Australian College of Vocational Studies Pty Ltd v Australian Skills Quality Authority (General) - [2018] AATA 1088

Australian College of Vocational Studies Pty Ltd and Australian Skills Quality Authority (General) [2018] AATA 1088 (20 March 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0693
Re:Australian College of Vocational Studies Pty Ltd
APPLICANT

Australian Skills Quality AuthorityAnd
RESPONDENT

File Number(s): 2018/0696
Re:Australian College of Vocational Studies Pty Ltd
APPLICANT

Minister for Education and TrainingAnd
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:20 March 2018
Place:Melbourne

Until the final determination by the Tribunal of applications for review numbered 2018/0693 and 2018/0696 (Applications) or as otherwise ordered by the Tribunal, this Tribunal orders:
1.a stay of the decisions of the Australian Skills Quality Authority (ASQA) on 25 January 2018 to cancel the Applicant’s registration as a training organisation under the National Vocational Education and Training Regulator Act 2011(Cth) (NVR Act) and as a registered provider under the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) (Stay Order); and
2.the Stay Order is subject to the following conditions (Stay Conditions):
(a)on and after the date of this order until the final determination of the Applications, 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:
i.request, receive or accept from any person an application form for enrolment or pre-enrolment; or
ii.request, receive or accept a deposit, instalment or any other payment; or
iii.enrol or pre-enrol any person;

in relation to enrolment or pre-enrolment into any of the Applicant’s courses (including without limitation its Certificate III and Certificate IV courses, Diplomas or Advanced Diplomas in business, tourism, human resources or hospitality), including on a deferred basis (namely, where the enrolment is accepted but the course is not scheduled to commence until some later point in time); and
(b)on and after the date of this order until the final determination of the Applications, the Applicant (by its officers, employees, agents, contractors or other representatives) must immediately cancel the enrolment or pre-enrolment of any person who has enrolled or pre-enrolled with the Applicant for any of its courses but who is not yet present in Australia (i.e. they are presently awaiting the issuance of a visa to enter Australia) or are present in Australia but have not yet commenced the Applicant’s course for which they are enrolled or pre-enrolled; and
(c)on and after the date of this order until the final determination of the Applications, 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 vocational training services or any of its courses in Australia or overseas; and on or before 5pm on 27 March 2018 the Applicant must take all reasonable steps necessary to ensure compliance with this condition, including, without limitation:
(i)contacting all of its agents, including education agents whether based in Australia or overseas to advise them to immediately cease any marketing, promotional or advertising activities on the Applicant’s behalf;
(ii)removing all information about the Applicant’s course offerings from its website, online advertising sites or from any social media pages and to remove its enrolment or pre-enrolment application forms or links to those forms;
(iii)ceasing all advertising arrangements the Applicant has in place in Australia or overseas any third party, including education agents, to promote and advertise the Applicant’s services; and
(iv)ceasing the publication and distribution of any hard copy promotional materials, such as brochures or course booklets, both in Australia and overseas; and

(d)on or before 5pm on 30 April 2018, the Applicant must:
(i)complete all of the re-assessments or gap re-assessments identified by the Applicant in its August 2017 Remedial Action Plan with respect to its current students, being those students who have commenced but not yet completed any of the Applicant’s courses; and
(ii)lodge with the Tribunal and give to the Respondent an affidavit by the Applicant’s CEO, Mr Aziz Latif, providing full details of the completion of those re-assessments and gap re-assessments including contact details for the current students who have undertaken them; the date upon which they occurred; a copy of the Applicant’s assessment file for each re-assessment or gap re-assessment and details of the Applicant’s trainer/assessor who assessed those re-assessments or gap re-assessments; and

(e)on or before 5pm on 27 March 2018, the Applicant must advise all of its current students, in writing, that the re-assessments or gap re-assessments relevant to them are mandatory and must be completed by them on or before 30 April 2018 in order for the student to receive their qualification at the end of their course with the Applicant; and
(f)on and after the date of this order until the final determination of the Applications, the Applicant (by its officers, employees, agents, contractors or other representatives) must:
(i)undertake all future assessments of its current students for all units for any of its courses, using only the new assessment materials or tools that have been re-developed by Ms Susan Briggs, the Applicant’s consultant, and/or RTO Advance, to ensure the Applicant’s assessment practices meet the relevant legislative requirements, including in particular, clause 1.8 of the Standards; and
(ii)engage Ms Briggs:
I.to oversee the implementation by the Applicant of the assessments and re-assessments of current students in accordance with condition (f)(i); and
II.to provide direction to the Applicant, which it must follow, to ensure that the Applicant complies with all of the Stay Conditions; and

III. to prepare an affidavit to be lodged with the Tribunal and given to the Respondent on or before 30 June 2018, reporting on the status of the Applicant’s compliance with all aspects of the August 2017 Remedial Action Plan and the Stay Conditions; and
(iii)monitor, record and maintain minimum overseas student attendance requirements of 80 percent of the scheduled contact hours for the course, and keep and produce those records upon request to the Tribunal and the Respondent; and

(g)on or before 5pm on 27 March 2018, the Applicant must give to the ASQA:
(i)copies of the class timetables for all scheduled classes at its premises at Level 4, 128 Chalmers Street, Surry Hills, NSW for the remainder of 2018, including for each class; details of the location, including classroom; scheduled dates and times; student first name and surname for all students enrolled; trainer/assessor first and surname assigned and code and title of VET course for each class; and
(ii)copies of workplace training and assessment timetables for all scheduled training and assessment elsewhere in 2018, including business name and location where training and assessment is scheduled; dates and times scheduled; student first name and surname for all students enrolled; trainer/assessor first and surname assigned and code and title of VET course for each workplace training and assessment; and

(h)on or before 31 May 2018, the Applicant must comply with a direction that will be made by the Tribunal for it to lodge with the Tribunal and provide to the Respondent all of its affidavits and submissions in support of the (substantive) Applications including its report setting out what it has done to remedy the non-compliances alleged by the ASQA which led to the cancellation of the Applicant’s registration under the NVR Act and ESOS Act; and

3.liberty to apply in relation to the stay ordered in the event that there is a breach of stay conditions.

........................................................................
Member K. Parker
PRACTICE AND PROCEDURE – request for stay orders – decisions under review were decisions to cancel a training organisation’s registration under the National Vocational Education and Training Regulator Act 2011 (Cth) and under the Education Services for Overseas Students Act 2000 (Cth) – section 41 of the Administrative Appeals Tribunal Act 1975 (Cth) – factors to be considered in deciding whether to grant a stay – stay granted subject to certain conditions
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 41
Education Services for Overseas Students Act 2000 (Cth)
National Vocational Education and Training Regulator Act 2011 (Cth)
Cases
Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130
Metro College of Technology Pty Ltd and Australian Skills Quality Authority (unreported)
Re Scott and Australian Securities and Investments Commission [2009] AATA 798
REASONS FOR DECISION
Member K. Parker
20 March 2018
INTRODUCTION

On 25 January 2018, the Australian Skills Quality Authority (ASQA) made the following decisions (Relevant Decisions):
(i)to cancel the registration of Australian College of Vocational Studies Pty Ltd (ACVS) as a registered training organisation (RTO) under s 39 of the NVR Act; and
(ii)to cancel ACVS’s registration as a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) provider to overseas students under s 83(3)(c) of the ESOS Act.
The Relevant Decisions were due to take effect on 2 March 2018.
On 8 February 2018, ACVS:
(a)sought review by this Tribunal of the Relevant Decisions by lodging applications for review, numbered 2018/0693 and 2018/0696 (Applications); and
(b)requested a stay of the operation of the Relevant Decisions under s 41 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
On 23 February 2018, the Tribunal listed the Applications for an interlocutory hearing on 26 February 2018 in relation to ACVS’s request for a stay.
At the interlocutory hearing on 26 February 2018, the ASQA opposed the Applicant’s request for a stay. Both parties indicated they intended to file materials and submissions in relation to the request for the stay and sought an adjournment. The Tribunal ordered an interim stay to maintain status quo in order to allow for the stay hearing to be adjourned until 9 March 2018 and made directions for the filing of affidavits and submissions by the ACVS and the ASQA.
ACVS relied upon the following in support of its request for a stay:
(a)the Applicant’s Outline of Submissions in Support of its Stay Application prepared by its solicitors dated 8 March 2018 (ACVS’s Submissions);
(b)the Affidavit of Mr Aziz Latif, Chief Executive Officer, sole director and shareholder, of ACVS (Mr Latif) sworn on 1 March 2018 (Mr Latif’s First Affidavit);
(c)the Affidavit of Mr Latif sworn on 2 March 2018 (Mr Latif’s Second Affidavit);
(d)the Affidavit of Ms Susan Briggs, Susan Briggs Consulting, sworn on 2 March 2018 (Ms Briggs’s Affidavit);
(e)oral evidence given by Mr Latif and Ms Briggs at the stay hearing on 9 March 2018;
(f)documents produced and oral submissions made by counsel for ACVS at the stay hearing; and
(g)the Applicant’s 2016 tax return lodged with the ATO; and
(h)further written submissions prepared by the Applicant’s solicitors in relation to the issue of stay conditions dated 14 March 2018 (ACVS’s Stay Conditions Submission).
In opposition to the request for the stay, the ASQA, on its own behalf and that of the Minister for Education and Training, relied upon:
(a)the ASQA’s Submissions on Stay Application dated 8 March 2018 (ASQA’s Submissions);
(b)the First Affidavit of Ms Jane Connors (Ms Connors), Principal Regulatory Operations Officers, ASQA affirmed 7 March 2018 (Ms Connors’s Affidavit);
(c)documents and oral submissions made by counsel for the ASQA at the interlocutory hearing on 9 March 2018; and
(d)further written submissions prepared by the ASQA, as set out in an email to the Tribunal and ACVS dated 13 March 2018 (ASQA’s Stay Conditions Submissions).
In Mr Latif’s First Affidavit, Mr Latif stated that ACVS had (as at 1 March 2018 when that affidavit was sworn) 315 students undertaking courses that ACVS was delivering and that those courses were being delivered face-to-face. Mr Latif also stated that ACVS had 61 students to whom Confirmation of Enrolments had been issued but they had not yet been issued with visas. In ACVS’s Stay Conditions Submissions, ACVS’s solicitors sought to amend the figure of 61 in Mr Latif’s First Affidavit to 41 (i.e. there were 41 ACVS students awaiting visas). An extract from the Provider Registration and International Student Management System (PRISMS) was attached to those submissions to substantiate that amended figure.
LEGISLATIVE FRAMEWORK
The effect of s 41 of the AAT Act is that unless the Tribunal orders a stay of the operation of a reviewable decision, which it has the power to do under subsection 41(2), the mere making of an application for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the reviewable decision, in this case being the cancellation of ACVS’s registration under the NVR Act and the ESOS Act.
Upon request by a party to an application, the Tribunal may order a stay of the operation of the reviewable decision under subsection 41(2) of the AAT Act “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”. The Tribunal may make orders “staying the decision or part of it, as appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review”.
President Downes J in Re Scott and Australian Securities and Investments Commission [2009] AATA 798 set out a number of factors to be considered in deciding whether to grant a stay under subsection 41(2) of the AAT Act as follows:[1]
1.     The prospects of success;
2.     The consequence for the applicant of the refusal of a stay;
3.     The public interest;
4.     The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not;
5.     Whether the application for review would be rendered nugatory if a stay were not granted;
6.     Other matters that are relevant, amongst which I would include the length of time that the ban had already been in place and the gap between today and the hearing of the application.
[1] Refer paragraph [4] of the reasons for decision in Re Scott.
In the present case, the Tribunal considers that the persons potentially affected by a stay of the Relevant Decisions include ACVS, its employees, contractors, students, prospective students, the ASQA and the Department of Home Affairs. The Tribunal considers that its power under s 41 of the AAT Act extends to making orders, “as appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review”.
Applying the approach in Re Scott as relevant in this case, this Tribunal has identified the following factors it will consider in forming an opinion as to whether it is desirable to order a stay in relation to the Relevant Decisions in this case:
(a)the prospects of success of the Applications;
(b)the interests of ACVS and the likely consequences of the refusal of the stay on ACVS;
(c)the public interest (incorporating a consideration of the consequences of the stay on the ASQA and the Department of Home Affairs in carrying out its functions);
(d)the interests of ACVS’s employees and contractors and the consequences of the refusal of the stay on them;
(e)the interests of ACVS’s current and prospective students and the consequences of the refusal of the stay on them;
(f)whether the review application, if successful, would be rendered nugatory or pointless if the stay was not granted; and
(g)the estimated time for the Tribunal to hear and determine the Applications.
The Tribunal acknowledges that in considering whether to grant a stay, it is not appropriate to undertake a full consideration of the merits of the substantive applications, particularly given that there are a number of factual matters in dispute in this case and the evidence before the Tribunal about those matters has not been presented in full and that part of the evidence that is before the Tribunal is, at present, untested.
However, the Tribunal considers that it is able to (and appropriate to) take into account the information and evidence presently available to it which will enable it to form a general impression as to ACVS’s prospects of success. While not solely determinative of whether the Tribunal should permit it to continue (as the Tribunal also need to consider the other factors identified in paragraph [13] above), the Tribunal will be more inclined to form an opinion that it is desirable to grant the stay if it forms a general impression that ACVS’s prospects of success are good, and less inclined to do so if ACVS’s prospects of success are poor.
CONSIDERATION
The prospects of success of the substantive applications
The ASQA contended that ACVS’s prospects of success of the Applications were poor. ACVS did not accept this contention. In ACVS’s Submissions it was contended that “it was at the very least a live issue” that ASQA’s concerns had been or would be addressed by the time of the final hearing and that it could not be said that ACVS had poor prospects of succeeding at the final hearing.[2] In ACVS’s Stay Conditions Submissions, ACVS contended its prospects of success at final hearing were “at least reasonable, if not strong”.
[2] Refer paragraph [14] of ACVS’s Submissions.
Following the ASQA’s audits and investigation of ACVS and upon receiving the ACVS’s response to allegations of non-compliance, the ASQA issued an Evidence Analysis report on ACVS recording a finding of “critical non-compliance” as at 13 November 2017.[3] The ASQA also issued an Audit Report on ACVS recording a finding of “critical non-compliance”.[4]
[3] Refer Annexure “JC-022” of Ms Connors’s Affidavit.
[4] Refer Annexure “JC-023” of Ms Connors’s Affidavit.
By letter dated 25 January 2018, the ASQA notified ACVS of its decision to cancel ACVS’s registration under the NVR Act and the ESOS Act and set out its detailed reasons for doing so. The ASQA stated in those letters that it had found that ACVS had not demonstrated compliance with the requirements of the VET Quality Framework, the ESOS Act and the National Code of Practice for Providers of Education and Training to Overseas Students 2017 including:
(a)To implement training and assessment practices consistent with training package requirements for the training products that enable each learner to meet the requirements of for each unit of competence;
(b)To correct its assessment systems for current and future students and to put in place systems to ensure these systems are applied;
(c)To assess the impact of non-compliance on learners;
(d)To have suitably qualified trainers and assessors to deliver the training and assessment;
(e)To cooperate with the VET Regulator in the monitoring of its operations; and
(f)To comply with Commonwealth legislation relevant to its operations.
The ASQA also found that ACVS was in breach of its CRICOS registration approval because it had exceeded the maximum number of students that it was approved to enrol at its Surry Hills location in New South Wales (i.e. report generated from PRISMS for the RTO as at 3 November 2017 indicated that ACVS was 178.1% above its approved maximum capacity of 215 students).

The ASQA referred the Tribunal to the decision of Member Dobell of the Migration & Refugee Division of this Tribunal on 30 October 2015 to affirm the cancellation of a permanent residency visa held by Mrs Jaswinder Kaur on the basis that she provided a “bogus” document and an incorrect answer in her visa application form. In that decision, Member Dobell found as follows:
104. The Tribunal has found that ACVS granted recognition of prior learning in May 2012, based only on her Chandra work experience. The Tribunal considers that the school, after making the error in advising the Department that the applicant had not completed the course, realized that there may be an investigation, and that it granting(sic) recognition of prior learning for around 36 subjects based on only claimed Indian work experience may not be considered acceptable or appropriate, so it contacted the applicant about this, and with the applicant, created a recognition of prior learning form (or possibly a new version of this form), and backdated it, and also obtained the fabricated Genius Diploma and created the Resume, and included this the available evidence on the form.
105. The Tribunal realizes the seriousness of making such a finding, but considers it is the only conclusion reasonably available to it on the evidence before it, if it accepts the ACVS April 2012 receipt as genuine, and hence that the Award was actually issued on the date stated on it, and in the unusual circumstances of this case.
The ASQA also provided references to numerous migration cases before this Tribunal involving students enrolled in ACVS’s courses.
For present purposes, being the stay request by ACVS, the Tribunal does not propose to place any weight on the matters referred to in the above two paragraphs. The Tribunal expects they are matters that will be explored in full at the final hearing when the Tribunal considers whether ACVS has met the fit and proper person requirements of its executive officer and high managerial agent.[5]
[5] Refer s 23 and s 186 of the NVR Act.
The ASQA expressed its concerns that when, on two occasions, it had attended ACVS’s training premises, no ACVS students were present. The reasons provided by ACVS at the time were that on the first occasion, its students were on a holiday break and on the second occasion that ACVS’s classes had been cancelled for the afternoon.
ACVS’s contentions in relation to prospects of success are set out in paragraphs [13] to [17] of ACVS’s Submissions. These submissions focus primarily on the findings summarised in Ms Connors’s Affidavit and stated that ACVS “has joined issue with those findings and has demonstrated that it has not on(sic) and unreasonable prospect of success”. The submissions do not explain how this has been demonstrated or what evidence will be led by ACVS at the final hearing to provide a basis to contest the findings of Ms Connors.
The Tribunal has also considered ACVS’s Request for Stay Order lodged with the Tribunal on 8 February 2018. In this form, ACVS’s solicitors stated:
…
3. The Applicant’s prospects of success are good. The alleged non-compliances are historical, and to the extent, if any, that they can be maintained by the Respondent, they are readily rectifiable and will be rectified as at the final hearing and any necessary remediation will have been undertaken.
4. The Applicant is presently compliant or sufficiently compliant with the Standards to(sic) as to pose no risk or appreciable risk to the public, or to students or to the Respondent by continuing to deliver education and training pending the determination of the Application for Review.
Mr Latif’s First Affidavit addresses the issue of prospects of success in paragraphs [22] to [26]. In summary, Mr Latif states that:
(a)ACVS had engaged Ms Briggs to assist it with addressing the non-compliances identified in the Evidence Analysis Report. The Tribunal notes no mention was made by Mr Latif of the Audit Report. Mr Latif said he engaged Ms Briggs “almost immediately after being notified by the Respondent of its decision on 25 January 2018”;
(b)Mr Latif had consulted with Ms Briggs and ACVS’s compliance staff and had instructed them “to attend to any necessary rectification in respect of non-compliances identified in the Respondent’s Evidence Analysis together with any remedial action”; and
(c)ACVS expects to complete all its rectification and to have in place its rectification plan on or about the end of April 2018. The Tribunal notes that Mr Latif did not acknowledge in this affidavit the existence of ACVS’s August 2017 Remedial Action Plan.
At paragraph [26] of Mr Latif’s First Affidavit, Mr Latif stated that ACVS would demonstrate its compliance at the time of the final hearing. He said that “many of the findings cannot be sustained on the presently available evidence”. At paragraph [26], Mr Latif stated:
In a number of instances, where rectification may be required by the Applicant, appropriate steps have been instigated by the Applicant to complete those rectifications by on or about the middle of April 2018 and a remedial action plan is being developed to address any effect by reason of any of the non-compliances upon any of the Applicant’s students.
At paragraph [25] of Mr Latif’s First Affidavit, Mr Latif stated that ACVS took issue with a number of alleged non-compliances and he provided examples.
The first example concerned the allegation by the ASQA that ACVS had not removed “55 High Street, Parramatta” as a current training premises of ACVS from its registration as an RTO and as a registered provider under CRICOS, even though ACVS had not delivered courses at that premises for some time. Mr Latif stated that ACVS will give evidence that it had informed the ASQA of its change of address with respect to the delivery of its courses and that it was up to the ASQA to make the necessary amendments to PRISMs.
The second example Mr Latif provided concerned an allegation that one of ACVS’s trainers had delivered units for an Advanced Diploma for which she was not qualified to deliver. Mr Latif stated that this trainer had in fact delivered a unit for a Certificate III course and that it had advised the ASQA of this. At the stay hearing, Mr Latif provided to the Tribunal what appeared to be an ACVS attendance register which listed this trainer as the “Teacher” for a Certificate III course that was delivered on 16 January 2017 and 24 March 2017.[6]
[6] Refer Exhibit “A3”.
The third example Mr Latif provided concerned an allegation the ACVS had not demonstrated that its practical assessments for various units, such as using hygienic practices for hospitality service and service of food and beverages, had not been updated. Mr Latif stated that ACVS will demonstrate that those units had been updated and provided to the ASQA at the time of the audit.
The ASQA further alleges that ACVS is currently training at premises which are not listed as its location in the CRICOS registration for ACVS. It also alleges that while ACVS has a different level in the same building listed as ACVS’s location for its CRICOS registration, the ASQA had only provided approval for a maximum of 215 students for this location and ACVS had significantly exceeded that quota and continues to do so.
In paragraphs [27] and [28] of Mr Latif’s First Affidavit, Mr Latif stated that ACVS was required to move its training premises from Level 6, 136 Chalmers Street, Surry Hills, New South Wales to Level 4 in the same building, due to the landlord notifying ACVS, “at short notice”, of structural issues affecting Level 6. Mr Latif stated that a “Section 9B” occupancy permit had been issued for Level 4, which ACVS currently occupies, and that Level 4 was “larger and better appointed” than Level 6. Mr Latif stated that Levels 2 and 5 “of the same building” were used as temporary premises.
In paragraphs [29] to [33] of Mr Latif’s First Affidavit, Mr Latif sought to explain why ACVS had exceeded the quota previously approved for Level 6, 136 Chalmers Street, Surry Hills. In effect, Mr Latif said that:
(a)the previous quota of 215 students for Level 6 took into account that “another college” was operating from that premises at that time;
(b)that ACVS informed ASQA’s auditors, who attended ACVS’s premises on 26 February 2015, that “the other colleges” had moved from Level 6. Mr Latif said he asked the auditors to inform the ASQA of “the changes” and that the auditors informed him they would do so. From this, Mr Latif said he believed that he was entitled to deliver training to 415 students at Level 6 and that he had not received any notices from ASQA in respect of the number of students he was training as ACVS’s premises since February 2015;
(c)Mr Latif said that at a monitoring audit conducted by the ASQA on 28 March 2017, he explained “the position” to the two ASQA auditors who attended on that day. Mr Latif said he understood that the ASQA had accepted the change of circumstances at ACVS’s premises and that this meant ACVS could deliver its courses at that location of up to 415 students. In Mr Latif’s Second Affidavit he stated that at the time of the audit on 28 March 2017, ACVS had vacated Level 6, 136 Chalmers Street and it was delivering its courses at Levels 2 and 5. Mr Latif said he had received confirmation from the landlord at that time that it could occupy Level 4 when the structural works and renovations were complete and that he showed the ASQA auditors “the Agreement”. Mr Latif said the same auditors visited again on 19 April 2017 and inspected the building and renovations works on Level 4 and that he confirmed with them when ACVS would be moving there. ACVS submitted an application for an Update of minor registration details related to ACVS’s VET registration details to the ASQA on 25 July 2017 to add as a new delivery address “Surry Hills – Level 4 136 Chalmers St SURRY HILLS NSW 2010”;[7] and
(d)ACVS would, “to the extent that it is required”, seek that its present premises be immediately approved by the ASQA for a capacity of 415 students to deliver its present courses on scope at Level 4, 136 Chalmers Street, Surry Hills.
[7] See Annexure “AL-12” of Mr Latif’s Second Affidavit.
At the stay hearing on 9 March 2018, ACVS tendered an Application to change its CRICOS registration seeking approval from the ASQA to deliver courses at Level 4, 136 Chalmers Street, Surry Hills, New South Wales, based on 415 proposed students for this site.[8] ACVS said it made its first attempt to submit this application on 8 March 2018. Mr Latif said it was re-submitted the following day, following a “bounce-back”. It was acknowledged as received by the ASQA on 9 March 2018.
[8] Refer Exhibit “A4”.
In Ms Brigg’s Affidavit, Ms Briggs stated that she had previously been engaged by ACVS from time to time before the cancellation decisions, with specific mention at paragraph [10] of her affidavit of a period of engagement on 14 July 2017 until 20 October 2017 during which she developed “new assessment tools and related assessment materials as well as a remedial action plan”. Ms Briggs stated that she had assisted ACVS to comply with its own plan to redevelop existing assessment tools and where necessary, to develop new assessment tools and that a further consultant RTO Advance had partnered with her on this task. Ms Briggs stated that ACVS is “presently delivering only units, forming part of its courses on its qualifications, with newly developed assessment tools”.
Ms Briggs stated that on 2 February 2018, she was engaged by ACVS to consider and prepare a response on behalf of ACVS to the Evidence Analysis Report completed by the ASQA on 10 October 2017 and its cancellation decisions on 25 January 2018. The response she was engaged to prepare was to include “matters relevant to rectification of alleged non-compliances and any remedial action”. Ms Briggs said the scope of her engagement also included considering ACVS’s documents, policies, procedures and other documents referred to in the Evidence Analysis Report. Ms Briggs said she did not have a written agreement with ACVS.
At paragraphs [6] and [8] of Ms Briggs’s Affidavit, Ms Briggs stated:
6. Ms Briggs said she was engaged to guide and assist ACVS, as required by it, to develop and complete any rectification material which, the Applicant determines with my assistance and its other advice, requires rectification and also to develop a remedial action plan in respect of any identified impact on the Applicant’s learners caused by any previous non-compliances.
…
8.I have been asked by the Applicant to assist it with the matters I referred to above and any assistance required by their solicitors in respect of both the Stay Application and the Review Application.
At the stay hearing, Ms Briggs was asked why she was not engaged by ACVS between October 2017 and 2 February 2018 as indicated in her affidavit. Ms Briggs said that she was continually engaged during that time.
Ms Briggs said that together with RTO Advance, she completed a whole suite of assessment tools for ACVS (about 20 in total, with RTO Advance doing about 14). Ms Briggs said that they had completed all of the assessment tools and materials needed by ACVS as required by it to deliver its units in Term 1, 2018 using the newly developed or redeveloped assessment tools and materials. Ms Briggs was asked how many hours of work she had done for ACVS since October 2017. She said she had completed “5 days, another 3, and then what I’ve done since February”. Ms Briggs said she believed she could finish any assessment tools that may be needed by the end of April 2018.
Ms Briggs said she had prepared the August 2017 Remedial Action Plan part of which was to invite students to undertake reassessment. The Tribunal notes that a commitment was made by ACVS in this plan to offer a total of 2,037 reassessments. Ms Briggs was asked why the students were invited to undertake the reassessments instead of being required to do so. She said that the plan was expressed this way because “that is the ASQA’s guidelines”. The Tribunal has considered the relevant ASQA’s guideline on its website.[9] It suggests that previous students who have completed the course may be invited to undertake the reassessment, but that current students should be reassessed by the RTO.
[9] See ASQA’s guidance at
On questioning, Ms Briggs said that none of ACVS’s students, who had since returned to their home country, had taken up ACVS’s invitation to be reassessed. In relation to ACVS’s current students still in Australia, Ms Briggs said that she believed the reassessments were taking place now but Mr Peter Latif (Peter), Operations and Business Development Manager of ACVS (and Mr Laziz’s brother), had reported to her that there had been considerable “kick back” by those students, who were saying to him, “why should I have to be reassessed, when I have already been assessed?” Ms Briggs did not indicate how many of those reassessments had been implemented by Peter or any other person at ACVS. Ms Briggs confirmed that her role was not to implement the reassessments and that this was Peter’s responsibility. The Tribunal notes on page 1 of the August 2017 Remedial Action Plan that, “The Operations and Business Development Manager will oversee the implementation of the remedial action process”.
At the stay hearing, Mr Aziz Latif was asked whether any of ACVS’s past students had returned to Australia to undertake any the reassessments offered to them under the August 2017 Remedial Action Plan. Mr Latif’s evidence was that the “trainers” had told him that some of the students were coming back to do so. This is inconsistent with the evidence given by Ms Briggs that none of those past students had taken up ACVS’s offer to be re-assessed. Mr Latif was asked how many of ACVS’s current students identified in the August 2017 Remedial Action Plan had been reassessed. Mr Latif said he did not know. The Tribunal considers that this lack of awareness by Mr Latif of such a critical matter reflects the often lackadaisical approach by Mr Latif to issues of compliance by ACVS with the central regulatory framework that governs his company’s training operations.
The Tribunal gained an impression that Mr Latif was generally unaware of matters that, as the CEO, sole director and shareholder of ACVS that he should have made it his priority to know about. The Tribunal also gained an impression that Mr Latif, on behalf of ACVS, often took a reactive approach to compliance, attending to issues of rectification once he was asked by the regulator to do so (and often repeatedly so, such as the case of the clear instruction to arrange for ACVS to submit an application to change its CRICOS registration details), and often at the last moment.
The Tribunal does not consider that the examples provided by Mr Latif are clear indicators that AVCS has “not unreasonable” or “strong” prospects of success in its applications for review.
(a)The first example provided only serves to demonstrate a reluctance by Mr Latif to accept responsibility for ACVS’s legislated procedural requirements, as detailed in the ASQA’s Submissions, which fell upon AVCS when it changed its training premises on two occasions. The Tribunal notes that ACVS was provided with a clear written instruction by the ASQA on 1 March 2017 (sent to the email address which Mr Latif uses as his email address being [email protected]), as follows, “At audit of Omega Institute Pty Ltd last week, Mr Umair Aziz provided me with a copy of [ACVS] “Update to minor registration details” form to remove the delivery site at 55 High Street, Parramatta for ACVS. This update has been implemented for ACVS’s VET scope. However, it is necessary for ACVS to lodge a CRICOS amendment application to remove the site for delivery to international students. If you have any questions about this procedure please contact ASQA’s Info Line on 1300 701 801 or by email at [email protected]”.[10] Instead, Mr Latif sought to suggest, incorrectly, that this obligation fell on the ASQA.
(b)In relation to the second example, Mr Latif did not indicate whether ACVS would be calling the trainer involved to give evidence at the final hearing and if so, whether she would give evidence that all of the units that she delivered at ACVS at the relevant time were units for courses not higher than a Certificate III course.
(c)In relation to the third example, the Tribunal acknowledges Mr Latif’s indication that ACVS will present evidence at the final hearing to demonstrate that it had updated its practical assessments for various units such as hygienic practices in hospitality services and serve food and beverages which had been given to the ASQA at the audits. However, this evidence seems to be at odds with the evidence of Ms Briggs about the accepted areas of non-compliance by ACVS as explained at the hearing and the extensive commitment given by ACVS to undertake 2,037 reassessments, some of them involving practical assessments, if the students opted to do them, to remedy ACVS’s conceded non-compliances.
[10] Refer Annexure “JC-010” to Ms Connors’s Affidavit.
Upon close consideration of the materials filed in this stay application, my impression is that ACVS will face a number of challenges in succeeding in its application for review. The information available to the Tribunal does not display a training organisation that takes its compliance responsibilities under the legislative regime seriously but instead, does the minimum amount of things necessary in order to keep the regulator from its door. At times, ACVS has ignored direct and clear instructions from the ASQA as to what it needed to do to comply with the law. ACVS has at times used a consultant to assist it but the consultant’s main priority has been to focus on responding to the regulator (and now the Tribunal), to quieten concerns, rather than ensuring that the commitments made by ACVS back in August 2017 in its Remedial Action Plan had been actively, effectively and completely implemented by ACVS.

ACVS’s prospects of success at the final hearing are certainly not hopeless. However, the Tribunal considers that ACVS’s prospects are poor. It appeared to the Tribunal that it would take a great deal of urgent remedial work and focus by ACVS between now and the final hearing, for ACVS to stand a chance of succeeding in its Applications. The Tribunal concludes that this factor weighs against the granting of a stay.
The interests of ACVS and the consequences of the revocation of the stay on ACVS
Mr Latif provided evidence in support of ACVS’s assertion that if a stay was not ordered, the Applicant “would be unable to survive as a viable concern to present its case at the final hearing and its business would be irreparably damaged, thus rendering the outcome of the review nugatory”.[11]
[11] Refer to the reasons set out in ACVS’S Request for Stay Order form lodged with the Tribunal on 8 February 2018,
In Mr Latif’s First Affidavit, a copy was attached of an executed lease between ACVS and its landlord for the premises it presently occupies at Level 4, 124 - 136 Chalmers Street, Surry Hills, New South Wales. Under its terms, the lease commenced on 1 August 2017 and will continue until 31 July 2022 (i.e. a five-year lease). This means that ACVS is under a contractual obligation under clause 4.1 of the Lease to pay rent of an amount of $591,300 per annual (gross) (by equal monthly instalments of $49,272 per month to be paid in advance at the start of each month) for the next five years. This rent includes outgoings and excludes cleaning contributions, utilities and insurance premiums.
At the stay hearing, Mr Latif provided to the Tribunal two invoices issued by Knight Frank in January 2018 and February 2018 respectively for the amount of $49,775, comprising $48,895 for office rental and $880 for parking rental. Both invoices indicate that they have not been paid.
The ASQA asked Mr Latif a number of questions at the stay hearing about whether ACVS was sharing the premises at Level 4, 124 – 136 Chalmers Street with another college owned by Mr Latif’s son, Mr Umair Aziz (and former director of ACVS), by the name of Omega Institute Pty Ltd (Omega). Mr Latif said that this was not the case. Mr Aziz was present at the hearing of the stay application. It was submitted to the Tribunal that while Omega had made an application to the ASQA, it was not operating as it was not approved. The Tribunal notes that as at the day of handing down this decision, Omega Institute Pty Ltd had an active website at promoting its vocational courses (including Diploma and Advanced Diploma in Business and Diploma of Human Resources), at Level 4, 128 Chalmers Street, Surry Hills, and makes available to prospective students on this website, an International Student Application Form to allow overseas students to apply for enrolment. This does not give an impression that Omega was not operating as was indicated to the Tribunal at the stay hearing.
The Tribunal directed ACVS to provide information in relation to its current financial position and its most recent tax return lodged with the ATO. In response, ACVS provided outdated financial information being a profit and loss statement and balance sheet indicating its position as at 30 June 2016. It provided ACVS’s tax return for the 2016 financial year. ACVS said the same financial records for the 2017 financial year were not yet complete but were due to be finalised shortly.
When the ASQA lodged its material for the stay hearing, it informed the Tribunal that it had access to a more recent financial statement for ACVS that ACVS had provided to the ASQA as part of its investigation. It was amiss of Mr Latif not to have provided this more recent financial information to the Tribunal given the directions made. This information was annexed to Ms Connors’s Affidavit and comprised a financial statement for the period 30 June 2016 to 28 February 2017 (8-Month Period). This statement indicated the following:
(a)ACVS’s revenue for the 8-Month Period was $1,280,578 (so the average revenue per month for this period was approximately $160,000). After payment of $25,542 for marketing expenses; $274,504 for selling expenses; and $951,168 for administration expenses, the profit of the company before income tax was $29,364; and
(b)As at 28 February 2017, ACVS’s current cash assets were recorded as $277,758.
ACVS’s tax return for the 2016 financial year listed the annual rent expenses as $247,335; contractor, sub-contractor and commission expenses as $731,813 and all other expenses as $460,825 (total expenses being $1,507,469). The total profit is listed as $38,041. Total assets were listed as $288,858 and total liabilities as $6,422. Total salary and wage expenses were recorded as $131,837 and payments to associated persons were recorded as $98,000. The total tax payable by ACVS for the year was $10,841.69.
Mr Latif gave evidence that ACVS only had two bank accounts - ANZ business online saver statement BSB 012487 Account 4035 59273 (Online Saver Account) and ANZ business advantage statement BSB 012370 Account 1106 17562 (Advantage Statement Account). Mr Latif provided a selection of statements from each account as annexed to Mr Latif’s First Affidavit.
In the most recent statement provided for the Online Saver Account for the three-month period from 13 October 2017 to 12 January 2018, the closing balance was $58,022.62. The closing balance for the previous statement for the three-month period from 13 July 2017 to 13 October 2017 was $247,427.30.
In the most recent statement provided for the Advantage Statement Account for the period 15 February 2018 to 23 February 2018, the closing balance was $7,587.66.
Although there was some confusion at the stay hearing about this issue, Mr Latif confirmed in his evidence at that hearing that if ACVS was no longer operating, no ongoing commissions would be payable to ACVS’s agents. Similarly, if ACVS was no longer operating, Mr Latif’s evidence was that there would be no ongoing obligation to pay its ten contractors. Mr Latif did not consider that ACVS would be liable for redundancy payments for its three employees (namely, Mr Latif, Peter and one other unidentified person) if their employment were terminated. It is accepted by the Tribunal that there would be a necessity for ACVS to continue to pay its consultant and solicitors, even if ACVS were not operating, so that the solicitors may prepare the Applications for review for hearing and so that the consultant could continue to address the issues of non-compliance as alleged by the ASQA.
While there remain some questions about whether ACVS is presently sharing its premises with another college, the Tribunal for present purposes on the strength of the lease agreement provided to it, finds that ACVS would have a continuing obligation to pay approximately $50,000 per month in rent even if it were not operating as a training organisation pending the hearing. It is possible that ACVS is able to find a third party to which it could sub-let its premises, as contended for by the ASQA, but it is also possible that it is unsuccessful in its attempts to do so, so I am not prepared to discount this ongoing financial obligation on account of this contingency.
Against this, the Tribunal is satisfied ACVS would seem to have identifiable cash reserves available to it presently in the order of approximately $65,000.
On this basis, the Tribunal is satisfied that if ACVS was required to cease trading as a consequence of the cancellation decisions that have been made, ACVS is likely to deplete its seemingly limited cash reserves due to its continuing obligations to pay rent. ACVS also indicated that it was likely to have to pay some refunds to students should the cancellation take effect and it is required to stop delivering its courses. This is a self-evident proposition and I accept this. This is likely to bring ACVS to the point of insolvency within a short period of time after it was required to cease its operations, if a stay is not granted.
The Tribunal considers that this factor weighs in favour of the granting of a stay.
The public interest (incorporating a consideration of the consequences of the stay on the ASQA and the Department of Home Affairs in carrying out its functions)
It was contended by the ASQA that the Tribunal should take into account, as a fundamental element, the context set by the regulatory regime underpinning the Relevant Decisions, when forming an opinion about whether it is desirable to refuse or grant the stay.
Justices Downes and Jagot in the Full Court of the Federal Court of Australia decision in Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another 181 FCR 130 observed as follows:
[51] The nature of the decision under review will affect the identification of the “interests of any persons who may be affected by the review”. Accordingly, those interests are to be identified by reference to the statutory scheme under which the decision under review was made. In the case of a banning order […] Given the nature of a banning order, the persons who may be affected by a review of its making include not only the recipient and his or her dependants, associates and employees but also that person’s existing and potential clients, as well as the public at large.
[52] Determining whether the making of an order under s 41(2) of the AAT Act is desirable requires resolving these potentially competing interests. In this process of resolution the scheme embodied by the legislation under which the banning order is made is central. The context set by that scheme is a “fundamental element” in the formation of the opinion according to law (R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329). The scheme discloses that a banning order protects the public. It is intended to protect the public from obtaining financial services from a person who (amongst other things) has not, or ASIC reasonably believes has not, complied with a financial services law or had had their Australian financial service licence suspended or cancelled (s 920A(1)).
[53]The structure of the scheme also indicates Parliament’s assessment of the appropriate resolution of the competing interests of persons who may be affected by a banning order. Other than in limited circumstances a banning order cannot be made without giving the proposed recipient a right to be heard and to make submissions in private to ASIC… A banning order must be accompanied by a statement of reasons […] If, and only if, ASIC makes a banning order is it required to make public that fact[…] For the AAT to form an opinion under s 41(2) of the AAT Act (that it would be desirable and in the “interests of any persons who may be affected by the review” to make an order staying or otherwise affecting the operation or implementation of ASIC’s decision) these elements of the statutory regime, and the balance between the competing interests that they represent, must be treated as a fundamental element in the weighing of the competing interests.
It was contended by the ASQA that the protection of students and the reputation of the vocational education and training sector generally, are at the forefront of these legislative schemes comprising the NRV Act and the ESOS Act.
The ASQA drew the Tribunal’s attention to s 4A of the ESOS Act which provides as follows:
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 laws relating to student visas.
The objectives of the NRV Act are set out in s 2A and provide as follows:
2A The objects of this Act are:
(a)to provide for national consistency in the regulation of vocational education and training (VET); and
(b)to regulate VET using:
i.a standard-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.
The Tribunal also notes the legislated functions of the ASQA as set out in s 157 of the NVR Act. The ASQA is empowered, as the relevant regulator, to undertake enforcement action and to make decisions intended to promote and protect the students and the general reputation of the Australian vocational education and training sector, both nationally and internationally, and to ensure that registered RTOs and CRICOS providers are operating in compliance with their statutory obligations. Some of those statutory obligations relate to enabling the Department of Home Affairs to achieve its obligation of ensuring non-citizens present in Australia hold valid visas and are fully compliant with the visa conditions upon which those visas were granted. The Tribunal also notes one of the specific objectives of the ESOS Act is to facilitate access to accurate information relating to the quality of vocational education and training. Further, s 15 of the ESOS Act specifically imposes a statutory obligation on registered providers not to engage in misleading and deceptive conduct.
The Tribunal notes and agrees with the observations of Senior Member McCabe in the Administrative Appeals Tribunal decision of Metro College of Technology Pty Ltd and Australian Skills Quality Authority (unreported)[12] in considering a stay application in relation to the cancellation of an RTO’s registration under the NVR Act:
[10]But there is also the question of the public interest. The regulatory system was devised to protect consumers of these courses, and to protect the good name of Australian educational institutions overseas. Many students travel long distances from overseas […] The regulatory regime assumes there is a public interest in ensuring these programs are properly run according to recognized standards. Failures to adhere to standards – particularly where those failures suggest systemic problems, poor judgment or an unwillingness to comply with the law – must be taken very seriously.
[…]
[16] […] But I am troubled by the important questions of public interest that have been raised. If the decisions are affirmed, the students who are still enrolled, or who may enroll, will rightly feel their qualifications have been undermined. That may undermine the confidence in the regulatory system and the integrity of the Australian vocational education and training sector.
[12] Application number 2015/6137.
The Tribunal is satisfied there is a risk that a number of the objectives of the legislative regime would be undermined, including the risk of damage to the reputation of the Australian vocational education and training sector and the risk of undermining and de-valuing the qualifications issued by ACVS, if ACVS were permitted to continue operating for the time being as an RTO and CRICOS provider.
In these circumstances, the Tribunal considers that the risk of an adverse impact on the public interests identified weighs against the desirability of the Tribunal granting a stay. However, the Tribunal considers that these risks could be effectively reduced by imposing a number of conditions upon ACVS that it must comply with, if it is permitted to continue to deliver its courses in a confined way until the final determination of the Applications.
The interests of ACVS’s employees and contractors and the consequences if the stay is not ordered
The Tribunal has taken into account the evidence in Mr Latif’s First Affidavit that ACVS employs three full-time employees, five full-time contractors and five part-time contractors in the business. The Tribunal accepts that if those arrangements come to an end because a stay is not ordered, those employees and contractors will be affected by an immediate loss of personal income. They may be successful in finding alternative work, but there is no guarantee that this will be the case and they may be left without a regular source of income, potentially impacting their livelihood.
Accordingly, the Tribunal is satisfied that the impact of ACVS ceasing to trade may have a significant negative impact on ACVS’s current contractors and employees. This weighs in favour of the desirability of granting a stay.
The interests of ACVS’s students and the consequences of the refusal of the stay on them
The Tribunal acknowledges that if ACVS suddenly ceases to trade as an RTO this is likely to cause a temporary disruption to ACVS students who have already commenced their courses at ACVS. This would include the temporary disruption of their daily studies and for the majority, if not all of them, who hold student visas, it would mean that they would stop meeting their visa conditions unless they were able to transition to another course with an alternative RTO.
However, one possible outcome of the review process is that ACVS is unsuccessful and the decisions to cancel ACVS’s registrations are affirmed. If this transpires, an obvious consequence is that it will undermine and de-value the qualifications that are issued to students by ACVS between now and when the final determination of the Applications is made.
The Tribunal recognises the importance of limiting, as much as possible, the potential exposure of ACVS’s students by minimising the total number of student qualifications issued by ACVS pending the determination of the Applications.
The Tribunal considers that this factor weighs against the granting of a stay.
Whether the review application, if successful, would be rendered nugatory or pointless if the stay was not granted
For the reasons set out above, the Tribunal is satisfied on the evidence before it, that ACVS could not sustain itself financially between now and the final determination of this matter, using its current cash reserves, if it ceased trading. For this reason, the Tribunal considers that the Applications would be rendered nugatory or pointless if the stay is not granted.
This factor weighs in favour of granting a stay.
The estimated time for the Tribunal to hear and determine the Applications
It is expected that it may take another 12 months before the outcome of the review process before the Tribunal. The Tribunal accepts that this is not an insignificant period of time. As outlined above, the Tribunal is satisfied that ACVS is not likely to remain viable pending the review, if it were to cease trading. The Tribunal considers that this factor weighs in favour of the granting of the stay.
CONCLUSION
The Tribunal is satisfied that there are some considerations weighing against the granting of a stay including:
(a)the public interest in minimising the potential exposure of ACVS’s 315 current students being issued with a qualification by ACVS when that qualification may become de-valued if ACVS is unsuccessful in setting aside the Relevant Decisions;
(b)the public interest in minimising the risk of damage to the reputation of the vocational education and training sector generally both nationally and internationally by permitting ACVS to continue to operate as an RTO and registered CRICOS provider pending the review; and
(c)the impression formed by the Tribunal that ACVS’s prospects of success are poor.

However, the Tribunal considers that provided a set of stay conditions are imposed on ACVS with respect to its continued operation as an RTO and registered CRICOS provider between now and the final hearing, and provided ACVS complies with those conditions, it is satisfied that the above three considerations are outweighed by the following considerations in favour of granting the stay:
(a)the Tribunal is satisfied on the available information that if ACVS were to stop trading as an RTO that it would quickly become insolvent and be wound up. This would render the substantive review process before the Tribunal nugatory; and
(b)the further likely negative impact on the contractors and employees were they to lose their source of personal income if ACVS were to cease trading.
The Tribunal was satisfied to do so only on the basis that the Stay Conditions will be imposed on ACVS and must be fully complied with by ACVS. Accordingly, the Tribunal grants a stay until the final determination of the Application as requested, however it has done so reluctantly, particularly given the matters set out in paragraph [81] and in particular the Tribunal’s impression from the available information, that ACVS’s prospects of success are poor. The stay conditions the Tribunal proposes to impose on ACVS are set out on pages 2 to 5 of this Decision.
On the evidence, the Tribunal is satisfied that the potential risks identified in paragraphs [75] and [76], would be mitigated if a condition is imposed to prohibit ACVS from allowing any more students or prospective students who have not yet commenced any course with ACVS from doing so. With this consideration in mind, the Tribunal imposes Stay Conditions 2(a), 2(b) and 2(c) on ACVS. The Tribunal has considered the financial information provided to the Tribunal and the evidence given by Mr Latif at the stay hearing about this and does not accept the submissions of ACVS that it requires at least 415 students to be studying with it in 2018 to remain viable. The Tribunal is satisfied ACVS will manage to remain viable with a temporary hold on enrolling new students. For one thing, the fit out of the new training premises is now complete and ACVS will have no further movement or renovation costs as a consequence. At the stay hearing, Mr Latif sought to explain the significant drop in ACVS’s cash reserves in its bank accounts over the last year or so, on account of some significant withdrawals said to be connected with ACVS setting up its new Level 4 premises. ACVS is longer faced with those expenses. Further, ACVS’s marketing expenses will be nil or negligible for the time being if ACVS complies with Stay Condition 2(c). In relation to Stay Condition 2(c)(ii), ACVS may still communicate with its current students directly via email and may also continue to maintain its website provided it is limited to containing information directed at its current students i.e. class timetables, procedures and policies etc.
To ensure that all current students are assessed using compliant assessment tools or materials, the Tribunal has imposed Stay Conditions 2(d), 2(e), and 2(f)(ii)(I). The Tribunal considers appropriate to impose these conditions given the lack of any evidence (even at a high level) provided to the ASQA between August 2017 and the present time or to the Tribunal since ACVS lodged its Applications for review and the request for a stay, over five weeks ago, to indicate whether any of the 2,037 reassessments that ACVS committed itself to offer to its students as identified in the August 2017 Remedial Action Plan had been completed.
By imposing Stay Conditions 2(f)(i) and 2(f)(ii)(II), the Tribunal will be assured that ACVS will conclude its important program, as previously indicated to the ASQA, of the revision of the non-compliant assessment tools and materials so that its current students (and the markets into which those students are likely to be employed on the strength of the ACVS qualifications), are not adversely affected by students gaining qualifications for which they have not demonstrated through appropriate assessment mechanisms that they are adequately skilled. While it is acknowledged that there was evidence of some progress with the redevelopment of the assessment tools and materials, the fact remains that those instruments should have been compliant before this RTO commenced delivering its courses to students and at the very least, the Tribunal considers that ACVS should have engaged its consultant more extensively than it did between August 2017 and the present time to complete the redevelopment of them.
The Tribunal has considered the matters identified in paragraph [23] and also the evidence provided at Annexure “JC-005” of Ms Connors’s Affidavit being information provided by an Assistant Director, Student Integrity (NSW), Department of Immigration and Citizenship (now Department of Home Affairs), to the ASQA following the cancellation of an ACVS student’s visa following an interview with this student. This information included the following:
…
DIAC Compliance in our ACT office completed a job last week at Mr Kumar’s workplace. During the interview he stated that he was referred to that college by his migration agent because they have flexible hours.
A student from this college referred him to someone called Peter who works in admin/enrolment to discuss about attendance. Client has paid Peter $500 in cash to tick off his attendance while he works full time and Peter has issued him with a $200 receipt which he said will go towards his fees. Client is not sure of Peter’s full name but he is from India and is around 34/45 years old. DIAC obtained a copy of the receipt and client has put this in writing for the department. Client has confirmed he has only attended class twice since the course started on 23/01/2012.
…
In light of the matters referred to in paragraph [87] taken separately or together, Stay Condition 2(f)(iii) requiring attendance monitoring by ACVS is appropriate. The Tribunal notes that at the stay hearing, Mr Latif presented what appeared to be an attendance register – see Exhibit “A3”, so it would seem that this could be easily used or adapted for use so that ACVS complies with Stay Condition 2(f)(iii). The Tribunal also considers it appropriate to impose Stay Condition 2(g) requiring ACVS to provide the information as proposed by the ASQA as to the scheduled classes and practical training and assessments to be conducted by ACVS between now and the final hearing.
Stay condition 2(h) is imposed for the reason that the Tribunal grants the stay as requested by ACVS on that basis that ACVS meets the commitment provided by its counsel, on instructions from ACVS, at the stay hearing that ACVS will file all of its materials in support of the substantive Applications for review by the end of May 2018, so as to prevent any delay in this matter being listed for the final hearing.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

[sgd]......................................................................
Associate
Dated: 20 March 2018

Date of hearing:

9 March 2018

Advocate for the Applicant:

Solicitors for the Applicant:

Mr Harlis Kirimof of Counsel

GPZ Legal

Advocate for the Respondent: Adam Grullemans, Legal Officer, ASQA