Australian Vocational Learning Centre Pty Ltd and Australian Skills Quality Authority - [2018] AATA 4725

Australian Vocational Learning Centre Pty Ltd and Australian Skills Quality Authority [2018] AATA 4725 (21 December 2018)
Division:GENERAL DIVISION
File Number(s): 2018/5844
Re:Australian Vocational Learning Centre Pty Ltd
APPLICANT

AndAustralian Skills Quality Authority
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:21 December 2018
Place:Sydney

The application for a variation of the stay order as requested by the Applicant is refused.
...........................[sgd].............................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – request for variation stay order by consent – decision under review to cancel registration – factors to be considered in deciding whether vary conditions of stay order – stay refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Education Services for Overseas Students Act 2000 (Cth)
National Vocational Education and Training Regulator Act 2011
CASES
Australian College of Vocational Studies Pty Ltd v Australian Skills Quality Authority (General) [2018] AATA 1088
Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Institute of Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 4127
Madafferi v Minister for Immigration and Multicultural Affairs [2001] 63 ALD 373
Panganiban and Australian Securities & Investments Commission [2016] AATA 703
Re Alexander and Migration Agents Registration Board [1995] 40 ALD 99
Re Dart and Director-General of Social Services (1982) 4 ALD 553
Re Hollas and Child Support registrar and Simon Rockliff [2002] AATA 480
Re Metro College of Technology Pty Ltd and Australian Skills Quality Authority (unreported) [2015] Application 2015/6137
Rust-Oleum Australia Pty Ltd and Australian Pesticides & Veterinary Medicines Authority [2017] AATA 298
Scott v Australian Securities And Investments Commission [2009] AATA 798
Secretary, Department of Employment and Workplace relations and Anastasiadis [2007] AATA 1065
Technical Education Australia Pty Ltd and Australian Skills Quality Authority [2018] AT 3047
Trades College Australia Pty Ltd v Australian Skills Quality Authority [2018] AATA 1703
SECONDARY MATERIALS
Press Statement: Australian Vocational Learning Centre agrees to make repayments for VET FEE-HELP diploma courses, 23 March 2017
REASONS FOR DECISION
Chris Puplick AM, Senior Member
21 December 2018

This is an application by Australian Vocational Learning Centre (the Applicant) to vary or revoke certain conditions of a Stay Order made, by consent, on 26 October 2018. This application concerns conditions 2(a) and 2(b) of the stay order.
BACKGROUND

In a letter dated 19 September 2018, the Australian Skills Quality Authority (ASQA)[1] notified the Applicant that its registration had been cancelled as its remedial action was insufficient to address various identified non-compliances.[2] This cancellation was to be effective as of 24 October 2018. ASQA had provided the Applicant with a notice of its intention to make a cancellation decision on 4 July 2018 and invited the Applicant to respond to that notification. It did so on 1 and 14 August 2018. ASQA considered the responses and proceeded to make its cancellation decision as noted above.
[1] ASQA is the national regulator under the national scheme established by the National Vocational Education and Training Regulator Act 2011.
[2] Section 37(1)(a) National Vocational Education and Training Regulator Act 2011.
On 11 October 2018 the Applicant filed an Application for review together with a Request for Stay Order with the Tribunal. This stay was opposed by ASQA.
On 23 October 2018 an interim stay was granted by the Tribunal, pending resolution of the substantive stay proceedings.
On 26 October 2018 the parties filed consent orders in relation to the substantive stay application. The terms were deemed agreeable to the Tribunal, and a Stay Order was subsequently made on the same date, as set out below:
1) by consent, pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth)(AAT Act), the Tribunal grants an interim order to stay the Respondent's decisions of 12 September 2018 to:
a) cancel, under the National Vocational Education and Training Regulator Act 2011 (Cth) section 36(2)(f) and section 39, the RTO's registration; and,
b) cancel, under s 83(3)(c) of the Education Services for Overseas Students Act 2000 (Cth), the registered provider's registration for all courses at all locations,
until the decision of the Tribunal on the application for review comes into operation or until further order.
2) pursuant to section 41(6) of the AAT Act, order 1 is subject to the following conditions:
a) the Applicant must not enrol any new students;
b) upon the Applicant addressing the identified non-compliances on which the decisions were based to the satisfaction of the Respondent and upon the notification of same by the Respondent to the Tribunal, order 2 a) will cease to have effect;
c) the Applicant must retain and continue to retain all training and assessment records for all students;
d) the Applicant, must maintain and produce on request to the Respondent, class rolls for each class, containing the name of each student scheduled to attend that class, signed by each student who did attend that class at the commencement and ceasing of each class and signed by each trainer/assessor training or assessing in that class, for all VET courses;
e) the Applicant, in accordance with the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code), must implement and maintain minimum attendance requirements for overseas students as a condition of its registration; and, must keep, maintain and produce those records on request to the Respondent; and,
f) the Applicant, for the purposes of clause 8.13 of the National Code, must assess whether a student has maintained satisfactory course attendance at the end of each week in the study period.
On 10 December 2018 the Applicant’s legal representative emailed the Tribunal and requested that the matter be listed for an urgent Interlocutory Hearing for the variation/revocation of conditions 2a) and 2b). The Applicant maintains that they have complied with condition 2b).
On 11 December 2018 the Tribunal wrote to ASQA, and asked them for their position on this request and that ASQA clarify whether material provided by the Applicant had been reviewed and considered, and whether any finding(s) had been made in accordance with condition 2(b) of the Stay Order.
ASQA was requested to respond to that email by COB 11 December 2018. As no response was received within that timeframe, a further email was sent to ASQA on 12 December 2018.
On 12 December 2018 ASQA responded to the Tribunal advising that ASQA had not analysed the Applicant’s material and no findings in relation to condition 2b) had been made. It was anticipated that ASQA would need until 11 January 2019 to consider the Applicant’s material.
Also on 12 December 2018 the Applicant’s representative wrote to the Tribunal, and confirmed that they are seeking an urgent listing for the reasons set out in their earlier correspondence.
STAY APPLICATIONS

Stay applications may be brought under section 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) which provides:
(2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
It is important to distinguish matters which are relevant for the Tribunal’s consideration in stay applications from those which are not.
In particular, the Tribunal, in stay applications, is not concerned with a merits review of the original decision under appeal, nor with a detailed examination of matters which will ultimately have to be considered by the Tribunal in any full hearing.[3]
[3] Secretary, Department of Employment and Workplace relations and Anastasiadis [2007] AATA 1065; Re Dart and Director-General of Social Services (1982) 4 ALD 553.
What is central to a stay application is the extent to which a stay is necessary, in the express words of s. 41(2) of the AAT Act “for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
In other cases this has been referred to as akin to enjoining the Tribunal to “preserve the staus quo, so as to ensure that a continuum which is broken by a reviewable decision may be reinstated in order to secure the ultimate effectiveness of the hearing.”[4]
[4] Re Alexander and Migration Agents Registration Board [1995] 40 ALD 99 at [102].
The focus on this central issue was affirmed by the Federal Court in Madafferi where, in relation to an analogous (but not exactly equal) provision in migration legislation the court described as “the primary question” in a stay application, how such a decision “will impact in any way on the effectiveness of the hearing and determination of the appeal.”[5]
[5] Madafferi v Minister for Immigration and Multicultural Affairs [2001] 63 ALD 373 at [24].
Section 41(2) also requires, as its other limb, that the Tribunal have regard to “the interests of any persons who may be affected by the review.” The Tribunal will give consideration to who might, in this instance, be encompassed by such a description, below.
The Tribunal recognises that the principles in Madafferi have been called into question as perhaps excessively narrowing the focus of the Tribunal’s considerations, the Tribunal still regards following this “narrower test”[6] as the preferred approach.
[6] Re Hollas and Child Support registrar and Simon Rockliff [2002] AATA 480.
Something akin to a “check list” of items for consideration in stay applications was provided by then AAT President Downes in Scott[7] as follows:
Application having been made for a stay of proceedings under s 41 of the Administrative Appeals Tribunal Act 1975, it is nevertheless incumbent upon me now to consider whether a stay is appropriate. In considering the application, it is appropriate for me to consider a range of matters, including:
1.The prospects of success.
2.The consequence for the applicant of the refusal of a stay.
3.The public interest.
4The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.
5.Whether the application for review would be rendered nugatory if a stay were not granted.
6.Other matters that are relevant, amongst which I would include the length of time that the ban has already been in place and the gap between today and the hearing of the application.
[7] Scott v Australian Securities And Investments Commission [2009] AATA 798 at [4].
The issues for the Tribunal’s consideration in stay applications has also been elucidated by Senior member Taylor SC in Panganiban[8] to include:
[8] Panganiban and Australian Securities & Investments Commission [2016] AATA 703 at [7].
(a) an applicant’s prospects of success, in obtaining a materially different outcome as a result of the review proceeding;
(b) the functions and responsibilities of the statutory decision maker, the nature and purpose of the reviewable decision, and the public interest in relation to it;
(c) the reasons proffered to support, or oppose, the stay application, and the potential practical consequences of any stay;
(d) the practical consequences of the decision under review (to the parties and to any interested persons), unless its operation is the subject of a relevant stay, after taking into account:
(i) conditions that might be imposed as a term of any stay;
(ii) the timing of the reviewable decision, the application, and any likely review hearing;
(iii) the ability of the applicant to pursue the review proceedings effectively; and
(iv) the likely practical utility of any favourable review outcome.
It should also be noted that Deputy President Forgie, in reference to the “check list” in Scott has observed that it “should not be regarded as a comprehensive list of all matters that may be relevant in a particular case.”[9]
[9] Trades College Australia Pty Ltd v Australian Skills Quality Authority [2018] AATA 1703 at [38].
However as the two cited lists encompass essentially the same material the Tribunal proposes to consider this application against the tests outlined in Scott.
However, before doing so it is necessary to consider both the basis upon which the Applicant seeks a variation of part of the Stay Order and the response of ASQA.
The basis of the Stay variation application
The relevant part of the current Stay Order enjoins the Applicant not to enroll any new students until it has satisfied ASQA that it has addressed the non-compliance issues which were identified in the Audit Report.[10]
[10] Updated version created 27 August 2018.
It submits that it has done so by taking the following steps:
1.Finalising an Academic Governance Charter that includes appointing external exerts to work with AVLC management on the Quality Assurance Committee, Course Review Committee and Industry Consultation Committee.
2.Appointment of RTO Advance as internal auditors and specialist advisors to implement an ongoing annual compliance testing and improvement service
3.Strengthening the ongoing professional development and staff training program for trainers, management and support staff, with training having commenced.
It goes on to assert that:
“These initiatives will build a more robust and comprehensive quality management system that focusses on identifying issues for improvement and taking action to implement initiatives on an ongoing basis.
This approach places the student and the quality of their learning at the forefront of all RTO operations and as such sets a clear and more focused strategic direction for premium student engagement and continual and measured RTO improvement.”[11]
[11] Email from Applicant to ASQA dated 4 December 2018.
ASQA rejects this submission, describing it as both ’”opaque” and “embryonic”.
Its consideration of the Applicant’s material as submitted leads it to the conclusion that,
“it would be irresponsible for the regulator to rely on such opaque statements as evidence of anything other than warm intentions” and that, “the Applicant is only at an embryonic stage of developing and (sic) approach to ensure its compliance at all times into the future.”[12]
[12] Email from ASQA to Applicant dated 5 December 2018.
As the Tribunal has stated clearly, it is not its role, at this stage, to determine the merits of the competing claims. However the statement of the two parties leads them to offer conclusions about a matter which is within the Tribunal’s remit to consider, namely the Applicant’s prospect of success at the formal review stage.
The Applicant asserts (via its solicitors) that it:
“(has) now fully complied with the Audit report and were a hearing to be heard today would likely be successful. Respectfully, ASQA cannot maintain its position that the current Stay conditions are appropriate.”[13]
[13] Email from Applicant to ASQA dated 6 December 2018.
In further support of that proposition, the Applicant has provided reports from its engaged consultant, Ms Judith Bowler, who has been engaged by the Applicant as an expert external consultant.
On 22 October 2018 she provided a report which was submitted to the tribunal in which, after reviewing the proposed remediation steps to be taken by the Applicant she concluded that:
“in my option the applicant will have rectified all the non-compliances raised in the audit report within 2 weeks.”[14]
[14] Consultant’s Report (dated 22 October 2018) at [15].
Her final report was not submitted until 16 November, at which stage she wrote:
“In my opinion, Australian Vocational Learning Centre has addressed the matters raised in the audit report and is now compliant.”[15]
[15] Consultant’s Report (16 November 2018) attached to Statement of Mr Neil Chapple (CEO of the Applicant) dated 19 December 2018.
Nevertheless it must be remembered, that both under the statutory scheme, and under the term of the consented Stay Order, it is ASQA which must be satisfied as to the progress made in securing compliance.
ASQA’s position, in reply to all the Applicant’s submissions is that:
·The Applicant’s submission is “misleading and also misconceived”
·The documents submitted “do not evidence any systematic approach to ensuring compliance into the future”
·That the Applicant’s “prospects if a hearing were held today are worse than hopeless.”[16]
[16] Email from ASQA to Applicant dated 6 December 2018.
More to the point, ASQA advises the Tribunal that:
·It has identified that “the Applicant has not addressed in any meaningful way how it will ensure its compliance into the future as required by clauses 2.1 and 2.2 for the Standards for RTOs – as it did not produce any documentation that went to that issue
·ASQA does not agree that any of the relevant issues have been addressed by the Applicant
·That ASQA will not be in a position to analyse fully the details of the Applicant’s material until 11 January 2019.[17]
[17] Email from ASQA to the Tribunal dated 11 December 2018.
THE CONTENTIONS OF THE PARTIES RE FINANCIAL VIABILITY
The Applicant contends, in effect, that its financial position is such that, were it not allowed to enrol any further students, it would suffer a degree of hardship to an extent that it would be forced into liquidation. Were this to be the case then it would not be in a position to present a case for the lifting of the entire stay nor would it be in a position to argue the substantive merits of its case before the Tribunal once a date had been set for the merits/review hearing. The impact of the continuation of the stay would thus have the effect of rendering the future review proceedings nugatory.[18] This is the position it stated in its original stay application and which it continues to press.
[18] Applicant’s Request for Stay Order, 10 October 2018.
ASQA refutes this claim and asserts that the Applicant has “almost $2,000,000.00 cash at bank”[19] or that it “should have approximately $2,000,000.00 in funds to apply for coming into compliance.”[20]
[19] Email from ASQA to Applicant dated 5 December 2018.
[20] Email from ASQA to Applicant dated 6 December 2018.
This assertion by ASQA is further refuted by the Applicant who describes it as “incorrect” and states that the Applicant “incurred a loss for the 2018 year of $1,049,246.22. It does not have the money available you indicate.”[21]
[21] Email from Applicant to ASQA dated 10 December 2018.
The morning of the hearing the Applicant presented further information about its financial position which neither the respondent nor the Tribunal had adequate time to assess. However the statement does indicate that the liquidity position of the Applicant is such that its reserves “will only last until around mid- March 2019.”[22] This is somewhat at odds with the assertion that failure to vary the stay would result in the immediate closure of the business which is made in a subsequent paragraph of the same document.[23]
[22] Neil Chapple (CEO of the Applicant) Statement dated 19 December 2018 at [12.4].
[23] Ibid at [13].
Turning then to a closer consideration of the Scott critera:
PROSPECTS OF SUCCESS IN THE SUBSTANTIVE REVIEW HEARING
Although there is some recent authority suggesting that “Prospects of success have no place”[24] in the considerations of the Tribunal, nevertheless it has been the Tribunal’s past practice to give them at least some consideration, albeit within the strictures of section 41(2) of the AAT Act. That is the course this Tribunal proposes to follow.
[24] Rust-Oleum Australia Pty Ltd and Australian Pesticides & Veterinary Medicines Authority [2017] AATA 298 at [36] per DP Forgie.

Further aspects related to the Applicant’s financial position are discussed below and the Tribunal is aware that potential hardship to the Applicant from an economic point of view is a legitimate concern to be put before it.[25]
[25] Re Secretary, Department of Employment and Workplace Relations and Hitchcock [2006] AATA 1127 at [7]-[8].
However, it must be repeated that the financial or employment consequences of the refusal of a stay are not the central issues – the issue is the extent to which the stay is necessary to allow the Applicant to pursue its rights and opportunities in “securing the effectiveness of the hearing and determination of the application for review.”
The Tribunal has noted above the statements from each of the parties as to their assessment of any prospect of success at a merits/review hearing.
Moreover the Applicant asserts that in order to satisfy the requirements set out in the Stay order it
“need not content that its operations were fully compliant at audit. AVLC has indeed embarked on significant rectification of the matters raised by the Respondent in its updated audit report.”[26]
[26] Applicant’s Submissions in relation to stay conditions (dated 20 December 2018) at [8].
Its final position on this question amounts to a claim that its prospects of success are significant based upon it being able to demonstrate that:
1.The initial imposition of conditions was too severe
2.The findings of non-compliance were, ab initio, unsound, or have been rectified before the final hearing, and
3.At the final hearing it will be apparent that it is a fully compliant operator and has addressed/rectified all the matters identified in the initial audit report.[27]
[27] Ibid at [17].
There was nothing advanced at the hearing from either party which added to their previously made submissions.
To the extent that the Tribunal can judge, this matter will be capable of determination only after ASQA has presented its analysis of the Applicant’s submissions, which it has undertaken to do by 11 January 2019. Making any assessment prior to that date or in the absence of the ASQA analysis would, from the Tribunal’s point of view, be entirely speculative and clearly unsafe.
THE PUBLIC INTEREST
In another decision given by this specific Tribunal, the centrality of the public interest in considering stay applications was highlighted. On that occasion this Tribunal stated:
“In the view of the Tribunal, the public interest is best served by not allowing the Applicant to continue to operate, as it is, in a way which is non-compliant with the Standards and in the absence of immediate and effective remedial action having commenced.”[28]
[28] Institute of Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 4127 at [87].
A similar position was outlined in Trade College Australia Pty Ltd and Australian Skills Quality Authority[29] where the Tribunal held that the public interest in having a registered provider meet the required standards and conditions laid down in legislation outweighed any disadvantage to an individual non-complying provider.
[29] Trade College Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 1703 at [67].
Regulatory bodies are established, in part, to ensure that the public interest is protected in the areas of their competence and the Tribunal should be cautious about taking steps which may derogate from the protection of that public interest by failing to give due regard (although not unqualified deference) to their assessments in such matters. As the Tribunal said in Metro College “The regulatory regime assumes there is a public interest in ensuring these programs are properly run according to recognized standards.”[30]
[30] Re Metro College of Technology Pty Ltd and Australian Skills Quality Authority (unreported) [2015] Application 2015/6137 at [10].
THE CONSEQUENCES FOR THE RESPONDENT IF A STAY GRANTED
This issue was clearly articulated by Senior Member Taylor in Panganiban[31] as follows (citations omitted)
9.The precondition requiring the Tribunal to take into account “the interests of any persons who may be affected by the review” ordinarily requires the Tribunal to have regard to the decision maker’s position in relation to the stay application: AAT Act s 41(4). Together with the basic criteria for the exercise of the stay power, it also requires the Tribunal to have regard to the statutory scheme relevant to the reviewable decision. This is because the statutory scheme is likely to be critical to a proper understanding of both the practical consequences of the reviewable decision, and the relevance of the public interest to that decision, and to the exercise of the stay discretion.
10.The nature of the procedures involved in the reviewable decision, the specificity of the findings the decision involves, and the interests the exercise of the statutory power are intended to serve, may provide a proper basis for refusing a stay application. They are particularly likely to do so where the available material does not conduce to an appropriate degree of satisfaction that the review process has a substantial prospect of a more favourable outcome.
[31] Panganiban and Australian Securities & Investments Commission [2016] AATA 703.
As already indicated in reference to public interest considerations, the integrity of regulatory schemes and the central role of the systems regulator are proper matters for the Tribunal’s consideration.
POSSIBLY RENDERING THE FINAL REVIEW PROCESS NUGATORY
The Applicant urged upon the Tribunal the proposition that, in the absence of income from child care benefits, not only would it suffer financial disadvantage (with the potential to be put into liquidation) but that equally it would be unable to sustain adequate legal representation to allow the substantive issues to be determined in the merits review.[32]
[32] Neil Chapple (CEO of the Applicant) Statement dated 19 December 2018 at [12]-[13].
The Applicant has not demonstrated to the Tribunal that it would be unable to carry forward its appeal against the reviewable cancellation decision, other than advancing arguments about the immediate financial impact of no stay being granted on its business operations. Indeed the Applicant’s concession that it has sufficient funds available to sustain its business through until mid-March 2019 weighs heavily against taking this point as being of credit to the Applicant’s submission.
The Tribunal has accepted the principle that where an applicant, by virtue of a stay not being granted, is genuinely likely to become insolvent and cease to operate, then that would mean that “the Applications would be rendered nugatory or pointless”[33]. However the burden of proof lies heavily upon any applicant to establish such a case. Mere assertion or speculation is not enough. The Applicant, in this instance, has not discharged that onus.
[33] Australian College of Vocational Studies Pty Ltd v Australian Skills Quality Authority (General) [2018] AATA 1088 at [78].
This matter was addressed by the Tribunal in Technical Education Australia[34] where Senior Member Cameron remarked:
[125]  The Applicant contended that if it ultimately succeeded at the final hearing but in the interim suffered “irreparable damage” as a result of revocation of the interim stay order, the application for review would be nugatory. The justification for this contention was that the purpose of the final hearing is to grant relief to a successful applicant and therefore avoid irreparable damage flowing from the decision under review. This contention obviously presupposes that the Applicant would become insolvent in the interim or its reputation so damaged prior to the final hearing that it could not “effectively recover commercially”.
[126]  The Tribunal has some difficulty with this approach for several reasons. Firstly, as noted previously, there is just insufficient evidence to conclude that the Applicant would become insolvent or its reputation would be so damaged. Apart from some bare assertions, there is no evidence that enables the Tribunal to reach a view one way or another, as to what if any, reputational damage might be suffered by the Applicant in the event that the stay order was revoked.
[128]  Overall, given the limited evidence, the Tribunal cannot place much weight on this factor.
[34] Technical Education Australia Pty Ltd and Australian Skills Quality Authority [2018] AT 3047.
OTHER RELEVANT MATTERS
It is under this heading that the Tribunal turns to consider “the interests of any persons who may be affected by the review.”
In this instance it does not appear that there are any existing students who would be affected one way of the other in any immediate sense by this stay decision, unless of course, the Applicant were to cease operating immediately and on a permanent basis. The variation sought goes only to the question of enrolling new students.
Mr Chapple, in his Submission he draws attention to the interests of himself, his wife and daughter, all of whom are employees of the Applicant, together with other staff members, and asserts that were the stay condition not to be varied, “then AVLC will immediately close”. He states that this would result in immediate unemployment for those people and that their prospects of employment elsewhere in the sector would be limited, especially if the Applicant was perceived to have ceased operation as a result of regulatory non-compliance.[35]
[35] Neil Chapple (CEO of the Applicant) Statement dated 19 December 2018 at [13].
The interests of employees is a legitimate matter to be put before the Tribunal to weigh as one of the factors in its deliberations. The Tribunal however does not accept that the details put to it regarding the potential impact of its decision on the welfare of Mr Chapple’s dependent grandson is a relevant matter.[36] His position cannot be seen as directly involved in the commercial activities or viability of the Applicant.
[36] Ibid at [17].
The Tribunal has made previous references to the protection of the public revenues and this must count as another relevant matter which it is legitimate to take into account. It forms, as do many such administrative decisions part of the fabric of good government in Australia.
To quote again from this Tribunal’s own previous decision in Institute of Training:
[70] It is important to note that the Administrative Appeals Tribunal, apart from exercising jurisdiction under the relevant provisions of specific statutes, and not having a general jurisdiction across all Commonwealth administrative decisions, is part of an administrative law system which should be conducted by reference to the “standards of good government”.[37] It is an:
instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government.[38]
[71] “Good government” includes both the protection of the public interest and protecting the integrity of the national vocational education system.[39]
[37] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at [334] per Smithers J.
[38] Ibid at [335].
[39] Institute of Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 4127.
AN ALTERNATIVE POSITION ADVANCED
During the course of the hearing, the Applicant (through their solicitor) offered something of a “compromise” position, indicating their “flexibility” in dealing with the Respondent to find a course of action which it regarded as impacting less severely upon its operations.
The nub of its suggestion was to vary the stay condition prohibiting the enrolment of new students such that the Applicant would be free to enrol new students immediately, but they would not be able to commence their studies in Australia until the Respondent had enlivened the lifting of stay condition 2(a) by agreeing that, under condition 2(b) the Applicant was now compliant with all regulatory requirements. Such an arrangement would, it argued, allow Mr Chapple to undertake an overseas recruitment trip in early January to Nepal, India and The Philippines, with the object of enrolling some 60-100 students who, under this proposal would have to await ASQA’s decision (due by 11 January 2019) as to whether or not the Applicant had become compliant, before commencing their courses.
The Respondent opposed this suggestion and stated that were the Tribunal to endorse it, then that decision would be, in the words of its representative “outrageous”.
Hyperbole aside, the basis of the Respondent’s objection was that students enrolled under this proposal who might subsequently find that the Applicant’s cancellation was continued on a fulltime basis, and hence they would not be able to commence their studies in Australia, would have been grossly exploited and, in the process, the integrity of the entire overseas student education scheme would be undermined.
It cited its responsibilities as the national regulator to ensure that the Objects of the Education Services for Overseas Students Act 2000 (ESOS Act) were given full effect. These are:
4A. The principal objects of this Act are:
(a) to provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and
(b) to protect and enhance Australia’s reputation for quality education and training services; and
(c) to complement Australia’s migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas.
The Tribunal is bound to ensure that its own decisions about how parties are affected by its decisions on matters such as stays are framed and “identified by reference to the statutory scheme under which the decision under review was made.”[40]
[40] Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 at [51].
That scheme is the ESOS Act and the Tribunal should not subvert its primary objectives which include the protection of students and the safeguarding of the integrity of our national reputation for quality education and training services.
The Tribunal agrees with the Respondent that the compromise scheme proposed by the Applicant is not consonant with this commitment and it does not propose to support it. Students would be put at potential risk and the reputation of Australia’s ESOS regime could be compromised.
Having disposed of that alternative approach the Tribunal is brought back to considering the unvarnished proposition from the Applicant for variation of the stay order.
THE INTEGRITY OF CONSENT ARRANGEMENTS
Plainly, when the Applicant first sought a stay of the cancellation decision that was opposed by ASQA. In the event, it did not mount its “full” case against the Applicant at the stay hearing where, it might, or might not, have been successful in having the stay application rejected. In submissions at the hearing for instance the Respondent noted that it had, at that initial stage, not sought to rely upon evidence of the Applicant’s past transgressions evidenced by its undertakings given to the Australian Completion and Consumer Commission following its breach of Australian Consumer Law.[41]
[41] Press Statement: Australian Vocational Learning Centre agrees to make repayments for VET FEE-HELP diploma courses, 23 March 2017.
Instead, ASQA and the Applicant entered into a consent agreement (given effect by the Tribunal) whereby the Applicant agreed that its ability to enrol new students would be contingent upon “the Applicant addressing the identified non-compliances on which the decisions were based to the satisfaction of the Respondent” (emphasis added).
What it now seeks is to disturb that consent agreement (via the Tribunal) on the basis that the Respondent has failed to analyse and respond to its submissions as to compliance within what it regards as an acceptable time framework.
It is true that ASQA has had the Applicant’s material since 20 November 2018, but it is equally true that that is later than it had originally been promised that the material would be with it.
Given both the resources and the responsibilities of ASQA, and the time of year, the Tribunal cannot find that ASQA has been unduly or improperly tardy in undertaking to have its response to the Applicant by 11 January 2019. The material which it has to consider is voluminous and complex and its analysis is not likely to be a simple or straightforward undertaking.
ASQA entered the consent agreement in good faith and the Applicant must display equal good faith in allowing it a reasonable time to fulfil the undertakings explicit in section 2(b) of those agreements.
DISCUSSION
Returning to the focus of section 42(1), namely the consideration of the interests of all parties and the need to ensure that the the effectiveness of the hearing and determination of the application for review is not compromised, the Tribunal notes the following:
1.ASQA has undertaken that its analysis of the Applicant’s submission will be completed by 11 January 2019
2.The Applicant has advised that it is in a financial position to carry on its business activities until mid-March 2019
3. Mr Chapple, although planning an early January overseas trip to recruit new students could, without great prejudice, leave this until after 11 January 2019, by which time the Applicant’s positon would be much clearer vis-à-vis the cancellation decision and prohibition on new enrolments, such that were that trip successful, students would be in place by mid-March 2019.
The combination of these factors persuades the Tribunal that the positon of the Applicant, were the stay to be refused, would be such that its ability to prosecute its case at the substantive merits/review hearing would not be rendered nugatory.
DECISION
The application for a variation of the stay order as requested by the Applicant is refused.

I certify that the preceding 72 (seventy -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

............................[sgd]............................................
Associate
Dated: 21 December 2018

Date(s) of hearing: 20 December 2018

Solicitors for the Applicant: Mr P Doukas, Denison Toyer Pty Ltd

Solicitors for the Respondent: Mr D Cox, Australian Skills Quality Authority

Date(s) of hearing:	20 December 2018
Solicitors for the Applicant:	Mr P Doukas, Denison Toyer Pty Ltd
Solicitors for the Respondent:	Mr D Cox, Australian Skills Quality Authority