Australia Institute of Business & Technology - International Pty Ltd and Australian Skills Quality Authority
[2021] AATA 36
•21 January 2021
Australia Institute of Business & Technology - International Pty Ltd and Australian Skills Quality Authority [2021] AATA 36 (21 January 2021)
Division:GENERAL DIVISION
File Number(s): 2019/5957-8, 2019/5968 & 2019/5970
Re:Australia Institute of Business & Technology - International Pty Ltd
APPLICANT
AndAustralian Skills Quality Authority
RESPONDENT
DECISION
Tribunal:Deputy President I R Hanger AM QC
Date:21 January 2021
Place:Brisbane
The Tribunal grants the application for Deputy President I R Hanger to be recused.
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Deputy President I R Hanger AM QC
CATCHWORDS
PRACTICE AND PROCEDURE – application for recusal on grounds of apprehended bias – application granted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
REASONS FOR DECISION
Deputy President I R Hanger AM QC
21 January 2021
On 7 April 2020 I handed down my decision[1] in these matters after a nine day hearing. On 5 May 2020 the applicant filed a notice of appeal in the Federal Court pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 (Cth). On 1 June 2020 the applicant filed a supplementary notice of appeal.
[1] Australia Institute of Business & Technology - International Pty Ltd and Australian Skills Quality Authority [2020] AATA 737.
After negotiation between the parties, Logan J ordered that the appeal be allowed, that the decision of the tribunal be set aside and that the matter be remitted to the tribunal for determination according to law. In the notation to the Order His Honour quoted from my decision as follows: –
“129. In this decision I have focused on a number of significant matters. There are many matters raised that I have not dealt with in this decision. The matters I have dealt with indicate that the Applicant has a cavalier approach to its obligations. I have been particularly concerned with defects in its dealing with PRISM, its issues of CoEs with the intention of deceiving the Department of Home Affairs, its provision of addresses where students have never lived, as well as the matters set out above. Given the findings I have made AIBTI, as an organisation, lacks integrity. AIBTI’s behaviour when put under scrutiny does not measure up to the standards mandated for the purpose of protecting and enhancing Australia’s reputation for quality education and training. That is not likely to change. Most of the evidence related to overseas students which form the great bulk of the Applicant’s cohort. However, given my conclusion that the organisation has a cavalier approach to its legal obligations, frequently breaches them and in general lacks integrity that conclusion applies as well to its registration under the NVR act. (Emphasis added)”
His Honour held that I had failed to consider ‘Future Compliance Measures’ submissions which were supported by probative evidence, seriously advanced and worthy of serious consideration which went to a central issue in the proceedings. My decision did not sufficiently demonstrate that it had addressed and resolved the applicant’s Future Compliance Measures submissions.
I listed the matter before myself for a case management directions hearing on 30 November 2020 at which the applicant made an oral application that I recuse myself from hearing this matter. Following this, the parties filed submissions as to the further conduct of the proceedings.[2]
[2] The Applicant filed written submissions in relation to the recusal application on 2 December 2020, 7 December 2020 and 10 December 2020. The Respondent filed written submissions in relation to the recusal application on 4 December 2020, 9 December and 14 December 2020.
The applicant submits that I should recuse myself from further hearing of the matter on the basis that there is a reasonable apprehension I would not bring an impartial mind to the remitted proceeding having previously made serious adverse findings, including as to credit, against the applicant and its officers.
A reasonable apprehension of bias arises if a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question at hand.[3]
[3] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [6].
The respondent submits that I should not recuse myself and should continue with the hearing, pointing out that the order of Logan J does not require that the tribunal be differently constituted, and that the matter has been remitted to me by the President of the Tribunal. I am satisfied that fact alone does not mean that a party cannot apply to me to recuse myself and that I should not determine that application according to law.
I am conscious of the fact that this was a long matter and that the costs involved for each party were substantial. Furthermore, the decision of Logan J which was made by consent is that there were submissions made and that I did not deal with them. Therefore, I could proceed to deal with that aspect of the case. That would simply be a case of completing the task that I should have done in the first place.
What I failed to deal with was the applicant’s evidence and submissions in relation to its future compliance. What was the future is now the past. It seems to me that it would only be proper to determine the issue of compliance as at the date of the resumed hearing. That would involve evidence from the applicant which may or may not be disputed by the respondent. Furthermore, the respondent has indicated that it seeks to set aside an order that stayed the initial decisions. Therefore, I am not going to be in a position of simply going back to the evidence given during the hearing and considering the submissions made as to future compliance. I will have to again determine matters of fact.
I previously found that the organisation lacked integrity and that it had a cavalier approach to its obligations.
A fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that I might not bring an unprejudiced mind to the resolution of the question at hand. That is a low threshold.
The applicant’s oral application made on 30 November 2020 that I recuse myself from hearing this matter is granted.
I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Hanger AM QC
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Associate
Dated: 21 January 2021
Date of hearing: 30 November 2020 Date final submissions received: 14 December 2020 Counsel for the Applicant: Ms M. Hindman QC Solicitors for the Applicant: Minter Ellison Counsel for the Respondent: Ms S. Wright Solicitors for the Respondent: Australian Government Solicitor
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