASQA’s allegations of non- compliance, and the factual matters that underpin those findings, are prima facie correct. Those conclusions may, in the fullness of time prove correct, but the Tribunal cannot make this assumption at present especially when the affidavits of Mr Singh and Ms Holker make it clear that several of those factual matters will be challenged at the final hearing.
In this case, there is more than just the bare assertions of the Applicant in respect of rectification. The evidence from Ms Holker confirms that significant rectification work has been undertaken by the Applicant with the assistance of her firm and that should all the
24 [2020] AATA 812 at [13]
tasks in the RET be completed the Applicant will be able to demonstrate compliance. On this basis the Applicant has established the existence of an arguable case even if the evidentiary foundations are not strong at this stage.25 This factor weighs in favour of granting the stay, but not heavily so.
Consequences for the Applicant
The Applicant argued that without a stay, a decision about the viability of SHIC would need to be made in four to six weeks when the cash resources were exhausted. This time frame would be extended to three months should the Tribunal grant a stay subject to a non- enrolment condition. In other words, without a stay there are reasonable prospects of the Applicant going into liquidation within a few months and before the final hearing of the matter.
SHIC also contended that if the Tribunal found it could operate without a stay, or a stay conditioned by no new enrolments, the Applicant will suffer irrecoverable damage through the loss of hundreds of thousands of dollars of revenue and diminish the goodwill and relationships with agents, staff and students. Even if SHIC were able to remain dormant (which is denied) there will be significant cash flow issues associated with restarting the business. All of these matters compromise the effectiveness of the review.
The Tribunal accepts that without the benefit of a stay SHIC would lose it’s primary source of revenue being the student fees, pending the conclusion of the review process. Unlike Australia International College Pty Ltd v Australian Skills Quality Authority26 the Applicant has provided the underlying financial records together with an affidavit from their accountant deposing to the financial impact. The Tribunal considers that the financial consequences weight in favour of the stay, especially in circumstances where the matter will not be ready for final hearing within three months.
In relation to the disruption to the staff, the Tribunal accepts those people will be affected if the Applicant ceased trading, at least in the short term and there will be some consequences
25 Re Birdseye and Tax Practitioners Board [2020] AATA 1250 at [105]
26 [2018] FCA 2097
for SHIC reputation more generally. The consequences to the Applicant weigh in favour of the stay.
The public interest and consequences on ASQA in carrying out its functions
The Applicant argued that given the company’s dire financial consequences should a stay not be granted (or granted with a non-enrolment condition) the discretion should only be exercised against granting a stay if there was some immediate protective public interest and there was cogent evidence of this risk to public safety. In their view, the facts in this case are distinguishable from those in the category of Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority 27 where there was a serious broader public safety issue. In this case SHIC say that to the extent ASQA allege inadequate resourcing for training of the hospitality students, this is not relevant for the purposes of the stay in circumstances where those courses are on hold and not being delivered by the Applicant. They also say that ASQA did not take urgent action in respect of the alleged non-compliances and that in any event the risk to students has been minimised in light of the rectification works.
In contrast, ASQA contend the public interest is an overriding consideration, and that the Tribunal should take into account the objects of the regulatory regime underpinning the Decisions when forming an opinion about granting the stay. The Tribunal in the decision of Metro College of Technology Pty Ltd and Australian Skills Quality Authority (unreported)28 observed:
But there is also the question of the public interest. The regulatory system was devised to protect consumers of these courses, and to protect the good name of Australian educational institutions overseas. Many students travel long distances from overseas ... The regulatory regime assumes there is a public interest in ensuring these programs are properly run according to recognized standards. Failures to adhere to standards – particularly where those failures suggest systemic problems, poor judgment or an unwillingness to comply with the law – must be taken very seriously.
27 (1993) 31 ALD 380
28 Metro College of Technology Pty Ltd v Australian Skills Quality Authority unreported decision of Deputy President McCabe in application number 2015/6137 as cited in Sher-e-Punjab Pty Ltd v Australian Skills Quality Authority [2018] AATA 46 at [108].
The NVR Act and ESOS Act protect the public who may be exposed to the consequences of non-compliant RTOs and students who are consumers of courses who will be prejudiced through inadequate training and education. ASQA, as the Regulator, protects students, the public interest and the integrity and reputation of the VET by taking appropriate action against non-compliant providers.
As was the case in Barkley International College Pty Ltd and Australian Skills Quality Authority, 29 the Tribunal accepts there will be some inconvenience to the current students should the stay not be granted, but this needs to be weighed against the risk posed to continuing students who may be exposed to non-compliant teaching. There is still some risk that at the conclusion of the substantive review, the Decisions to cancel and not renew the registrations is affirmed. Should this be the case, then the qualifications obtained by the students and public confidence in the sector generally will be undermined. The public interest weighs in favour of refusing a stay.
Whether the stay would be rendered nugatory
As discussed earlier in these reasons, the Applicant’s position is that should a stay be refused, then SHIC is at significant risk of being wound up within a matter of months, and before a final hearing. This would leave SHIC with no effective ability to challenge the decision with which it disagrees rendering the review nugatory. This factor weighs in favour of granting a stay.
CONCLUSION AND DECISION
The Tribunal has determined that it is desirable to stay the operation of the Decisions for the purposes of ensuring the effectiveness of the review in circumstances where:
·The applications for review are not clearly hopeless;
·The consequences to the Applicant and in particular the risk of insolvency, unrecoverable losses and the impact of employees and contractors; and
·The Decisions would be rendered nugatory.
29 [2025] ARTA 242 at [61]
The Tribunal notes the public interest considerations and therefore the stay orders include conditions that take into account the public interest and seek to ensure a balance between the stay and the interests of the Respondent and the interests of persons who may be affected by the review of the Respondent’s decision.
The application for a stay of the Decisions is therefore granted subject to conditions.
Date(s)of hearing: 27 June 2025 Datefinalsubmissionsreceived:
27 June 2025
CounselfortheApplicant:
Mr A Solomon-Bridge
SolicitorsfortheApplicant:
Marshalls + Dent + Wilmoth
CounselfortheRespondent:
Ms S Wright
SolicitorsfortheRespondent:
Australian Government Solicitor
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