Australian Institutes of Trades Pty Ltd as trustee for the Institute of Hotel Management Australia and Australian Skills Quality Authority

[2017] AATA 2912

Australian Institutes of Trades Pty Ltd as trustee for the Institute of Hotel Management Australia and Australian Skills Quality Authority [2017] AATA 2912 (1 August 2017)

Division:GENERAL DIVISION

File Number(s):                2016/6919; 2016/6920

Re:Australian Institutes of Trades Pty Ltd as trustee for the Institute of Hotel Management Australia

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Egon Fice, Senior Member

Date:1 August 2017  

Date of written reasons:    28 September 2017

Place:Melbourne

The Tribunal revokes the stay order made on 18 May 2017.

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Egon Fice, Senior Member

PRACTICE AND PROCEDURE – review of stay order – decisions to cancel applicant’s registration under NVR Act and ESOS Act – consequences for application if stay refused – public interest – stay revoked

Legislation

National Vocational Education and Training Regulator Act 2011
Education Services for Overseas Students Act 2000

Cases

Secondary Materials

REASONS FOR DECISION

Egon Fice, Senior Member

28 September 2017

1. Both applications in this matter were lodged with the Tribunal on 16 December 2016. Matter No. 2016/6919 concerns the cancellation of the registration of the applicant (Australian Institute) as a Registered Training Organisation (RTO) pursuant to

   
   

   the National Vocational Education and Training Regulator Act 2011 (NVR Act). Matter No. 2016/6920 concerns the cancellation of the registration of Australian Institute as an RTO pursuant to the Education Services for Overseas Students Act 2000 (ESOS Act).

2. On 6 February 2017 Deputy President S A Forgie ordered that the decisions of the Australian Skills Quality Authority (ASQA) dated 18 December 2016 be stayed, subject to two conditions, until the Tribunal hears and determines the application for review or until further order. The order also provided for the Tribunal to review the stay order on

   
   

   7 April 2017.

3. That order was subsequently amended by an order made on 6 April 2017 to continue the stay and included an order that the Tribunal review the stay order on 24 April 2017.

4. The stay order was further extended by an Amended Order made on 28 April 2017 which included an order for further review on 17 May 2017.

5. The stay order was again amended on 18 May 2017 which indicated that the stay would again be reviewed on 31 July 2017.

6. On 31 July 2017 the matter came before me for review of the stay order. Australian Institute sought a further extension of the stay order and in support of its application, provided me with an unsworn affidavit by Mr Geoffrey James Wallace, a director of Australian Institute.

7. At the conclusion of that hearing, I foreshadowed that on the material before me at that time, it would be inappropriate to further extend the stay order. Nevertheless, subject to receiving any further information, I reserved my decision. After reviewing all of the material, on 1 August 2017 I ordered that the stay order dated 18 May 2017 be revoked. I indicated to the parties that I would provide brief reasons in writing. These are those reasons.

8. Mr Wallace testified that Australian Institute employed five full-time staff, one part-time staff member and that it leased three business premises. Two of those premises were fitted out as modern, well-equipped industrial/commercial training kitchens. Its training was focused on the hospitality industry. The equipment was owned by Australian Institute.

9. Mr Wallace also said that since this matter was last before the tribunal on

   
   

   6 February 2017 (as is evident from the chronology set out above, that date is incorrect), Australian Institute had done significant work by fully implementing the new industry engagement tools which in an earlier affidavit Mr Wallace indicated had been acquired; fully redeveloping delivery and assessment strategies; validating and re-validating assessment tools; and revisiting the mapping for all of the units in question.

10. Mr Wallace said there was a severe shortage of qualified hospitality workers in Victoria and throughout Australia. I did not have any evidence which supported that statement. Mr Wallace referred to ASQA’s website where he said it was stated that the completion rate of food sector apprentices was at the low level of 40.6 per cent and that there had been closures of other hospitality colleges. He said feedback received from past students and employers consistently reported that students who completed courses offered by Australian Institute have usually been quick to find work. Australian Institute was not aware of complaints from employers regarding the employment of any of its graduates.

11. Mr Wallace also testified that almost all of Australian Institute’s international students came from the south and south-east Asian region, particularly from India, Pakistan, Sri Lanka and Malaysia. At the hearing of this matter Mr D Yarrow, who appeared on behalf of Australian Institute, said that at present the total number of enrolled students was 97. Of those, 52 were international students and 45 Australian students. Mr Wallace said that Australian Institute continued to operate two courses registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). Those courses were a Certificate III in Asian Cookery and Certificate IV in Asian Cookery. He said Australian Institute was preparing to remove six of the SIT12 courses. It intended to apply for the inclusion of SIT16 courses in the near future. He said the material for those new courses was in advanced preparation, without providing any detail.

12. Mr Wallace cited a number of personal reasons which caused Australian Institute serious setbacks in late 2016 and throughout 2017. For those reasons, he had decided to vacate the position of Principal Executive Officer.

13. The Respondent provided a report prepared by ASQA following an analysis of evidence to support compliance with the VET Quality Framework. The review covered eight SIT13 courses, including cookery, patisserie and hospitality. The review was conducted between 3 July 2017 and 18 July 2017. In other words, it was recent. Despite the passage of some seven months, the overall finding as at 18 July 2017 was that Australian Institute was critically non-compliant.

14. Mr T Lloyd, who appeared on behalf of ASQA, submitted that courses in the Diploma of Hospitality and Advanced Diploma of Hospitality had been superseded. He explained that this matter had been ongoing since August 2016 and that regardless, Australian Institute remained significantly, if not critically, non-compliant. That in turn affected the credibility of the assessments. He also explained that all of the courses on Australian Institute’s application are now superseded and those courses should not be accepting new students. Only two courses which are on its scope are current and neither of those courses are in Asian cookery. Both of those courses are superseded.

15. Following this discussion, Mr Yarrow provided updated numbers of students, stating international and domestic students were equally divided, with 26 students in each category and a total of 52 current students.

16. According to Mr Lloyd, there was no sound basis upon which the two current courses should continue. He stated that despite some effort to rectify the deficiencies in the assessment tools, the amendments did not necessarily rectify issues identified in previous evidence analyses.

17. Australian Institute’s inability to comply with the VET Quality Framework should be cause for serious concern to those students presently enrolled in its courses. Fee paying students should expect their courses to meet the regulator’s standards. With the stay order in place, Australian Institute has not been able to enrol new students and therefore its numbers continue to decline. Given that at least seven months and possibly more have elapsed since the deficiencies were brought to the attention of Mr Wallace, rectification has not been achieved.

18. The purpose of granting an order staying the operation or implementation of a decision is, essentially, to minimise damage which may be caused in the event that an applicant is successful on the substantive hearing of the matter. Its purpose is not, by continuous extensions of time of the order’s operation, to give an applicant more time to demonstrate its compliance with required standards. It may, in some circumstances, particularly where the non-compliance is minor and evidence of rectification exists rather than simply statements that the non-compliance will be rectified in the near future, be appropriate to grant a stay or extend an existing interim stay order. However, in this case, the evidence regarding rectification provided by Mr Wallace is vague. For example, in his sworn affidavit Mr Wallace referred to the new SIT16 materials being well advanced in preparation for application to ASQA. With respect to Mr Wallace, saying something is well advanced in preparation, without producing evidence of what has been done, is inadequate.

19. In my opinion, Australian Institute has been given more than sufficient time to demonstrate by evidence that it has taken significant positive steps to rectify problems identified by ASQA. It has not done so. That is likely to cause significant disadvantage to students who remain enrolled in current courses, albeit that they are small in number. Nevertheless, they should be given the opportunity to transfer to another training provider where they can complete their courses and have relevant assessments made at the conclusion of their studies and training.

20. For the reasons I have expressed above, I find that it is appropriate to exercise the powers set out in s. 41(3) of the Administrative Appeals Tribunal Act 1975 at the request of ASQA to revoke the stay order made by Deputy President Forgie on 18 May 2017.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

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Dated: 28 September 2017

Date of hearing:	31 July 2017
Solicitor for the Applicant:	Mr David Yarrow
Advocate for the Respondent:	Mr Timothy Lloyd