Australian Intelligence Training Academy Pty Ltd and Australian Skills Quality Authority

Australian Intelligence Training Academy Pty Ltd and Australian Skills Quality Authority [2021] AATA 1108 (30 April 2021)
Division:GENERAL DIVISION
File Numbers:2019/6078
Re:Australian Intelligence Training Academy Pty Ltd
APPLICANT

AndAustralian Skills Quality Authority
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:30 April 2021
Place:Melbourne

The Tribunal affirms the Decisions Under Review.
[sgd]........................................................................
Member K. Parker
Catchwords
VOCATIONAL EDUCATION AND TRAINING – cancellation of registered vocational education and training organisation (RTO) – breach of conditions of registration under the National Vocational Education and Training Regulation Act 2011 (Cth) – non-compliance with Standards for Registered Training Organisations 2015 (Standards) – whether now superseded Certificate II-level security course delivered over sufficient duration – whether financial viability risk assessment requirements met – whether data provision requirements met - whether Applicant demonstrated commitment and capability to deliver quality VET - whether Tribunal can be confident that Applicant will meet statutory RTO requirements, conditions of registration and comply with Standards in future – Tribunal considers it is appropriate in the circumstances that the Applicant’s registration be cancelled - decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Vocational Education and Training Regulation Act 2011 (Cth)
Legislative Instruments
Standards for Registered Training Organisations 2015
REASONS FOR DECISION
Member K. Parker
30 April 2021
INTRODUCTION

The Applicant, Australia Intelligence Training Academy Pty Ltd (AITA), was a “NVR registered training organisation”[1] (RTO) prior to cancellation of its registration under the National Vocational Education and Training Regulation Act 2011 (Cth) (NVR Act). AITA had proposed to deliver vocational education and training (VET) in relation to a Certificate II-level security course.
[1] Section 3 of the NVR Act provides that an “NVR registered training organisation means a training organisation that is registered by the National VET Regulator as a registered training organisation under this Act”. The National VET Regulator is defined in s 3 as meaning the body established by s 155 of the NVR Act (being the Australian Skills Quality Authority (ASQA) – see s 155(1A)).
The Respondent, Australian Skills Quality Authority (ASQA), is a Commonwealth statutory body responsible for regulating compliance by RTOs of their obligations under:
(a)the NVR Act;
(b)the VET Quality Framework; and
(c)as required by the statutory conditions of registration, as referred to below.[2]
[2] Refer s 55 of the NVR Act.
The VET Quality Framework comprises:[3]
(a)the Standards for NVR Registered Training Organisations (NVR RTO Standards);
(b)the Quality Standards;
(c)the Australian Qualifications Framework (AQF);
(d)the Fit and Proper Person Requirements (FPPR);
(e)the Financial Viability Risk Assessment Requirements (FVRAR); and
(f)the Data Provision Requirements (DPR).
[3] Refer s 3 of the NVR Act.
ASQA may grant registration under the NVR Act to a VET training organisation for a period not exceeding seven years, following which ASQA may renew an RTO’s registration. ASQA may suspend or cancel such registration or impose other sanctions on an RTO “in any circumstances” where ASQA “considers it appropriate to do so”.[4] RTOs must seek approval from ASQA for any change to the scope of its registration; that is, what courses or units of competencies it may deliver as an RTO.
[4] Refer s 39 of the NVR Act.
AITA was first registered as an RTO on 16 June 2017. AITA’s registration was first cancelled in May 2018, then restored, and subsequently cancelled by ASQA on 24 September 2019. It was not in dispute between the parties that AITA did not enrol any students or deliver any training or assessment during its period of registration.[5] The only course that has been within AITA’s scope of registration was CPP20212 Certificate II in Security Operations (Old Course).[6]
[5] Refer paragraph [15] of the Auditor’s Statement.
[6] Refer T-Documents page 289.
The Old Course has now been superseded by the CPP20218 Certificate II in Security Operations (New Course). The New Course was prescribed as “non-equivalent”. This means that an RTO with the Old Course on its scope of registration is required to apply to ASQA to add the New Course to its scope of registration. The New Course is not automatically added, which would be the case if it was prescribed as being an “equivalent” course to the Old Course.[7]
[7] Refer s 32 of the NVR Act.
AITA did not apply for the New Course to be added to its scope of registration prior to its registration being cancelled by ASQA but has since indicated its intention to do so if AITA’s registration is restored.[8]
[8] Refer page 7 of the AITA’s SFIC.
First cancellation of AITA’s registration – May 2018
On 18 April 2018, ASQA notified AITA of its intention to cancel its registration due to AITA’s failure to submit its annual VET activity report (containing details of the total number of student enrolments and course completions for the year) to the National Centre for Vocational Education Research (NCVER). An RTO’s obligation to do so arises under the DPR made under s 187 of the NVR Act. If an RTO has no enrolments or course completions, it is still required to lodge a “nil activity” report. The objective of the DPR is to ensure that an RTO can demonstrate its financial viability at any time, upon request.[9]
[9] Refer FVRAR 5.
The FVRAR, referred to in paragraph [3], provides that the financial viability of an RTO is measured by whether it has the financial resources necessary to acquire assets and physical resources required to deliver its course(s), employ enough staff, provide appropriate levels of services to its learners, remain in business, so learners can finish their course(s). The FVRAR require RTOs to meet all those requirements, even in an unsure environment.
AITA did not initially respond in a timely manner to ASQA’s request to AITA lodge a “nil activity” report to NCVER.
On 18 May 2018, ASQA gave notice to AITA that it had decided to cancel AITA’s registration as an RTO (First Cancellation Decision).[10] AITA requested that ASQA reconsider its Cancellation Decision.[11]
[10] Refer T-Documents page 30.
[11] Refer AITA’s letter to ASQA dated 4 June 2018 at T-Documents page 350. ASQA notified AITA of its reconsideration decision by email on 16 July 2018.
On 11 July 2018, ASQA reconsidered and affirmed the First Cancellation Decision.[12] AITA requested that ASQA reverse its decision.
[12] Refer T-Documents page 358.
On 1 August 2018, AITA sought review of the decision to cancel its registration by the General Division of the Administrative Appeals Tribunal (Tribunal).[13] AITA also applied for a stay of the decision pending resolution of the review application.[14] ASQA consented to a stay, subject to AITA submitting its activity report to NCVER, which it did on 29 October 2018.
[13] Refer T-Documents page 372.
[14] Refer T-Documents page 373.
In November 2018, the Tribunal made consent orders reflecting an agreement by ASQA for its decision to cancel AITA’s registration to be set aside, on the basis that AITA would notify ASQA before it commenced any delivery of training.[15]
[15] Refer T-Documents page 39.
Second cancellation of AITA’s registration – August 2019
ASQA conducted a “post registration” audit of AITA in early 2019. When first notified about the intended audit, AITA informed ASQA that it had not delivered any training since its registration as an RTO and that its records were held at the “home office” of Mr Fatih Alici, AITA’s Chief Executive Officer and sole director. Mr Alici is also the sole director of FMKA Training and Construction Management Pty Ltd, which owns 100% of the AITA’s shares.[16]
[16] Refer T-Documents page 42.
ASQA advised AITA in April 2019 that it would conduct the audit as a “desktop audit” based on the documentary information provided by AITA. ASQA raised its concern about non-delivery of any training and whether AITA could remain compliant under the FVRAR. AITA submitted to ASQA documentation for the purpose of the audit. ASQA informed AITA that its FVRA tool was incomplete and required updating and requested that AITA provide further information in its business plan to demonstrate how it had calculated its forecasted financials for the 2019/2020 financial year.
On 15 May 2019, AITA submitted a completed FVRA tool and updated business plan.[17]
[17] Refer T-Documents page 188.
On 23 May 2019, ASQA issued an audit report (Audit Report).[18] The reported outcome of the audit was the AITA was “critically non-compliant”. AITA was found to be non-compliant with Clauses 1.1, 1.2,1.3, 4.1 and 7.2 of the Standards.[19]
[18] Refer T-Documents page 227.
[19] Refer T-Documents page 394.
On 24 June 2019, ASQA endorsed the auditor’s findings and decided to issue AITA with a notice of its intention to cancel AITA’s registration as an RTO which it did on 26 June 2019.[20]
[20] Refer T-Documents pages 227 and 228.
In summary, ASQA took issue with the following aspects of AITA’s operations as an RTO:[21]
(a)its marketing practices and specifically, a failure by AITA to use the correct course name and code when describing the course on offer on AITA’s website;
(b)AITA’s successive proposals to deliver the Old Course within 17, 21 and then 22 days, which ASQA considers to be of insufficient duration;
(c)the absence of any lease for training premises or written agreement for the hire of training rooms; and
(d)whether AITA met the FVRAR, given inconsistencies between the information in its FVRA tool and other evidence regarding AITA’s operations.
[21] Refer paragraph [42] of ASQA’s SFIC.
On 26 July 2019, AITA provided ASQA with a set of documents in response to the Audit Report, including:
(a)an updated FVRA tool;
(b)an updated business plan;
(c)letter to ASQA from industry body, Security Trainers Association (STA), providing comments about ASQA’s concerns about the duration of the Old Course (see paragraph [60] of these Reasons for Decision); and
(d)an explanation in relation to the hire arrangements and fees for training rooms.
Upon consideration of that information, ASQA was satisfied that AITA had addressed the non-compliance in relation to AITA’s training facilities. However, ASQA considered that AITA remained non-compliant with the other clauses of the Standards as referred to in paragraph [18] above. ASQA issued a final audit report reflecting these findings (Final Audit Report).[22]
[22] Refer T-Documents T27.
On 15 August 2019, ASQA decided to cancel AITA’s registration as an RTO (Decision Under Review) and notified AITA of this decision on 20 August 2019.[23] In spite of that decision, AITA continued to advertise on its website and on Facebook until about December 2019, and did not return its RTO registration certificate to ASQA as it was required by legislation to do.
[23] Refer T-Documents T30 and T32.
On 18 September 2019, AITA sought review by this Tribunal.
Evidence and submissions before this Tribunal
AITA lodged voluminous documentation in support of its case leading up to, at and after the hearing. This included a paginated set of documents lodged by AITA as referred during the hearing (AITA’s Tender Bundle).
AITA lodged its statement of facts, issues and contentions dated 10 March 2020 (AITA’s SFIC) and closing submissions on 6 November 2020 (AITA’s Closing Submissions).
Mr Alici and AITA’s accountant, Mr Hannah Rana of Vertex Performance Advisers, were called by AITA as witnesses to give oral evidence at the hearing.
Within the documents referred to above, the Tribunal identified four versions of AITA business plans (some containing tables of financial projections):
(a)business plan prepared April 2019 (with the footnote Version 2.0 dated 25 April 2019 (Second Business Plan);[24]
(b)business plan prepared May 2019 (with the footnote Version 3.0 dated 14 May 2019 (Third Business Plan);[25]
(c)business plan prepared May 2019(sic) with the footnote Version 4.0 dated 24 July 2019 (Fourth Business Plan);[26] and
(d)business plan prepared June 2020 (with footnote Version 3.0(sic) dated June 2020 (Fifth Business Plan).[27]
[24] The Tribunal has referred to this business plan as the Second Business Plan, as it was described as Version 2.0. The first business plan was not made available to the Tribunal. This business plan was included in the T-Documents from pages 51 to 74.
[25] Refer T-Documents pages 189 to 212.
[26] Refer T-Documents pages 412 to 438.
[27] Refer AITA’s Tender Bundle pages 125 to 148.
The following versions of AITA’s FVRA tools were before the Tribunal:
(a)FVRA tool prepared by Fountain Gate Financial dated 29 November 2016 (First Tool);[28]
(b)FVRA tool prepared by Peregrine Accountants submitted on 6 May 2019 (Second Tool);[29]
(c)updated FVRA tool prepared by Peregrine Accountants submitted to ASQA under cover of Peregrine’s letter dated 24 July 2019 (Third Tool);[30] and
(d)most recent FVRA tool prepared by Mr H Rana showing its financial projections through to June 2021 (Fourth Tool).[31]
[28] Refer T-Documents page 316 to 330. Mr Alici submitted this FVRA tool at the time AITA applied for registration as an RTO.
[29] Refer T-Documents page 129 to 139. Mr Alici submitted this FVRA tool at the time of the initial audit,
[30] Refer T-Documents pages 236 to 245 (and covering letter at page 252).
[31] Refer T-Documents page 464 to 474.
In its closing submissions, AITA referred to the following evidence:[32]
(a)AITA’sSFIC;
(b)witness statement of Mr H Rana dated 10 July 2020 (Accountant’s Statement);
(c)AITA’s updated TAS for the Old Course issued by AITA on 30 June 2020;[33]
(d)the Fifth Business Plan;
(e)the Fourth Tool;
(f)“Portfolio EM Letter dated 12 October 2020”;
(g)“Updated Evidence Industry Delivery of Course print dates 7 October 2020 x3 and 11 October 2020”; and
(h)ASQA’s Regulatory Risk Framework (RRF) with the print date of 9 October 2020.
[32] Refer paragraph [9] of AITA’s Closing Submissions.
[33] Refer AITA’s Tender Bundle page 95.
ASQA relied upon:
(a)the two sets of documents lodged by ASQA with the Tribunal pursuant to ss 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) on 21 April 2020 and 31 August 2020 respectively. Those sets of documents have been consolidated and paginated and the Tribunal will refer to them collectively as the T-Documents;
(b)witness statement of Ms Bronwyn Turton, ASQA auditor, dated 1 September 2020 (Auditor’s Statement);[34]
(c)ASQA’s statement of facts, issues and contentions dated 1 September 2020 (ASQA’s SFIC);
(d)training packages for the Old Course and the New Course and documents describing the units of competencies for those courses provided by ASQA to the Tribunal on 13 October 2020; and
(e)ASQA’s closing submissions dated 27 November 2020 (ASQA’s Closing Submissions).
[34] This document is marked as “affidavit”. However, the Tribunal received this document as a witness statement after ASQA’s counsel disclosed that it had not been received by a person who had the requisite authority to receive an affidavit. Refer Transcript 13 October 2020 at P-205.
The hearing of this application took place by video link due to Covid restrictions. The Tribunal acknowledges the assistance provided to the Tribunal by Mr Asad Rana, appearing as the legal representative for AITA, and Mr Stephen Rebikoff, appearing as counsel for ASQA. Their advocacy at the hearing and respective comprehensive closing submissions have assisted the Tribunal in reaching its decision.
For the reasons set out below, the Tribunal considers that it is appropriate in the circumstances for AITA’s registration as an RTO to be cancelled. Accordingly, the Tribunal affirms the Decision Under Review.
LEGISLATIVE FRAMEWORK
Objectives of the NVR Act
RTOs are currently regulated by ASQA under the NVR Act.
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
(e)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
(f)to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and
(g)to facilitate access to accurate information relating to the quality of VET.
Note 1:The standards‑based quality framework mentioned in paragraph (b) consists of instruments made by the Ministerial Council, the Minister or the National VET Regulator.
Note 2:These objects are subject to the constitutional basis for this Act (see Division 3).
The legislated functions of ASQA are set out in s 157 of the NVR Act. ASQA is empowered, as the relevant VET regulator, to undertake enforcement action and to make decisions intended to promote and protect students and the general reputation of the VET sector, both nationally and internationally. ASQA’s function is to ensure that registered RTOs are operating in compliance with their obligations under the applicable legislative regime; and that RTOs continue to meet the statutory conditions of registration imposed under the NVR Act.
Section 17 of the NVR Act provides for the grant of registration by ASQA as follows:
Grant of application for registration
(1) The National VET Regulator may grant an application for registration.
(2)In deciding whether to grant an application, the National VET Regulator must consider whether the applicant complies with:
(a) the VET Quality Framework; and
(b)the applicable conditions of registration set out in Subdivision B of this Division.
Section 21 of the NVR Act mandates that an RTO must comply with the conditions of registration set out in ss 22 to 28. The importance of due compliance with those conditions is reflected in s 111 of the NVR Act, which renders contravention of those conditions subject to civil penalties.
Conditions of registration
The conditions of registration potentially relevant in this application include:
(a)under s 22 of the NVR Act, that an RTO must comply with the NVR RTO Standards; Quality Standards; AQF and DPR. The NVR RTO Standards are defined as meaning standards made under s 185 of the NVR Act by the Minister, by legislative instrument, and as agreed by the Ministerial Council. The Minister issued a standard under s 185(1) and s 186(1), entitled Standards for Registered Training Organisations (RTOs) 2015 (Standards);
(b)under s 22A, that an RTO must “demonstrate a commitment, and the capability, to deliver quality vocational education and training”;
(c)under s 24, that an RTO must satisfy the FVRAR.
The structure of the Standards is also set out in Part 1- Preliminary, as follows (emphasis added):
Structure
These Standards consist of eight Standards. Under each Standard is a set of Clauses of the Standard.
To comply with a Standard, the RTO must meet each of the Clauses. A person applying to register as a new RTO must demonstrate the capacity to meet these Standards for all of the person’s intended scope of registration.
For each Standard a context statement is also included. The context does not form part of the Standard itself, and has been included to provide background information to help readers understand the Standard.
The Standards and Clauses are collectively referred to as Standards.
Power to cancel RTO registration

Section 39 of the NVR Act provides that ASQA may cancel an RTO’s registration “in any circumstances that the Regulator considers it appropriate to do so”.
Power to grant (or refuse to grant) an application to change an RTOs scope of registration
Under s 32 of the NVR Act, an RTO may apply to change its scope of registration in respect of the VET courses or units of courses that it delivers. When doing so, an RTO must consider the factors as set out in s 33 of the NVR Act.
ISSUES
In deciding this application, the Tribunal must consider whether it is appropriate that the registration of AITA as an RTO be cancelled, or to impose some other alternative sanction on AITA, as authorised under the NVR Act.
CLOSING SUBMISSIONS
In closing submissions, Mr Rebikoff contended, on behalf of ASQA, that cancellation of AITA’s registration is the only appropriate sanction in circumstances where he says the evidence clearly establishes that:
(a)AITA has an extensive (and admitted) history of non-compliance with basic regulatory obligations, and has repeatedly proven itself to be unable to understand what is required to comply with its obligations or to rectify non-compliance once it has been identified;
(b)AITA remains critically non-compliant with its obligations under the Standards, including in relation to its systems for ensuring compliance, the amount of training it proposes to offer to students, and the documentation it has submitted to ASQA in relation to its financial viability; and
(c)AITA has consistently failed to demonstrate a commitment to, or the capacity to deliver quality training and assessment.
In response, Mr A Rana, on behalf of AITA, contends in his closing submissions that while certain breaches are admitted by AITA, they are unlikely to be repeated in the future. He submitted that the sanction of cancellation was “harsh” and “not proportional to the resultant breaches”. Mr A Rana contends that the cancellation of AITA’s registration should be “voided”.
In the alternative, Mr A Rana contends that if a sanction is to be imposed, it ought to be a non-compliance direction to rectify any concerns of ASQA as to the outstanding matters, specifically, to ensure there are no inconsistencies between the representations made in AITA’s FVRA tool, training and assessment strategy and its business plan. Further and alternatively, Mr A Rana invited the Tribunal to remit this matter back to ASQA for reconsideration under s 42D of the AAT Act.[35]
[35] Refer paragraphs [2] and [3] of AITA’s Closing Submissions.
CONSIDERATION
In reviewing the Cancellation Decision, the Tribunal will commence with a consideration of whether AITA has failed to comply with the Standards, as alleged by ASQA.
The stated purposes of the Standards are as follows:[36]
Purpose
The purpose of these Standards is to:
1.set out the requirements that an organisation must meet in order to be an RTO;
2.ensure that training products delivered by RTOs meet the requirements of training packages or VET accredited courses, and have integrity for employment and further study; and
3.ensure RTOs operate ethically with due consideration of learners’ and enterprises’ needs.
[36] See Part 1 of the Standards.
“Training Package” is defined in the Standards as follows:
Training Package means the components of a training package endorsed by the Industry and Skills Council or its delegate in accordance with the Standards for Training Packages. The endorsed components of a Training Package are: units of competency; assessment requirements (associated with each unit of competency); qualifications; and credit arrangements. The endorsed components form part of the requirements that an RTO must meet under these Standards. A training package also consists of a non-endorsed, quality assured companion volume/s which contains industry advice to RTOs on different aspects of implementation.
Clauses 1.1 and 1.2
ASQA alleges that AITA is non-compliant with Clause 1.1 of the Standards, read in conjunction with Clause 1.2. Those clauses impose the following requirements on RTOs:
1.1.The RTO’s training and assessment strategies and practices, including the amount of training they provide, are consistent with the requirements of training packages and VET accredited courses and enable each learner to meet the requirements for each unit of competency or module in which they are enrolled.
1.2.For the purposes of Clause 1.1, the RTO determines the amount of training they provide to each learner with regard to:
a) the existing skills, knowledge and the experience of the learner;
b) the mode of delivery; and
c)where a full qualification is not being delivered, the number of units and/or modules being delivered as a proportion of the full qualification.
ASQA contends that AITA was non-compliant with Clause 1.1 because it considers that the amount of training AITA intended to provide to students enrolled in the Old Course, was insufficient to enable the learner to meet all requirements of the training package and each unit of competency for that course. In particular, ASQA contends that AITA did not adequately justify its decision to deliver the Old Course over a duration of 17 days (later increased to 21 days and then, 22 days) of full-time study, when the typical “volume of learning” required to achieve the outcomes for a Certificate II-level qualification, is specified in the AQF as being typically 6 to 12 months.[37]
[37] Refer paragraph [16] of ASQA’s Closing Submissions.
To qualify for the Old Course, a learner must complete 12 units of competency comprising seven elective units and five elective units. However, in order to meet the licensing requirements prescribed by the Victoria Police Licensing and Regulation Division of Victoria Police (LRD) to obtain a licence as a crowd controller and unarmed guard, they must complete 19 units in total, comprising seven core units and 12 elective units.[38] As stated in its business plans, AITA’s intention was to deliver 19 units in total, to allow for AITA’s graduates to be awarded the Old Course qualification, and also to be issued with a licence as a crowd controller and unarmed guard.
[38] Refer Transcript P-102.
The Tribunal notes that AQSA has issued the following guidance to RTOs on its website about the volume of learning for VET courses (emphasis added):[39]
[39] Refer of learning
The AQF defines the volume of learning as ‘a dimension of the complexity of a qualification. It is used with the level criteria and qualification type descriptor to determine the depth and breadth of the learning outcomes of a qualification. The volume of learning identifies the notional duration of all activities required for achievement of the learning outcomes specified for a particular AQF qualification type. It is expressed in equivalent full-time years.’
The AQF volume of learning is part of the complexity requirements of a qualification. The AQF provides a guide to the volume of learning which describes how long a learner who does not hold any of the competencies identified in the relevant units of competency would take to develop all the required skills and knowledge.
The AQF specifies the volume of learning in years. The conversion to hours is shown in Table 7.
RTOs are required to comply with the AQF in applying the volume of learning to programs and must develop and implement strategies for training and assessment that are consistent with the AQF.
The volume of learning identifies the notional duration of all activities required to achieve the learning outcomes of the course, including all teaching and learning activities such as guided learning (classes, lectures, tutorials, online or self-paced study), individual study, research, learning activities in the workplace and assessment activities.
You can calculate the volume of learning as follows:
nominal (supervised) hours + unsupervised hours = volume of learning
Nominal (supervised) hours represent the supervised structured learning and assessment activity required to sufficiently address the content of each unit (acknowledging that progress can vary between learners). Nominal (supervised) hours are assigned to learning and assessment activities that are delivered via face-to-face, online and/or structured distance education. Unsupervised hours represent activities that contribute to achieving the course outcomes that are not supervised by an RTO trainer or assessor. These may include activities such as non-supervised work experience, field placement, private study and/or assignment work.
The Tribunal notes that page 14 of the AQF states, in relation to Certificate II level courses, as follows:
The volume of learning of a Certificate II is typically 0.5 – 1 year.
The Tribunal also notes that in Table 7 of the AQF, which is headed “Conversion of Australian Qualifications Framework volume of learning to hours”, the volume of learning expressed as course duration for a Certificate II level qualification of “0.5 – 1 years”, was converted (in the same table) to “600 - 1200 hours”.
In closing submissions, ASQA elaborated upon its concerns about AITA’s nominated course duration for the Old Course, as set out below (footnotes omitted):
17. In this regard, while the Applicant’s Closing Submissions emphasise that the time frames specified in the AQF are not prescriptive, those time frames nevertheless provide a strong indication of the amount of learning that would ordinarily be required to obtain the skills and knowledge necessary to demonstrate competence at the requisite level. As such, they cannot simply be ignored by providers that find it commercially beneficial to offer truncated courses in a shorter timeframe but cannot demonstrate that in doing so they are not thereby sacrificing the quality of the learning.
18. In cross-examination, Mr Alici accepted that his course involved a significant departure from the typical volume of learning specified for a Certificate II level course under the AQF (particularly because it actually involves teaching 50 percent more units than make up the Certificate II), and indicated that in his own view a course of such a short duration would not ordinarily be sufficient for someone with no prior experience.
19. Mr Alici’s only explanation for adopting such a truncated timeframe was because that was what “the industry was expecting” and because he needed to offer such a timeframe in order for his course to remain competitive and attractive to students. He admitted that the timeframe he proposed was the timeframe set out in the training and assessment strategy he purchased from the Security Trainers’ Association, which he adopted without amendment and would have continued to use in its original form had the adequacy of the amount of training not been raised by ASQA.
20. In doing so, he did not consider whether the clustering of units together involved an unacceptable departure from the training package or created a risk that students would not have an opportunity to reinforce the learning of common skills, as prescribed by the repetition of those skills across different units. He also did not seek to justify the amount of training by reference to the existing skills or experience of the students to whom he proposed to offer the training. On the contrary, he admitted that his proposed clients included students for whom he considered the amount of training to be insufficient.
21. It is (or ought be) self-evident that the mere fact other providers are or have been offering the same course in a truncated timeframe cannot of itself justify the delivery of training that is not consistent with the requirements of the training package and does not enable students to meet the requirements for each unit of competency in which they are enrolled. In each case, it will be a matter for the individual provider to demonstrate that the amount of training is sufficient and that it will be delivered to students in a manner that enables them to adequately absorb the skills and knowledge required.
22. In this case, Mr Alici has conceded that the amount of training he originally proposed was inadequate, at least insofar as the training was to be offered to students without prior experience (he described it as like “throwing someone under a bus”). His attempt to address the issue by introducing ‘catch up’ or ‘remedial’ days into the schedule does not fundamentally alter the nature of the training (including its use of ‘clusters’ to teach units simultaneously) or ameliorate the problem of students having enough time to adequacy adequately absorb the knowledge and practice the skills specified in the training package before being required to demonstrate competency.
23. On the contrary, as Ms Turton has demonstrated, the remedial days generally occur after the students have already completed the training and been assessed for the requirements of the unit. In cross-examination, Mr Alici conceded that the remedial days take place after the students have already been taught and assessed for the units (although he subsequently sought to qualify this for students who have failed to demonstrate competency in the initial assessment), and that for most students, they will have already completed the units by the time they reach the remedial day.
24. Moreover, even with the additional days, the students still undertake the course in an intensive fashion that Mr Alici himself acknowledged leaves little time for practice, private study, completion of assignments, or family responsibilities. Further, as Mr Alici made clear in his oral evidence, the amount of training continues to be dictated by the need to ensure the course is not so long as to be no longer attractive to the students who will enrol with the provider that can offer them the course in the shortest timeframe. In no sense is it influenced by the knowledge, skills or experience of the various cohorts of students to whom the course is to be offered.
For those stated reasons, ASQA contends that AITA had not established that the training it proposed to offer was consistent with the requirements of the training package or that it enabled each student to meet the requirements of each unit of competency for the Old Course. Further, ASQA contends that AITA did not determine the amount of training to be provided to each student having regard to their existing skills, knowledge and experience.[40]
[40] Refer paragraph [24] and [25] of ASQA’s Closing Submissions.
ASQA contends that AITA had based its decision about course duration for the Old Course, on the minimum number of face-to-face training hours, that is, 128 hours, as stipulated by the LRD required to obtain a State-based licence, and by doing so, AITA had demonstrated that it failed to appreciate the differing roles of ASQA and the LRD in regulating the security industry. AITA refuted that it failed to understand the distinction between the two.
AITA, in its closing submissions, contends that ASQA’s allegation of non-compliance with Clause 1.1 was made “erroneously or under unattainable premises” and if accepted by the Tribunal, would render AITA to be “unable to compete with other RTOs and financially unviable”, highlighting that financial viability is a key requirement of registration as an RTO.
In support of its contention, AITA produced a letter dated 16 July 2018 received from the vendor of the Old Course TAS, namely, Security Trainers Association (STA).[41] STA is an incorporated association representing companies which provide training to security guards. The STA stated in this letter as follows:
…
The STA in consultation with industry have developed the Training and Assessment Strategy that delivers this qualification over 17 days (136 hours). Victoria Police, Licensing and Regulation Division (LRD) have stated a minimum of 128 contact hours is required for the Delivery of CPP20212 Certificate II in Security Operations, indicating that 17 days (136 hours) exceeds the minimum duration that the Victoria State Licensing Regulator has determined is sufficient for the delivery of this qualification.
This version and delivery method of the CPP20212 Certificate II in Security Operations has undergone multiple initial and post initial registration audits and has been found compliant for a number of RTOs. To find this training package to be non-compliant for one RTO out of over 30 others that are currently training this package would appear to be unfair and unjust.
If you were to increase your time-frame substantially you risk the commercial viability of your RTO and I would hold grave fears for your continuing operation. The security industry is very demanding, however predominately casually based and therefore attrition rates are extremely high. This coupled with the highly regulated application process and probity checks which are the pre-requisite for getting a licence, make obtaining a security licence post training a lengthy process. In addition to this it is costly for an individual to take time off work, pay for the course and then the licence and national police check with the little chance of obtaining substantial work, make the security industry an unattractive prospect for many individuals. Due to the time and financial investment required to enter the security industry during of training plays vital role in making the decision of where to be trained.
The delivery of CPPSEC3004 Prepare and present security documentation and reports, is clustered with three other units of competency (UOC), due to the substantial number of common skills and knowledge across those UOC. This UOC is therefore delivered as part of the other three units to enable to(sic) learner to gain the minimum skills and knowledge required to prepare and present security documentation and reports to the minimum standard for the security industry. Which, if the learner is deemed competent in this UOC by the assessor, who is required to have extensive industry experience to be approved to deliver this training by LRD, has been achieved to the minimum standard necessary. The learner then continues to build on these skills and knowledge across the remainder of the qualification, as demonstrated by the number of incident reports, notebook entries and crowd control registers the learner completes throughout training as a whole. To narrowly assess this UOC without encompassing the requirements of the learner to develop and improve throughout the qualification in its entirety would be flawed. The further skills and knowledge developed throughout the full qualification needs to be included in this assessment.
If ASQA are enforcing the volume of learning requirements, this needs to then be implemented across all RTO’s and be supported by the state security regulator, LRD.
If not, then as long as the RTO is meeting NVR Standards, industry expectations and LRD requirements there should be no concern.
…”
[41] Refer T-Documents pages 233 & 234.
The Tribunal will return to consider the evidence at paragraphs [93] and [94] below.
AITA’s TASs
AITA has issued three versions of a TAS for the Old Course. AITA does not have a TAS for the New Course.
At the hearing, Mr Alici confirmed that the first version of AITA’s TAS for the Old Course (dated May 2019) was given to ASQA at the time of the Audit.[42] Mr Alici confirmed that he had purchased the training package incorporating the Old Course from the STA. This training package included a template TAS for the Old Course. Mr Alici gave evidence that he did not alter or customise the TAS contained in the STA training package purchased by AITA, when preparing the first version of AITA’s TAS for the Old Course. Mr Alici confirmed that the program schedule in it provided for 136 program hours, comprising 17 days of eight hours duration from 8:30am to 5:00pm with a 30-minute break for lunch. In the alternative, the program was offered as a night class over 34 evenings of four hours duration from 6:00pm to 10:00pm.
[42] Refer T-Documents page 107 and Transcript P-100.

During cross-examination, Mr Rebikoff put to Mr Alici that the only reason he had originally adopted the timeframe of 136 hours for the Old Course, was because it was nominated by the STA in the TAS provided in the STA training package. Mr Alici replied as follows: “No, the only reason I adopted it was because the industry was expecting the 136 to obtain the licence. That’s why this, at that timeframe, as a material, sounded to be right”.[43]
[43] Refer Transcript P-103.
Mr Alici said that the second version[44] and third version[45] of AITA’s TAS for the Old Course (issued in May 2020 and June 2020 respectively), were then altered from the TAS contained in the STA training package. Mr Alici confirmed that the second version of AITA’s TAS was altered by AITA to increase the course duration to 21 days and the third version was altered to increase the course duration to 22 days.[46] Mr Alici admitted that he had increased the duration of the course due to concerns that had been raised by ASQA that the course duration was insufficient. He confirmed that if ASQA had not done so, AITA would not have increased the duration of the program in the TAS incorporating the Old Course, because “that’s what the industry expected”.[47]
[44] Refer T-Documents pages 439 to 463.
[45] Refer AITA’s Tender Bundle pages 95 to 124.
[46] Refer Transcript P-105.
[47] Refer Transcript P-105.
Mr Alici gave evidence that AITA was proposing to offer the Old Course to people who had no prior workplace experience.[48]
[48] Refer Transcript P- 106.
AQF
Ms Turton claimed that the time frame referred to in the AQF for a Certificate II-level VET qualification, as set out in paragraphs [54] and [55] above, amounted to a recommendation that courses should be delivered over the specified time frame. AITA challenged this assertion and sought to distinguish the reference to a “typical” duration, from a “recommendation” as to course duration. In support of this, AITA stated that a conflict would exist if those specified time frames amounted to a recommendation, because “both certificate I and II are recommended to be delivered in same duration despite being at different levels”.
The Tribunal notes, as pointed out by AITA, that the term “volume of learning” is defined in the AQF’s Glossary of Terminology as follows (emphasis added):[49]
The volume of learning identifies the notional duration of all activities required for the achievement of the learning outcomes specified for a particular AQF qualification type.
[49] Refer page 101.
As pointed out by AITA, the reference to “notional” means a “guess, estimate or theory and not existing in reality”. However, the Tribunal considers that this notional time frame should not be ignored by RTOs and instead, it was intended to provide guidance to RTOs to inform their respective decisions about the duration over which they should offer and deliver their Certificate II level courses. Further, ASQA has provided policy guidance on its website that, “RTOs are required to comply with the AQF in applying the volume of learning to programs and must develop and implement strategies for training and assessment that are consistent with the AQF”.[50]
[50] Refer paragraph [53] of these Reasons for Decision.
AITA’s position is that it does not object to there being a substantial increase in the course duration for the Certificate II level security course provided that ASQA adopts a uniform policy when enforcing this requirement among all RTOs.[51] Mr Alici gave evidence at the hearing that in his opinion, the course should be delivered over a longer time frame than as proposed in AITA’s TAS.
[51] Refer paragraph [13] of AITA’s Closing Submissions.
ASQA acknowledged that the course duration specified in AITA’s TAS had been increased by Mr Alici, on behalf of AITA, from 17 to 21 and then 22 days.[52] However, Ms Turton states in her affidavit that the number of hours of training in the new TAS has decreased from 136 hours to 128 hours and the additional 28 hours of unstructured revision was scheduled to take place after the students had completed their training and assessment for particular units.[53]
[52] Refer paragraph [14] of AITA’s Closing Submissions.
[53] Refer paragraph [76] of the Auditor’s Statement.
Mr Alici gave evidence that these additional days he had provided for in AITA’s TAS for the Old Course, provided an opportunity for:
(a)the students to undertake revision; and
(b)for its students assessed as “not yet competent” in the workshop assessments (being a type of assessment noted in the TAS) to have additional time to review the course materials.
Ms Turton in her affidavit stated that she did not regard “unstructured revision” as a type of training and assessment.[54] AITA disputes this assertion and contends that revision is one of the best methods used for students to retain their knowledge. Mr Alici said that the remedial days provided an opportunity for the AITA to get a learner to do “catch up work that they’re not clear with”.[55] He gave evidence that students would not be reassessed on those days.[56]
[54] Refer paragraph [79] of the Auditor’s Statement.
[55] Refer Transcript P-108.
[56] Ibid.
Accommodation by AITA of different cohorts of students
ASQA also contends that AITA had not determined the amount of training for the Old Course by having regard to the existing skills, knowledge and experience of the students to whom the course was proposed to be offered, as required by Clause 1.2 of the Standards.
Ms Turton referred to the Fifth Business Plan which identified six very diverse intended cohorts for the delivery of the Old Course being the general community, crowd controllers, students who had finished Year 12, unemployed persons, unarmed guards and “others”. Ms Turton reflected in her affidavit that those six cohorts represented “sectors of the community with vastly different existing skills, competencies, and experience – and thus learning needs”. Ms Turton considered that AITA’s revised TAS failed to consider the differing needs of those cohorts or to explain how the amount of training it has chosen to provide would be appropriate for each cohort.[57]
[57] Refer paragraph [83] of Auditor’s Statement.
Mr Alici gave evidence that AITA had ensured that its students “from varying cohorts” were “accommodated adequately”.
AITA also contends that the training schedule provided for in its TAS for the Old Course was a “sample” as reflected by the following statement in AITA’s TAS:[58]
Sample Training Schedule
The following schedule is provided to students at the beginning of each course to clearly show when units will be delivered and which assessment tasks are required to be completed for each unit. Delivery of training and assessment should be based upon participant needs and guided by the course coordinator/trainer. The below is an indication of the set schedule as reviewed by LRD in line with the minimum hour requirements for Combined Unarmed Guard & Crown Control.
[58] Refer page 101 of the AITA’s Tender Bundle.
AITA contends that this statement demonstrates that “not all actions of the trainer are in writing, most of the conduct of training and assessment is on a case by case basis and it is impractical to include different variations of the course delivery for each cohort”. The Tribunal does not accept that this statement constitutes evidence that most of AITA’s training and assessment is carried out on a case by case basis. It certainly alludes to the possibility of adjustments in the delivery of training being made, but there was no direct evidence before the Tribunal that AITA, at times, had made such adjustments or had done so in most cases, or had extended the duration of its courses because AITA has not ever delivered any course or unit of competency. Instead, AITA has sought to defend its decision to deliver the Old Course over the duration specified in its TAS, on the basis that this met the minimum requirements of the LRD and it aligned with the course duration as adopted by other RTOs.
AITA sought to highlight to the Tribunal that Mr Alici had delivered security and construction training and assessment in the VET sector for over seven years. AITA contends that he catered for each cohort of students on a case by case basis, even though it was not expressly provided for in AITA’s TAS. The Tribunal is not satisfied that this was the case, or would be the case, were AITA’s registration restored. While it is feasible that AITA may provide greater assistance to less experienced or knowledgeable students, the Tribunal considers it likely to take place while AITA’s course was being delivered within the scope of the specified duration of 22 days, rather than it leading to an extension of that duration. Mr Alici gave evidence that the learners had applied pressure to be able to complete the course as soon as possible, to commence employment in the security sector as soon as possible.
AITA contends that “it fully understands the roles of LRD and ASQA distinctly” and that “the reference to LRD should be taken in context of licensing requirements only”. AITA confirmed that the principal reason it contends that a duration of 17 (increased to 21 and then, 22) days is enough, is based on the “industry average, trainer’s opinion and units being delivered in clusters”.
AITA contends that “the formation issues underneath breaches related under clauses 1.1 and 1.2 are complicated in nature” and “should not form basis for a non-compliance”. AITA considers that ASQA ought to implement a “uniform policy in consultation with stakeholders” of the RRF, established under s 190 of the NVR Act, which provides a basis for such action.[59] AITA suggests that if ASQA was genuinely concerned about the Certificate II security course being delivered over an insufficient course duration, it should conclude that this represents a systemic risk and ASQA should address this systemic issue with all stakeholders.
[59] Specifically, pages 6 to 14 of the RRF under the heading “communication and consultation”.
AITA sought to place reliance on the description of the responsibility of providers, such as AITA, as provided for in the RRF to include responsibility “for delivering quality training and assessment that complies with relevant standards and legislation, including meeting the industry needs described in training packages and accredited courses”. AITA considers that by ASQA “singling out” AITA, it was neither applying its risk management policy consistently, nor fairly. In effect, AITA contends that ASQA was transposing the responsibility of the training product developers, such as STA in this case, onto the provider, AITA in this case, by cancelling AITA’s registration rather than adopting a risk-based regulatory approach as is required under the RRF. The Tribunal does not accept those contentions by AITA, but it has considered the broader context within which this issue arose as addressed in further detail below.
The Tribunal acknowledges that the issue of course duration in this case is not straightforward because AITA has adopted a similar approach to many other RTOs by delivering the Old Course in a duration of less than one month. It was not disputed by ASQA, and the Tribunal accepts, that there seems to be a high level of industry-based demand for learners to be able to attain the Certificate II-level security qualification in a relatively short space of time. This is purportedly due to a high demand in the industry to source security personnel.
Noting AITA’s contention as set out in paragraphs [64] and [65] above, the Tribunal considers that, to a certain extent, it is appropriate for an RTO to factor matters such as the expectations and needs of industry and the learners, into its decision-making process when deciding upon the volume of learning and course durations for each of its courses. However, the Tribunal considers that this should not detract from an RTO’s responsibility to undertake its own independent assessment as to what course duration is sufficient for each of its courses to meet the relevant requirements. The Tribunal considers that an RTO should undertake this assessment by considering the matters referred to in the above paragraph, but also by actively considering additional factors, such as whether the nominated course duration allowed sufficient time for each unit of study to be taught effectively to its students, and ensuring adequate unsupervised study time was allocated so students may properly reflect upon and absorb what had been taught to them. The volume of learning guidance provided for in the AQF, and the minimum number of training hours as set by industry stakeholders such as the STA, or the LRD, will serve as a good guide or starting point. But it remains incumbent on the RTO to decide for itself what will constitute a sufficient duration over which it is able meet the specific training requirements prescribed in the corresponding training package for a course.
The Tribunal considers that if an RTO places disproportionate reliance upon the duration of a course, based on the practices adopted by other RTOs, which the Tribunal considers AITA has done in this case, it may lead an RTO into error. The Tribunal finds that the suggested time frames of “typically 0.5 to 1 year” in the AQF, were not factored into the decision by Mr Alici and consequently AITA, to deliver the Old Course in 17, 21 and then 22 days. The Tribunal finds that AITA’s approach was overly simplistic and based almost entirely on what its competitors and umbrella industry association had decided was an appropriate course duration for the Old Course. AITA slavishly adopted the training schedule as set out in the STA’s TAS template. Importantly, the Tribunal finds that AITA’s decision about course duration for the Old Course, did not involve an active and independent assessment by AITA against the requirements of the training package.
The critical importance of security personnel being properly trained and skilled to act responsibly and with due diligence and care when undertaking security-related roles within the Australian community, would seem to be self-evident. This accentuates the need for RTOs to base any decisions about course duration on a much broader range of considerations, necessarily involving a detailed analysis of whether all requirements of the training package can be effectively covered within the course duration ultimately decided upon by the RTO. The Tribunal finds that AITA did not do so, when deciding upon the course duration for the Old Course intended to be delivered by it.
While the LRD has specified that a person must complete a minimum of 128 hours contact hours of training to obtain a security licence, the Tribunal notes that there was no recommendation made as to the overall duration over which the 128 hours contact hours of training should be delivered. In the sample training schedule containing in AITA’s third version of the TAS for the Old Course, 18 of the 22 training days (that is, putting aside the allocated revision days) involved face to face training from 8:30am to 5:00pm Monday to Friday, with a 30-minute lunch break.
The Tribunal has considered the requirements of the training package in respect of the units of competency for this course. By seeking to deliver this course over 17, 21 or 22 business days, AITA would need to implement an intense training schedule, involving the clustering of units, with very few breaks permitted to allow students to go over and absorb what they had been taught in the course. When pressed, Mr Alici himself conceded that three weeks was an insufficient period over which to deliver the security course if a student was inexperienced, and he remarked it would be like “throwing them under a bus”.
Even if one was to accept that the total number of hours of face-to-face training as recommended by LRD was sufficient, the course duration over which those hours of training should be delivered still needed to be assessed and decided by the RTO on the basis that the course program should incorporate supervised and unsupervised study time and learning. This would allow an opportunity for what was being taught, to be properly considered and absorbed by the learners. The Tribunal accepts that in respect of the Old Course, it was justified for AITA to diverge from the six to 12 month “typical” course duration as referred to in the AQF, based on the expectations of industry, LRD and relevant learners. However, the Tribunal considers that a course duration of less than a month was an insufficient period over which an RTO could effectively deliver training for the Old Course to a level that met the requirements of the relevant training product. The Tribunal considers that it is likely to take at least twice as long as that for an RTO to deliver such training effectively.
The Tribunal finds that AITA was non-complaint with Clause 1.1 of the Standards, read in conjunction with Clause 1.2, in respect of its decision to deliver the Old Course over a period of 17, 21 or 22 business days. However, the Tribunal acknowledges the context within which this non-compliant practice by AITA had taken place and will return to address this at paragraphs [94] and [95] below.
Approach of clustering units
Mr Alici was questioned at the hearing about AITA’s approach of “clustering” certain units within the course, enabling AITA to condense the course duration to 17, 21 or 22 business days.
In its Closing Submissions, ASQA contends that AITA had not considered, when it should have, whether the clustering of units together involved an unacceptable departure from the training package or that it created a risk that students would not have an opportunity to reinforce the learning of common skills, as prescribed by the repetition of those skills across different units.[60] The Tribunal agrees.
[60] Refer Transcript P-14.
While the Tribunal’s findings referred to in paragraphs [‎94] to [96] do not turn on this issue, the Tribunal shares ASQA’s concerns about AITA’s decision to condense the Old Course by clustering almost all of the units delivered within the course, into 17 (and subsequently 18) training days. The Tribunal considers that if the individual units were intended to be combined, delivered, and studied simultaneously, the AQF would have designated those clustered units as a single unit.
In conclusion – non-compliance with Clause 1.1 but Tribunal has decided not to place any weight on this consideration
Given the high-risk nature of roles undertaken within the security sector, the Tribunal considers that the delivery of the Old Course by AITA in 17, 21 or 22 business days was insufficient; and it resulted in AITA being non-compliant with Clause 1.1 (read in conjunction with Clause 1.2). However, the Tribunal is satisfied that the broader context within which that decision was made, as referred to in paragraphs [80] to [82], constitutes an important mitigating factor in respect of AITA’s non-compliance in this instance. No evidence was tendered by ASQA to show that separately to its action against AITA that it had contemplated or undertaken a process to address this systemic issue with relevant stakeholders in the industry in a systemic way to bring about changes to the relevant training package offered by STA to its members containing the shorter course schedules. The Tribunal considers that it is appropriate that this should have occurred as contended for by AITA. For this reason, the Tribunal has decided not to place any weight on this consideration when reviewing the Cancellation Decision.
By reaching this conclusion, the Tribunal does not condone for a moment the continued practice of some RTOs of offering the New Course to learners over similarly truncated course durations. On the contrary, and by way of general observation, the Tribunal considers it to be of critical importance that RTOs should ensure that they have allowed for both adequate supervised and unsupervised study time to be incorporated into the training programs. This will lead to a significant extension in the overall course duration for the New Course. However, the Tribunal considers this to be appropriate, particularly given the Tribunal’s stated concerns about the approach of clustering of units by RTOs, namely, that it would seem to the Tribunal to be inconsistent with an RTO meeting the requirements of the relevant training product specifying the course content to be taught as individual units. This unit structure should be reflected, instead of modified, in an RTO’s course program for such courses.

The Tribunal will now consider the remaining allegations of non-compliance.
Clause 1.3
Clause 1.3 of the Standards imposes the following obligation on RTOs:
1.3. The RTO has, for all of its scope of registration, and consistent with its training and assessment strategies, sufficient:
a) trainers and assessors to deliver the training and assessment;
b)educational and support services to meet the needs of the learner cohort/s undertaking the training and assessment;
c)learning resources to enable learners to meet the requirements for each unit of competency, and which are accessible to the learner regardless of location or mode of delivery; and
d)facilities, whether physical or virtual, and equipment to accommodate and support the number of learners undertaking the training and assessment.
Mr Alici gave evidence at the hearing that he had not yet purchased a training package from the STA containing a template TAS for the New Course. Mr Alici confirmed that he was awaiting the outcome of this application before doing so. He told the Tribunal the cost of this training package was $10,000. He said he had liaised with STA and it was awaiting his response. He assured the Tribunal that STA was ready to organise for the provision of the package to AITA. When asked whether Mr Alici was proposing to modify the package, he said he would go through it to see if modifications would be done.
At present, the Tribunal is satisfied that AITA has failed to comply with Clause 1.3(c) of the Standards because, put simply, AITA does not have a TAS in place for the New Course which is the only course that it intends to deliver if its registration was restored. The Old Course is now supeceded as mentioned above. As addressed in more detail below, this factor weighs against the restoration of AITA’s registration at the present time.
Clause 4.1
Clause 4.1 imposes the following obligations on RTOs:
To be compliant with Standard 4 the RTO must meet the following:
4.1Information, whether disseminated directly by the RTO or on its behalf, is both accurate and factual, and:
a)     accurately represents the services it provides and the training products on its scope of registration;
b)       includes its RTO Code;
c)      refers to another person or organisation in its marketing material only if the consent of that person or organisation has been obtained;
d)uses the NRT Logo only in accordance with the conditions of use specified in Schedule 4;
e)     makes clear where a third party is recruiting prospective learners for the RTO on its behalf;
f)     distinguishes where it is delivering training and assessment on behalf of another RTO or where training and assessment is being delivered on its behalf by a third party;
g)     distinguishes between nationally recognised training and assessment leading to the issuance of AQF certification documentation from any other training or assessment delivered by the RTO;
h)     includes the code and title of any training product, as published on the National Register, referred to in that information;
i)    only advertises or markets a non-current training product while it remains on the RTO’s scope of registration;
j)    only advertises or markets that a training product it delivers will enable learners to obtain a licensed or regulated outcome where this has been confirmed by the industry regulator in the jurisdiction in which it is being advertised;
k)     includes details about any VET FEE-HELP, government funded subsidy or other financial support arrangements associated with the RTO’s provision of training and assessment; and
l)         does not guarantee that:
i)a learner will successfully complete a training product on its scope of registration; or
ii)    a training product can be completed in a manner which does not meet the requirements of Clause 1.1 and 1.2; or
iii)    a learner will obtain a particular employment outcome where this is outside the control of the RTO.
Marketing practices
During cross-examination, Mr Alici conceded that he had misdescribed the courses offered by AITA and had also failed to cite the RTO identification code or number for AITA:[61]
MR REBIKOFF: And if we look at the bullet points at the bottom of the page, there are two issues identified. The first one is the organisation’s website, the first of its recognition as an RTO but the identification code is not used and the second is the website doesn’t include the code and title as published on the national register. The training product on scope is CPP20212 and the website refers to two courses, Certificate II an Armed Guard and Certificate II Crowd Control. Now, I think you said in your evidence-in-chief that you got that description from the website of the Victorian Licensing and Regulatory Division?---Yes, correct.
Why didn’t you look on the national registrar, Mr Alici?---That’s - yes, that’s where my point was, because I took that into consideration, it was a mistake which I rectified after they’d fixed it up. So, when I received that it was non-compliance. I understood what my point - what the mistake was and I rectified it with fixing that mistake up.
Right. So, that’s another oversight on your part?---Yes, it was - it was a genuine, like I said a mistake, but you learn from mistake.
[61] Refer Transcript P-66 and P-67.
Mr Alici conceded that when AITA submitted its response to ASQA’s Audit Report, AITA provided details as to how its website had been updated. However, those changes did not include the insertion of the prescribed course code for the Old Course that was being offered by AITA.[62]
[62] Refer Transcript P-67.
Mr Rebikoff took Mr Alici to the notice of cancellation that was issued by ASQA on 20 August 2019. Mr Alici acknowledged that this letter advised AITA of its various obligations following cancellation, including that AITA was no longer an RTO and was required to immediately remove from its advertising and marketing material all references to AITA being an RTO, its RTO identification number or code, and the fact that it delivered VET courses.
On the first day of the hearing, Mr Alici gave evidence that he had instructed one of his consultants to arrange to cease advertising on AITA’s Facebook page and that he had given those instructions by email and by telephone. Immediately before the second day of the hearing, AITA lodged with the Tribunal a letter prepared by Ms Emeretta Maddur, described by Mr Alici as AITA’s consultant involved in the advertising of AITA’s business.[63] In this letter Ms Maddur states:
Further to instructions received from you, the Facebook page ceased advertising on 31 August 2019.
However, a residual sponsored post may have been visible to any individual who was constantly searching and, additionally, Facebook often runs complementary sponsored posts.
Attached is a report from Facebook ad manager detailing the dates advertising commenced and ceased.
[63] Refer Transcript P-75.
Mr Rebikoff took Mr Alici to a Facebook post-dated 7 October 2019 and to evidence demonstrating that this post had remained on AITA’s Facebook page until at least 12 December 2019. Mr Alici did not dispute this evidence and ultimately conceded this was the case.[64] During cross-examination, Mr Alici was questioned at length about this issue and whether he considered that it constituted a lack of due diligence on his part:[65]
MR REBIKOFF: So, it’s right, isn’t it, that this post remained on your Facebook page until ASQA pointed it out in December 2019?---Well, according to that, yes, with the evidence, but like I said, I wasn’t aware of it.
Well, Mr Alici, do you accept that you should’ve checked whether the instruction you’d given had been carried out?---Well, I would’ve checked it until that timeframe, but I didn’t realise there was a post there until I got notified and that’s when I removed it, saying that it shouldn’t be there.
…
Do you agree that a failure to check that the request that you made had been carried out, involved a serious lack of diligence on your part?---Well, when you look at this situation, like I said, it’s a mistake that I came across. So, have I said anything out of this at that stage to make that matter a very serious fact? No, because I didn’t even have students. Number one, it’s a genuine mistake that I didn’t see this post, as I’ve said, but I don’t think the way you’re saying it, it just seems like I deliberately didn’t remove it, when I honestly, like I said again, don’t know that that post was there until ASQA pointed to me. I would’ve checked it, but I wouldn’t – like I said, maybe I checked it on the 5th, 4th, you know, but maybe after that, I didn’t check. Look, everyone’s got their personal matters in fact in there. Anything could’ve happened for me not to see it, but I’m not saying – I accept the fact that it’s wrong and I’ve removed it when I’ve got the understanding from ASQA and I said, definitely if you could see, it’s not there. So, that matter’s been solved as, like I said, it’s a genuine mistake and I did solve that problem.
Do you accept that the failure to check or remove this post involved a serious lack of diligence on your part, Mr Alici?---No, because my point is, I said, like it’s a genuine mistake.
[64] Refer Transcript P-83 and P-84.
[65] Refer Transcript P-84 and P-85.
On the first day of the hearing, Mr Alici gave evidence that after he received ASQA’s letter on 20 August 2019 that he changed AITA’s website so that it would state that no classes were running. On the second day of the hearing, Mr Rebikoff put to Mr Alici, a page from AITA’s website which had been printed on 3 March 2020, which referred to AITA as an “RTO”, after its name. Mr Alici conceded that this was the case and that the RTO number also appeared on that webpage.
At first, Mr Alici suggested that the website was not “live”. When this assertion was subsequently shown, by the evidence, to be incorrect, Mr Alici then explained that it was a genuine mistake and not a deliberate act by him. He sought to justify why he had taken the approach he had on account of having sought review of the Cancellation Decision by this Tribunal, as follows:[66]
[66] Refer Transcript P-87.
MR REBIKOFF: Well, Mr Alici, can we go back to the letter from ASQA please?---Yes, we don’t need to go back to the letter, I know exactly what the letter’s saying right now. Yes, it will be a mistake that I did, which like I said, it’s again, genuine, which I fixed that, with putting off live, the website after. I thought this would’ve been enough to cover that up, but obviously, with having the RTO number there, which I realise, wasn’t. If it did remove the RTO number as well, this conversation wouldn’t be even happening, which is my mistake, like I said, genuine mistake.
So, the statement that you’ve put there also doesn’t comply with your obligations, does it?---Because I was going with the AAT at that stage, the application and that’s what that mentioned there, because I was going through that process, as understanding, by putting that note was enough at that time.
Well, Mr – sorry, what do you mean when you say you were going through the AAT process?---Well, I’ve applied – when I put that notification there, it was because of the process of applying for AAT…
…
MEMBER: Mr Alici, I want to know, why didn’t you just take your website down? ---Like I said, this was – I thought this was enough to cover that up. That’s what I’ve mentioned just before as well.
MR REBIKOFF: Can we go back - - -? ---Like I said, the genuine reason - - -
MEMBER: But didn’t you read the instruction on the ASQA letter? ---I did.
And why didn’t you do exactly what that said? Given the history of having got it wrong in the past, why didn’t you carefully look at that letter and see what it was that you were going to be required to do, particularly given you’re intending on challenging the decision?---I’m not challenging the decision that - - -
Why didn’t you err on the side of caution, instead of thinking, “Well, this will be enough, I’ll just do that”?---What I did was, honestly, at that moment, I thought this – like, I’m just being genuine on this – that notice was enough. I didn’t really intend to think the RTO number – like I said, I was going through a phase of time of trying to get myself understanding the fact of the cancellation, so obviously, mistakes, as a human, I’m going to do and this was one of them, but putting that note there, I thought was enough at that moment. Like I said, I was wrong, and I admit that.
Mr Alici conceded that he was previously unaware that AITA had an obligation not to hold itself out as an RTO if it was not registered, but he knew this to be the case now. He accepted that this was his mistake, one that he said he had not made deliberately. Mr Alici accepted that this constituted a lack of diligence on his part.[67]
[67] Refer Transcript P-90.
Mr Alici was provided with an opportunity to explain to the Tribunal why it should have confidence that the mistakes that had been made by AITA in the past, would not occur again, and what had been put in place by AITA to ensure this. Mr Alici initially made two motherhood statements that he had learnt from his mistakes and that his actions were not deliberate. The Tribunal pressed Mr Alici for specifics about what he was going to do, that would make a difference. Mr Alici said he had liaised with some compliance teams. When asked about this, he said that he had spoken to a consultant, Vivacity. He said he could not recall the name of the person from Vivacity he had spoken to and that he had first contacted them “a couple of months ago”.
Mr Alici said he had also spoken to a second consultant, RTO360, at about the time he lodged the AAT application. He said he was unable to remember the name of the person from RTO360 he spoke to.[68]
[68] Refer Transcript P-93.
Mr Alici said AITA had not entered into a service contract with either of those consultants. He said they had told him they were “overbooked” and that COVID-19 had slowed things down.[69]
[69] Ibid.
The Tribunal is not satisfied that Mr Alici, working independently, is able to comprehend the various obligations of an RTO to ensure that those requirements are met and continue to be met in the future, and that he and AITA would require a significant level of external professional assistance in order to do so. The Tribunal did not gain an impression that AITA had made any progress with making changes to its systems, resources (in the form of engaging consultants) and operations, likely to make a difference to AITA’s propensity to comply with the obligations of an RTO in the future. This factor weighs against restoring AITA’s registration as an RTO.
FVRAR - Clause 7.2 of the Standards and s 24
Standard 7 requires an RTO to have effective governance and administration arrangements in place. The “Context” provided for this standard is described as follows:
Context:
Business viability is critical to the ongoing sustainability of an RTO and the investment it makes in its services. If RTOs are not viable, then this negatively impacts on the quality of its training and assessment outcomes and on learners.
Operational and financial business standards therefore provide important protective measures for the learner and RTOs, as well as acting as a disincentive for underprepared organisations to enter the market.
The factors determining the viability of an RTO are dependent upon the business objectives and operating characteristics of the RTO. For example, the factors determining the business viability of an enterprise RTO embedded within a major Australian business may be different to those impacting upon a private provider or a publically-owned TAFE Institute.
For an RTO to be compliant with Standard 7, it must meet each of the requirements set out in Clauses 7.1 to 7.5. Relevantly, clause 7.2 requires an RTO to satisfy the FVRAR. This is also required as a statutory condition of registration under s 24 of the NVR Act.
During cross-examination, Mr Rebikoff put to Mr Alici that the contents of the AITA business plans that had been developed by a consultant engaged by AITA, were strikingly similar to the business plans that the same consultant had been involved in preparing for two other training organisations, Australasian College of Education and Training Pty Ltd (ACET) and Complete Training. Mr Alici expressed shock about this and said he had not been aware that this was the case. When those respective business plans were compared during cross-examination, Mr Alici did not dispute that they resembled each other. However, Mr Alici did not accept a proposition put to him by Mr Rebikoff that the AITA business plans had not been prepared for AITA. Mr Alici maintained that he had prepared those plans, together with the consultant.[70]
[70] Refer Transcript P-159.
As evident from a comparison of the contents of the respective plans, the Tribunal finds that AITA’s business plans were based on minimal input from Mr Alici and instead, comprised an almost identical business plan that was used for other unrelated training organisations. This reflects poorly on the professionalism of Mr Alici and AITA in respect of the information it submitted to ASQA at a critical time when it was under scrutiny by the regulator.
Mr Alici conceded that the different versions of AITA’s FVRA tools contained differing financial projections. The First Tool projected that AITA would have about $30,000 in working capital in 2017 and $40,000 by the end of 2018.[71] Those projections were not realised. One reason put forward by Mr Alici for this was that prospective learners were unable to access government funding for the AITA course and that AITA required access to such funding in order to be competitive.[72] Mr Alici accepted that the projections on the Second Tool had indicated that AITA’s revenue would be generated from fee-paying students, which was at odds with Mr Alici’s suggestion that the reason why AITA’s earlier projections were not realised was that AITA’s students could not access government funding.
[71] Refer Transcript P-114.
[72] Ibid.
Mr Alici accepted during cross-examination that ASQA had raised with AITA during the Audit, that AITA’s business plan did not contain projections to support the assumptions set out in the Second Tool and that the Second Tool was incomplete. Mr Alici indicated AITA’s FVRA tool was subsequently updated (refer AITA’s Third Tool).[73]
[73] Refer Transcript P-115.
Mr Rebikoff highlighted that the profit and loss statement in the Second Tool for Year 1 was $283,500 and there was no entry in the row that related to “VET FFS domestic students” (that is, fee for service students). Mr Alici confirmed that the projected revenue would be derived from full fee-paying students. Mr Rebikoff asked Mr Alici why he had projected revenue from full fee-paying students in circumstances where his evidence was that AITA had not commenced training in 2017 because the students wanted access to government funding. Mr Alici said that he was not eligible for anything else at that stage, which is why full fee-paying projected revenue was mentioned. Mr Alici also said he had issues with this, which is why he got an updated FVRA tool and that such tools “were not his expertise”. He said this explained why Mr H Rana came into the picture and updated it (i.e. the Fourth Tool).[74]
[74] Ibid.
Mr Rebikoff took Mr Alici to the Third Business Plan (at page 212 of the T-Documents) and asked him why it had stated that the primary aim for 2019/2020 was to secure $594,000 from government source training revenue. In response, Mr Alici that this was a “wording mistake” and that it “should be full fee training”.[75] Mr Alici pointed out on page 3, it was stated that AITA was planning to apply for “government sources training”.
[75] Refer Transcript P-116.

Next, Mr Rebikoff asked Mr Alici why AITA’s projected revenue had increased substantially from $283,000 to $594,000. Mr Alici indicated that his accountant had come up with the figure. He also said that when ASQA had told Mr Alici this figure was incorrect, Mr H Rana “came into the picture, went through it and upgraded it”.
The Fourth Tool, prepared by Mr H Rana, assumed that AITA would increase its training from running one course per month, to two courses per month. Mr Rebikoff asked Mr Alici whether he agreed that, “$594,000 in revenue from two classes, two day classes, one night class and one weekend each – well, two day classes per month and one night and one weekend class every two months is a very ambitious forecast for a college that hasn’t actually delivered any training, despite advertising on its website and Facebook page for more than a year”. Mr Alici provided the following response:
No, that was the revenue that’s been put through. Would I get it? It just depends. Like I said, I can’t say if I’m going to get to that amount. I only can say that that is the aim.
Mr Rebikoff put to Mr Alici that AITA had no basis to make the financial projections that had been made, to which Mr Alici said that he was going to change the way that AITA would market its course. Mr Rebikoff pointed out that AITA’s marketing strategy in AITA’s successive business plans had not changed.
Mr Alici accepts that as AITA’s CEO he was ultimately responsible for ensuring that the information in AITA’s FVRA tools was correct. Mr Alici confirmed that he had checked AITA’s FVRA tools. He also confirmed that in respect of the Fourth Tool, he had spent “a lot” of “hours and time” going through the documentation with Mr H Rana.[76]
[76] Refer Transcript P-120.
Mr Alici said that after going through the financials with Mr H Rana, he had decided that it would work better to hire a permanent venue, rather than training rooms.[77] Mr Rebikoff took Mr Alici to the information AITA had provided to ASQA as part of its rectification evidence to address the alleged non-compliance with Clause 1.3 about facilities and resources, and highlighted that it had been proposed that hire facilities could be booked at a community meeting room at the Maribyrnong Library for $4,488 to deliver its course over 17 days, and a further fee to book hire facilities at Best Western Mahoney’s Motor Inn for its day and evening courses. Mr Rebikoff questioned Mr Alici about why those costs had not been reflected in any of AITA’s FVRA tools. Mr Alici agreed that there had been no provision made for the cost of hire facilities in the First Tool, indicating there was a problem with the accountant who prepared that tool. Mr Alici accepts that he had signed a declaration at the end of the FVRA tool endorsing that the information provided in it was accurate. Mr Alici responded as follows:
…I am seeing this, that’s what I’m trying to come up to. With him not putting that right now shows me the mistake there. What I sort of misunderstood was the figure underneath it, obviously missing it, thinking that that was for the room hire, which it wasn’t, which doesn’t make sense down the track anyway. So I just got a bit confused with it. Obviously, you know, a toolkit that I’m not really familiarised with, but looking at it now, and with [Mr H Rana], I went through all that detail. Obviously, you know, the mistakes were covered, which, like I said, it’s just a mistake that ---
[77] Refer Transcript P-120.
Then, Mr Alici gave evidence to the effect that when he had reviewed the draft First Tool, he had seen figures inputted into the row for “expenses” and “training room hire”. Mr Alici seemed to suggest that the accountant had resubmitted a version to him for signing which had omitted those figures. Mr Alici said he did not “recheck it again”.[78]
[78] Refer Transcript P-134.
The Tribunal notes there is no evidence before the Tribunal from the accountant who prepared the First Tool to provide an explanation about why figures that had originally appeared in the tool, according to Mr Alici’s evidence, had been subsequently omitted. The Tribunal does not accept Mr Alici’s evidence in this regard, in the absence of such evidence from the accountant, and finds that the omission of those projected expenses by AITA, under Mr Alici’s signature, was a significant error which had resulted in inaccurate information about the financial viability of AITA being provided to ASQA.
The Tribunal finds that the responsibility for this error rested with Mr Alici as the CEO of AITA. Mr Alici disclosed at the hearing that his accountant had told him, before AITA submitted the First Tool, whether it was right, but Mr Alici still signed off on it and submitted it to ASQA displays a lack of care in relation to his responsibilities as a CEO and high managerial agent of an RTO. Mr Alici said the accountant had only informed him of this in the last hour before the document was due to be submitted. This does not, in the opinion of the Tribunal, justify why Mr Alici, on behalf of AITA, had signed off and submitted an FVRA tool, when he had serious doubts about its accuracy. The Tribunal considers that this demonstrates serious deficiencies in the executive practices of AITA at the hands of Mr Alici and places into doubt his current ability, without further training, development, and experience, to manage an RTO in a fiscally responsible manner.
The Tribunal acknowledges that there does not appear to have been deliberate concealment of those expenses on the part of Mr Alici, noting that AITA had referred to training room costs and sought to quantify the library meeting room fee of $4,500 in its business plan.[79] However, the projected revenue in the Fourth Tool was based on a certain number of courses being delivered and it became evident during cross-examination of Mr Alici at the hearing, that the projected expenses for training room hire for the number of courses forecast in AITA’s business plan to be offered, had been significantly understated in the Fourth Tool.[80]
[79] Refer T-Documents page 435.
[80] Refer Transcript P-136 and P-137.
It was also apparent that AITA had understated its “staff costs” based on the number of courses to be offered.[81] Mr Alici sought to explain the seemingly low projected “staff costs” on the basis that he would work for free and as needed beyond the expected hours for a full-time trainer in order to teach the additional programs needed to generate the projected revenue. The Tribunal considers that Mr Alici’s explanation was not feasible, based on the figures provided in the FVRA tool, as it would require Mr Alici to work without payment for an additional 354 hours over a two-month period.[82]
[81] Refer Transcript P-138 to P-146.
[82] Refer Transcript P-146.
Mr Alici accepted during cross-examination that he had not made financial provision for the cost of purchasing training materials required to deliver the New Course ($10,000) or the cost of undergoing a further audit by ASQA (about $8,000).[83] Mr Alici confirmed AITA had about $26,000 cash in the bank. Mr Rebikoff took Mr Alici to the expense figures showing that AITA had already incurred $23,000 in expenses. This meant the $22,000 loan repayment which had been recently received by AITA had already been accounted for. Mr Alici did not disagree and said, in effect, that he was working (for another RTO) which meant he could lend money to AITA to pay for the training package and AITA’s audits.[84]
[83] Refer Transcript P-147.
[84] Refer Transcript P-151.
In this regard, Mr Alici gave evidence that he was receiving about $3,800 per week from his work to develop course content and as a trainer, in the building and construction industry for another unrelated RTO, Builders Academy Australia (BAA). Mr Alici said he was working about 48 to 50 hours per week at BAA. Mr Alici explained:[85]
[85] Refer Transcript P-46.
MR ALICI: …But that’s just, like I said, to be able to afford to get my company up and running at this stage. Once, obviously, if I do end up getting my RTO that will change as well. That means I will focus on my business more then.
MEMBER: If you have to stop doing that work to focus on your business, how are you going to support yourself?---So this is what’s going to happen. My aim is to do nights and weekends and obviously another person working during the week, so that means I can work during the week, like just to balance a couple of days, and then support it. So until I get myself up and running I need to juggle on both sides, at this stage, because otherwise I won’t be able to work on - - -
So you’re going to work nights, weekends, and during the days?---I am.
Is that realistic? Are you able to offer a quality, cognitive function to running this RTO, if you’re working nights and weekends?---Well, at this stage I’m by myself, so I’m the only person supporting the funding so I’m trying to build up my dream. For that I need to sacrifice, I need to sacrifice at this stage, for my personal level.
So you’re saying that your personal funds, at the moment, are $2000, but every week you’ve got more money coming in, is that correct?---Correct, yes.
Do you have any other assets that you can generate funds from?---I’ve just got a car, but I don’t think I will be able to generate that as an asset. Well, if I sell it maybe.
All right, thank you. Mr Rana?
MR A RANA: Yes. How much is your car worth?---Sixty-five.
Sixty-five what?---Thousand dollars.
Mr Alici subsequently gave evidence that this car was, in fact, subject to a finance arrangement under which he was required to make regular repayments.
Mr Rebikoff put a proposition to Mr Alici during cross-examination that these matters raised concerns about the financial viability of AITA. Mr Alici rejected this proposition, but he accepted that AITA would be starting off “in the red”.[86]
[86] Refer Transcript P-56.
Mr Alici confirmed that when AITA applied for registration as an RTO, he had completed a certificate indicating that the working capital of AITA as at the end of 2017 was $29,648. He said that the certificate had been prepared based on instructions given to his accountant about the system he was “going to run through”.
Mr Alici acknowledged that he did not trade at all in 2017. He said he was finishing his studies “to take on board the business but then other things occurred…” and that he was also working. Mr Alici said that he had told the accountant that he was studying and working at that time, as he had always done. Mr Alici acknowledged that his registration had been approved on 16 June 2017, but he said his studies were not due to finish until December 2017, following which Mr Alici said would focus on AITA’s business.[87]
[87] Refer Transcript P-57.
During cross-examination, Mr Alici conceded that the certificate he had completed created an impression that AITA would be trading during 2017. He explained that he did not know whether he was going to trade during 2017 until after he had completed this certificate, as he had not decided, until subsequently, whether to complete or postpone his studies. Mr Alici explained that he was not sure whether he would successfully obtain registration as an RTO or how long it would take. He said once AITA was registered, he only had a “very small amount” of his course to complete. He said he needed to finish it, and so he decided to complete it, rather than to allow it to remain as a “burden on his shoulder”.[88] He said that he was marketing AITA and doing research on how to “get my students” and was “not having much luck”.[89]
[88] Refer Transcript P-57.
[89] Refer Transcript P-58.
The Tribunal inquired of ASQA during the hearing whether any documents existed that prescribed a certain level of financial resources that an RTO should have available to it, in order to establish that it is financially viable to operate as an RTO. At the start of the second day of the hearing, Mr Rebikoff relayed instructions from ASQA that there were no such documents. Mr Rebikoff submitted that when reviewing an FVRA tool, the auditors were not looking for a threshold level of resources or profitability. He said they were checking whether provision had been made for the major expenses of the RTO, that the income projected was realistic, and that the figures were consistent with other information provided by AITA. He said this was required to test whether AITA’s projections were a realistic and accurate reflection of the business that AITA intended to operate.[90]
[90] Refer Transcript P-77 and P-78.
The Tribunal has considered the evidence referred to above in detail and cannot be satisfied as to AITA’s financial viability to commence and continue operations for any reasonable period if its registration was reinstated. The Tribunal has reached this conclusion for the following reasons:
(a)the financial projections in the Fourth Tool before the Tribunal as to AITA’s anticipated expenditure and revenue were not based on the delivery of the New Course, but instead, were erroneously based on the delivery of the Old Course;
(b)most cash reserves currently available to AITA were already provisioned for to meet the actual expenditure of AITA to date;
(c)the Tribunal did not have confidence in the reliability of the financial projections as to expenditure and revenue as provided by Mr Alici, on behalf of AITA, because:
(i)significant expenditure had been omitted from the figures, such as the cost of the training package for the New Course and the cost of future ASQA audits;
(ii)the Tribunal considers that AITA’s staffing costs had been significantly understated based on the stated number of courses AITA was proposing to run to derive the projected course fee revenue;
(iii)AITA’s projected revenue was based on assumptions about the number of courses that AITA was planning to deliver which the Tribunal considers lack feasibility, given the staffing and resources realistically available to AITA to run those courses;
(iv)there did not appear to be adequate provision for the cost of training facilities that aligned with the number of courses per month that AITA projected that it would deliver;
(v)it was not evident from AITA’s marketing strategies that AITA would be able to fill those courses with the projected number of students. This was particularly so, given Mr Alici’s evidence about the fundamental problem that arose from AITA not being in a position presently to offer the courses to students under a government fee subsidy arrangement. The Tribunal is not satisfied that Mr Alici’s suggestion that AITA would aim to attract a different market of full fee paying students by targeting persons interested in a career-change, was not adequately supported by its current marketing strategies, based on the evidence that was before the Tribunal;
(vi)Mr Alici placed too much stock in being able to support AITA’s business using fees he was receiving from his current work at a trainer for BAA. This would mean he would need to continue working in that role, while at the same time running courses on weekday evenings and on the weekends at AITA. The Tribunal has considered the evidence by Mr Alici about this as set out in paragraph [132] in these Reasons for Decision. The Tribunal does not consider this arrangement to be sustainable and that there is serious doubt that Mr Alici would be able to continue in both of those roles and to receive the fees and revenue from both; and
(vii)Mr Alici conceded during cross-examination that if he commenced operations that he would be starting “in the red” as supported by the financial information that was before the Tribunal as highlighted by Mr Rebikoff during his cross-examination of Mr Alici.
Based on these findings, the Tribunal concludes that AITA has failed to comply with Clause 7.2 of the Standards requiring an RTO to satisfy the FVRAR. For the same reason, the Tribunal concludes that AITA has failed to meet the statutory condition of registration arising under s 24 of the NVR Act. For this reason, the Tribunal is satisfied that it is appropriate that the registration of AITA should be cancelled.
DPR – Clause 7.5 of the Standards and s 22
Clause 7.5 of the Standards requires an RTO to provide accurate and current information as required by the DPR as updated from time to time. This requirement is also a statutory condition of registration under s 22 of the NVR Act.
At the hearing, Mr Alici admitted that he had received and read ASQA’s correspondence on 18 and 24 April 2018 notifying AITA that it had failed to comply with the DPR.[91] ASQA instructed Mr Alici, in that correspondence, to submit AITA’s data or alternatively, a “nil activity” report by 5 April 2017. When asked during cross-examination whether Mr Alici ought to have been aware of AITA’s obligations as referred to above, at the time he read ASQA’s correspondence, Mr Alici said that it was a genuine mistake that he had made.[92] Mr Alici stated:
…Like I said it’s a mistake I’m a human being. I forgot about it. It’s not like it’s intentionally been done, it’s a mistake and I’ve rectified my mistake and I’ve learnt from my mistake.
[91] Refer Transcript P-59.
[92] Refer Transcript P-60 and P-61.
Mr Rebikoff took Mr Alici to his email to ASQA sent on 19 July 2018 during cross-examination. Mr Alici conceded that at that time he did not know what he was required to do to comply with the data requirements and had asked ASQA for advice.[93] Mr Alici made the following further concessions during cross-examination:
MR REBIKOFF: You declared when you applied for registration as an RTO that you understood what was required under the data provision requirements, didn’t you?---Yes, but at that moment of nil activity statement, that’s the thing that got me confused. With not having a student, did I have to formulate the statement but then, again, it was a misunderstanding and it was a genuine mistake as I mention again.
Do you agree, Mr Alici, that the failure to comply with this requirement, or to rectify it in a timely manner, shows a lack of diligence on your part as the CEO?---Not that when there is no effect on my business where - when I say that’s not agreement, I just rephrase that properly. The point here is I’ve done a genuine mistake and I rectify it to make sure that that doesn’t happen again. So, like I said, I’m a human, I - it could be any sort of factor at that moment. I can’t recall to you what happened at that moment, so it could have just been an issue that came into consideration that I honestly forgot about it. Like didn’t - didn’t submit it for - has not deliberately been done, if you get what I mean. Like it was an honest mistake.
And I ask you again, Mr Alici, do you accept that it shows a lack of diligence on your part as CEO of a registered training organisation?---Yes.
[93] Refer T-Documents page 376 and Transcript at P-62.
Based on the above evidence, the Tribunal is satisfied that AITA has a history of non-compliance with respect to meeting the DPR under the NVR Act and Clause 7.5 of the Standards, even after being instructed by ASQA what it was required to do to rectify the problem. Mr Alici characterises AITA’s failure to follow those instructions as a genuine mistake. While that might be so, the Tribunal considers that Mr Alici’s failure, on behalf of AITA, to do what he was instructed to do by ASQA to meet the DPR and to comply with Clause 7.5, demonstrated that Mr Alici experienced difficulty comprehending the obligations of an RTO. It also demonstrated an element of neglect in respect of actioning important correspondence sent to him by the VET regulator, containing specific instructions as to what he was required to do to meet the DPR.
The Tribunal considers that this factor weighs against the restoration of AITA’s registration and weighs against imposing a lesser sanction on AITA other than cancellation of its registration as an RTO.
Commitment and capability to deliver quality vocational education and training – s 22A

The Tribunal has considered the degree of AITA’s commitment and capability to deliver quality VET when deciding whether it is appropriate to affirm the cancellation of AITA’s registration, or to apply some other sanction. This consideration arises generally, when considering whether AITA has met the statutory condition of registration arising under s 22A of the NVR Act.[94]
[94] Section 22A of the NVR Act provides that an RTO must demonstrate a commitment, and the capability, to deliver quality vocational education and training.
Mr Alici is the sole director of AITA and has also indicated that he is likely to be, at least initially, the principal trainer and assessor if AITA’s registration was restored. The Tribunal notes the following statement made by Mr Alici in his witness statement as follows:[95]
…I have been involved in security industry for around 20 years and have a passion for the industry. I have been actively involved in training and teaching security courses for over 5 years and I simply wish for a chance to have my own business ensuring quality security graduates are provided to the industry. The respondent has been closely monitoring my activities since I was granted the RTO approval and I have always welcomed their feedback and guidance to ensure I am able to provide quality education…
[95] Refer page 4 of Mr Alici’s Statement.
At the commencement of the hearing, Mr A Rana made the following submission on behalf of AITA:[96]
Now, applicant has to date not started to do any training to any students due to the work commitments and his education of - he was actually studying himself as well at that time when it was registered and it’s since that time that he’s been registered he’s been cancelled two times.
Now, he intends to start operating as soon as practicable if - and obviously subject to the outcome of these proceedings…
…
… [Mr Alici] is currently providing training with other institutes who are provide course for overseas who are also entertain (indistinct) students.
He has invested his considerable time and savings to - in order to get the registration and then to keep the activities (indistinct) the marketing activities for, you know, updating his own knowledge has led to facilitate and complying with the requirements of ASQA and he will be giving evidence as to what exactly, or how much he actually has invested into this venture.
[96] Refer Transcript P-5.
Mr A Rana acknowledged that AITA had not delivered any courses during its time of registration and explained that Mr Alici had been preoccupied. Mr A Rana told the Tribunal that AITA would undertake, as a condition of registration, if it was restored, to commence delivering courses within three months. Mr A Rana told the Tribunal that AITA would also undertake to conduct an internal audit every six months and would share the results with ASQA and that he would submit to an external audit every year. Mr A Rana mentioned that Mr Alici was completing a Diploma in Auditing and had two units left to complete.[97]
[97] Refer Transcript P-11.
Mr Alici confirmed at the hearing that AITA did not have a TAS for the New Course because he was not sure where he was “ending up right now to go further”. Mr Alici went on to explain:[98]
MR ALICI: …So what’s happening with the new structure will be obviously the same structure and we’ll have day and night, weekends and online, as well. So I’ll be going, day, night, weekend and online for the new strategy. Because of the Covid the online will be implemented, as well, which they - that will be a different structure for the online, obviously, because it’s a self-paced, sort of a self-paced learning. But there’ll be workshops involved with that where - because you can’t do first aid, self-defence or any role plays if you’re not face to face. So there will be indicated workshops to cover that section of it, and then the rest where the theory - but then again, what my aim is here because knowing how the system works, with the theory I will be asking, obviously, there will be sort of - a questioning the students when they come to these workshops to make sure that they have done the work themselves, not got help or got someone else to do it. Like, they can get help with the wording but they need to understand the whole structure, how it works. So there will be definitely questioning on the students before they attend these workshops to make sure that they’re clear with what they’ve done so far, that they’ve got the knowledge.
MEMBER: So have you looked at the units for the new course?---I have, but not in details. I have, but because like I said, my matter was to just concentrate at this end but I can come up with a strategy and explain it with no problem, at all. Definitely, I can get that worked out and - - -
And what duration are you proposing to deliver the course over?---Now that’s the thing, 18 days it says right now with the system but obviously I’m going to be working on that and making it more. Yes. So the direction’s 18 days by the package but obviously that’s not what we’re going with. It’ll be more days. So I’ll have, obviously when we get the package - - -
And how many more days are you - - -?---Well, I can’t guarantee exactly, right at this stage unless I see the - I go through the package, myself. Because I need to go through to make sure what is more considered for experienced and the non-experienced group where - how they can take this into consideration, how much details is needed, timing needed to get them satisfied for the course because our aim is not just to get it in the competence space but to make sure that they do understand when they go into the industry, that they do understand their rights, their - you know, where they’re dealing - in what subject they’re dealing with, so if they’re doing crowd controlling, what’s the needs for that; if they’re doing security, what’s the needs for that; if they’re doing bodyguard, for example, what’s the needs for that.
All right, all right?---So I have to give that more indication, yes. That will be considered.
[98] Refer Transcript P-32.
At the hearing, Mr Alici confirmed that prior to applying for AITA to be registered as an RTO, Mr Alici had no previous experience of running the operations of an RTO.[99] When asked what he had done prior to registration to familiarise himself with the responsibilities of an RTO under the VET quality framework, Mr Alici said he had worked with a consultant, to gain an understanding about it, and an accountant, to “get the financial viability information through”.[100] Mr Alici acknowledged that AITA had submitted a financial viability risk assessment pack at the time he applied for registration, but that it had since been updated as mentioned above.
[99] Refer Transcript P-55.
[100] Refer Transcript P-55.
It is evident to the Tribunal that Mr Alici has had minimal involvement in the preparation of the financial information that was provided to ASQA at the different stages as set out above. It is also evident that he has had minimal involvement in the preparation of AITA’s business plans. To exacerbate matters, the business plans seemed to have been substantially replicated from the business plans of other unrelated RTOs reflecting that Mr Alici has simply adopted the business plan provided to him by the consultant engaged by AITA at the outset. It was also evident that until recently, Mr Alici has not exercised any effective governance over the marketing activities undertaking by others on behalf of AITA. Mr Alici’s attention to regulatory matters concerning AITA has also been lacking in the past, even when he was instructed by ASQA what needed to be done to ensure AITA had met its regulatory requirements. The Tribunal concludes that Mr Alici had other things, such as his private studies and BAA work commitments, vying for his attention and those external commitments are likely to have prevented Mr Alici from giving AITA the attention it required, in order to commence operating as a compliant RTO and to deliver quality VET.
The Tribunal formed an impression during the hearing that Mr Alici’s strengths lie in his extensive experience as a trainer and assessor of VET courses. However, the Tribunal has grave concerns about whether Mr Alici has the necessary focus, knowledge and managerial skills sufficient to enable AITA to operate effectively as a compliant RTO and to ensure that it met, and continues to meet, the statutory requirements for an RTO and statutory conditions of registration. As well-intentioned as Mr Alici is, the Tribunal is not satisfied that AITA has demonstrated that it has the commitment and capability, through Mr Alici’s actions and financial backing, to operate as an RTO at the present time.
It may be that Mr Alici, if he chooses to do so, develops his managerial, governance and financial skills and knowledge in the future, to a degree where he can lead the operations of a Nationally-accredited training organisation in a way where he can demonstrate the commitment and capability of operating an RTO within a highly regulated environment. Mr Alici may succeed in building a secure financial base for AITA from which it can demonstrate that it has the capability of meeting the FVRAR. By developing a secure financial base from which to operate, this may also allow Mr Alici to step down from his current full-time occupation with BAA, thereby allowing him to turn his focus to the operations of AITA. But until now, this has not happened, and the Tribunal is not satisfied that AITA is currently operating from a secure financial base.
The other factor which prevents the Tribunal from being satisfied that AITA has the capability to operate as an RTO, as addressed above under the heading “Clause 1.3”, is that no training and assessment materials are in place to deliver the New Course in the event that its registration was restored and approval was applied for and granted to AITA to deliver the New Course. The Tribunal considers that this reveals a lack of commitment and also demonstrates a reactive approach to compliance. The statutory regime provides for a training organisation to be granted registration only once it can establish that it is set up and ready to deliver courses. The approach adopted by Mr Alici, on behalf of AITA, of seeking restoration of its registration based on future undertakings is, in the opinion of the Tribunal, misconceived. It reflects that Mr Alici, and AITA, fail to understand the self-regulatory statutory regime within which an RTO operates and is granted registration, requiring RTOs to act proactively in relation its compliance obligations.
Based on those matters, the Tribunal concludes that AITA has not demonstrated that it has the commitment and capability to operate as an RTO at the current time. This means AITA has not met the statutory condition of registration under s 22A of the NVR Act. The Tribunal has considered the various undertakings that Mr Alici has made at the hearing about the things that he intends to do differently in the future. However, given the very limited financial resources available to AITA when compared against its actual and anticipated expenditure, in conjunction with Mr Alici’s other onerous work commitments with BAA, the Tribunal is not satisfied that AITA stands any real chance of being able to demonstrate such commitment and capability to operate as a compliant RTO at any time in the near future and is likely to remain in breach of the statutory condition of registration under s 22A.
The Tribunal does not consider that there is any identifiable purpose to remit this matter back to ASQA under s 42D of the AAT Act, as proposed by AITA.
For this reason, the Tribunal is satisfied that it is appropriate that the registration of AITA should be cancelled.
CONCLUSION
The Tribunal concludes that AITA had failed to comply with Clauses 1.1 and 1.2 of the Standards. However, the Tribunal it does not place any weight on this consideration for the reasons set out above.
The Tribunal also concludes that AITA has failed to comply with clauses 1.3 and 4.1 of the Standards and that those non-compliances weigh against the restoration of AITA’s registration as an RTO.
Importantly, the Tribunal concludes that AITA does not meet either the FVRAR or the DPR and consequently, those statutory conditions of registration under ss 22 and 24 respectively of the NVR Act has not been met by AITA. They are critical matters and are further reasons why it is not appropriate that AITA’s registration be restored.
Finally, for the reasons outlined, the Tribunal concludes that AITA has been unable to demonstrate a commitment and capability to deliver quality vocational education and training and to issue Nationally accredited qualifications. Mr Alici seemed to the Tribunal to be well-intentioned in his endeavours. However, there are some important deficiencies that need to be addressed before the Tribunal considers that AITA could demonstrate such commitment and capability as outlined in these reasons for decision. For this reason, the Tribunal concludes that the statutory condition of registration under s 22A of the NVR Act has not been met by AITA, constituting a further reason why it is appropriate for its registration to be cancelled.
The Tribunal considers that it is appropriate in the circumstances that AITA’s registration as an RTO be cancelled with immediate effect and that no other lesser sanction should be imposed. The Tribunal is not satisfied that the alternative sanctions suggested by AITA would adequately address the shortcomings of AITA at a level which the Tribunal could be confident that the Standards, conditions of registration and other statutory requirements under the NVR Act, would be met by AITA either now or into the future.
Accordingly, the Tribunal affirms the Cancellation Decision.

I certify that the preceding 164 (one-hundred and sixty four) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

[sgd]...............................................................
Dated: 30 April 2021

Dates of hearing:

Date last closing submission lodged:

12 and 13 October 2020

27 November 2020

Solicitors for the Applicant:

Mr Asad Rana, Ammanah Legal

Counsel for the Respondent: Mr Stephen Rebikoff

Solicitors for the Respondent: Self-represented

[2021] AATA 1108

30 April 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Remedies

Dates of hearing: Date last closing submission lodged:	12 and 13 October 2020 27 November 2020
Solicitors for the Applicant:	Mr Asad Rana, Ammanah Legal
Counsel for the Respondent:	Mr Stephen Rebikoff
Solicitors for the Respondent:	Self-represented