Australia Institute of Business & Technology - International Pty Ltd and Australian Skills Quality Authority - [2020] AATA 737

Australia Institute of Business & Technology - International Pty Ltd and Australian Skills Quality Authority [2020] AATA 737 (7 April 2020)
Division:GENERAL DIVISION
File Numbers: 2019/5957, 2019/5958, 2019/5968, 2019/5970
Re:Australia Institute of Business & Technology - International Pty Ltd
APPLICANT

AndAustralian Skills Quality Authority
RESPONDENT

DECISION
Tribunal:Deputy President R I Hanger AM QC
Date:7 April 2020
Place:Brisbane

The Tribunal affirms the decisions under review.
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Deputy President R I Hanger AM QC
CATCHWORDS
VOCATIONAL EDUCATION AND TRAINING - registered training organisation (RTO) - regulation - Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) - cancellation of RTO - non-compliance with legislative regime, standards and national code - whether applicant engaged in conduct that was misleading and/or deceptive - whether applicant breached stay order - whether applicant demonstrated a cavalier disregard to legislative requirements - whether the applicant failed to cooperate with the regulator - whether the applicant's registration should be cancelled under the National Vocational Education and Training Regulator Act 2011 - whether the applicant's registration should be cancelled under the Education Services for Overseas Students Act 2000 - whether application for a change to scope of registration should be granted - whether application for change of CRICOS registration should be granted - decisions under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Education Services for Overseas Students Act 2000 (Cth)
National Vocational Education and Training Regulator Act 2011 (Cth)
CASES
Brighton Pacific Pty Ltd and Australian Skills Quality Authority [2019] AATA 3645
Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64
Shi v Migration Agents Registration Authority [2008] HCA 31
Site Skills Group Pty Ltd and Australian Skills Quality Authority [2019] AATA 1870
SECONDARY MATERIALS
Australian Skills Quality Authority, Australian Skills Quality Authority Annual Report 2018-2019
National Code of Practice for Providers of Education and Training to Overseas Students 2018 (Cth)
Simplified student visa framework, Department of Home Affairs (Web Page)
Standards for Registered Training Organisations 2015 (Cth)
REASONS FOR DECISION
Deputy President R I Hanger AM QC
7 April 2020
INTRODUCTION

Regulation plays an important role in many of Australia’s industries with a common primary function of public protection, with most agencies applying a risk-based regulatory approach to achieve quality outcomes. In the education sector and specifically the vocational education and training (“VET”) sector, the national regulator is the Australian Skills Quality Authority (“ASQA” or “the Respondent”). ASQA’s purpose is to “provide nationally consistent, risk-based regulation of VET that contributes to an informed, quality VET sector that meets Australia’s needs”.[1]
[1] ASQA Annual Report 2018-2019, page 4.
Regulation of the VET sector is incredibly important to Australia’s economy both now and into the future and will be more so in the future given the current economic climate. As outlined in ASQA’s Annual Report 2018-2019:[2]
“Vocational training and education (VET) is crucial to Australia’s future – both financially and socially. International education is now Australia’s third-highest export earner, generating over $35 billion per year. More importantly, though, the VET sector plays a vital role in developing Australia’s national workforce for the future.”
[2] ASQA Annual Report 2018-2019, page 4.
ASQA’s primary risk to manage “is a Registered Training Organisation certifying that a person has competencies that do not reflect his/her skills, knowledge and attitudes. The potential damage flows not just to the individual, but to employers, and the wider community.”[3] One way ASQA’s manages this risk is by considering the ‘operational (provider risk)’ and “the risk an individual provider presents through their choices and actions…”.[4] This risk management strategy is entirely relevant to this matter.
[3] Exhibit 20, Regulatory Risk Framework, Version 1.0 April 2016, page 3.
[4] Exhibit 20, Regulatory Risk Framework, Version 1.0 April 2016, page 5.
In order to perform its function to the highest standard, ASQA rightly promotes Registered Training Organisations (“RTOs”) to self-regulate their compliance with the relevant legislative frameworks and demonstrate at any point in time they are compliant particularly with the Standards for Registered Training Organisations 2015 (Cth) (“the 2015 Standards”). This is clear from the language used in Part 1 of the 2015 Standards. ASQA asserts that the legislative scheme promotes self-regulation by the RTO’s and the onus rests with the RTO’s to comply with the standards, and cooperate with the regulator so that it can effectively perform its functions. I agree with the Respondent’s assertions, and ASQA must be given the cooperation by RTO’s when performing its, at times difficult, functions.
I made the below statement in Site Skills Group Pty Ltd and Australian Skills Quality Authority[5] which remains equally applicable here:
“The importance of proper regulation of RTO’s cannot be overstated. The proper training of people to work is of vital importance to the country. The public rely on the integrity of the sector to properly educate people entering the workforce; to ensure that the work they perform is of a high standard; that they know what they are doing; and that in performing their work they do not present a danger to themselves or to members of the public who rely on the quality of the work performed. Furthermore, it is important that there is a minimum standard required to receive a particular qualification; that there is a rigorous assessment process; and that there is consistency in those standards throughout the country….”[6]
BACKGROUND & APPLICATION HISTORY
[5] [2019] AATA 1870.
[6] Site Skills Group Pty Ltd and Australian Skills Quality Authority [2019] AATA 1870 at [20].
Australia Institute of Business & Technology – International Pty Ltd
The Australia Institute of Business & Technology – International Pty Ltd (“AIBTI” or “the Applicant”) was incorporated in October 2016. AIBTI is an RTO pursuant to the National Vocational Education and Training Regulator Act 2011 (Cth) (“NVR Act”) having been granted registration on 25 May 2017 for the maximum registration period of seven years. AIBTI obtained registration on the Commonwealth Register of Institutions and Courses for Overseas Students (“CRICOS”) pursuant to the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”) in June 2017 for the maximum period of five years. Holding CRICOS registration is essential if AIBTI wants to attract and offer placements to international students, which is a significant market for the VET sector.
AIBTI operates in its own right, but trades in a close relationship with Brighton Pacific Pty Ltd (“Brighton”), with whom it shares a website, branding and other resources.[7] Collectively they are known as “AIBTGlobal”. AIBTI does not have any of its own employees or facilities and instead has access to, and shares Brighton’s facilities under a Shared Resources Agreement.[8] Brighton is relevant to this decision given not only the shared resource agreement, but it too has been the subject of a review by the Tribunal,[9] which is currently on appeal in the Federal Court of Australia.
[7] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, dated 5 November 2019 at [2].
[8] Exhibit 8, Applicant’s Tribunal Benchbook, Kee Affidavit affirmed 1 November 2019 at [30]-[33].
[9] Brighton Pacific Pty Ltd and Australian Skills Quality Authority [2019] AATA 3645.
By AIBTI’s own admission it provides VET courses primarily to international students.[10] It currently: offers 11 courses within its scope of VET registration, nine within its CRICOS scope; has a student capacity of 1750 under its CRICOS registration with approximately 750 students enrolled and undertaking courses; and offers courses in areas including business, health sciences, tech sciences, dental sciences and hospitality. AIBTI offers its courses at two primary locations: Blacktown, New South Wales; and Upper Mount Gravatt, Queensland.
[10] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, dated 5 November 2019 at [33].
Ms Fiona Kee is the Chief Executive Officer and sole director of AIBTI, and has held the position of Head of Strategy and Compliance for the six months preceding the hearing.[11] Ms Kee is also a 50% shareholder in AIBTI[12] and naturally has a vested personal and financial interest in the organisation. She is also a highly educated woman holding a: Bachelor of Business (Accountancy); Bachelor of Business (Honours); Graduate Diploma in Business Administration; is a full member of the Certificated Practising Accountants of Australia; and has, and is, undertaking VET qualifications.[13] Ms Kee has also held highly regarded positions including as an Associate at KPMG, Price Waterhouse Coopers and Senior Associate at Macquarie Bank.[14]
[11] Exhibit 8, Applicant’s Tribunal Benchbook, Kee Affidavit affirmed 1 November 2019 at [1]; Transcript 14.02.2020, page 69.
[12] Exhibit 2, ASQA’s Amended Statement of Facts, Issues and Contentions, undated, at [19].
[13] Exhibit 8, Applicant’s Tribunal Benchbook, Kee Affidavit affirmed 1 November 2019 at [3]-[4].
[14] Exhibit 8, Applicant’s Tribunal Benchbook, Kee Affidavit affirmed 1 November 2019 at [7].
ASQA’s Decisions
Between June and October 2018, the Applicant submitted eight applications to ASQA to change the scope of its registrations under the NVR Act and the ESOS Act, which resulted in the Respondent conducting a post initial and change of scope compliance audit of the Applicant’s operations at the Upper Mount Gravatt campus in October 2018.[15] The Respondent’s post-audit findings were that the Applicant was non-compliant with 11 clauses of the 2015 Standards and seven standards of the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (“National Code”).[16] The Respondent wrote to the Applicant on 19 February 2019, issuing a ‘show cause’ notice advising that it intended to make decisions to cancel AIBTI’s registration (or impose a lesser sanction) under the NVR Act and ESOS Act and reject AIBTI’s applications to amend the scope of its registration.[17] On 4 April 2019, the Applicant provided a response with supporting evidence. The Respondent issued further decision notices to the Applicant in May 2019, to which the Applicant raised a number of concerns and ultimately, ASQA agreed to revoke the May 2019 decisions and AIBTI agreed to provide a submission as to why the May 2019 decisions should not be remade.[18]
[15]    Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, dated 5 November 2019 at [35]-[36].
[16] Exhibit 2, ASQA’s Amended Statement of Facts, Issues and Contentions, undated at [7].
[17]    Exhibit 5, T Documents, T25, vol. 2, pages 996-999.
[18]    Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, dated 5 November 2019 at [40]-[41].
On 2 September 2019, the Respondent communicated to the Applicant its decisions to:[19]
(a)cancel the Applicant’s registration under section 39 of the NVR Act effective
7 October 2019;
(b)cancel the Applicant’s registration for all courses at all locations in accordance with the ESOS Act effective 7 October 2019;
(c)reject an application to change the scope of its registration under the NVR Act;[20] and
(d)reject an application to change its CRICOS registration under the ESOS Act.[21]
[19] Exhibit 5, T Documents, T51-T55, vol. 5, pages 5070-5085.
[20] Specifically applications ADDCRI0003731, ADDCRI0003575, CHGCRI0003835, CHGCRI0003547, CHGCRI0004766, CHGCRI0004457, CHGCRI0003837, and CHGCRI0003836.
[21] ADDVET0030162 and ADDVET0029555.
The summary of the reasons for the Respondent’s decisions were that the Applicant did not address:[22]
(a)the specific instances of non-compliance identified;
(b)the reasons for the failure to comply with the 2015 Standards and the National Code;
(c)why its systems and processes failed to identify the non-compliances in its practices;
(d)how its systems or processes had been remedie[d];
(e)who had been responsible for the findings of non-compliance; and
(f)what action had been taken or was proposed to be taken to ensure the rest of AIBTI’s operations are compliant.
[22] Exhibit 4, ASQA’s Statement of Facts, Issues and Contentions, undated, at [11].
The Respondent ultimately contends that:[23]
“AIBTI has ongoing systemic issues that will continue to facilitate serious non-compliances, and as such there is a high risk of future non-compliance. AIBTI’s extensive history of non-compliance, misleading and/or unconscionable behaviour and absence of co-operation are significant indicators that it will remain incapable of implementing proper systems under the NVR Act and the ESOS Act in the future.”
[23] Exhibit 4, ASQA’s Statement of Facts, Issues and Contentions, undated, at [59].
On 10 September 2019, the Applicant lodged an application for review in the Tribunal and requested a Stay of ASQA’s Decisions.
The Stay Application
Under section 41 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) the Applicant was entitled to apply for a stay to halt the effect of the Respondent’s cancellation decisions, thereby allowing AIBTI to continue operations until the matter could be heard at a substantive hearing. By consent of the parties, on 30 September 2019, the Tribunal issued a Stay Order (“the September Stay Order”) subject to the following conditions:
2.… namely that the Applicant will, until 5PM on 2 March 2020, or until further order of the Tribunal:
a.not enrol any new students before 2 March 2020;
b.not commence any new students before 2 March 2020;
c.not demand payment from any student already enrolled, but yet to commence his or her first course with the Applicant (subject students); and
d.not withdraw from the protected account any amounts paid by subject students (being the account of the Applicant maintained pursuant to section 28 of the ESOS Act).
On 24 October 2019, the Respondent filed an application to amend the September Stay Order alleging the Applicant had breached the conditions of the order. Following an interlocutory hearing, on 2 December 2019, the Tribunal varied the September Stay Order and amended the conditions to the following:
a. from 4 December 2019 not enrol or commence any student in a course or a part of a course under the ESOS Act or under the NVR Act. For the avoidance of doubt, students who are enrolled in, and have commenced a course (or a part of a course) with the Applicant on a date prior to the date of this order may continue to completion of that specific course only. However, such students may not enrol in any new or further course or commence any new or further course;
b. not demand payment from any student already enrolled, but yet to commence his or her first course with the Applicant (‘subject students’), provide refunds to subject students when requested and advise subject students that they cannot commence a course or a part of a course with the Applicant until further order of the Tribunal.
AIBTI’s alleged non-compliance with the Tribunal’s September Stay Order is extremely serious and any confirmed breaches must be taken into consideration in the final decision. The breaches of the September Stay Order and Ms Kee’ evidence will be discussed further in this decision.
The matter now falls to the Tribunal to ensure this matter is properly determined according to law.
THE LAW
The Tribunal’s Role
The Tribunal’s jurisdiction is vested under section 25 of the AAT Act, section 203(2) of the NVR Act, and section 169AG of the ESOS Act. Typically, the Tribunal is expected to reach the correct or preferable decision based on the material available at the time of the hearing.[24] However, the NVR Act provides the Tribunal with express authorisation to have regard to “… the organisation’s conduct, or circumstances existing, since the Regulator gave the organisation a written notice as mentioned in that section”.[25] The Applicant’s conduct which existed prior to the hearing must also be considered given the Tribunal must have regard to all the relevant circumstances.
[24] Shi v Migration Agents Registration Authority [2008] HCA 31.
[25] NVR Act s 36(3)(b).
The Tribunal “is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”,[26] although it is required to act upon material which is logically probative,[27] and to follow the rules of procedural fairness.
[26] AAT Act s 33(1)(c).
[27] Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64.
Over 10,000 pages of material was filed.
As the Applicant holds registration both under the NVR Act and ESOS Act it is appropriate to outline the relevant provisions of both.
NVR Act
The objects of the NVR Act are outlined in section 2A:
(a)to provide for national consistency in the regulation of vocational education and training (VET); and
(b)to regulate VET using:
(i)a standards-based quality framework; and
(ii)risk assessments, where appropriate; and
(c)to protect and enhance:
(i)quality, flexibility and innovation in VET; and
(ii)Australia's reputation for VET nationally and internationally; and
(d)to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia's social and economic needs for a highly educated and skilled population; and
(e)to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and
(f)to facilitate access to accurate information relating to the quality of VET.
Note 1: The standards-based quality framework mentioned in paragraph (b) consists of instruments made by the Ministerial Council, the Minister or the National VET Regulator.
Note 2: These objects are subject to the constitutional basis for this Act (see Division 3).
The Respondent alleges that the Applicant is non-compliant with sections: 21, 22, 25, 26, 27, 28, and 93-4.[28] Sections 21 – 28 fall under the subdivision of conditions of registration and incorporate, inter alia, compliance with VET Quality Framework, notifying the regulatory of material changes, cooperation, and compliance with directions given. Sections 93 and 94 addresses the offence and penalty provisions where an RTO is found to have provided all or part of a VET course outside the scope of registration.
[28] Respondent’s Closing Submissions, undated, at [85.3].
The Respondent cancelled the Applicant’s registration under sections 36 and 39 of the NVR Act, taking effect from 7 October 2019.
The Standards
The NVR Act provides for the legislative instruments for standards for NVR registered training organisations,[29] which “form part of the VET Quality Framework, a system which ensures the integrity of nationally recognised qualifications.”[30]
[29] NVR Act s 185; 2015 Standards.
[30] 2015 Standards Part 1 - Preliminary.
There are eight standards in total, with each standard containing a number of clauses. Under the heading Structure, it is clearly outlined that: “[t]o comply with a Standard, the RTO must meet each of the Clauses….”[31]
[31] 2015 Standards Part 1 - Preliminary.
The Respondent submits that the Applicant is shown to be non-compliant with specific clauses under Standards 1, 2, 3, 4, 5, 7 and 8.[32] The overview of each of the standards is as follows:
[32] Respondent’s Closing Submissions, undated, at [85.1]

Standard 1 The RTO’s training and assessment strategies and practices are responsive to industry and learner needs and meet the requirements of training packages and VET accredited courses.

Standard 2 The operations of the RTO are quality assured.

Standard 3 The RTO issues, maintains and accepts AQF certification documentation in accordance with these Standards and provides access to learner records.

Standard 4 Accurate and accessible information about an RTO, its services and performance is available to inform prospective and current learners and clients.

Standard 5 Each learner is properly informed and protected.

Standard 6 Complaints and appeals are recorded, acknowledged and dealt with fairly, efficiently and effectively.

Standard 7 The RTO has effective governance and administration arrangements in place.

Standard 8 The RTO cooperates with the VET Regulator and is legally compliant at all times.
The Standards are a vital component for an RTO to demonstrate compliance with the legislative framework. The Applicant’s alleged non-compliance with the Standards is reviewed against the available evidence.
ESOS Act

The objects of the ESOS Act are outlined in section 4A:
The principal objects of this Act are:
(a)    to provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and
(b)    to protect and enhance Australia's reputation for quality education and training services; and
(c)    to complement Australia's migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas.
Under this Act, the Respondent alleges the Applicant is non-compliant with sections 8, 15 and 19.[33] Section 8 specifies that it is an offence to provide or promote a course without a registered provider and carries a criminal sanction. Section 15 specifies that registered providers must not engage in misleading or deceptive conduct, and section 19 requires a registered provider to give information within a set timeframe after a specified event occurs. Section 83 of the ESOS Act outlines the sanctions that may be imposed for non-compliance. It includes cancellation (83(3)(c)) .
[33] Respondent’s Closing Submissions, undated, at [85.4].
The National Code
Under section 33 of the ESOS Act, the Minister may make a national code by legislative instrument and must ensure one is in force at all times. The current code commenced on
1 January 2018. The purpose of the National Code is to set nationally consistent standards and procedures for registered providers and for persons who deliver education services on behalf of registered providers. Similar to the 2015 Standards supporting the NVR Act, the National Code supports the effective administration of ESOS legislative framework.
The National Code comprises of 11 standards relating to international students. The Respondent contends the Applicant is non-compliant with certain clauses of five of the Standards, specifically:
·Standard 1 – Marketing information and practices;
·Standard 2 – Recruitment of an overseas student;
·Standard 3 – Formalisation of enrolment and written agreements;
·Standard 8 – Overseas student visa requirements; and
·Standard 11 – Additional registration requirements.
The Respondent contends, by way of example, that the Applicant is non-compliant with clause 4 under Standard 8 which provides that a registered provider is responsible for notifying the Department of Home Affairs if a student breaches their visa conditions such as by failing to maintain satisfactory course attendance or progress. As will be discussed further, the Respondent contends there is an abysmal student attendance rate at AIBTI.
PRISMS
The Provider Registration and International Student Management System (“PRISMS”) is a critical database which a registered provider must update if it holds registration under the ESOS Act. The database is maintained by the Department of Education for the purposes of administering the ESOS Act, and requires providers to comply with the legislative requirements by:
(a)issuing bona fide confirmations of enrolments (CoE) as ‘evidence of enrolment’ in a registered full-time course, as required for the issue of a student visa by Home Affairs; and
(b)reporting changes in course enrolment, particularly where study ceases (non-compliance), or the duration of the study changes. PRISMS also facilitates the monitoring of student compliance with visa conditions, as well as provider compliance with the ESOS Act.[34]
[34] Exhibit 24, Department of Education and Training, Provider Registration and International Student Management System (PRISMS) Provider User Guide, Last Updated: May 2018, page 4.
A CoE is issued to international students as evidence of their enrolment with a provider who holds CRICOS registration and a student must hold a CoE in order for a visa to be issued by Home Affairs. The CoE contains information about the students enrolment including the Provider, agent (if involved), course and duration of study that student has enrolled in.[35]
[35] Exhibit 24, Department of Education and Training, Provider Registration and International Student Management System (PRISMS) Provider User Guide, Last Updated: May 2018, page 4.
The Applicant is responsible for maintaining PRISMS and uploading any changes to a student’s study details (address, course of study, location of study) promptly as it may impact the visa the student has been issued. The Respondent contends that AIBTI has continuously uploaded false and misleading information into PRISMS in order for students to obtain a visa to study at AIBTI, knowing that it fully intends to transfer those students to Brighton once they have been issued with a visa, and thereby avoiding the higher evidentiary threshold.[36] This concern is discussed in further detail below. To add to the complexity of this system, an RTO is awarded a “risk rating score” or “evidence level” under the Simplified Student Visa Framework (discussed below).
[36] Respondent’s Final Submissions, undated, at [90].
CONTENTIONS AND ADMISSIONS
The Respondent principally contends that the Applicant has failed to comply with a number of sections, clauses and standards under the legislation, 2015 Standards, and the National Code respectively.
The Respondent asserts that the Applicant admits to a number of breaches or facts that constitute such breaches, namely:[37]
(a)Two emails sent on the Applicant’s behalf of which the content involves a conspiracy to commit visa fraud.
(b)Appalling class attendance and the failure of the Applicant to ensure overseas students are scheduled for a minimum of 20 contact hours per week.
(c)Breaches involving the Diploma of Dental Technology.
(d)92 breaches of the Tribunal’s September Stay Order.
(e)Incorrect student residential addresses in PRISMS and ongoing breaches of the ESOS Act.
(f)Failures to cooperate and comply with warrants, timeframes stipulated in notices for information, refusal to consent to a compliance visit.
(g)Delivery of training at unregistered locations.
[37] Respondent’s Final Submissions, undated, at [3].
The Applicant contends that the principle issues to be determined are:[38]
(a)whether AIBTI was non-compliant in all respects identified in the Final Audit Report, or in all respects identified in the ASQA New Material;
(b)whether AIBTI remains non-compliant as at the date of the Hearing and if any non-compliance remains at the date of the Hearing, whether there are processes in place for AIBTI to rectify those non-compliances to be compliant in the future;
(c)whether AIBTI has processes in place to minimise the reoccurrence of non-compliance; and
(d)whether the Respondent’s Decisions reflect the correct and preferable exercise of the statutory discretions.
[38] Exhibit 1, Applicant’s Amended Statement of Facts, Issues and Contentions, dated 7 February 2020, at [29].
ISSUES FOR DETERMINATION
The issues for determination are whether:
(a)the Applicant is non-compliant with the NVR Act, the ESOS Act, 2015 Standards and the National Code;
(b)the Applicant breached the Tribunal’s September Stay Order;
(c)the correct and preferable decisions in regard to the Applicant’s registration under the NVR Act and ESOS Act; and
(d)the Applicant’s applications for change of scope to its registration under the NVR Act and ESOS Act should be rejected, or whether an alternative decision should be made.
EVIDENCE
Non-compliance with the NVR Act, ESOS Act, 2015 Standards and National Code
Student Visas and alleged visa fraud
The simplified student visa framework implemented on 1 July 2016 introduced a single evidentiary framework assessment arrangement for applicants for student visas in Australia.[39] The framework allocates each country and each CRICOS registered provider an evidence level/score (1, 2 or 3). The education provider and country evidence levels are then combined to guide the financial and English language evidence requirements for students to meet when applying for a student visa.
[39] ‘Simplified student visa framework (SSVF)’, Department of Home Affairs (Web Page) < (accessed 31 March 2020).
This score determines how “easy” it is for a student to obtain a visa to study with a particular RTO based on the evidentiary requirements. Education providers scores are not published, however, the Respondent submits that AIBTI has a lower score, and therefore has lower evidentiary visa requirements than Brighton. In practice, a student applying to study at AIBTI does not require the same evidence of financial capability or English Language proficiency than if the student were to directly apply to study with Brighton. This was common ground between the parties and acknowledged by Ms Kee.
The Respondent submits that the Applicant is facilitating students evading the higher evidence thresholds for visa requirements by creating CoEs for study with the Applicant and then transferring the student to Brighton. The Applicant responds to this allegation by submitting that it is open to students to change courses. There is no issue about that. The real purpose of obtaining the visas was to enable the students to study a different course at a different location in a different state and with a different RTO. The CoEs were created in order to obtain visas. They did not correctly state the proposed course of study at all. I am satisfied that employees of the Applicant, such as Mr Yang and Mr H Kee, facilitated this course of action and that numerous staff were aware of the practice.[40]
[40] See eg, Exhibit 8, Applicant’s Tribunal Benchbook, Kee Affidavit affirmed 5 February 2020, page 634.765, at [10]; Supplementary Tribunal Documents, ST196, pages 10530-10547.
I am satisfied that the purpose of the actions of the Applicant was to mislead the Department of Home Affairs so that a visa could be obtained and the student(s) retained by AIBTGlobal in some capacity. This is an extremely serious matter and it is an even greater cause for concern that Ms Kee in her evidence did not appear to be aware of the seriousness of the Applicant’s conduct.
Student Attendance
The Respondent submits that there is alarmingly low student attendance rate at both the Blacktown and Upper Mount Gravatt campuses, which is in breach of the National Code and contrary to the Respondent’s fact sheet which states that overseas students must complete a minimum of 20 scheduled course contact hours per week for full-time VET courses.[41] [Emphasis in original]
[41] Exhibit 6, Supplementary T Documents, ST111, vol. 6, page 10321.
The Respondent established that on an unannounced visit during execution of the compliance monitoring warrant on 21 November 2019 at the Blacktown campus,

13 students were observed to be in attendance in circumstances where PRISMS data on 29 November 2019 showed 424 CoEs for students currently studying there. The Investigator was informed that the students were undergoing self-study and did not need to attend the classes that week. However standard 11.2.1 of the National Code requires a “minimum of 20 scheduled course contact hours per week” and self-study is not a “contact hour”. As stated, the Respondent’s fact sheet for overseas students refers to twenty contact hours per week and the Applicant’s Monitoring Student Attendance and Academic Progress Policy and Procedure also clearly states students must attend at least 80% of scheduled contact hours.[42]
[42] Exhibit 6, Supplementary T Documents, ST111, vol. 6, page 10321; ST103, vol. 6, pages 10245-10246.
The Respondent asserts that at the commencement of the compliance monitoring activity undertaken at Upper Mount Gravatt campus on 26 November 2019 at 9:10AM, there was a mix of students present from the Applicant, another training college and another business. At that time there were about 95 CoEs for students currently studying at AIBTI at Upper Mount Gravatt.
At 6:10PM on the same day, six students were observed in the Applicant’s class Advanced Diploma of Electronics and Communications Engineering. The attendance list showed nine students for the class. PRISMS data for 29 November 2019 showed that 22 students were enrolled in that particular class. The Applicant submits the students were on a dinner break at the time the Investigator recorded her numbers. Regardless only nine students out of 22 were in attendance that day, which is less than half.
The Investigator was there all day from 9:10AM to after 6:10PM and overall saw a total of 18 of the Applicant’s students.
Ms Adlington, an employee of the Respondent, examined the class attendance list provided by the Applicant for students. Having reviewed those records she makes the following observations as at 13 December 2019:[43]
[43] Exhibit 9, Respondent’s Tribunal Benchbook, pages 419-421.
“43. I have reviewed these attendance records and make the following observations in relation to the Dental students:
43.1. Sydney Dental students, Group 3: 1 out of 29 students had an absentee rate of 50% and an averaged absenteeism rate of 17% over an 18 day attendance period
43.2. Sydney Dental students, Group 4: 2 out of 31 students had an absentee rate above 44% and an averaged absenteeism rate of 24% over an 18 day attendance period.
43.3. Brisbane Dental students, Group 3: 2 out of 11 students had an absentee rate of 55% and an averaged absenteeism rate of 21% over an 18 day attendance period.
43.4. Students 0000007116 and 0000006781 are both marked present on the Sydney Dental students, Group 3 class list despite, according to PRISMS, being enrolled in Brisbane.
43.5. Student 0000008372, according to PRISMS commenced studies on 8 October 2019 and is currently studying, however does not appear on any of the Dental students class lists and therefore has no attendance record.
44. I make the following observations in relation to the Nursing students:
44.1. Sydney Nursing students, Group 10: 2 students have a zero attendance and a further 7 students have an averaged absence rate of 91% over a 3 month attendance period.
44.2. Sydney Nursing students, Group 11 and 13: 1 student has a zero attendance and a further 12 students have an averaged absence rate of 75% over a 3 month attendance period
44.3. Sydney Nursing students, Group 15: 5 students have a zero attendance and a further 3 students have an averaged absence rate of 67% over a 3 month attendance period.
44.4. Sydney Nursing students, Group 16: 16 students have a zero attendance and a further 7 students have an averaged absence rate of 58% over a 3 month attendance period
44.5. Sydney Nursing students, Group 17 and 18: 3 out of 12 students have a zero attendance over a 3 month attendance period.
44.6. Brisbane Nursing students, Group 19: 6 out of 16 students have a zero attendance over a 3 month attendance period.
44.7. Brisbane Nursing students, Group 20: 8 out of 10 students have a zero attendance over a 3 month attendance period.
45. I make the following observations in relation to the Hospitality students:
45.1. Analysis of the attendance rate for students at the Sydney location has identified 16 out of 57 students with an absenteeism rate of 83% over a 12 day duration.
45.2. The attendance rate for students at the Brisbane location has identified 2 out of 38 students with an absenteeism rate of 100% over a 12 day duration.
45.3. There are eleven students recorded in PRISMS as studying who do not appear on the class lists for the period 4 March 2019 to 4 November 2019:
45.3.1. 0000007882 - this student's CoE was cancelled on 4 December 2019 for non−payment of fees. PRISMS also identifies the student's visa expired on 30 August 2019 - it is not clear why AIBT-I continued the student's enrolment for more than three months on an expired visa.
45.3.2. PRISMS identifies the following students as currently studying with AIBT-I with a granted visa and no course variations:
45.3.2.1. Student 1262— actual start date 27 May 2019
45.3.2.2. Student 7816 – actual start date 3 June 2019
45.3.2.3. Student 7906 − actual start date 1 July 2019
45.3.2.4. Student 8208 – actual start date 2 September 2019
45.3.2.5. Student 8382 − actual start date 9 September 2019
45.3.2.6. Student 8548 − actual start date 4 November 2019
It is therefore not clear why these students do not appear on the class lists.
45.3.3. PRISMS identifies the following students as currently studying with AIBT-I and have a visa status of 'not granted':
45.3.3.1. Student 7305 - actual start date 4 March 2019
45.3.3.2. Student 7901− actual start date 16 September 2019
45.3.3.3. Student 7906 — actual start date 1 July 2019
45.3.3.4. Student 8035 − actual start date 5 August 2019
45.3.3.5. Student 8461 — actual start date 23 September 2019
Notwithstanding any current appeal period, PRISMS data appears to be inaccurate as at 11 December 2019. The PRISMS records for the above students still show a CoE status of "Studying".”
The Applicant responds by pointing out that it has a policy for monitoring student attendance and academic progress.[44] That policy is such that a student’s attendance is recorded on a ‘student attendance sheet’. A warning letter notifying of intention to report to the Department of Home Affairs is sent to a student who is absent for five consecutive days without excuse or is at risk of not meeting course requirements. The student’s enrolment may be cancelled. There is therefore a policy with respect to non-attendance.
[44] Exhibit 6, Supplementary T Documents, ST103, vol. 6, pages 10242-10251.
The attendance issues that are set out above relate to implementation rather than policy. The Applicant contends that the observations of low attendance at the campus at Upper Mount Gravatt on 21 and 26 of November 2019 are just isolated instances and prove nothing.
In respect of the Upper Mount Gravatt campus, on 26 November 2019 the Applicant submits there were only two courses that day for which students were required to be there. In respect of other courses conducted on the campus the students were either in attendance at other premises or not scheduled to undertake class that day.
During the course of the hearing, the Tribunal wasn’t specifically taken to any timetables that confirmed the Applicant’s submissions in relation to attendance at the Upper Mount Gravatt campus on 26 November 2019 (which was a Tuesday). However, a timetable that had been filed in the material suggests that for “Brisbane” approximately four classes should have been in attendance on that day.[45] The Tribunal could not identify any information to suggest that of the four classes which should have occurred on

26 November 2016 there was a reason for the students not to be in attendance. The Tribunal also notes that when the Applicant was requested to provide this information to the Respondent the response was: “business documents do not record the information in the form requested … AIBT-I will need to prepare the information…”.
[45] Exhibit 6, Supplementary T Documents, ST22.1, vol. 1 pages 5200-5201.

In respect of the visit to the Blacktown campus on 21 November 2019 there was only one course for which students were required to be at that campus. For the other courses scheduled the students were in attendance at other premises, on work placement, or on a scheduled self-study week.
The Applicant also points out that the observations of Ms Adlington about student attendance relate to only three courses.
In relation to the high degree of absenteeism referred to above it is clear that the Applicant may well have taken steps in accordance with its policy to warn students about their absences, but the very fact of the extent of absenteeism speaks volumes about the seriousness with which many visa holders are undertaking the particular courses. The very poor attendance rate indicates that the Applicant’s interventions in relation to student attendance are ineffective.
The Respondent provided the Tribunal with examples of where the Applicant had failed to implement its own policy. In particular, the Tribunal was provided with information relating to Student ‘6047’ where the student was sent the first warning letter after 37 working days of absences, with the final warning letter issued after 25 working days and the Respondent asserts the student was “well and truly at a risk of not meeting the minimum attendance requirements”. This demonstrates non-compliance with standard 8 of the National Code.
Another observation by Ms Adlington is that two dental students were marked present on the Sydney dental students’ class list according to PRISMS when they were enrolled in Brisbane. The Applicant responds to this observation by pointing out that one student had applied on 19 June 2019 and the other in July 2019 to change campus from Brisbane to Sydney. They had both in fact changed but the details were not updated in PRISMS until 28 January 2020 which was during the preparation for these proceedings. A failure to update PRISMS for five months is a very serious matter.
There are also other examples of students being marked present when they were absent. In a previous hearing, which involved the related entity Brighton, evidence established that a teacher was prepared to mark a student present for a class knowing that the student was absent. This was a matter of concern to Ms Kee but another instance has been demonstrated to have occurred in this matter.
Mr Chadha was marked present on six occasions in a state that he was not in, had never attended any classes and had transferred to another college. Ms Kee’s attempt to explain how this might have occurred is not accepted. It was speculation. These were not isolated mistakes. When this kind of thing occurs one can have little confidence in the integrity of the organisation.
In respect of the Diploma of Nursing Ms Adlington identifies 41 students with low or zero attendance rates. The Applicant acknowledges that as correct, but points out that it coincides with adverse publicity concerning the qualification following the Respondent’s decision to cancel Brighton’s registrations. Ms Kee argues that she decided there were compassionate and compelling circumstances under the National Code and its Student Attendance Policy to exercise a discretion not to terminate the students’ enrolments or report them to the Department of Home Affairs. The reality of the situation is that the Applicant, and Ms Kee, stood to gain by keeping them enrolled.
Issues relating to Nursing Qualifications
The Applicant was registered to deliver the Diploma of Nursing from 13 July 2017. During an audit it provided the Respondent with an agreement dated 10 July 2018 with Healthscope which established that it had appropriate work placements for students in compliance with clause 1.3 of the 2015 Standards. Unfortunately that agreement was never executed.
Ms Kee said that an agreement was subsequently executed with Healthscope in February 2019 but that Healthscope had terminated or sought to terminate this agreement. In her evidence Ms Kee was not sure about the current situation but said that within the last couple of weeks she had managed to place three students in a Healthscope hospital to start in February or March. She also said that the Applicant had upgraded its simulated facilities and that students could continue to complete aged care placements. No agreement was produced in relation to an aged care provider and she did not know if such an agreement existed. In fairness it should be said that that there is an agreement between Brighton and an aged care provider and Brighton has a third party agreement with the Applicant to deliver training and assessment for some products. However, there is no agreement for Brighton to deliver training for the Applicant in this respect.
As mentioned above the attendance rates for the Diploma of Nursing are poor. Ms Kee agrees that she has not strictly applied her intervention policy in respect of non-attendance of nursing students. In cross examination she said:
“I apply, but I do not want to apply fully, to report them to cancel the CoE, because there is a strong compassionate, compelling reason why they were unable – I wouldn’t use they were unable; they simply lose faith and they do not want to come for class. For the welfare of the student, this is why we keep encouraging them to come. We keep making phone calls for them to come back, because they keep saying that they want to study nursing, but we are not an accredited college. On the other hand, they also do not have the English requirement to study an accredited AHPRA nursing diploma.”
It is worth noting here that the Applicant’s course, Diploma of Nursing, is not accredited by the Australian Nursing and Midwifery Accreditation Council and therefore is not an approved program of study by the Nursing and Midwifery Board of Australia (the Board). Only graduates of an approved program of study are eligible for registration with the Board. This means that a graduate of AIBTI’s Diploma of Nursing will not be eligible for registration with the Board and thus unable to work as a nurse in Australia unless they complete further study in an approved program. This is what Ms Kee meant by her comment “we are not an accredited college.” It may also be a reason to explain why the attendance rates in the Diploma of Nursing are poor. However, this is not an excuse to justify the Applicant not meeting the legislative requirements.
I accept the submission of the Respondent that where there is no evidence that the Applicant has proper arrangements for students to complete the practical placement component of the course and where the Applicant is not even requiring students to attend class, the only conclusion that can be drawn is that the Applicant is not delivering proper training and assessment to the students that meet the minimum requirements of the NVR Act and the ESOS Act.
Issues in relation to Dental Technology
On 13 March 2018, the Diploma of Dental Technology HLT55115 (“the superseded diploma”) was superseded by a non-equivalent course Diploma of Dental Technology HLT55118 (“the new diploma”). By virtue of what is described as “teach-out” provisions contained in clause 1.26 of the 2015 Standards, the superseded diploma would automatically cease to be considered a VET course as from 13 March 2019. To deliver the superseded diploma after 13 March 2019 would contravene the provisions under section 93 of the NVR Act. The Respondent contends that in carrying out the following actions, the Applicant engaged in misleading and deceptive conduct.
The Applicant hoped to obtain approval for its new diploma by at the latest 13 March 2019. It was unable to obtain that approval by that date and was not notified of the refusal of the approval until October 2019. However, the Applicant had been ‘put on notice’ in February 2019 and advised that the approval was not likely to be granted.[46]
[46] Exhibit 5, T Documents, T25, vol 2. Pages 996 – 999.
On 2 October 2019, PRISMS recorded:
(a)there were 12 students who were due to commence the superseded diploma between 2 July 2018 and 4 March 2019;
(b)there were 70 students who were due to commence the superseded diploma between 6 May 2019 and 30 September 2019; and
(c)there were 60 students enrolled due to commence the superseded diploma between 23 October 2020 and 1 October 2021.
The material in PRISMS was obviously incorrect as the course no longer existed. It was presumably based on the hope that the new diploma would be approved and available. This issue of the inaccuracy in PRISMS was raised by the respondent with the Applicant on several occasions after 26 September 2019.
The Applicant justifies its conduct as follows.
The Applicant had historically offered students enrolment in what it describes as a package of courses consisting of a Certificate III in Dental Laboratory Assisting, and a Diploma of Dental Technology. A student could obtain the Certificate III and having obtained that could get credit for those units if the student decided to proceed to enrol in the superseded diploma. Alternatively, one could enrol in the superseded diploma and as part of that course, would complete the Certificate III subjects.
At the time that the decision to refuse the new diploma was made, the Applicant says there were approximately 81 students recorded in PRISMS as having commenced the superseded diploma but they were in fact still studying the Certificate III which they had allegedly been unable to complete within the expected duration of that course. In light of the adverse decision, the Applicant extended the time for students to complete their Certificate III by issuing them new CoEs.
In response to the suggestion that the Applicant misled the Department of Home Affairs, the Applicant says that the students had obtained their visas for the entirety of the Dental Technology Package, that is to say for both the Certificate III and the Diploma of Dental Technology. I do not accept this submission because, while it may be convenient to refer to the two courses as a package, the reality is that one of those courses does not exist and the diploma is a separate course even if it has a significant overlap with the lower level certificate course. The information contained in PRISMS related to the diploma and that was simply not correct.
Furthermore, the Respondent raised the issue of the superseded diploma with the Applicant in late September and early October 2019. The Respondent said that none of the 81 students who were entered in PRISMS at that point in time as studying had in fact commenced the course.
The Applicant knew that it could not deliver the new diploma or the superseded diploma and since the students had not withdrawn their enrolment, the Applicant should have reported the failure of the students to commence the course as being caused by “provider default”. The Applicant knew of the Respondent’s intention to reject its application for the approval of the new diploma from 19 February 2019[47] but it did not report the non-commencement of studies by the students for a further eight months. Subsequently, the Respondent issued a number of infringement notices in respect of the above conduct.
[47] Exhibit 5, T Documents, T25, vol. 2, pages 996 – 999.
In acting as it did, the Applicant misled the Department of Home Affairs and thereby did in fact engage in misleading and deceptive conduct.
The allegation that there were falsified student addresses in PRISMS
There was no course that the Applicant was entitled to deliver in Tasmania. Its related organisation, Brighton, was so entitled. In its Statement of Facts, Issues and Contentions (“SFIC”) in these proceedings the Applicant says that it has no student in Hobart. There is a dispute between the Applicant and the Respondent as to whether a student, Mr Nuery, was a student of the Applicant in Hobart.
In respect of the student in dispute, it appears that:
(a)
he was issued a conditional letter of offer by the Applicant to study in Hobart on

26 October 2019;
(b)he was enrolled with the Applicant at the Blacktown campus and his Tasmanian address was entered into PRISMS by the Applicant on 28 October 2019;
(c)as at 30 October 2019, he remained enrolled with the Applicant;
(d)on 30 October 2019, he informed the Respondent that he lived in Tasmania;
(e)the Applicant entered a Sydney address into PRISMS for him on 12 November 2019;
(f)on 12 November 2019, he was subsequently enrolled with Brighton; and
(g)the Applicant changed his address in PRISMS on 26 November 2019 to a Hobart address.
The Respondent submits that the evidence in relation to Mr Nuery is such that I should conclude that he always resided in Hobart and did not relocate to Sydney. While one may have suspicions about this, the evidence to justify such a conclusion is inadequate.
During the interlocutory hearing on 18 November 2019, the Respondent questioned whether there were other students who had residential addresses in Tasmania despite the fact that the Applicant had no approval to deliver courses in Tasmania. On that same day, the Applicant changed the listed address in PRISMS for a student Mr Reyes, and a student Mr Chadha to addresses in Sydney and Brisbane respectively.
Both the students gave unchallenged written evidence that they had never lived in those locations.
On 26 November 2019, the day of the execution of a warrant at the Applicant’s premises, both addresses were changed back to Hobart. Ms Kee suggested that these changes were perhaps an error due to updating PRISMS with old addresses from JobReady. I reject that evidence because these students had not lived in Sydney or Brisbane. The enrolment, courses and the change of courses for these two gentlemen is complex. However one thing is clear and a matter of great concern. Neither person lived at any time at the addresses entered into PRISMS and neither person ever told anyone that they lived at the address entered into PRISMS.
The conduct of the applicant in this regard is dishonest and contrary to its obligations under sections 19 and 108 of the ESOS Act.
Allegations re delivery of courses at unregistered locations
The Respondent alleges that the Applicant delivers courses at unregistered premises. On 21 November 2019, dental students were at a location in Pitt Street Sydney. The Applicant asserts that it was using those premises to deliver parts of the Certificate III in Dental Laboratory Assisting and had been doing that since about September 2018.
On 26 November 2019, dental students were at a location in Milton and Ms Kee explained that the Applicant was using a location in Milton to deliver the practical parts of the Certificate III in Dental Laboratory Assisting at that location.
The Applicant also undertakes student placements at a dental laboratory called The Dentists of Australia in Parramatta. This location is used not just for student placement but for simulated training. The Applicant also uses a specialised laboratory at Homebush.
Under the NVR Act the Applicant must notify the Respondent of delivery sites pursuant to section 25.
Section 8 of ESOS Act makes it an offence for the Applicant to deliver courses other than at a registered location. In the case of the Applicant that is only either at Blacktown or Upper Mount Gravatt. The Act provides for new courses to be delivered from registered locations and for new locations to be approved for the delivery of courses.
The Applicant had made CRICOS applications to add courses at premises in Pitt Street Sydney, Stones Corner Brisbane, and at Elizabeth Street Hobart. It was obviously aware that approval was needed. The applications were rejected and then withdrawn. The Applicant continued to use at least one of those premises.
The Applicant submits that the meaning of the term “providing a course” refers to the principal place of study rather than to a specialised facility for practical training. Ms Kee took the view that the Applicant only needed to report permanent locations but not those which delivered training in a specialised work style environment.
The Respondent asserts that the use of locations for delivery of parts of courses which have either not been notified or approved by the Respondent, justifies the Respondent’s decisions in this matter.
The Act contemplates that a course may be delivered at more than one location (s 10H) and provides a mechanism for obtaining approval for a new location. Under Section 11A of the ESOS Act an application for registration for a new location must be made in an approved form. One of the questions on that form is: “What arrangements have you made to ensure the premises, facilities, resources, equipment and materials and managed by your organisation or an approved partner organisation (including work placement where this is an essential part of the course) are sufficient for the proposed change in your student capacity?”
The same form also advises that the Respondent will assess the application in accordance with the Risk Assessment Framework and it [ASQA] may conduct a site visit as well as requiring evidence of lease and occupancy arrangements. In applying a risk management approach it would be relevant to consider the nature of the facility for which approval is sought. This may include the issue of safety in relation to the students, the health of the students arising from the cleanliness of the premises, the capacity of the premises to provide proper facilities for the number of students involved as well as various other matters. The ESOS Act in section 10B(3) empowers the Respondent to impose a condition in respect of a particular location. That can only occur if the location from which courses are being delivered is known to and approved by the Respondent.
At Milton and at Pitt Street the practical aspects of dental training are provided.
Ms Kee gave evidence that the Applicant uses facilities offsite to deliver discrete practical components of courses that can’t be delivered at the registered locations and that it uses or used the Pitt Street premises and the Milton premises to carry out practical training. By way of illustration it says its dental students are required to construct moulds, and models, check impressions to ensure they meet the specification of a work order, handle impressions with care to avoid damage or distortion, prepare impressions for pouring and ensure that equipment used for mixing materials is clean at non registered premises. The Applicant uses a specialised laboratory at Homebush from which it delivers practical training.
I am satisfied that the ESOS Act requires approval of the location in which the course or part of a course is being offered. The course includes the practical training and is not confined to the principal site of delivery of the course.
The failure of the Applicant to obtain the requisite approvals under the ESOS Act constitutes further evidence of its non-compliance with the many obligations imposed on it by the relevant legislative scheme.
Failure to implement Brighton assurances
Many of the issues of non-compliance by AIBTI in these proceedings were also issues of non-compliance in the Brighton proceedings. At the conclusion of the Brighton proceedings in July 2019, a number of assurances were given by Brighton including:[48]
·subjecting staff to a performance excellence framework and KPIs;
·creating a National Compliance Manager role and actively recruiting an experienced candidate to fill that role;
·implementing a revised reporting structure where Lead Trainers would work with the schools’ Compliance Officers, and Compliance Officers meeting weekly with the National Compliance Manager; and
·recruiting Campus Managers for Sydney and Brisbane.
[48] Exhibit 8, Applicant’s Tribunal Benchbook, Kee affidavit of 31 January 2020, page 634.21 at [92].
The Applicant’s evidence is that a National Campus Manager has been appointed for Brighton and AIBTI and is responsible for managing all of Brighton and AIBTI’s campuses.[49] Arguably this falls short of an assurance in recruiting a Campus Manager for Sydney and Brisbane. Further, Ms Kee in her affidavit of 30 January 2020 outlines that “Brighton is still in the process of subjecting staff (apart from Heads of School) to a performance excellence framework and KPIS focused on compliance”.[50] Given that AIBTI and Brighton have a shared resources agreement, including staff, the Tribunal would have expected evidence to have been filed as to what that performance excellence framework looks like.
[49] Exhibit 8, Applicant’s Tribunal Benchbook, Kee affidavit of 31 January 2020, page 634.22 at [98].
[50] Exhibit 8, Applicant’s Tribunal Benchbook, Kee affidavit of 31 January 2020, page 634.22 at [99].

Additionally, the Tribunal notes a Head of Quality Assurance has been appointed, in place of a National Compliance Manager with that appointment taking place in late 2019. That person holds a PhD in Accounting from an Australian University and has specialised their academic studies and research in corporate governance, and holds a Certificate IV in Training and Assessment. The Tribunal notes this role is subject to the supervision of Ms Kee.[51] The Tribunal also notes that the person appointed to this role has been employed with the AIBTGlobal since March 2018 as the Faculty Heads of Accounts and Management[52] and therefore would perhaps be well aware of the non-compliance issues faced by both Brighton and AIBTI.
[51] Exhibit 8, Applicant’s Tribunal Benchbook, Kee affidavit of 31 January 2020, page 634.22 at [94]; Transcript 14.02.2020, page 74.
[52] Exhibit 8, Applicant’s Tribunal Benchbook, Kee affidavit of 31 January 2020, Exhibit FK-130, page 634.450.
Overall, the Tribunal is of the opinion that despite the assertions made in the Brighton proceedings sufficient action has not been taken to address these same non-compliances in AIBTI.
Cooperation with the regulator
Section 27 of the NVR Act provides:
Condition-cooperation
An NVR registered training organisation must cooperate with the National VET Regulator at least to the extent that:
(a) it is necessary for the Regulator to perform its functions; or
(b) it is necessary to facilitate the Regulators performance of its functions.
Standard 8 of the Standards provides that to be compliant with the Standard, the RTO must cooperate with the VET regulator in the conduct of audits and the monitoring of its operations. The Respondent asserts that the Applicant has failed to comply with this Standard.
On 14 November 2019, Ms Thompson attended at the Blacktown premises of the Applicant. She asked to speak to Ms Kee and when informed Ms Kee was in Brisbane,

Ms Thompson asked to speak to the person in charge. Ms Thompson was able to speak to Ms Kee on the phone. She explained that the purpose of her visit was a compliance monitoring visit and to inspect classrooms and to ask for documents such as timetables and student files. Ms Kee advised that she did not have access to a computer and wanted others to join the meeting and the call ended. A short time later Ms Kee rang back and advised that Mr Frieberg and two of her staff were on the phone with her. Ms Thompson then advised that she would turn on her voice recorder so that she could record the meeting to explain the purpose of the visit, the legislation and what she would be doing on that day.
Mr Frieberg asked for an explanation prior to turning on the recorder. She explained that she was an Authorised Officer and that the purpose of the visit was an unannounced compliance monitoring visit under section 130 of the ESOS Act. Section 130(2) requires consent to enter the premises. Mr Frieberg said, “You have already entered the premises without consent”. She replied, “[w]e entered the reception area and waited there until we were invited into a meeting room. We have not commenced the compliance monitoring activity. We are here in this room to obtain consent to conduct the compliance monitoring activity”.
Ms Thompson says, and I accept, that she did not have an opportunity to go through the monitoring powers of authorised officers under section 131 of the ESOS Act and explain which of those powers she was going to use on the visit and which of them she was not planning to use. Mr Frieberg said that he was going to seek legal advice and that a response would be provided within an hour. Just under two hours later she received a letter from MinterEllison by email advising that consent to the compliance monitoring visit on that day was refused. There is no issue that the Applicant was within its rights to do that. However it is indicative of an attitude of the Applicant towards the Respondent. I can see no reason whatsoever as to why Ms Thompson should not have been allowed to explain what she intended to do on that day and whether or not that could be accommodated. She could for example, have inspected classrooms and ascertained the state of the classroom and the extent of student attendance. To keep her waiting for two hours was discourteous.
On 15 November 2019, the Respondent issued a notice under section 26 of the NVR Act requiring the Applicant to provide within two business days its current timetables for all classes conducted at all delivery sites showing: term dates; delivery site addresses; the period for which the timetable is a valid including breaks; days of the week; times of each session; qualification name and code and cohort group name; room name and /or number; as well as current class rolls for all classes conducted at delivery sites.[53] Ms Thompson says, and I accept, that such information was critical to the day-to-day running of an RTO and approved CRICOS provider. The information was not provided within the time allowed. An extension was given. But even then the details provided were according to Ms Thompson deficient in a number of respects.
[53] Exhibit 6, Supplementary T Documents, ST20, vol. 1, pages 5185-5190.
On 20 November 2019, Ms Thompson obtained a compliance monitoring warrant under section 85 of the NVR Act for the Blacktown site. She attended that site the following day at 9:45AM and spoke to Mr Xu, Student Support Manager, with Ms Kee on the phone. She then agreed to wait until other relevant staff could be joined into a phone call. At 10:22AM with relevant staff joining on the phone she read the warrant out. She was advised that the Heads of Schools work from the head office in Brisbane and that they each do things differently and that she would need to talk to each of them for an explanation of the student management systems and how to access files and information. Mr Frieberg declined to allow her to talk to any of the Heads of School that day to obtain the information that she requested and insisted that this was outside the terms of the warrant. She was not given access to the computers or the information on the computers at the Blacktown site and the reason given for this was that there was no one on site who could access the Applicants computer systems. Whether Mr Frieberg was legally correct or incorrect does not matter. The events of this day give one little confidence in the organisation of the Applicant or in its willingness to cooperate with the Respondent. The impression created by this behaviour was confirmed when one listens, as I did, to the recording of the closing of the meeting at 12:24PM on that day. During that closure meeting Mr Frieberg prevented others who were on the phone from answering clarifying questions that she asked and was generally hostile.
During the meeting Mr Xu clarified that: no student administration files; student progress and warning documentation; student assessment of files; or student work placement documents for the students who were enrolled at the Blacktown site were accessible to anyone present at the Blacktown premises. Mr Xu is the Student Support Manager and his role involves enrolling students. It is odd that he doesn’t have access to these records. It was also suggested that before the records could be provided in relation to students they would have to be verified and reconciled by Mr Xu. This is also odd given that the records should be up to date and accurate at any point in time.
I am satisfied that the Applicant did not cooperate with the Respondent to the extent necessary to enable the Respondent to perform its functions. The Applicant’s attitude was uncooperative and hostile.
Compliance Reports
There are various areas of non-compliance identified in the audit reports. Many of them relate to minor matters. While no one individual matter may result in a serious finding adverse to the Applicant, the cumulative effect of such non-compliances may do so. The Tribunal must look at the seriousness of non-compliance and any steps taken by the organisation to rectify non-compliances when they are identified. Actions taken by the Tribunal are not intended to be by way of punishment. The function of the Tribunal is to attempt to ensure the integrity of the education system, to maintain high standards so that the community knows that when a person successfully completes a course, that person has the requisite skills that one would expect from that particular course wherever it might be offered in this country.
The Tribunal has some difficulty in accepting that the Applicant did not know what was expected of them in complying with the legislative framework. As already outlined, the Applicant’s sister organisation (Brighton) was the subject of ASQA audits and a tribunal merits review process. The audits in Brighton commenced in May 2018, some five months before the audits commenced in AIBTI. Brighton also received the tribunal’s decision in September 2019. It is difficult to understand why, when the Applicant could reasonably foresee that it may have been at risk of having its registration cancelled (or sanctioned in some other way), that once the outcome of its sister organisation was known, it would not have taken immediate steps to self-audit and/or rectify the similar issues to demonstrate to the regulator it was in fact compliant with the legislative framework.
Alleged breach of Stay Order
The Applicant applied for a stay order in respect of the decision the subject of this hearing. On 27 September 2019, MinterEllison, on behalf of the Applicant, sent an email to the Respondent containing the following paragraph:
“In order to avoid the parties incurring the costs of preparing for the hearing next Friday, and potentially unnecessary use of the tribunal’s time and resources, I am instructed to make an offer on behalf of AIBT-I to a consent order, on the basis that the Tribunal would order a stay conditional on AIBT-I not enrolling or commencing any new students before 2 March 2020….”
On 30 September 2019, the Tribunal made an order, by consent of the parties, in the following terms:
2.…the Applicant will, until 5PM on 2 March 2020, or until further order of the Tribunal:
a.    not enrol any new students before 2 March 2020;
b.    not commence any new students before 2 March 2020;
c.     not demand payment from any student already enrolled, but yet to commence his or her first course with the Applicant (subject students); and
d. not withdraw from the protected account any amounts paid by subject students (being the account of the Applicant maintained pursuant to section 28 of the ESOS Act).
On 3 October 2019, the Respondent emailed MinterEllison referring to the stay order to clarify the meaning of the term “enrol”.
On 3 October 2019, Minter Ellison emailed a reply
“Further to your discussion with Tom earlier today, in respect of [2] of your email below, we understand that ASQA interprets the reference to ‘new students’ in paragraph 2(a) of the Stay Order as students that are not yet enrolled in a particular AIBT-I course. We confirm that AIBT-I agrees with that interpretation. The consequence of that order is that an existing student of AIBT-I (e.g. enrolled in…) could not be enrolled in a new course with AIBT-I (….) from 30 September 2019 until further order of the Tribunal.”
These emails indicate that the meaning of the word “enrol” was foremost in the minds of the lawyers. One might say that the email of 3 October 2019 broadened the scope of the order but that is irrelevant for present purposes. What is important is that the meaning of the order was being discussed between the representatives of the parties. Nor is there any suggestion that the solicitors for the Applicant were acting without instructions.
Later that day Ms Kee convened a Commercial Team Meeting. The minutes of that meeting contain the following note:
“Stay AIBT-I
First condition: AIBT-I current students cannot commence new qualifications within AIBT-I
Second condition: We can continue to issue CoE to new students, but they cannot commence until 2 March 2020.”
Various arguments arose between the parties and on 24 October 2019, the Respondent applied to the Tribunal to make varied stay orders. So far as is relevant it sought the following:
“from 30 September 2019 not enrol or commence any student in a course or a part of a course under the Education Services for Overseas Students Act 2000 or under the National Vocational Education and Training Regulator Act 2011. For the avoidance of doubt, students who are enrolled in, and have commenced a course (or a part of a course) with the Applicant on a date prior to the date of this order may continue to completion of that specific course only. However, such students may not enrol in any new or further course or commence any new or further course;…”
In affidavit material filed by Ms Kee in the interlocutory hearing on 18 November 2019, she admits to accepting enrolments for 92 new students. She said that she believed that doing so was permitted by the stay order. At the hearing, the Respondent asserted that the Applicant: breached clause (a) of the Stay Order 92 times averaging 15 breaches per week for six weeks; not establishing compliance with clause 2(a) in respect of 256 other apparent breaches; and breached clause 2(b) 38 times (emphasis added). Throughout the course of the hearing, Ms Kee continually asserted that she now understood that she “misinterpreted this order”.
One would have thought that the terms of paragraph 2(a) of the September Stay Order were perfectly clear. It required the Applicant to not enrol any new students. What was not clear was whether or not an existing student could enrol in a new course. That was resolved by emails between the solicitors on 3 October 2019. Ms Kee was represented by experienced solicitors and consented to something that was clear. Furthermore, she must have given instructions in relation to the interpretation of the order in respect of the correspondence between the solicitors on 3 October 2019.
She admits now her error in interpretation. She submits that her conduct should be considered in the light of Tribunal Orders made on 18 April 2019 in the Brighton proceedings. The Brighton stay order prohibited Brighton from commencing new students but permitted it to enrol new students to commence after a specified date. She says that she erroneously assumed that this order was to similar effect. She says that she made an honest mistake about the meaning of the September Stay Order. I note in passing that her discussion with her staff which I have set out above certainly evidences a misunderstanding of the tribunal’s order. She did act in accordance with what she understood to be the meaning of the Stay Orders.
She says that she did not realise her error until she received the affidavit of the Respondent dated 15 November 2019.
Ms Kee is a major shareholder of the Applicant, its Chief Executive Officer and its Head of Strategy and Compliance. The Applicant employed an in-house lawyer (who is now retained as a consultant) as well as using the services of MinterEllison. In her evidence she says that the in-house lawyer/consultant, Mr Frieberg, would have seen the September Stay Order. She is not sure whether the order was given to her first or to

Mr Frieberg. Bearing in mind that a finding that she deliberately flouted an order of the tribunal is a very serious matter, I decline to accept the Respondent’s submission that it is clearly established that she acted dishonestly. I am, however, satisfied that her failure to comply with a very simple order, which has been very carefully worked out by her solicitors shows a cavalier disregard for the responsibilities that she bears, given her role in the organisation.
Having realised her misinterpretation of the September Stay Order, Ms Kee did nothing to correct the effect of her error for a further 19 days. She said that she wanted to wait until this Tribunal made a further order. She should not have done so. Having been in breach of the obvious terms of an order of the Tribunal she should have taken steps immediately to correct her mistake. The effect of failing to correct her error was to leave students believing that they were enrolled in their particular courses lawfully. This indicates a disregard for the rules that are designed to protect the integrity of the system.
CONCLUSION
During the course of the hearing the parties produced thousands of documents. A great deal of documentation related to various compliance reports conducted by the Respondent. It should be noted that five compliance reports were tendered together with the Applicant’s responses in detail to each of them. A great many, if not most, of the concerns expressed in the Respondent’s reports were addressed and rectified and acknowledged as such by the Respondent. However the legislation requires education providers under the respective acts to monitor their own compliance with the applicable standards, legislation, regulations, and policies. The Respondent should not have to spend vast resources in monitoring an organisation’s performance when it should be doing that itself.
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 Applicants 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.
DECISION
Accordingly, each of the decisions of the Respondent is affirmed in that:
(a)the Applicant’s registration under the NVR Act is cancelled;
(b)the Applicant’s registration for all courses at all locations under the ESOS Act is cancelled;
(c)the applications to change the scope of its registration under the NVR Act are rejected; and
(d)the application change its CRICOS registration under the ESOS Act is rejected.
In making this decision, the Tribunal must have regard to the varied stay order of

2 December 2019 which currently remains in effect. The varied stay order has no expiration date and therefore, technically, my decision to affirm the decisions under review comes into operation at the end of 28 days from the date of this decision.[54] I am cognisant of the fact that both staff, and more importantly, currently enrolled students of AIBTI will be affected by this decision. Therefore, I decide that my decision will take effect from 26 June 2020,[55] at which point the stay order of 2 December 2019 will expire.
[54] AAT Act ss 41A(6)(b)(ii), 43(5C).
[55] AAT Act s 43(5B).

I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger AM QC

......................[Sgd]......................................
Associate
Dated: 7 April 2020

Dates of hearing:

13 to 14, 17 to 21, and 27 February 2020 and
3 March 2020

Date final submissions received:

16 March 2020

Counsel for the Applicant:

Mr S McLeod QC; Mr A O'Brien

Advocate for the Applicant:

Mr T Fletcher; Ms K Jones

Solicitors for the Applicant:

MinterEllison

Counsel for the Respondent:

Ms S Wright; Ms S Noble

Advocate for the Respondent:

Ms J Pellow

Solicitors for the Respondent:

Australian Skills Quality Authority

Standard 1	The RTO’s training and assessment strategies and practices are responsive to industry and learner needs and meet the requirements of training packages and VET accredited courses.
Standard 2	The operations of the RTO are quality assured.
Standard 3	The RTO issues, maintains and accepts AQF certification documentation in accordance with these Standards and provides access to learner records.
Standard 4	Accurate and accessible information about an RTO, its services and performance is available to inform prospective and current learners and clients.
Standard 5	Each learner is properly informed and protected.
Standard 6	Complaints and appeals are recorded, acknowledged and dealt with fairly, efficiently and effectively.
Standard 7	The RTO has effective governance and administration arrangements in place.
Standard 8	The RTO cooperates with the VET Regulator and is legally compliant at all times.

Dates of hearing:	13 to 14, 17 to 21, and 27 February 2020 and 3 March 2020
Date final submissions received:	16 March 2020
Counsel for the Applicant:	Mr S McLeod QC; Mr A O'Brien
Advocate for the Applicant:	Mr T Fletcher; Ms K Jones
Solicitors for the Applicant:	MinterEllison
Counsel for the Respondent:	Ms S Wright; Ms S Noble
Advocate for the Respondent:	Ms J Pellow
Solicitors for the Respondent:	Australian Skills Quality Authority