Australian Institute of Technical Training Pty Ltd and Minister for Education and Training - [2018] AATA 5392

Australian Institute of Technical Training Pty Ltd and Minister for Education and Training [2018] AATA 5392 (14 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0323
Re:AUSTRALIAN INSTITUTE OF TECHNICAL TRAINING PTY LTD
APPLICANT

Minister for Education and TrainingAnd
RESPONDENT

File Number: 2018/0326
Re:AUSTRALIAN INSTITUTE OF TECHNICAL TRAINING PTY LTD
APPLICANT

Australian Skills Quality AuthorityAnd
RESPONDENT

Tribunal:R. Cameron, Senior Member
Date:14 November 2018
Place:Melbourne
(a)The Respondent’s application to revoke the stay order and dismiss the application is refused; and
(b)The Applicant’s application to vary the stay order by revoking the condition imposed by paragraph (f) is refused.

............................[sgd]............................................
Senior Member
Catchwords
PRACTICE AND PROCEDURE – Applicant’s registration cancelled under National Vocational Education and Training Regulator Act 2011 and Education Services for Overseas Students Act 2000 – stay granted subject to conditions – allegations of breach of stay conditions – application by Respondent to revoke stay and dismiss application – application by Applicant to vary stay conditions – applications refused
Legislation
Administrative Appeals Tribunal Act 1975
National Vocational Education and Training Regulator Act 2011
Education Services for Overseas Students Act 2000
Secondary Materials
National Code of Practice for Providers of Education and Training to Overseas Students 2018
REASONS FOR DECISION
R. Cameron, Senior Member
14 November 2018
INTRODUCTION

On 11 May 2018 the Tribunal stayed the operation of two reviewable decisions of the Respondent made on 20 December 2017. (“the stay order”) The reviewable decisions cancelled the Applicant’s registration under the National Vocational Education and Training Regulator Act 2011 (“NVR Act”) and the Education Services for Overseas Students Act 2000 (“ESOS Act”).[1]
[1] It should be noted that interim stay orders were granted by the Tribunal on 6 February 2018 staying the operation of the reviewable decisions pending the further hearing of the Applicant’s stay application. Such further hearing during which the Applicant was represented by counsel (it was extensive and included cross examination of the Applicant’s director Mr. Dhillon) was held on 26 March 2018.
In granting the stay orders under s 41(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) the Tribunal delivered written reasons. The written reasons delivered on that day contain an appropriate outline of the history of the matter and several other relevant facts that were taken into account in deciding to grant the stay order. The stay order was subject to six conditions which were articulated in paragraph 80 of the written reasons. Those conditions are referred to in these reasons for their full force and effect.
Two further applications are now before the Tribunal.
The Respondent has made an application seeking to revoke the stay order in its entirety and further, dismissing the application for lack of prospects of success.
The Applicant seeks to vary the stay order by deleting the condition contained in sub paragraph (f) of those Orders[2]. Sub-paragraph (f) requires the Applicant to implement and maintain a minimum attendance requirement for overseas students as a condition of its registration and to keep, maintain and produce such records on request of the Respondent.
[2] This application was filed with the Tribunal on 3 August 2018. The Applicant’s solicitors in a letter to the Tribunal of Monday 23 July 2018 stated that such application was to be "lodged on or before Wednesday this week together with any supporting affidavit". The fact that correspondence was sent to the Tribunal (and presumably the Respondent) foreshadowing such action which did not occur within the timeframe stated is of concern to the Tribunal as it reflects the approach that has been adopted by the Applicant and its practitioners to this proceeding which is unacceptable.
The Applicant filed two affidavits sworn on 3 August 2018 and 23 August 2018 in support of the application to vary the stay order. Those affidavits produced several exhibits.
The application to revoke the stay order and dismiss the proceeding was heard before the Tribunal on 21 June 2018.
Submissions were filed by the parties concerning the application to revoke the stay order and dismiss the proceeding[3].
[3] The Applicant filed and served submissions on the stay revocation and dismissal on 18 June 2018. Following the hearing on 21 June and pursuant to leave granted by the Tribunal the Applicant filed and served submissions in reply on 9 July 2018. A response was filed by the Respondent on 16 July 2018.
The application to vary the conditions attached to the stay order was heard on 24 August 2018.
By way of observation it should be noted that already thousands of pages of documentary evidence have been filed with the Tribunal. This documentary evidence is in both paper form and by way of a USB mini stick.[4]
[4] The USB mini stick contains approximately 24 video and audio recordings taken by officers of the Respondent when they attended at premises occupied by the Applicant at several locations in the City of Melbourne.
The issues raised both in the substantive application and the two interlocutory applications that are before the Tribunal to revoke the stay order and dismiss the proceeding together with the application to vary the stay order are hotly contested. More will be said about that later in these reasons.
THE APPLICATION TO REVOKE THE STAY ORDER AND DISMISS THE PROCEEDING
The Respondent relies upon several grounds to support its application to revoke the stay order and dismiss the proceeding. Those grounds are (using the terminology contained in the Respondent’s submission which is broken up into these subject headings and was followed by the Applicant in its submissions by way of reply) as follows:
(a)The “First Breach”;
(b)The “First s 26 NVR Notice”;
(c)The “Second Breach”;
(d)The “Second NVR Act s 26 Notice”;
(e)The “Third Breach”;
(f)“Application to Revoke and New Complaint”;
(g)The “Third NVR s 26 Notice”; and
(h)The “Fourth Breach”.
These submissions filed by both parties concerning this application are referred to in their entirety for their full force and effect. They will not be repeated in full. However, where appropriate the submissions will be referred to. More critically, the architecture or geometry of those submissions, the format of which is similar in both those filed by the Respondent and the Applicant will be adopted.
Also, given that there is a large amount of documentation referred to, other than to identify by date or some other convenient nomenclature, no further references by way of for example, footnotes or page numbers in the Tribunal documents will be referred to as they are readily known to the parties and can be identified by them if need be.
THE FIRST BREACH
This alleged breach which is described as the “First Breach” arose out of allegations made by the Respondent that the Applicant had breached the provisions of paragraph 4(c) of the stay order. An exchange of correspondence between the parties is catalogued in the Respondent’s submissions.
It will be recalled that this paragraph of the stay order required the Applicant on the first day of each month or the next business day thereafter, to submit class timetables which identified the precise location, students required to attend and trainer or assessor scheduled to train or assess, as well as the date and time of any assessment activity or structured learning for all classes, for all students, for that month.
The exchange of correspondence between the parties that occurred and is in the material filed before the Tribunal concerned a debate between them as to whether or not the Applicant had adequately complied with the terms of this condition of the stay order.
Several things should be observed concerning this debate between the parties. Firstly, the exchange of correspondence commenced on 5 March 2018 and ended on 13 March 2018. Secondly, the Applicant contends that on 2 March 2018 it provided a document to the Respondent which amongst other things contained the relevant information. Finally, the Respondent accepts that the relevant material was supplied on 13 March 2018.
From an examination of the material it is apparent that there is a live debate about the merits of the allegation that there has been a breach of this term of the stay order. Additionally, as noted above there has been a concession from the Respondent of compliance in any event within a comparatively short time after the alleged breach was brought to the Applicant’s attention.
The Tribunal finds that little weight can be attached to this allegation.
THE FIRST S 26 NVR ACT NOTICE
The first of several notices served by the Respondent on the Applicant under s 26 of the NVR Act occurred on 20 April 2018 (“the First s 26 NVR Act Notice”). The notice is referred to in its entirety for its full force and effect. It sought three pieces of information. Firstly, (amongst other things) a detailed description of how “RTO Connect” had implemented and maintained minimum attendance requirements. Secondly, a spreadsheet identifying student information concerning classes. Thirdly, copies of each class role for each class paginated with an index.
Once again it was contended by the Respondent that the Applicant’s purported compliance with the terms of the First s 26 NVR Act Notice on 2 May 2018 failed to provide the information sought. Such response included a copy of the Applicant’s monitoring, attendance policy and procedures. It also contained a spreadsheet providing the relevant student information that was sought. The point of difference between the parties being that the Respondent asserts in summary that this information was inadequate.
The Applicant responded to these allegations in various ways. Firstly, it asserted that “RTO Connect” is a different training organisation, presumably having separate legal personality, from the Applicant and therefore the First s 26 NVR Act Notice was defective. This apparently seemed to be conceded by the Respondent in the course of the application.
Additionally, the Applicant contended that the information provided did comply with the wording of the request and also satisfied the obligations cast upon the Applicant under clauses 8.12.3 and 8.12.4 of the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (“the Code”) (in so far as they are applicable, contending that clause 8.12.3 does not have application to the courses provided by it at the relevant time because none of its courses scheduled classes over five consecutive days as referred to in that clause). Therefore, it contended that there is a legitimate debate about construction of both the First s 26 NVR Act Notice and the relevant standard such that it does not provide a proper basis or justification for revocation of the stay order as sought by the Respondent.
There is also considerable debate between the parties concerning the format of the information provided by the Applicant in response to the First s 26 NVR Act notice. It was contended by the Applicant that as a matter of construction of the First s 26 NVR Act Notice that it did not require information to be provided in a particular format. There is considerable merit to this contention. Therefore, the Tribunal places little weight on this contention by the Respondent.
THE SECOND BREACH
The complaint of the Respondent under this heading is that the Applicant has only provided bank statements from a single account it conducted. It states that the meaning of the language used in the applicable paragraph of the stay order required the production of bank statements for all accounts conducted by the Applicant.
The response of the Applicant is that the bank statements provided are for the account into which students pay their fees. Further, it contends that the relevant orders do not specify what bank account or accounts are to be provided. It makes the point that at the hearing on 26 March the issue was not raised by the Respondent even though only statements for the one bank account had been provided at that time pursuant to the stay orders then in effect which had the same wording.
The language used in paragraph (c) of the stay order does not restrict the scope of statements to be provided to the account or accounts into which students pay their fees. However, one can understand how the Applicant may have construed the paragraph otherwise.
Apparently, the Applicant has now provided a copy of statements for another bank account that it operates with Westpac known as an “Every Day Account” into which deposits are made from the account into which students pay their fees.
It seems from a regulatory perspective that this breach, if it is a breach at all, is of minimal effect so as not to warrant any further consideration. It does not seem to be a breach that justifies revocation of the stay order in any event.
THE SECOND NVR ACT S 26 NOTICE
A “Second NVR Act s 26 Notice” was issued by the Respondent on 3 May 2018. The notice is referred to in its entirety for its full force and effect. It sought for the time specified a spreadsheet identifying each student with relevant information, including if each student had been issued with a warning letter, a breach attendance letter or had been reported for non-attendance. Copies of each class roll signed by students in attendance for each class during the dates specified and paginated with an index identifying each class roll were also required.
The Applicant purported to comply with the terms of the Second NVR Act s 26 Notice on 10 May 2018. The Respondent takes issue with the purported compliance by the Applicant asserting that it is in effect the same response to the earlier s 26 notice. It also tackles the calculations contained in a separate column of the spreadsheet concerned. The same previous complaint is also made that it was not properly indexed and paginated despite the requirement contained in the notice. Concerning this aspect of the complaint the observations made above with respect to the First s 26 NVR Act Notice are referred to and repeated. No further comment will be made upon it therefore.
The Respondent in its submission states that the calculations have an arithmetic foundation that can be determined by using the calculation format contained in the electronic version of the spreadsheet. If this is so the allegations of the Respondent are addressed.
As to the issue of warning letters, breach attendance letters and reporting, the Respondent addresses this contention by stating that the Applicant’s student management system only records what has been sent by email to the students in the database not in the manner sought under the notice. Presumably, it is capable of deduction from the material whether or not such notices have been sent. However, it is not altogether clear if this is so. It remains a point of contention between the parties.
It is a matter that ultimately can only be addressed at a fully ventilated hearing of this proceeding. It is not all together apparent that it is conduct that justifies a revocation of the stay and summary dismissal of the proceeding.
THE THIRD BREACH
The grounds relied upon by the Respondent in support of the “Third Breach” was the alleged failure on the part of the Applicant to comply with the Second NVR Act Notice. It contends that the Applicant has done so since 6 February 2018 when the Tribunal made orders to maintain and produce on request class rolls in a prescribed format. In its submission the Respondent makes the very grave allegation that the Applicant had adopted a deliberate decision to breach those orders. “It appears transparent” to it that the only reason for such a decision would be for the Applicant to assist itself in falsifying documents in order not to comply. This is a serious allegation of fraud and false accounting. It cannot be taken lightly by the Tribunal. There is a high threshold for the Respondent to cross when making and proving this allegation. Practitioners have an ethical obligation and there must be a proper basis for making this allegation underpinned by an appropriate evidentiary foundation or platform.
This failure to evoke a minimum attendance requirement is said to give rise to a separate ground justifying the revocation of the stay order and cumulatively, the dismissal of the application.
It seems on any rational consideration of this contention that it does indeed rely upon the same factual substratum of the failure to comply with the Second NVR Act Notice. Therefore, it does not create a separate ground that the Respondent can rely upon in support of its application.
The Applicant also contends that relevant attendance records although not signed by students were checked off by the trainers and provides documentary evidence in support of such contention. This is said to have occurred by reason of “an administrative oversight”. It also acknowledges that once this defect in procedure was identified, the trainers then commenced to ensure that attendance sheets were signed by the students. This practice recommenced as and from early May 2018. This is evidence of rectification or subsequent compliance (if there was indeed non-compliance) which must have the effect of diminishing the impact or weight of, any alleged breach.
APPLICATION TO REVOKE AND NEW COMPLAINT
The Respondent in support of this ground relies upon a complaint received by one “Manpreet Kaur” concerning the provision of a course known as “Certificate III in Commercial Cookery.” The complaint was apparently lodged by that person on the Respondent’s online portal via the Internet. The complaint contains several serious allegations including but not limited to no teaching or tuition taking place.
The Applicant’s response to this allegation is by firstly, contending that it does not have a student by that name enrolled in Certificate III in Commercial Cookery. It contends that as a matter of procedural fairness, the Applicant is unable to respond to such allegations given that it does not have a student by that name enrolled in that course.
Further, it contends that given that the complaint has been lodged on an Internet portal it is capable of being accessed by any individual who has an email address, little if any weight can be placed upon it. It also contends that the complaint in and of itself is not evidence of the matters contained in it. It is an out of court statement.
This contention has considerable merit. The reason for this is that if such a complaint lodged on the Respondent’s online portal is accepted at face value any person could make such a complaint and it would or may have draconian consequences for a person in the position of the Applicant and their business livelihood. It would remain untested. This cannot be allowed to occur.
The Tribunal accepts these contentions on the part of the Applicant. Without further investigation and appropriate evidence to the requisite standard being placed before the Tribunal concerning the subject matter of the complaint no concluded view can be reached as to whether it is proven or not proven.
Additionally, the fact that the Applicant has not enrolled a student in that course by that name on its face would also indicate that the complaint is either misconceived, erroneous or cannot be substantiated. The only way this matter could be resolved would be through evidence being adduced in the usual way at the hearing of this proceeding. This would probably require the person who made the complaint to the Respondent’s online portal to attend at the final hearing of this application to give evidence in chief and be cross-examined as to the subject matter of the complaint. Anything less than this would really be a denial of procedural fairness to the Applicant.
THIRD NVR ACT S 26 NOTICE

A “Third NVR Act s 26 Notice” was served by the Respondent on the Applicant on 1 June 2018. The contents of that notice are referred to for the full force and effect. The notice required the Applicant to produce a spreadsheet containing specified information, copies of each class roll signed by students for a specified period and copies of any warning letters, breach of attendance letters or non-attendance that had been reported.
A response was supplied by the Applicant on 5 June 2018. It is contended by the Respondent that the attendance sheets were marked by a trainer or assessor rather than being signed by students as required by the relevant paragraph of the stay order. Also it was contended that the class rolls were not indexed and paginated, a similar complaint to that made previously. Also it was asserted that paragraph 3 of the notice had been ignored because no information of the class or category sought was provided.
The response of the Applicant was to refer to and repeat its argument concerning the construction of s 26 of the NVR Act. Also referred to and repeated were the contentions of the Applicant previously made concerning calculations, whether or not the class rolls had been signed and the format of its record-keeping and Information Systems. The Tribunal acknowledges these contentions. The conclusions reached by the Tribunal in these reasons previously are also adopted for this ground.
The Applicant also on 13 June 2018 furnished a spreadsheet to the Respondent recording classes attended by students, total hours attended and the percentage that such attendance represented of the total class hours for the period 16 April 2018 to 1 June 2018.
As to the letters issuing a warning or relating to breach of attendance or non-attendance, the Applicant states that it provided a sample of each of those types of letters, as to provide each and every one of the letters so furnished would involve the production of over 400 letters. It contended that it was complying by providing a sample and further stated had the Respondent requested copies of all them it would have done so. Presumably, these letters were kept in some electronic format that should have been capable of being retrieved fairly easily. One does have to speculate why they were simply not provided. However, by the same token there is some force to the contention that it would have been comparatively easy for the Respondent to have simply requested all of them rather than a sample.
Overall, given the explanation provided by the Applicant, this breach (if indeed it is one) does not weigh heavily in the Tribunal’s considerations of this application.
FOURTH BREACH
This ground again relies upon the alleged failure of the Applicant to comply with the obligations said to be cast upon it under the Third NVR Act s 26 Notice. It is contended that the same spreadsheets have been provided for the periods between 7 February 2018 to 29 March 2018 and 16 April 2018 to 1 June 2018 without time, total hours of student attendance, percentage of minimum hours of attendance by the student and identifying if there have been any warning letters issued.
The Respondent also contends that the Applicant has failed to report any student for non-attendance despite its ongoing obligation to do so pursuant to s 19 of the ESOS Act.
By way of response the Applicant refers to and repeats the matters raised in its submissions concerning the First s 26 NVR Act Notice and the Second NVR Act Notice. The Tribunal notes these contentions.
Concerning the obligation to implement and maintain minimum attendance requirements the Applicant contends that prior to it reporting a student for such non-attendance the internal and external complaints processes which an affected student may avail themselves of, must be exhausted. It observed that on or about the date of the hearing of this application it would most likely be required shortly thereafter to report approximately 265 students to the Department of Home Affairs at the expiration of the six month study period on 24 June 2018. Letters to such students notifying them of the Applicant’s intention to report them were apparently dispatched between 29 June and 3 July 2018. Such letters also advise the students of a 20 working day period to access the Applicant’s internal complaints and appeals processes (as included in Clause 8.14 of the Code). It also notes that Clause 9.3.3 of the Code (which incorporates Standard 8) requires the Applicant to maintain the enrolment of such students until the appeals processes have been exhausted or as Standard 8 describes it “completed”.
On the material before the Tribunal concerning this ground relied upon by the Respondent it is difficult to reach a conclusion without a full hearing and determination of the application. The explanation from the Applicant for not reporting students has a rational basis. As has been noted in many of the authorities it is not the function of the Tribunal in an application such as this to conduct a “mini trial” of the matters in dispute between the parties. There is obviously a live debate and therefore this breach (if it is indeed a breach) cannot weigh heavily in the Tribunal’s considerations of this application.
CONSIDERATION
Section 41(3) of the AAT Act gives the Tribunal the power to make an order varying or revoking the stay order.
There is surprisingly little authority addressing the question of the application of s 41(3). In the case of Daily Update Pty Ltd v Australian Skills Quality Authority[5] Senior Member Ettinger adopted the approach of examining each of the principles that have been enunciated in a variety of authorities such as the decision of Downes J in Re: Scott v Australian Securities and Investments Commission[6]. Having conducted this examination the Senior Member concluded that she would not grant the application by the Respondent to vary the stay order in place. She did so relying on several grounds including that the Applicant had made efforts to become fully compliant, that the prospects of success were favourable and prejudice in the risk that the final outcome would be rendered nugatory and pointless. Whilst this approach is certainly open to the Tribunal it considers that it is not as a general rule an approach that ought to be universally applied to each case. It in effect becomes a rerun of the stay application which overall should be avoided. Each application seeking to revoke or vary a stay order previously made must be considered individually on the facts and circumstances as they arise.
[5] [2014] AATA 118.
[6] [2009] AATA 798 at [4].
There are several reasons for adopting this approach to applications for variation or revocation of a stay order. Firstly, if it is adopted in all cases there is a risk that parties may be minded to make further applications for such orders without any restriction. This could be undertaken for a variety of reasons including tactical considerations or to simply attempt to wear one party to the application down. Tactical considerations might also include on occasion an approach to test the other side’s evidence or engage in a “fishing expedition” to some greater or limited extent. This could be to bolster a party’s case or see just what the strength of the opponent’s case really is. Secondly, as in this case there is the risk that significant resources and time of both the Tribunal and the parties may be devoted to the application rather than the final hearing and determination of the proceeding. It should not be lost sight of in this case that there have been six separate hearings before the Tribunal concerning this matter[7]. There are now eight volumes of material and a large volume of documentation contained on a USB stick that have been filed with the Tribunal. This is a significant diversion of resources.
[7] There have been hearings in this matter before the Tribunal on 6 February 2018, 23 February 2018, 26 March 2018, 21 June 2018 and 24 August 2018.
For these reasons there should not be in this case a complete rehearing and consideration of the issues applicable to a stay application. That has already been done. The appropriate approach to adopt is to identify whether there have been facts or circumstances established that enliven the jurisdiction to make an order of the type contemplated by s 41(3) justifying a variation or revocation of the stay. Those facts or circumstances will of course vary between each case. However, it should generally be confined to post stay order conduct or other matters that have arisen since they were made. They could include as alleged by the Respondent continuing non-compliance with terms of an existing stay. It may involve changed circumstances in the functioning or day-to-day operation of a Registered Training Organisation such as the Applicant in that the existing orders affect its capacity to adhere to the objectives of both the NVR Act and the ESOS Act. There may be a continuing or subsequent impracticality with respect to the application of the terms of a stay that justify revocation or variation.
In this matter the Tribunal has considered each of the grounds relied upon by the Respondent. The observations made above under each of the separate subject headings are referred to and repeated in this conclusion. Several things emerge which cause the Tribunal to conclude that a revocation of the stay order and dismissal of the proceeding should not be granted as sought by the Respondent.
These considerations will be summarised in no particular order of priority.
There is a lively debate between the parties concerning whether or not there have been the breaches of the stay order as alleged. This lively debate cannot be resolved in the course of an interlocutory hearing such as this. As noted above in other parts of these reasons the Tribunal cannot in such an application conduct a “mini trial”. They are only issues that can be determined by having a proper trial of the proceeding.
There is evidence that if there was indeed a breach of the conditions of the stay order such breaches have been addressed and/or otherwise rectified. If this is so it is found that the Applicant is entitled to the benefit of the doubt.
Some of the alleged breaches, insofar as they are breaches, are comparatively minor and were corrected relatively quickly in the scheme of things.
There is also a significant debate about a true and proper construction of s 26 of the NVR Act and the validity of the notices served by the Respondent on the Applicant. The arguments of the Applicant have considerable merit. Whilst the Tribunal does not conclusively determine the question it is significantly weighted in favour of the Applicant in the context of an interlocutory application.
Therefore, the Respondent’s application to revoke the stay order and dismiss the proceeding is refused.
THE APPLICATION TO VARY THE STAY ORDER
As noted previously in these reasons the Applicant seeks to vary the terms of the stay order by deleting or revoking clause (f) which requires the Applicant to implement and maintain a minimum attendance requirement for overseas students as a condition of its registration and further, to keep maintain and produce records concerning such student attendance when required.
The Applicant has filed and served two further affidavits sworn by its Chief Executive Officer Mr. Dhillon on 3 August 2018 and 23 August 2018 in support of its application to vary the stay order. Those affidavits are referred to in full.
Mr. Dhillon in his affidavits deposes to several matters concerning the requirement to monitor student attendance by the Applicant which he says has made it untenable for it to continue to operate. He also articulates what might be described as some practical obstacles that the requirement causes.
He deposes to the fact that since the condition was imposed the Applicant has been only been able to enrol 73 students compared to 169 students for the same period in the previous year.
The imposition of the condition requiring the Applicant to monitor student attendance has resulted in the Applicant determining that 265 of its students must be reported to the Department of Immigration upon completing the relevant study period. Notices to this effect he deposes have been served on the students concerned.
Of those 265 students he deposes 150 have appealed the decision to report them and that their appeals are being processed. Assuming such appeals are successful and the students remain to complete the courses such students will generate fee income of approximately $482,000.
Additionally, he states that apart from the 150 students who have appealed another 115 students have not appealed from the notice of intention to report them to the Department. The fees that would have been received from them would amount to $194,000 had they continued studying.
He further deposes to the fact that since the student monitoring condition with respect to attendance came into effect 85 students have cancelled their enrolment. The effect of this is that revenue of $320,000 has not been received. There is no evidence to determine whether the cancellations were caused by the imposition of the student attendance monitoring requirement in clause (f) of the stay order.
Mr. Dhillon also deposes to the fact that another 20 students have transferred to other providers, causing a loss of income of $96,000.
He also gives evidence as to what he calls “reputational damage” caused by the imposition of the student attendance monitoring requirements in clause (f) of the stay order. Additionally, two solicitors’ letters dated 29 July and 1 August 2018 were tendered in evidence of potential claims by students objecting to the imposition of a term requiring mandatory attendance at courses. No evidence was provided of any response to these letters. One would have expected that if there was such a threat to the Applicant’s reputation as alleged that there would have been a prompt response from the Applicant’s solicitors who have always shown a capacity to promptly protect their client’s position when required. Presumably, the Applicant did instruct solicitors to respond accordingly. It is surprising that such responses were not in evidence before the Tribunal at the time of the hearing for the revocation of condition (f) of the stay order. No explanation was offered as to why this was so. This is all the more surprising to the Tribunal given the fact that Mr Cox on behalf of the Respondent vigorously attacked these letters and described them as “a joke” and that the sending of the letters constituted “outrageous behaviour”.
The solicitors’ letters dated 29 July and 1 August 2018 also reflect the same argument that was advanced previously by the Applicant which was referred to in paragraph 78 of the Tribunal’s reasons of 11 May 2018, namely that the imposition of such a condition might be reasonably likely to result in the existing students being entitled to consider the Applicant in breach of their contracts. As noted in the previous decision by the Tribunal it is not possible to express an opinion on this argument. Certainly, it is not possible on an interlocutory hearing to even delve other than in a relatively slender way into the merits of this debate. However, it seems hard to accept that a student would have a valid cause of action against the Applicant (on the material that is currently before the Tribunal) for breach of contract by simply insisting that the student attend the courses they are enrolled in for tuition. For instance, how does this constitute a breach of the contract? What would be the student’s measure of damage? If the condition is imposed by order of the Tribunal and in that sense also a regulator, how is such a student able to mount a successful claim that the contract has been breached? This is all the more difficult given the fact that registration under each of the statutes is required for the Applicant to conduct its business. It is also noteworthy that one of the solicitors’ letters observes that the complainant may: “Make a formal complaint to ASQA”. This does not seem plausible given that the condition has been imposed by the Tribunal as part of the stay order.
Another matter that is important to consider arises from the material before the Tribunal. The witness statement of Matthew McMahon raises serious questions for the Applicant to answer. The contents of that witness statement are referred to in their entirety. However, it should be observed that Mr. McMahon attended at the premises occupied by the Applicant upon which it conducts training on no less than five occasions between 8 and 16 February 2018. In several of those instances there were very few or no students in attendance notwithstanding large numbers that had been enrolled. Indeed, the premises at one location were not attended by anyone and locked. On other occasions in other rooms there were very few or no students present. Tellingly, in the penultimate paragraph of Mr. McMahon’s statement he deposes to the fact that the Applicant had as at the date that it was made, 685 overseas students currently enrolled as studying; yet when unannounced visits to its main delivery site were made on those dates no more than five students were in attendance at any one time. As previously observed in the reasons of this Tribunal granting the stay order on 11 May 2018 with conditions this revelation raises serious concerns about course attendance.
The Tribunal has watched and listened to the video and audio recordings contained on the USB mini stick made by Mr McMahon and another officer of the Respondent when they entered premises occupied by the Applicant from time to time in February 2018 noted above (usually in the course of execution of a monitoring warrant). Mr. Dhillon was often present during those visits or after a call from the receptionist or other staff member present would appear soon after their arrival. The contents of the recordings speak for themselves when viewed. One of the matters that is glaringly obvious from watching and listening to the video and audio recordings is the absence of students or paucity of such students at the premises on each occasion. Also, the premises were often only staffed by a receptionist or other staff members who were required to make telephone calls to secure the attendance of an officer of the Applicant with some level of authority capable of responding to the officers of the Respondent who attended (Mr. Dhillon in most cases). It raises a question that requires a response from the Applicant. This is all the more of concern given the observations of Mr McMahon earlier that 685 overseas students are currently enrolled yet very few seem to be present when the Respondent’s officers visited the various premises used by the Applicant to purportedly provide tuition.
There is another matter that concerns the Tribunal about the imposition of the student attendance monitoring requirements in clause (f) of the stay order which the Applicant seeks to have revoked. In the USB stick there is for instance a video of Mr. McMahon and his assistant entering the premises at Level 3, 475 Flinders Lane, Melbourne, maintained by the Applicant at 15:10pm on 15 February 2018 under a monitoring warrant. In the course of that visit they enter a classroom[8] in which the “Unit Code: SITXCCS008 - Develop and Manage Quality Customer Service Practices” is being taught by a trainer who identifies himself as “Raji”. There are no students present. The video records Mr. McMahon asking Raji if in front of him is a class list. The document is clearly shown in the video recording and is headed “AAIT Attendance Sheet”. Although the reproduction is not completely clear it appears to have the name of each student and their signature adjacent to the name of the student in the form of an attendance roll.
[8] This is at 3.40 minutes of the video recording.
The evidence of Mr. Dhillon in his several affidavits which asserts that the imposition of the student attendance monitoring requirements in clause (f) of the stay order is untenable is difficult for the Tribunal to accept in the light of this evidence. It is also difficult for the Tribunal to accept that the implementation of attendance monitoring has caused many of his students to become alarmed. The evidence obtained in the course of the monitoring warrants by the Respondent indicates that the students have adapted to it reasonably well. Surely, it is hardly an unreasonable imposition on a student to require them to sign a class roll. It does not affect the quality of the tuition. It has absolutely no bearing on the course content or any other aspect of the tuition rendered. It has on occasion in the course of submissions on behalf of the Applicant been compared with attendance obligations at a university. The Tribunal cannot accept this analogy. A university is a different form of institution and is not a private enterprise organisation, being a company, dependent upon and subject to the licensing, registration and regulatory regimes prescribed in the way that they are in the NVR Act and the ESOS Act.

The reason for not accepting Mr. Dhillon’s evidence on the question of attendance monitoring is the fact that the practice of maintaining class lists signed by students attending such classes was already in place and appeared to be working reasonably well for the class of Develop and Manage Quality Customer Service Practices, not to mention other classes. Also, after visiting the class in which “Raji” was teaching Mr McMahon and his assistant entered an adjacent classroom in which an instructor who identifies herself as “Pam” is present with only three students. She stated in response to a question from Mr. McMahon that she was teaching a subject known as “Purchase Goods”. She also produced a class list for that day in which the student’s name was recorded and what appeared to be their signature was adjacent to the name. Mr McMahon also visited another classroom in which an instructor by the name of “Asiri” was present. There were no students in the classroom. He advised that he was teaching a hospitality subject “Develop a Business Plan”. In response to a request from Mr. McMahon he produced a class attendance sheet which was divided up into three columns. The first column was headed “Student ID”, the second column “Date” and the final column headed “Signature”. It was apparent that each student had individually signed where required to do so
The objects of both the NVR Act and the ESOS Act are referred to again. Those objects include amongst other things, the protection and enhancement of Australia’s reputation for quality education and training. Given the evidence concerning non-attendance by vast numbers of students at the premises upon which the Applicant provides tuition they justify the imposition of the term of the stay order contained in paragraph (f).
The Tribunal has considered the further material contained in the affidavits of Mr. Dhillon that have been referred to previously in these reasons. Whilst it acknowledges that these difficulties may have arisen it cannot be satisfied on the preponderance of the evidence that the failure to obtain further enrolments, cancellation of enrolments or the transfer of students that have been deposed to were caused by the imposition of the monitoring of course attendance condition contained in paragraph (f) of the stay order. There has not been sufficient evidence adduced that satisfies the Tribunal of a causal link between the condition contained in paragraph (f) of the stay order and these matters as well as the resultant financial losses alleged. The Tribunal observes specific figures in terms of loss of revenue are deposed to by Mr Dhillon in his affidavit yet nowhere in his affidavit material does he produce any financial statements, business records or other books of account that verify these figures. The failure to adduce these financial statements and business records inclines the Tribunal to look less favourably upon the application and ultimately draw an adverse inference against the Applicant that it feared to produce these records and that they would not have assisted it.
As for the allegations of reputational damage being suffered by the Applicant, whilst it is said it has caused difficulty in enrolling students and that no offshore students wish to enrol; no more evidence or detail of these allegations which are largely conclusory in nature have been produced. It is stated that there are word-of-mouth referrals of students and reference is made to what are called “referring agents” who recommend students enrolled with the Applicant. However, no details of the so-called sources of word-of-mouth referrals or any evidence is adduced from the unidentified referring agents concerned. It is all too scant and remote once again for the Tribunal to be able to reach any conclusions, let alone place any weight on that material.
For these reasons articulated above the application to vary the stay order by revoking the condition imposed by paragraph (f) is refused.
DECISION
Based on the reasons provided the Tribunal decides the following:
(a)The Respondent’s application to revoke the stay order and dismiss the application is refused; and
(b)The Applicant’s application to vary the stay order by revoking the condition imposed by paragraph (f) is refused.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of R. Cameron, Senior Member

.............................[sgd]...........................................
Associate
Dated: 14 November 2018

Date of stay hearings: 21 June and 24 August 2018

Counsel for the Applicant: Ms C Dermody

Solicitors for the Applicant: GPZ Legal

Advocate for the Respondent:
Mr D Cox, Legal Officer, ASQA

Date of stay hearings:	21 June and 24 August 2018
Counsel for the Applicant:	Ms C Dermody
Solicitors for the Applicant:	GPZ Legal
Advocate for the Respondent:	Mr D Cox, Legal Officer, ASQA