Australian Academy of Commerce Pty Ltd and Australian Skills Quality Authority
[2020] AATA 3755
•25 September 2020
Australian Academy of Commerce Pty Ltd and Australian Skills Quality Authority [2020] AATA 3755 (25 September 2020)
Division:GENERAL DIVISION
File Number(s): 2020/4170; 2020/4174; 2020/4204; 2020/4205; 2020/4206
Re:Australian Academy of Commerce Pty Ltd
APPLICANT
AndAustralian Skills Quality Authority
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:25 September 2020
Place:Sydney
Pursuant to subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal orders that:
1the implementation of the following decisions are stayed until the decisions of the Tribunal on the applications for review come into operation or until further order of the Tribunal:
(a)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to affirm the reviewable decision dated 11 February 2020 to cancel, under subsections 36(2)(f) and 39 of the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act), the Applicant’s registration with effect 35 calendar days after the date the Applicant was given written notice of the decision;
(b)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to affirm the reviewable decision dated 11 February 2020 to reject the Applicant’s application to renew its registration under the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act);
(c)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to affirm the reviewable decision dated 11 February 2020 to reject, under section 17 of the NVR Act, the Applicant’s application for renewal of its registration;
(d)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to affirm the reviewable decision dated 11 February 2020 not to add, under section 10J of the ESOS Act, certain VET and ELICOS courses to the Applicant’s registration at its Elizabeth Street address (being Level 7, 140 Elizabeth Street, Sydney NSW 2000);
(e)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to vary the reviewable decision dated 11 February 2020 to cancel the Applicant’s registration under subsection 83(3)(c) of the ESOS Act for all VET and ELICOS courses at all locations to:
(i) cancel the Applicant’s registration under section 83(3)(c) of the ESOS Act for all VET courses at all locations.
2The stay order is subject to the following conditions:
(a)the Applicant must not enrol any students in VET courses;
(b)the Applicant (by its officers, employees, agents, contractors or other representatives, or by any other person or organisation acting on behalf of the Applicant) must not market, promote or advertise its VET courses in Australia or overseas; and
(c)the Applicant must not issue any VET Confirmation of Enrolment.
...............................[sgd]...............................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application to stay decisions of ASQA – decision to cancel NVR Act registration – decision to reject renewal of CRICOS registration – decision to reject renewal of NVR Act registration – decision not to add certain VET and ELICOS courses to CRICOS registration – decision to cancel CRICOS registration for all VET courses at all locations – opinion on desirability of stay for the purpose of securing the effectiveness of the hearing and determination of the application for review – whether review would be rendered nugatory – interests of any persons who may be effected by the review – stay granted, subject to conditions
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 41
Education Services for Overseas Students Act 2000 (Cth)
ELICOS Standards 2018
National Code of Practice for Providers of Education and Training to Overseas Students 2018
National Vocational Education and Training Regulator Act 2011 (Cth) s 2A
Standards for Registered Training Organisations 2015
CASES
Birdseye v Tax Practitioners Board [2020] FCA 1235
Galaxy Day Care Pty Ltd and Secretary, Department of Education and Training [2018] AATA 4675
Institute of Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 4127
Shi v Migration Agents Registration Authority [2008] HCA 31
Trades College Australia Pty Ltd and Australian Skills Quality Authority [2020] AATA 812
REASONS FOR DECISION
Chris Puplick AM, Senior Member
25 September 2020
THE REGULATORY FRAMEWORK
The Australian Academy of Commerce Pty Ltd (Applicant) is a registered training organisation (RTO) and a CRICOS[1] provider, providing educational services to students. It is registered and operates under the provisions of both the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) and the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act).
[1] Commonwealth Register of Institutions and Courses for Overseas Students.
The Australian Skills Quality Authority (ASQA; Respondent) is the statutory regulator appointed under the NVR Act to supervise and regulate the activities of RTOs and also, in this case, the ESOS agency appointed under the ESOS Act to monitor and assess compliance by CRICOS providers.
One of the statutory requirements for RTOs under the NVR Act is that they are, at all times, compliant with the Standards for Registered Training Organisations 2015 (NVR Standards). CRICOS providers are also to be compliant with the standards in the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (ESOS Standards) and for some providers also the ELICOS[2] Standards 2018 (ELICOS Standards). It is the role of ASQA to monitor and assess their compliance with these Standards.
[2] English Language Intensive Courses for Overseas Students.
If ASQA finds that an RTO or CRICOS provider is in breach of any of the Standards, the general practice (except in exceptional circumstances) is to notify the RTO or CRICOS provider of its findings and to seek its response thereto. When an RTO or CRICOS provider responds to such notification it may supply ASQA with such material as is required or as it sees appropriate. ASQA then undertakes a review of the evidence so presented.
After completion of such an evidence review ASQA may proceed to do a number of things which range from accepting that the RTO or CRICOS provider has met its concerns in relation to compliance and hence no further action is required on its part, through to making a decision to impose conditions on the further operation of the organisation or finally, in the extreme, it may cancel the organisation’s registration as an RTO or as a CRICOS provider. The organisation may then apply for reconsideration by ASQA and then review by the Tribunal.
HISTORY OF DECISIONS
On 21 March 2019 ASQA made a decision to issue a notice of intent to cancel the Applicant’s NVR and CRICOS registrations and it informed the Applicant of this decision on 22 March 2019.[3] The Applicant responded to this notice by submitting information on 8 April 2019. ASQA then requested further information from the Applicant on 7 June 2019 and this was provided on 21 June 2019.
[3] The content of this decision is not in evidence before the Tribunal for the stay proceeding.
After consideration of this material ASQA sent the Applicant a Sanction Evidence Review report and a notice of non-compliance on 1 October 2019, and invited the Applicant to respond by 30 October 2019. The Applicant responded on 30 October 2019.
ASQA again reviewed the material before it and on 11 February 2020 the Commissioner, Regulatory Operations made a series of decisions, one of which was to cancel the Applicant’s NVR registration.
The Applicant was notified of the Commissioner, Regulatory Operations’ decisions on 17 February 2020 and it then sought reconsideration of those decisions by ASQA on 27 March 2020.
A review of the Applicant’s operations was carried out over a number of dates in April and May 2020, and an Evidence Review report created on 21 May 2020.
On 3 June 2020 the Chief Commissioner also made a series of decisions, one of which was to affirm the original decision of 11 February 2020 to cancel the Applicant’s NVR registration (NVR cancellation decision). The Applicant was notified on 15 June 2020 that its NVR registration would cease as from 20 July 2020.
On 10 July 2020 the Applicant applied to this Tribunal for a review of ASQA’s series of decisions and at the same time applied for an order to stay the operation of the NVR cancellation decision. On 20 July 2020, by consent of the parties,[4] Deputy President Constance granted an interim stay order “until the decision of the Tribunal on the stay application or until further order of the Tribunal” over all the reviewable decisions before it.
[4] Applicant’s submissions in support of stay application dated 14 September 2020 (Applicant’s stay submissions) at [5].
The full text of the interim stay order provides:
Pursuant to subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal ORDERS that:
1the implementation of the following decisions are stayed until the decision of the Tribunal on the stay application or until further order of the Tribunal:
(a)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to affirm the reviewable decision dated 11 February 2020 to cancel, under subsections 36(2)(f) and 39 of the National Vocational Education and Training Regulator Act 2011 (Cth), the Applicant’s registration with effect 35 calendar days after the date the Applicant was given written notice of the decision;
(b)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to affirm the reviewable decision dated 11 February 2020 to reject the Applicant’s application to renew its registration under the Education Services for Overseas Students Act 2000 (Cth);
(c)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to affirm the reviewable decision dated 11 February 2020 to reject, under section 17 of the National Vocational Education and Training Regulator Act 2011 (Cth), the Applicant’s application for renewal of its registration;
(d)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to affirm the reviewable decision dated 11 February 2020 not to add, under section 10J of the Education Services for Overseas Students Act 2000 (Cth), certain VET and ELICOS courses to the Applicant’s registration at it’s Elizabeth Street address (being Level 7, 140 Elizabeth Street, Sydney NSW 2000);
(e)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to vary the reviewable decision dated 11 February 2020 to cancel the Applicant’s registration under subsection 83(3)(c) of the Education Services for Overseas Students Act 2000 (Cth) for all VET and ELICOS courses at all locations to:
(i) cancel the Applicant’s registration under section 83(3)(c) of the Education Services for Overseas Students Act 2000 (Cth) for all VET courses at all locations.
NOTES
1The Tribunal notes that:
(a)the interim stay order in paragraph 1(e) does not affect approved ELICOS courses conducted by the Applicant at the approved location; and
(b)pursuant to subsection 41(6) of the Administrative Appeals Tribunal Act 1975 (Cth), while the stay order is in effect, the Applicant shall be subject to the following conditions:
(i) that the Applicant must not enrol any students in VET courses;
(ii) that the Applicant (by its officers, employees, agents, contractors or other representatives, or by any other person or organisation acting on behalf of the Applicant) must not market, promote or advertise its VET courses in Australia or overseas; and
(iii) that the Applicant must not issue any VET Confirmation of Enrolment.
At the same time, by consent of the parties, Deputy President Constance also made directions for the filing of material for the stay proceeding as follows:
By consent, the Tribunal DIRECTS that:
…
3on or before 31 July 2020, the Applicant must file with the Tribunal and serve on the Respondent any material it wishes to rely on in support of its stay application;
4on or before 14 August 2020, the Respondent must file with the Tribunal and serve on the Applicant any material it wishes to rely on;
5on or before 21 August 2020, the Applicant must file any further material it wishes to rely on in support of its stay application;
…
The stay application was heard by this Tribunal on 15 September 2020 at which stage the Applicant sought “a continuation of the stay but without the stipulated conditions”.[5]
[5] Applicant’s stay submissions at [6].
NATURE OF STAY APPLICATION
Whilst the Applicant seeks a stay over all of the reviewable decisions currently before the Tribunal, the Applicant has stated that the “critical decision challenged by the Applicant is the decision cancelling its registration as a Registered Training Organisation (RTO) under s 39 of the National Vocational Education and Training Regulator Act 2001 (the NVR Act), which was affirmed pursuant to s 201(1) of the NVR Act” (that is, the NVR cancellation decision) and that it is this decision that is “the focus of the Applicant’s stay application”.[6]
[6] Ibid [2].
The NVR cancellation decision appears to be relevant, if not critical, to ASQA’s decisions in the other applications for review before the Tribunal. Therefore, the Tribunal also considers it appropriate to assess the Applicant’s stay application over all the reviewable decisions before it by focusing on the NVR cancellation decision.
The interlocutory hearing for the stay application also proceeded on their basis.
LEGISLATIVE PROVISIONS – STAY ORDERS
Section 41 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) governs the application for, and the making and variation of, stay orders and the imposition of conditions related to such orders.
41 Operation and implementation of a decision that is subject to review
…
(2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
…
(6) An order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)):
(a) is subject to such conditions as are specified in the order; and
(b) has effect until:
(i) where a period for the operation of the order is specified in the order – the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or
(ii) if no period is so specified – the decision of the Tribunal on the application for review comes into operation.
There are four crucial elements in subsection 41(2) which need to be satisfied prior to the granting of a stay order:
(a)The Tribunal must form an “opinion” which, logically, it can do only if there is sufficient evidence before it to allow this to be done;
(b)The Tribunal must determine whether it is “desirable” to grant a stay order;
(c)The basis for making a finding that it is “desirable” to grant a stay order must be “for the purpose of securing the effectiveness of the hearing and determination of the application for review”; and
(d)The Tribunal must make its decision “after taking into account the interests of any persons who may be affected by the review”.
AUTHORITIES
The courts have given extensive consideration to the matters which the Tribunal should take into account when dealing with stay applications. However, the Federal Court has made it clear that the Tribunal must not adopt some sort of checklist approach to its decision-making process.[7]
[7] Birdseye v Tax Practitioners Board [2020] FCA 1235, [20] per Logan J.
In Birdseye, Logan J explained:
… Nonetheless, it may be accepted that an applicant for a stay is in no way required to demonstrate that he, she, or it, as the case may be, must succeed upon a review on the merits of the decision. At most, all that one must show is that there is a basis in the material before the Tribunal for forming the opinion that it is “desirable”, in order to preserve the effectiveness of the review, to grant a stay. As to that, to use the term “onus” would be inapt, having regard to the very nature of the administrative review conducted by the Tribunal. That would be to adopt language from a different discourse, namely, that of an exercise of judicial power.
Nonetheless, it is, obviously, in the interests of an applicant to be able to point to something in the material before the Tribunal which engenders the requisite opinion as to desirability. That might be found in what was already before the primary decision maker whose decision is under review. It might be found not in factual material before that decision maker, but rather, in the approach to the construction of the statute empowering the making of the decision concerned. Thus, it may be that there is, even aside from any factual controversy, an arguable proposition of law. It may be each of those. The foundation may also be in additional material which was not before the primary decision maker but has been introduced, or at least can be shown to be reasonably in prospect of being introduced, having regard to the particular stage of the proceedings.
It, truly, is neither necessary, nor desirable, to set metes and bounds as to what may engender appropriately the requisite desirability opinion other than to observe that, as with any administrative decision, there must be some material before the Tribunal which is reasonably capable of engendering the requisite opinion.[8]
[8] Birdseye v Tax Practitioners Board [2020] FCA 1235, [23]-[25]. Citations omitted.
His Honour made it clear that what is required for a stay to be granted is that the Applicant demonstrate that there is some basis in the material before the Tribunal which would lead it (the Tribunal) to form an informed opinion that it is desirable, in order to preserve the effectiveness of the review process, that such a stay be granted.
This Tribunal has also made it clear that, in terms of ASQA’s position:
We have concluded that in future cases where there is a contest about non-compliances, ASQA must start and do so without the assumption that its allegations of non-compliance are prima facie correct.[9]
[9] Trades College Australia Pty Ltd and Australian Skills Quality Authority [2020] AATA 812, [13].
Nevertheless, in Galaxy Day Care, I said:
Regulatory bodies are established, in part, to ensure that the public interest is protected in the areas of their competence and the Tribunal should be cautious about taking steps which may derogate from the protection of that public interest by failing to give due regard (although not unqualified deference) to their assessments in such matters. As the Tribunal said in Metro College “The regulatory regime assumes there is a public interest in ensuring these programs are properly run according to recognized standards.”[10]
[10] Galaxy Day Care Pty Ltd and Secretary, Department of Education and Training [2018] AATA 4675, [43].
To quote again from this Tribunal’s own previous decision in Institute of Training:
It is important to note that the Administrative Appeals Tribunal, apart from exercising jurisdiction under the relevant provisions of specific statutes, and not having a general jurisdiction across all Commonwealth administrative decisions, is part of an administrative law system which should be conducted by reference to the “standards of good government”. It is an:
“instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government”.
“Good government” includes both the protection of the public interest and protecting the integrity of the national vocational education system.[11]
[11] Institute of Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 4127, [70]-[71].
EVIDENCE BEFORE THE TRIBUNAL
The Applicant provided the Tribunal with certain material in support of its stay application. This included, inter alia:
(a)A statutory declaration of Christopher Stephens of Phoenix Compliance Management Pty Ltd (with attachments) outlining details of a review which he had been commissioned by the Applicant to undertake following ASQA’s adverse findings. Mr Stephens comments upon the steps undertaken by the Applicant in response to ASQA’s decisions regarding its non-compliance. It was conceded by ASQA that Mr Stephens appeared, prima facie, qualified to undertake such a review.
(b)A statutory declaration of Shahjadi Sharmin (with attachments), as Principal Executive Officer of the Applicant, relating to alleged remediation steps taken by the Applicant to achieve compliance with the NVR Standards, and relating to correspondence between the Applicant and various students or ex-students;
(c)A statutory declaration of Savvas Papandony (with attachments), an employee of the Applicant, relating to a teacher who previously worked for the Applicant;
(d)A statutory declaration of Vincens Gronau (with attachments), a student of the Applicant, relating to issues of his enrolment and the potential impact on him upon cancellation of the Applicant’s NVR registration;
(e)A statutory declaration of Zi Wei Zhu (with attachments) in similar terms to that of Mr Gronau, accompanied by a statutory declaration of Ana Zhao who had interpreted Ms Zhu’s statutory declaration into Mandarin before she (Ms Zhu) signed it;
(f)A two-page statutory declaration of Ming Yu, the Finance Manager of the Applicant, attesting to certain financial matters relevant to the Applicant.
In addition, the Tribunal had the benefit of a written submission from the Applicant’s Counsel.
The Tribunal also has before it from the Respondent, inter alia, the Evidence Review report created on 21 May 2020 and copies of all the relevant decisions.
CONSIDERATIONS
It is, of course, not the role of the Tribunal to conduct a “mini trial” of the review application itself. Indeed, it is expressly not the Tribunal’s function at this stage to predetermine what might be the outcome of the substantive merits-hearing.
Nevertheless, as the Court stated in Birdseye:
The Tribunal stated, at [30], and having regard to Poidevin, that:
30 ... I do not conduct a “mini trial” but it is incumbent on the Applicants to establish the existence of facts or the possibility of legal error that may lead to a different result.
I see no error of law in that formulation, providing one bears in mind that there is no formal onus. It is just that it is for an applicant to make out a case and so doing requires at least some material, in fact, or in legal proposition, reasonably to admit the Tribunal of the formation of an opinion as to desirability of the granting of a stay.[12]
[12] Birdseye v Tax Practitioners Board [2020] FCA 1235, [30].
The Tribunal must arrive at its opinion on the basis of the material before it at the time of its stay hearing, some of which obviously was not before the original decision-maker at the time when the reviewable decision was made.[13]
[13] Shi v Migration Agents Registration Authority [2008] HCA 31, [37] per Kirby J.
The Tribunal has taken note of the Applicant’s advice that it currently has approximately 540 international students enrolled in its courses and some 28 employees. The students and employees are clearly persons whose interests may be affected by the review as contemplated by subsection 41(2) of the AAT Act. The Tribunal accepts that, should a stay not be granted, the employees would likely be negatively affected. Contrary to that which was contended by the Respondent, if the Applicant’s NVR registration is cancelled and it is unable to operate, it is unlikely that the Applicant would continue to employ and continue to pay its staff.
The Tribunal has also noted the comments by at least two currently enrolled students including their desires to continue their studies with the Applicant, potential higher costs to enrol in other RTOs, and their beliefs that the Applicant is a good RTO. Despite what the students might personally believe about the Applicant, this is not necessarily indicative of compliance by the Applicant. For reasons advanced by ASQA, the statutory declaration of Ms Zhu raises problems for the Tribunal. The fact that the student undertook an English language course with the Applicant and then also enrolled in a course requiring a high level of English comprehension but still needed to have her statutory declaration interpreted to her before signature raises doubts as to whether her interests and those of students in a similar position, if any, would be protected by the grant of a stay. This is particularly worrying given the evidence review report indicates that the Respondent has found the Applicant to be non-compliant with numerous Standards including 7 non-compliances under the NVR Standards, 1 non-compliance under the ESOS Standards and 1 non-compliance under the ELICOS Standards. The Tribunal understands that ASQA has a duty, and acts, to protect students, the public interest and the integrity of the national vocational education system[14] by undertaking adverse actions against non-compliant RTOs. The Tribunal appreciates that should the result following the substantive hearing remain unchanged, then to grant a stay would not preserve the effectiveness of the review process in such case.
[14] National Vocational Education and Training Regulator Act 2011 (Cth) s 2A.
However, whilst not scrutinising the evidence of Mr Stephens’, Ms Sharmin and Mr Papandony to the degree required of a substantive hearing, it appears that the Applicant has taken a variety of actions to remedy its non-compliances. The Tribunal is therefore of the view that this may lead to a different result other than cancellation of the Applicant’s NVR registration. On this basis, the Tribunal is satisfied that, with regard to the evidence before it, the cancellation of the Applicant’s NVR registration would effectively “mean the end of the Applicant’s educational business” as contended by the Applicant,[15] and by not granting a stay of the NVR cancellation decision there is a real possibility that the review and any potential successful outcome for the Applicant may be rendered nugatory. The Tribunal is therefore of the opinion that it is desirable that a stay order be granted over the NVR cancellation decision (and consequently also the other reviewable decisions before the Tribunal) for the purpose of securing the effectiveness of the hearing and determination of the applications for review.
[15] Applicants stay submission at [17].
Based on the evidence before it, the Tribunal is, however, not satisfied that the grant of a stay order subject to the conditions as were included in the interim stay order would severely limit the usual educational operations of the Applicant and cause such irreparable financial loss as it has contended.[16] Ms Sharmin indicated in her statutory declaration that the Applicant had recently renewed the lease for its premises located in Ultimo and that should it be prevented from operating through cancellation of its NVR registration and prevented from enrolling new students into its VET courses, it would cause financial loss that cannot be remedied, including the potential need to compensate the lessor, presumably for ending the lease agreement early.[17] However, she has provided no corroborative evidence as to the likelihood that the lease agreement cannot be maintained and also the associated financial loss.
[16] Ibid [18]-[19].
[17] Statutory declaration of Shahjadi Subarna Sharmin dated 31 July 2020 at [6].
To supplement its assertions about the financial consequences of a conditional stay, in the late evening prior to the stay hearing, the Applicant filed the statutory declaration of Ming Yu, the Applicant’s Finance Manager. This statutory declaration was accompanied by no corroborative evidence for the assertions contained therein. The Tribunal notes that the Applicant has, however, had ample time and opportunity, per the Tribunal’s 20 July 2020 direction, to compile and file financial evidence in support of its contentions relating to the financial consequences of a conditional stay.
As a result, the Tribunal has been unable to test any of those assertions. This is important because the relevant corroborative evidence is within, and only within, the possession of the Applicant. In particular, whilst the Applicant asserts that the conditions on the interim stay order are the primary cause of its reduction in income, without corroborative evidence, the Tribunal is unable to determine the extent to which the contended reductions in income:
(a)have been caused by the Applicant’s inability to enrol new students into its VET courses, and/ or
(b)have resulted from existing students transferring out of the Applicant, and the Tribunal is also unable to determine the extent to which these resulting reductions in student numbers have been, and can be, compensated by the Applicant being provided with the ability to enrol new students in its VET courses, and/ or
(c)have resulted from existing students graduating, and the Tribunal is also unable to determine the extent to which the resulting reduction in student numbers have been, or can be, filled by new enrolments.
Furthermore, the Applicant has not provided details and corroborative evidence as to how the conditions preventing its enrolment of new students into its VET courses would cause irreparable financial loss and render the review nugatory.
The Tribunal is not satisfied that the Applicant’s position has so materially altered since Deputy President Constance issued the interim stay order with conditions such that those conditions should not be included in the stay order to be decided presently. It must also be recalled that these conditions were made by consent and the otherwise unsubstantiated claims in the Ming Yu statutory declaration, or the untested assertion of Ms Sharmin in relation to the Applicant’s financial position, are not, in the view of the Tribunal, sufficient to shift the calculus of competing claims in the Applicant’s favour.
In the absence of probative evidence about the Applicant’s financial position, its reserves, the financial consequences for its employees, the extent of the impact of COVID-19 restrictions on access to the Applicant’s services by overseas students, and any probative information about the impact of the stay conditions on current students, the Applicant has not demonstrated how the imposition of the stay conditions would be contrary to securing the effectiveness of the hearing and determination of the application for review. As such, the Tribunal prefers to give weight to the protection of the public interest in imposing the conditions and not unnecessarily, and detrimentally, exposing new students to non-compliant courses and teaching. If the Respondent is indeed correct about the Applicant’s multiple alleged non-compliances following its extensive analyses, there remains the real possibility that the cancellation decision may be affirmed or that the Applicant still be found to be non-compliant but given a lesser sanction.
Taking into account the interests of the Respondent as national regulator and the interests of the students which it seeks to protect, and given that the intended conditions have not been demonstrated to undermine the effectiveness of the review for the Applicant, the Tribunal is therefore of the opinion that it is desirable to subject the stay order to the conditions as included in the interim stay order. The Tribunal considers it desirable for the purpose of securing, or at least not undermining, the effectiveness of the hearing should the result remained unchanged and the Respondent obtain a successful outcome.
A CONDITIONAL STAY
Taking into account the matters addressed above and the reasons in the preceding paragraphs, the Tribunal considers the following order, made pursuant to subsection 41(2) of the AAT Act, is desirable and appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review:
(a)the implementation of the following decisions are stayed until the decisions of the Tribunal on the applications for review come into operation or until further order of the Tribunal:
(i)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to affirm the reviewable decision dated 11 February 2020 to cancel, under subsections 36(2)(f) and 39 of the NVR Act, the Applicant’s registration with effect 35 calendar days after the date the Applicant was given written notice of the decision;
(ii)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to affirm the reviewable decision dated 11 February 2020 to reject the Applicant’s application to renew its registration under the ESOS Act;
(iii)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to affirm the reviewable decision dated 11 February 2020 to reject, under section 17 of the NVR Act, the Applicant’s application for renewal of its registration;
(iv)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to affirm the reviewable decision dated 11 February 2020 not to add, under section 10J of the ESOS Act, certain VET and ELICOS courses to the Applicant’s registration at its Elizabeth Street address (being Level 7, 140 Elizabeth Street, Sydney NSW 2000);
(v)the Respondent’s decision dated 3 June 2020 (and notified in writing to the Applicant on 15 June 2020) to vary the reviewable decision dated 11 February 2020 to cancel the Applicant’s registration under subsection 83(3)(c) of the ESOS Act for all VET and ELICOS courses at all locations to:
1cancel the Applicant’s registration under section 83(3)(c) of the ESOS Act for all VET courses at all locations.
(b)The stay order is subject to the following conditions:
(i)the Applicant must not enrol any students in VET courses;
(ii)the Applicant (by its officers, employees, agents, contractors or other representatives, or by any other person or organisation acting on behalf of the Applicant) must not market, promote or advertise its VET courses in Australia or overseas; and
(iii)the Applicant must not issue any VET Confirmation of Enrolment.
The Tribunal notes, as was noted in the interim stay order, that the stay order in paragraph 43(a)(v) does not affect approved ELICOS courses conducted by the Applicant at the approved location.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..............................[sgd]..............................
Associate
Dated: 25 September 2020
Date(s) of hearing: 15 September 2020 Counsel for the Applicant: Ms K Nomchong Solicitors for the Applicant: Juris Cor Legal Solicitors for the Respondent: Mr D Cox, Australian Skills Quality Authority
1