Ayurveda College Pty Ltd and Australian Skills Quality Authority

[2022] AATA 4429

Ayurveda College Pty Ltd and Australian Skills Quality Authority [2022] AATA 4429 (23 December 2022)

Division:General Division 

File Number:           2018/6050

Re: Ayurveda College Pty Ltd

APPLICANT

Australian Skills Quality AuthorityAnd  

RESPONDENT

DECISION

Tribunal:Senior Member K. Parker

Date:23 December 2022

Place:Melbourne

The Tribunal SETS ASIDE the Decision Under Review dated 21 September 2018 suspending the registration of Ayurveda College Pty Ltd (Ayurveda) as a vocational education and training (VET) organisation under the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) and in SUBSTITUTION, the Tribunal decides to impose, pursuant to s 29(1) of the NVR Act operating in conjunction with s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the following conditions of registration upon Ayruveda effective immediately (Conditions of Registration):

(a)       Within 90 days from the date of this Decision:

(i)Professor Chandler is to resign as CEO, company director, and Director/Head of Teaching and Assessment/teacher/assessor of Ayurveda (and as a director and high managerial agent of Ayurveda as an RTO) and must no longer be involved in the operations of or any aspect of delivery of VET courses at the college, except for the limited purpose of teaching one masterclass of his choice to students per week (of a duration no longer than two hours) in a course/unit within Ayurveda’s scope of registration; and

(ii)Ayruveda is to appoint a new CEO, company director and a Director of Teaching and Assessment (who may be the same person), of the company (and a director and high managerial agent of Ayurveda as an RTO), in place of Professor Chandler, or any successor thereafter (New Appointee), on the following bases:

(I)that the New Appointee (or their successors) does not report to or take direction from Professor Chandler except in relation to matters regarding the overall financial management of the company (but excluding any individual financial matters as between Ayurveda and any of its students or staff members);

(II)the New Appointee must be appropriately senior and qualified and will exclude Ms Uchiro or Ms Ohira;

(III)Australian Skills Quality Authority (ASQA) must be given the right to veto the appointment of the proposed New Appointee (or their successors) if it does not consider them to be suitable. Prior to the commencement of the proposed New Appointee (or their successors), Ayurveda must inform ASQA in writing of their identity and contact details. ASQA must notify Ayurveda as soon as practicable but at the latest, within 28 days, as to whether it considers the proposed New Appointee (or their successors) to be suitable and upon doing so, Ayurveda may appoint them; and

(b)Within 120 days from the date of this Decision, Ayurveda must invest an adequate sum to pay for an external consultant (to be endorsed by ASQA prior to engagement and shall exclude Professor Chandler and related or associated person), to:

(i)undertake an immediate comprehensive review of all its practices and procedures and training products for each course within its scope of registration and to make recommendations for improvements (to be confirmed in a report to be immediately provided to ASQA and the New Appointee (or their successors)); and

(ii)conduct a comprehensive audit within 12 months of the date of this Decision of Ayurveda’s compliance with its obligations under the NVR Act and RTO Standards, and these Conditions of Registration.

Professor Chandler is not permitted to liaise with the external consultant and instead, they are to liaise only with the New Appointee (or their successors) and/or (as necessary) Ms Uchiro or Ms Ohira. The Audit Report is to be given to ASQA and the New Appointee (or their successors) directly by the external consultant, on the same date that it is issued; and

(c)Within the next 12 months from the date of this Decision, a copy of any student or staff complaint received by any staff member of Ayurveda must be immediately forwarded to the New Appointee (or their successors), and in turn, they must immediately forward a copy of the complaint to a nominated person within ASQA so they may place it on Ayurveda’s file. Those complaints may be considered as part of any subsequent investigation or audit to be undertaken in respect of Ayurveda, as ASQA sees fit

.......................[sgd].................................................

Senior Member K. Parker

Catchwords

VOCATIONAL EDUCATION AND TRAINING – suspension of registered vocational education and training organisation (RTO) – allegations of inappropriate conduct by Applicant toward students and staff –  whether Applicant failed to ensure its executive officer and high managerial agents met “fit and proper person requirements” – whether Applicant’s executive officer and high managerial agent made false statements to ASQA and the Tribunal – consideration of other alleged non-compliances with RTO Standards – decision under review set aside and substituted with a decision to impose several conditions of registration on the Applicant’s registration as an RTO

Legislation

Education Services for Overseas Students Act 2000 (Cth)

National Vocational Education and Training Regulator Act 2011 (Cth)

Cases

Re Australian Academy of Management & Science Pty Ltd and ASQA [2013] AATA 530
Re Australian Institute of Technical Training Pty Ltd and Minister for Education and Training [2018] AATA 1281
Re Australian Tertiary Academy Pty Ltd and ASQA [2018] AATA 4875
Re Austwide Institute of Training Pty Ltd and Secretary, Department of Education and Training [2016] AATA 266
Re Claredale Academy Pty Ltd and ASQA [2019] AATA 1869
Re Ivy Education Group Pty Ltd and ASQA [2013] AATA 138
Re Sher-E-Punjab Pty Ltd and ASQA [2018] AATA 46
Shi v Migration Agents Registration Authority [2008] HCA 31

Re Trades College Australia Pty Ltd and ASQA [2018] AATA 1703

Secondary Materials

Department of Education, National Code of Practice for Providers of Education and Training to Overseas Students 2018 (1 January 2018)

Standards for Registered Training Organisations 2015 (Cth)

REASONS FOR DECISION

1. The Applicant, Ayurveda College Pty Ltd (Ayurveda or the college), seeks review of a decision made on 21 September 2018 by the Respondent, the Australian Skills Quality Authority (ASQA), to suspend Ayurveda’s registration as a vocational education and training organisation (RTO) under ss 36 and 38 of the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) (Decision Under Review).[1]

   [1] Refer T-Documents, pages 3-5.

2. On the same day, ASQA also suspended Ayurveda’s registration as a registered provider (CRICOS provider) under ss 83(3)(b) and 95 of the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act).[2] Ayurveda also seeks review in relation to this decision by application numbered 2018/6054. This related application was linked to the present application, and they were heard together because while the decisions in each application were made under different legislation, they were largely based on a common set of facts. The Tribunal has handed down its decision in relation to application numbered 2018/6054 on the same day as its Decision in this application.

   [2] Ibid, pages 8-10.

3. ASQA is the statutory body responsible for regulating RTOs to comply with their legislative obligations under the NVR Act and the Standards for Registered Training Organisations (RTOs) 2015 (RTO Standards).

4. ASQA states that the catalyst for making the Decision Under Review was a number of complaints and intelligence received from Ayurveda’s students, alleging that it and its Chief Executive Officer (CEO), Professor Jason Chandler, had “bullied, manipulated, disrespected and abused students in the course of their studies, and denied students consumer rights”.[3] Originally, the Decision Under Review was based on a single complaint by a former student of Ayurveda, Ms Kathryn Nelson, as explained in more detail below. Ms Nelson is an American national and has now departed Australia.

   [3] Refer ASQA’s Updated Statement of Facts, Issues and Contentions (ASQA’s SFIC), paragraph [4].

5. By consent, the parties made an application to the Tribunal for an order to stay the Decision Under Review pending the finalisation of this application for review on the condition that no new students were to be enrolled with Ayurveda (No New Enrolments Stay Condition). The Tribunal granted the requested stay and imposed this condition on the stay.

6. This application was originally due to be heard in November 2019. ASQA sought a 12-month adjournment as it wished to undertake an extensive audit as part of deciding whether to renew Ayurveda’s registration as an RTO (and CRICOS provider) as it was due to expire. Ayurveda indicated it would consent to this proposed stay, provided the stay condition was removed. This was agreed to by ASQA and the Tribunal made an order on 22 November 2019 which had the effect of removing the No New Enrolments Stay Condition.  The hearing was relisted to commence 12 months later and ASQA proceeded to conduct a further extensive audit. The Tribunal will return to the history of this proceeding under the heading “Background”.

7. For the reasons set out below, the Tribunal considers it appropriate, in all the circumstances, to set aside the decision to suspend Ayurveda’s registration as an RTO and in substitution decides to impose, pursuant to s 29(1) of the NVR Act operating in conjunction with s 43(1) of the AAT, several conditions of registration upon Ayruveda, effective immediately.

   ISSUES

8. ASQA contends that the Tribunal should set aside the Decision Under Review and in substitution should cancel the registration of Ayurveda as an RTO on the bases that:

   (a)Professor Chandler does not satisfy the Fit and Proper Person requirements (FPPRs) as set out in Schedule 3 to the RTO Standards, and as a result, Ayurveda does not satisfy the FPPRs and is not a “fit and proper person” to be registered as a CRICOS provider;[4] and

   (b)Ayurveda has also failed to comply with clauses 1.7, 1.8, 7.1 and 8.1 of the RTO Standards.[5]

   [4] Refer ASQA’s Closing Submissions, paragraph [3.1].

   [5] Ibid, paragraph [3.3].

9. Essentially, this matter boils down to whether the Tribunal is satisfied that it is appropriate to impose any sanctions on Ayurveda as an RTO; and specifically, whether its registration should be cancelled, or suspended, or have conditions imposed upon its registration (and if so, what those conditions should be).

10. In reaching this decision, the Tribunal must consider:

    (a)whether Ayurveda meets the FPPRs applicable to an RTO under the NRV Act (NVR FFPRs Issue); and

    (a)whether Ayurveda has failed to comply with clauses 1.7, 1.8, 7.1 and 8.1 of the RTO Standards (Non-Compliance with RTO Standards Issue).

    LEGISLATIVE FRAMEWORK

    The regulator - ASQA

11. 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.[6]

    [6] Refer NVR Act, section 55.

12. The VET Quality Framework comprises:[7]

    (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 (FPPRs);

    (e)the Financial Viability Risk Assessment Requirements (FVRAR); and

    (f)the Data Provision Requirements (DPR).

    [7] Refer NVR Act, section 3.

13. 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”.[8]

    [8] Refer NVR Act, section 39.

14. An RTO 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.

    Objectives of the NRV Act

15. 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).

16. 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 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.

17. 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.

18. 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 compliance with those conditions is reflected in s 111 of the NVR Act, which renders contravention of those conditions subject to civil penalties.

    RTO conditions of registration

19. The conditions of registration under the NVR Act potentially relevant in this application include the condition under s 22 of the NVR Act, that an RTO must comply with the NVR RTO Standards; and the FPPRs. The NVR RTO Standards are defined as 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.  

20. The structure of the RTO 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.

    EVIDENCE AND SUBMISSIONS

21. The parties lodged voluminous documentary evidence and detailed written submissions in this matter, including:

    (a)a set of documents produced by ASQA under s 37 of the AAT Act (T-Documents) and a supplementary set of documents produced by ASQA under s 38AA of the AAT Act (ST-Documents) together comprising 1,930 pages;

    (b)numerous witness statements, outlines of evidence and affidavits from ASQA officers, former and current students and staff of Ayurveda and Professor Chandler;

    (c)ASQA’s SFIC;[9]

    (d)Ayurveda’s Amended Statement of Facts, Issues and Contentions (Ayurveda’s SFIC) and Ayurveda’s Further Statement of Facts, Issues and Contentions lodged a short time before the commencement of the substantive hearing (Ayurveda’s Further SFIC); and

    (e)following the substantive hearing:

    (i)ASQA’s Closing Submissions (ASQA’s Closing Submissions);

    (ii)Ayurveda’s Closing Submissions (Ayurveda’s Closing Submissions); and

    (iii)ASQA’s Reply Closing Submissions (ASQA’s Reply Closing Submissions).

    [9] An earlier SFIC was lodged but it was supeceded by the updated SFIC.

22. The substantive hearing of this matter was protracted and was held over three different stages over a period of six months. This was due in part to the large number of witnesses, 11 in total, and an unexpected development that arose after surgery was performed on Professor Chandler’s jaw shortly before the commencement of the hearing (of which the Tribunal was unaware) following his involvement in an earlier car accident. This made it very difficult for Professor Chandler to speak and the rehabilitation from this surgery was expected to take some time. Further, some of Ayurveda’s key witnesses were unavailable or unable to give evidence at the time of the first stage of the substantive hearing, so arrangements were made for them to give evidence at a later date. The Tribunal also acknowledges the lengthy delay in handing down this decision. This was due in part to the time it took to consider the voluminous documents lodged by the parties in the proceeding, comprising approximately 10,000 pages and the 500 pages of transcript arising from the hearing. While this matter was reserved, Ayurveda enjoyed the benefit of the unconditional stay allowing it to operate and trade unencumbered. On this basis, the Tribunal made a decision to prioritise other time-critical applications for review before it.

    BACKGROUND

23. Ayurveda commenced as a registered training organisation in 2004 after being registered by the Queensland Department of Education and Training (Qld DET) under the State-based legislative regime in place at that time.[10] Ayurveda’s registration was transferred to ASQA in July 2012.[11]

    [10] ASQA’s SFIC, paragraph [10].

    [11] Ibid, paragraph [17].

24. On 26 March 2018, Professor Chandler described Ayurveda as a “one-person company” and that he does all the teaching.[12] Ayurveda has other staff employed at the college including Ms Yumiko Uchiro and Ms Etsuko Ohira. A further former staff member, Ms Jade Newnham, was employed on a casual basis at the college from 2014 to approximately 2020. 

    [12] Refer T-Documents and ST-Documents Bundle, page 545.

25. Professor Chandler is 67 years old and was born in India. The “Trainer/Assessor/Practitioner” Information of Professor Chandler states that he obtained a Doctor of Philosophy in Ayurvedic Studies in India (year obtained and university attended not specified), a Graduate Certificate in Ayurveda from Ayurveda College in 1978, and a Graduate Certificate in Computing from the University of Sydney in 1982.[13] He is the sole director, secretary and shareholder of Ayurveda which was registered in 1999 according to a Current & Historical Organisation Extract issued by the Australian Securities and Investment Commission (ASIC) on 12 November 2020.[14] Ayurveda’s former company name was Traditional Ayurveda Pty Ltd, and before that Neem Trees Processing & Ayurvedic Products Co. Pty Ltd. The registered office of Ayurveda, as of 12 November 2020, was “Ayurvedahouse”, 27 Campbell Road, Kyogle, New South Wales.

    [13] Refer T-Documents and ST-Documents Bundle, page 184.

    [14] Lodged with the Tribunal by Ayurveda with the Tribunal on 12 November 2020.

1. Ayurveda lodged a set of affidavits sworn by Professor Chandler in this proceeding and relies upon his oral evidence given at the hearing. This includes Professor Chandler’s affidavits and witness statements sworn or signed on:

   (a)23 October 2018 (Professor Chandler’s First Affidavit);[15]

   (b)30 October 2018 (Professor Chandler’s Second Affidavit);[16]

   (c)30 November 2018 (Professor Chandler’s Third Affidavit);[17]

   (d)26 June 2019 (Professor Chandler’s Fourth Affidavit);[18]

   (e)21 September 2020 (Professor Chandler’s Fifth Affidavit);[19]

   (f)16 October 2020 (Professor Chandler’s Sixth Affidavit);[20]

   (g)5 February 2021 (Professor Chandler’s Seventh Affidavit);[21] and

   (h)1 July 2021 (Professor Chandler’s Eighth Witness Statement).[22]

   [15] Refer Exhibit A5.

   [16] Refer Exhibit A6.

   [17] Refer Exhibit A7.

   [18] Refer Exhibit A8.

   [19] Refer Exhibit A9.

   [20] Refer Exhibit A11.

   [21] Refer Exhibit A10.

   [22] Refer Exhibit A12.

2. Ayurveda’s scope of registration includes the following three VET courses, which it delivers to both domestic and international students:[23]

   (a)Diploma of Ayurvedic Lifestyle Consultation (course code: HLT52615);

   (b)Advanced Diploma of Ayurveda (course code: HLT62615); and

   (c)unit of competency which has now been superseded: Provide First Aid (course code: HLTAID003).

   [23] Refer T-Documents and ST-Documents Bundle, page 853.

3. “Ayurveda” is defined in the Online Macquarie Dictionary as the ancient Hindu science of health and medicine, delivering treatments for the causes of ill-health, which include yoga, meditation, dietary changes, and herbal medicines.

4. ASQA has described an extensive history of complaints made by students of Ayurveda. This included a set of complaints made between:

   (a)2008 and 2009: alleging that Professor Chandler had made derogatory and abusive comments; international students have been threatened with visa cancellation; inappropriate exposure of students’ bodies during massage classes, inappropriate conduct of a sexual nature by Professor Chandler toward students, lack of course structure, failure to provide students with adequate feedback about their assessments, failure to supervise students’ clinical work, requests by Professor Chandler to perform domestic and construction work at his property, and being pressured to give positive course feedback under threat of being abused or punished by Professor Chandler if they refused to do so. Those complaints were investigated by QLD DET, with an audit revealing “critical” non-compliances by Ayurveda. QLD DET found Ayurveda to have “significant” non-compliances after the first and second tranches of rectification evidence provided by Ayurveda to QLD DET;[24]

   (b)2014 to 2018: complaints made directly to ASQA and to the Overseas Student Ombudsman (Ombudsman), making similar allegations about Ayurveda and Professor Chandler as described in paragraph 29(a) above.

   [24] Refer T-Documents and ST-Documents Bundle, page 32.

5. On 16 March 2018, ASQA wrote to Ayurveda about a complaint made by a former student, Ms Kathryn Nelson, complaining about her enrolment cancellation for non-attendance when she claims to have attended 90% of the time, and about the curriculum, assessments, grades and course transitions and other matters concerning the behaviour of Ayurveda staff.[25] ASQA informed Ayurveda that this complaint raised concerns about whether Ayurveda was compliant with the NVR Act and the RTO Standards (and the National Code of Practice for Providers of Education and Training to Overseas Students (National Code)), and invited Ayurveda to respond.[26] A follow up email was sent by ASQA on 26 March 2018, noting no response from Ayurveda had been received.[27]

   [25] Ibid, pages 525-528.

   [26] Ibid.

   [27] Ibid, pages 551-553.

6. Professor Chandler responded by email on 26 March 2018 refuting the complaints made against him and the college.[28] He claims that in the previous year, a few students had not progressed well, did not take their assessments, or had handed in blank answer sheets, did not complete their assignments or work clinic requirements, and course fees were unpaid in “the thousands of dollars”.[29] He claimed that when he demanded payment of the fees, the students told him that their contact with the Ombudsman would ensure that their partly paid fees would be refunded.

   [28] Ibid, pages 546-547.

   [29] Ibid, page 546.

7. Commencing on 20 April 2018, ASQA conducted a Compliant Evidence Analysis review,[30] and on 6 June 2018 completed a Complaint Decision Record recording that Ayurveda was non-compliant with Clauses 7.1 and 8.1 of the RTO Standards.[31] ASQA sent to Ayurveda a Notice of audit non-compliance and intention to make a decision to suspend its registration as an RTO or impose a sanction of lesser severity.[32] In response, Ayurveda provided further evidence of compliance, including several statutory declarations made by former students indicating that they had a positive experience training at the college.[33] By their descriptions, their experience was very different from those of the students who had made complaints about Ayurveda and Professor Chandler’s conduct.

   [30] Ibid, pages 711-717.

   [31] Ibid, pages 720-724.

   [32] Ibid, pages 725-727.

   [33] Ibid, pages 741-761.

8. On 27 July 2018, ASQA completed an “Evidence Analysis”, referring to a finding made by the auditor on this date of “serious non-compliance” by Ayurveda due to non-compliance with Clauses 7.1 and 8.1 of the RTO Standards (and Standards 10, 13 and 14 of the National Code, relevant to Ayurveda’s registration as a CRICOS provider) (2018 Evidence Analysis).[34] In response to that evidence, Ayurveda lodged Professor Chandler’s Third Affidavit (sworn on 30 November 2018).[35]

   [34] Ibid, pages 814-818.

   [35] Refer Exhibit A7.

9. In September 2018, ASQA decided to suspend Ayurveda’s registrations under the NVR Act as an RTO (and as a CRICOS provider under the ESOS Act). In ASQA’s Closing Submissions, it states that those suspension decisions were prompted by a single former student complaint, being the one made by Ms Nelson as referred to above.[36]

   [36] Refer ASQA’s Closing Submissions, paragraph [2].

10. Ayurveda sought review of ASQA’s decision by this Tribunal in December 2018 and sought a stay. Following Ayurveda’s stay application, ASQA lodged evidence of the student complaints which had been made between 2015 and 2018.[37] The Tribunal (differently constituted) granted the requested stay on 25 October 2018, and again, 14 December 2018, subject to No New Enrolments Stay Condition.

    [37] Refer affidavits of Anthony Barkey affirmed on 8 November 2018 and Alana Cunningham affirmed on 7 November 2018.

11. In April 2019, ASQA lodged further witness statements made by several students who had complained about Ayurveda, including:

    (a)Ms Kathryn Nelson – who attended the college from September 2016 to November 2017;

    (b)Mr Rodrigo Pedrosanto – who attended from July 2016 to November 2017;[38]

    (c)Ms Judith Rodriguez Y Esser – who attended from August 2016 to November 2017;[39]

    (d)Ms Flavia Lopes – who attended from March 2014 to October 2017;[40]

    (e)Ms Ana Ruettimann – who attended from October 2013 to March 2015, and for a second period from June 2015 to November 2017; and

    (f)Ms Kayo Takekawa – who attended from April 2014 to October 2017.[41]

    [38] Refer Transcript, P-51.

    [39] Refer Statement of Judith Rodriguez Y Esser dated 13 February 2019, paragraph [7]; Transcript, P-194.

    [40] Refer Statement of Flavia Lopes dated 13 February 2019, paragraphs [7] and [39]-[40]; Transcript P-78.

    [41] Refer Statement of Kayo Takekawa dated 12 February 2019, paragraphs [8]-[11]; Transcript P-161.

12. Ayurveda responded to this evidence by lodging Professor Chandler’s Fourth Affidavit (sworn on 26 June 2019).[42]

    [42] Refer Exhibit A8.

13. The expiry date specified on Ayurveda’s registration as an RTO was 19 October 2019. Ayurveda applied for renewal of its registration as an RTO. In September 2019, ASQA conducted a further compliance audit of Ayurveda for the stated purpose of considering whether to renew Ayurveda’s registration as an RTO (Renewal Audit).[43] ASQA states that this audit focussed on matters of “general compliance”, rather than matters the subject of the student complaints which had been put before the Tribunal.[44]

    [43] Refer ASQA’s Reply Closing Submissions, paragraph [1.4].

    [44] Ibid.

14. This application was originally scheduled for a substantive hearing in late-November 2019. ASQA states that by mid-November 2019 it was aware there were likely to be issues of non-compliance arising from the Renewal Audit, which ASQA considered might have had a bearing on the outcome of this proceeding.

15. By consent of the parties, ASQA sought a 12-month adjournment of the hearing, on the basis that Ayurveda had not yet had an opportunity to respond to the findings of the Renewal Audit Report.[45] The Tribunal granted the adjournment on 21 November 2019.

    [45] Ayurveda agreed to this on the basis that the “no new enrolments” condition was removed as a condition to the stay ordered by the Tribunal.

16. On 21 November 2019, ASQA gave Ayurveda notice of its intention not to renew its RTO registration.[46] Ayurveda provided ASQA with evidence in response to this notice in January and February 2020. ASQA was satisfied from this evidence that the areas of non-compliance identified in the Renewal Audit Report were resolved, and the only outstanding areas of non-compliance were those arising out of the student complaints the subject of this review proceeding.[47]

    [46] ASQA’s Reply Closing Submissions, paragraph [1.6].

    [47] Ibid; Transcript, P-146.

17. The Tribunal was informed that ASQA has not yet made a decision to renew the registration of Ayurveda as an RTO.[48] As mentioned above, the expiry day of Ayurveda’s registration has passed. However, the Tribunal notes s 31 of the NVR Act which provides, in effect, that an RTO’s registration will continue in force until any refusal by ASQA of Ayurveda’s application for renewal takes effect. That is, in circumstances where the registration of an RTO would expire before its renewal application is decided upon by ASQA.

    [48] Refer ASQA’s letter to the Tribunal dated 20 December 2022.

18. Ayurveda has continued its operation as an RTO because its registration is deemed to have continued in force by operation of s 31(3) of the NVR Act (subject, of course, to the Decision Under Review and the stay operating on that decision).

19. ASQA states that on 13 May 2020, it received an unsolicited further complaint from an Ayurveda student.[49] ASQA states that on 16 June 2020, Ms Robyn Bore, an ASQA regulatory officer, was tasked with investigating this complaint.[50] Ms Bore contacted former students who had recently completed their studies with Ayurveda to ascertain whether the 13 May 2020 complaint was supported by the experience of those other students.[51]

    [49] Refer ASQA’s Reply Closing Submissions, paragraph [1.7]; Statement of Robyn Bore dated 19 August 2020, paragraph [14].

    [50] Refer ASQA’s Reply Closing Submissions, paragraph [1.7].

    [51] Ibid.

20. On 19 August 2020, ASQA lodged with the Tribunal further witness statements as follows:

    (a)Statement of Ms Bore dated 19 August 2020;[52] and

    (b)Statement of Ms Carla Pollola dated 13 August 2020. Ms Pollola states she attended the college between January 2019 and mid-2020.[53]

    [52] Refer Exhibit R5. At the hearing, Ms Bore confirmed that the contents of this statement were true and correct except for the following: Ms Bore made a correction at paragraph 17, stating that the third line should read “COE Status of ‘finished’ or ‘cancelled’”.

    [53] Refer Exhibit R10, paragraph [4]; Transcript P-270.

21. In response, Ayurveda lodged Professor Chandler’s Fifth and Sixth Affidavits (sworn on 21 September 2020 and 16 October 2020 respectively), and further witness statements of:

    (a)Ayurveda’s staff members, being “trainers, assessors and clinic supervisors”, including:

    (i)Ms Yumiko Uchiro;[54]

    (ii)Ms Etsuko Ohira;[55] and

    (iii)Ms Jade Newnham (former employee).[56]

    (b)Ayurveda’s former or current students, including Mr Peter Sherman,[57] Ms Joanna Dziedzic,[58] and Ms Shay Maclean.[59]

    [54] Refer Exhibit A3.

    [55] Refer Exhibit A2.

    [56] Refer Exhibit A13.

    [57] Refer Exhibit A1.

    [58] Refer Exhibit A15.

    [59] Refer Exhibit A14.

22. ASQA lodged a further Witness Statement by Ms Pollola signed on 22 October 2020.[60]

    [60] Refer Exhibit R11.

23. Ms Uchiro, Ms Ohira and Ms Newnham gave oral evidence at the hearing. ASQA did not require Ms Dziedzic, Ms Newnham, or Mr Maclean to be made available for cross-examination at the hearing, so their evidence was unchallenged.

24. Ayurveda contends that “[t]he highly unusual and unsatisfactory feature of this case is that ASQA is seeking to avail itself of the fact that the Tribunal can consider additional material by procuring further historical material rather than further evidence relevant to the applicant’s present compliance”.[61] Ayurveda also contends that ASQA has actively sought further student complaints, to support “belatedly” its Decision Under Review.[62]

    [61] Refer Ayurveda’s Closing Submissions, paragraph [23].

    [62] Ibid, paragraph [15].

25. ASQA contends there is nothing improper about it seeking to rely upon evidence which was not before the original decision-maker, or by investigating the unsolicited complaint from the student in the way it did.[63]

    [63] Refer ASQA’s Reply Closing Submissions, paragraph [4].

26. The High Court of Australia judgment in Shi v Migration Agents Registration Authority [2008] HCA 31 (Shi), stands as legal authority for the principle that the Tribunal’s task when undertaking merits review is to make the correct or preferable decision in the circumstances as they exist at the time of the Tribunal making its decision. This means the Tribunal may consider matters or evidence that was not before the original decision-maker.[64] The Tribunal may do so because it is undertaking merits review and its task is to consider the matter afresh. There are no statutory provisions within the NVR Act requiring the Tribunal to take a different approach.

    [64] Specifically, in Shi, Kirby J at [45] endorsed that the general approach of the Tribunal has been to regard its administrative decision-making process as a continuum, and to consider the Tribunal’s function as part of that continuum. This means that Tribunal is to consider an applicant’s entitlement from the date of application, or other proper commencing date, to the date of the Tribunal’s decision.

27. Otherwise, it is not appropriate or helpful for the Tribunal to engage with the criticisms made by the Applicant as to how ASQA has conducted itself in the process of making the Decision Under Review, or in the conduct of this proceeding. By the end of this protracted proceeding, both parties were given every opportunity to present their respective case to the Tribunal. They were able to do so by being permitted, between the parties, to lodge over 10,000 pages of documentary materials and submissions, as mentioned above; by the opportunity to make oral submissions at a lengthy hearing (held over eight days in total across three different stages and leading to over 500 pages of transcript); and by being permitted to lodge detailed written submissions after the hearing of this matter had concluded.

    CONSIDERATION

    NVR FFPRs Issue

28. Section 23 of the NVR Act imposes as a condition of registration that an RTO “must satisfy the Fit and Proper Person Requirements”. The meaning of “Fit and Proper Person Requirements” is defined in s 3 of the NVR Act to have the meaning given by s 186. Section 186(1) provides that the Minister may, by legislative instrument, make requirements for assessment whether a person is a “fit and proper person”. The Minister has issued the RTO Standards, to which Schedule 2 is annexed, which specifies several criteria to be considered when assessment is made as to whether an RTO meets the FFPRs. Standard 7 of the RTO Standards deals with the effective governance and administration arrangements in place in RTOs. For an RTO to be compliant with this standard, it must (among other things) ensure that its “executive officers” or “high managerial agents” (which is Professor Chandler in Ayurveda’s case) meet each of the relevant criteria specified in the FFPRs set out in Schedule 3.

29. Relevantly, Schedule 3 to the RTO Standards provides as follows:

    Fit and Proper Person Requirements

    Criteria for suitability

    In assessing whether a person meets the Fit and Proper Person Requirements, the VET Regulator will have regard to the following considerations:

    …

    g)     whether the person has ever provided a VET Regulator with false or misleading information or made a false or misleading statement to a VET Regulator, and if so, whether it is reasonable to assume that the person knew that the statement made or information provided to the VET Regulator was false or misleading;

    …

    i)    whether the public is likely to have confidence in the person's suitability to be involved in an organisation that provides, assesses or issues nationally recognised qualifications;

    …

    k)    any other relevant matter.

30. The Tribunal must consider whether Ayurveda has failed to ensure that Professor Chandler, holding the position as both its executive officer and high managerial agent, meets each of the relevant criteria in the FPPR in Schedule 3 of the RTO Standards. ASQA contends that Ayurveda does not do so because Professor Chandler does not satisfy the FPPRs because he has:[65]

    [65] See ASQA’s Closing Submissions, paragraph [58].

    (a)engaged in bullying, derogatory and abusive treatment of students and staff, including:

    (i)engaging in angry, aggressive and intimidating conduct such as yelling, throwing things at students and staff and making them cry;

    (ii)putting students in fear of being singled out, mocked or picked on, making fun of students and criticising the way they look or speak; and

    (iii)threatening to cancel students’ visas if they failed to comply with his instructions.

    (b)engaged in inappropriate conduct of a sexual nature towards students, including:

    (i)engaging in insensitive and inappropriate conduct during massage and self-massage; and

    (ii)making jokes and comments and engaging in conduct of a sexually suggestive nature in class.

    (c)abused or exploited his position of responsibility as a teacher and CEO of an RTO by:

    (i)failing to provide adequate supervision to students while they were performing unpaid work placements at the commercial clinic owned by the college;

    (ii)using students for domestic and building work without a clear agreement governing their terms of employment; and

    (iii)requiring students to provide positive feedback in relation to their experience and criticising or abusing students who failed to do so.

    (d)misled ASQA and attempted to subvert or obstruct its investigations by:    

    (i)falsely claiming that his assistant Leo Maggie was not involved in the provision of training and assessment and refusing to provide contact details for her when directed;

    (ii)providing false or misleading information to ASQA about the circumstances in which Kathryn Nelson’s enrolment was cancelled; and

    (iii)lying about the absence of correspondence with students in relation to ASQA’s renewal of registration audit in 2019 and attempting to find out and influence the results of ASQA’s confidential survey of students as part of that audit.

31. In Ayurveda’s Closing Submissions, it opposes each of the assertions above made by ASQA.[66]

    [66] Refer Ayurveda’s Closing Submissions, paragraphs [47]-[77].

    Alleged Bullying, derogatory and abusive treatment of students and staff

32. ASQA contends that the student witnesses had given evidence at the hearing to the effect that that Professor Chandler “regularly engaged in angry, aggressive and intimidating conduct, and repeatedly criticised, humiliated and picked on weaker students or students who were perceived to have slighted or challenged him”.[67] ASQA contends that those witnesses described how Professor Chandler would “yell, scream and throw things at students and at his assistants, Ms Uchiro and Ms Ohira”, and how his conduct “frequently drove students and staff members to tears”.[68]

    [67] Refer ASQA’s Closing Submissions, paragraph [60].

    [68] Ibid.

1. ASQA contends that many students felt fearful about “speaking up, asking questions, or challenging” Professor Chandler and cited the following examples of this:[69]

   (a)Ms Nelson’s statement that: “the fear Jason created…was all encompassing”;[70]

   (b)Mr Pedrosanto’s statement that: “I went to every class with fear”;[71] and

   (c)Ms Rodriguez Y Esser’s evidence at the hearing in respect of Professor Chandler stating he was “pretty scared of him”.[72]  

   [69] Ibid.

   [70] Refer T-Documents and ST-Documents Bundle, page 201.

   [71] Refer Statement of Mr Pedrosanto dated 13 February 2019, paragraph [15].

   [72] Refer Transcript, P-216.

2. ASQA highlights that Ms Rodriguez Y Esser and Ms Lopes had broken down “when they described their own attempts to rationalise the conduct and their failure to stand up to it”.[73]

   [73] Refer ASQA’s Closing Submissions, paragraph [60] and Transcript, P-84, 85, 220 and 221.

3. ASQA contends that Professor Chandler had routinely threatened to report international students to immigration or to cancel their visa if they failed to comply with his instructions in accordance with the statements by several students in their witness statements lodged before the hearing.[74] Mr Pedrosanto made this assertion in his witness statement and was asked about it at the hearing. He was asked to give examples of the things Professor Chandler would say and the context within which he made those comments.[75] He said (emphasis added):[76]

   Yes, sometimes students would miss a class, and in the next class he would say that they were about to - to not be progress competent. Like, they would be failing their attendance, and he could report them to deport us, because I was an international student as well. Report us to immigration and that was just because one - one failure to attend class and I knew my rights, I knew that we could fail to attend 20 per cent of the classes. So, it was never my concern. But he would certainly generate stress to prove that you were not failing to attend classes.  And also if any of the students would - would tell something that Jason didn't like, or would (indistinct), he could do that as well.

   MR REBIKOFF: He would respond in relation to their visas, is that what you mean?---Yes, yes, yes.  He would threaten to report us to immigration or (indistinct) student visa and that we should abide to his rules, and all of that, because he could always report us to immigration.

   [74] Refer ASQA’s Closing Submissions, paragraph [61]-[62].

   [75] Refer Transcript, P-60.

   [76] Ibid, P-60-61.

4. ASQA contends that Professor Chandler would “engage in mocking and belittling conduct towards international students, particularly those with accents and language difficulties” and highlighted the evidence given by Ms Rodriguez Y Esser and Mr Pedrosanto at the hearing.[77]  

   [77] Refer ASQA’s Closing Submissions, paragraph [61].

5. At the hearing, Ms Rodriguez Y Esser gave evidence that Professor Chandler had thrown papers at staff.[78] Specifically, she said that Ms Ohira had tried to give him something at the desk, and he threw the papers at her.[79] She said the papers flew around the classroom.[80] When asked how Ms Ohira responded to this, Ms Rodriguez Y Esser said she apologised, picked up the papers and left the classroom. Ms Ohira gave evidence at the hearing and denied that Professor Chandler has ever thrown any papers at her.[81] Ms Newnham states in her witness statement that she had never seen Professor Chandler abuse anyone or act in a way that was inappropriate in her involvement with the college over the last 10 years.[82]

   [78] Refer Transcript, P-222.

   [79] Ibid, P-223.

   [80] Ibid.

   [81] Refer Transcript, P-292.

   [82] Refer paragraph [12].

6. Ms Rodriguez Y Esser gave evidence that Professor Chandler had thrown a notebook at “the Brazilian sister”, as Ms Rodriguez Y Esser described her.[83] When asked whether she had seen him throw a “book” at any person, she said “No, not a book, no. That's the only time where it was pretty physical…”.[84]

   [83] Refer Transcript, P-223.

   [84] Ibid.

7. Ms Rodriguez Y Esser asserts in her witness statement that Professor Chandler had asked the Japanese students in the class to put a pen in between their teeth, to teach them how to smile and that he would not “leave them alone” until they had put a pen in their mouth.[85]

   [85] Refer T-Documents and ST-Documents Bundle, page 273.

8. When asked about this assertion at the hearing, Ms Rodriguez Y Esser said that there were three Japanese students in class and if they were saying something and not smiling, Professor Chandler would tell them to smile.[86] Ms Rodriguez Y Esser described this as a “common joke, and that lasted throughout the whole year”. She said that he would tell them, "Take a pen. Just take it and put it in your mouth," and they would do it. She said he only did this with the three Japanese students and that she was not asked to put a pen in her teeth. She gave evidence that Professor Chandler had said that Japanese people could not “smile the way we do”. She estimated that he had done this about 15 times.[87]

   [86] Refer Transcript, P-223-224.

   [87] Ibid.

9. Mr Pedrosanto’s evidence about this conduct was consistent with Ms Rodriguez Y Esser’s evidence, and he remarked that at first everyone would laugh and after some time, the students seemed uncomfortable but they had said “yes, yes” when asked by Professor Chandler to hold the pen in their mouth.[88] Ms Rodriguez Y Esser said they all thought it was funny and it was “very often seen as a joke”, but she said, “looking back, I do not think it was appropriate at all, to put these students into that position of making a fool of themselves”.[89] 

   [88] Refer Transcript, P-60.

   [89] Ibid, P-224.

10. Ms Rodriguez Y Esser asserted that Professor Chandler had made fun of the Japanese accent.[90] When questioned about this assertion at the hearing, at first, Ms Rodriguez Y Esser struggled to remember how Professor Chandler had done so, but then she said that “it was mainly the way they say their Rs” and he would “mimic the way they said it”.  She said that “everybody would eventually laugh…but, again, I don't think it was appropriate”. She indicated the Japanese students would not have understood what was wrong because she said they did not “have the same English level as we do. Sometimes they would just sit there and just, you know, smile - well, smile because they didn't really understand...”.[91]

    [90] Refer T-Documents and ST-Documents Bundle, page 273.

    [91] Refer Transcript, P-224.

11. At the hearing Mr Pedrosanto told the Tribunal that Professor Chandler could be “very aggressive on his way of dealing with students and staff”.[92] He said that Professor Chandler would ask the students to tell him something he had learned from the previous week and if they could not reply or give a sufficient answer, that he would “shout at them”. Mr Pedrosanto said this had happened to him.[93]

    [92] Ibid, P-59.

    [93] Ibid.

12. The Tribunal asked Mr Pedrosanto to recount what Professor Chandler had said and to describe the experience. Mr Pedrosanto answered (emphasis added):[94]

    It's been quite a while.  Asking me specific details, I - I'm not sure if I'll be able to provide you. One is like instance that that happened - I would feel fearful every morning that we were going to class, because Jason can be very pleasant as well.  And he could provide a very entertaining class.  But we would never know who would be teaching us that day.  If he would be Jason that is entertaining and would make jokes and laugh throughout the class, or if it would be the one that would shout at us and be angry at whatever the small thing that happened during the class. But, I'm sorry, I don't think I will be able to provide you with one example of something that happened.

    [94] Ibid.

13. Mr Pedrosanto was asked whether he had ever seen students or staff crying. He said he had. When asked whether he remembered the conduct which had led to them crying, he answered as follows (emphasis added):[95]

    There would have been sometimes - because the students would open up - it was nothing that Jason did.  It would happen that even sometimes that students would cry because would open up and telling what was happening to their lives.  But once, like, I saw Jason, like, behaving - causing people to cry.  I wouldn't be able to tell you what took place at that instance that made them cry.

    [95] Ibid, P-60.

14. ASQA contends that the evidence given by the student witnesses about Professor Chandler’s conduct was corroborated by the many historical complaints and accounts given by the more recent cohort of Ayurveda students. ASQA contends they all describe “the same conduct in remarkably similar terms”.[96] This included assertions by those students about Professor Chandler’s:[97]

    [96] Refer ASQA’s Closing Submissions, paragraph [62].

    [97] Ibid.

    (a)“emotional abuse and manipulation of students”;

    (b)“bullying, disrespect, belittling…and irrational behaviour”;

    (c)“derogatory and aggressive treatment” of students and staff;

    (d)yelling in class or getting angry and aggressive;

    (e)throwing things at staff and students;

    (f)making students cry;

    (g)singling students out for criticism or abuse in front of the class;

    (h)threatening them with visa cancellation; and

    (i)making fun of the appearance of international students and their accents.

15. ASQA contends that this evidence was corroborated by Professor Chandler’s own behaviour during cross-examination.[98] ASQA suggest that his behaviour bore out many of the criticisms identified by the students and “made a mockery of the attempts to portray him as an icon of tolerance, patience and respect”.[99] ASQA contends that he was “belligerent and aggressive, and frequently sought to attack the character of those accusing him by making sensationalist allegations that, when pressed, were shown to have no legitimate basis”.[100] ASQA contends that conduct by Professor Chandler during cross-examination was itself consistent with the evidence of a number of the student witnesses, who described how he would seek to “undermine or attack students who had left the college as a way of justifying his own conduct and pre-empting their complaints or criticism”.[101]

    [98] Ibid, paragraph [63].

    [99] Ibid.

    [100] Ibid.

    [101] Ibid.

16. The Tribunal agrees that Professor Chandler became highly reactive at times during the hearing; and found it difficult to maintain his composure when challenged by Mr Rebikoff during cross-examination. His responses did, at times, become rude and aggressive, displaying a clear intolerance when questioned about his conduct when operating, teaching and assessing students at the college.

17. Once the hearing was over, Ayurveda made detailed submissions about Professor Chandler’s state of health during this proceeding. Specifically, Ayurveda contends that it was “plain” that Professor Chandler was extremely unwell throughout the Tribunal process and that he was not well in November 2020, nor in February 2021.[102] Ayurveda submits that by May 2021 (the third stage of the hearing), he had undergone surgery, but was required to have further surgery after that date. Ayurveda states that Professor Chandler was taking medication for seizures with side effects of drowsiness, and he had said during the hearing that he “hears an echo in his head and I just have to wait a minute”.[103] Ayurveda submits:[104]

    He struggled almost immediately and throughout the hearing referred to the echo that he was hearing in his head and asked Mr Rebikoff to slow down on multiple occasions.[105] Prior to his cross examination there was some discussion about the options to accommodate his health situation, but none of the options eliminated the need for his lengthy appearance before the Tribunal. He nevertheless pressed on and endured a lengthy cross examination over the course of a few days in person and online.

    [102] Refer Ayurveda’s Closing Submissions, paragraph [34].

    [103] Ibid; Transcript, P-327.

    [104] Refer Ayurveda’s Closing Submissions, paragraph [34].

    [105] “Transcript, P-350”

18. An examination of the Transcript referred to in these submissions shows that Professor Chandler’s request to slow down arose when Mr Rebikoff was reading out text from a document, which the Tribunal recalls him doing so at rapid pace. He was given the option to read the text himself after being taken to the document, but he opted instead for Mr Rebikoff to read it to him once he had been given a chance to look at the document in question.

19. The Tribunal acknowledges that the cross-examination of Professor Chandler at the hearing by Mr Rebikoff was extensive. However, the Tribunal considers that this was warranted, given that Professor Chandler is the sole executive officer and high managerial agent of Ayurveda and head of its teaching staff, and considering that the facts of this matter involved an examination of alleged misconduct in the teaching and assessment of students spanning back to 2008. The requirement to cross-examine Professor Chandler over the course of a few days arose in part because on the first day of the third stage of the resumed hearing, the parties by consent sought an adjournment, and they used the morning to engage in settlement discussions in an endeavour to resolve the matter. The matter did not settle, and it resumed at 2.15pm. It concluded at 4.28pm at which time, Professor Chandler offered the following explanation to the Tribunal about the way he had given evidence that day. Specifically, he said (emphasis added):[106]

    And before we go, Member, I am sorry for – I don’t intend to give explanation (indistinct) or whatever, I am sorry about that, but I have been under tremendous pressure from these false complaints, 44 years I have been in business, apart from that, a co-ed business and I have my health issues, it’s just too much pressure to hear the same accusations again, and again, and again, so I (indistinct) and I am sorry for that, my apologies.  I don’t mean to give any excuses or whatever, but I agree with – my apologies for that.

    [106] Ibid, P-370.

20. The third day of the third stage of the hearing, did not continue for a full day and instead, concluded at 11am. Nevertheless, on the second day, Professor Chandler remarked to the Tribunal that the process of cross-examination for him was the worst thing he had been through in his life, was “very stressful” and “all too much”.[107]

    [107] Ibid, P-493 and 494.

21. The Tribunal acknowledges that Professor Chandler was managing significant health issues during the six-month period that the hearing was conducted. Although, based on his comments at the hearing, the Tribunal considers that much of the difficulty he faced in dealing with the hearing process arose from the serious nature of the allegations being made against him, and his frustration in being called upon to respond to those allegations (claiming he had to repeatedly do so), and the pressure he felt because of this. The Tribunal considers that Professor Chandler would have felt such pressure regardless of when the hearing took place and notes that at no stage did Ayurveda, or its legal representatives, seek an adjournment of any of the scheduled resumed hearings by reason of Professor Chandler’s ill-health.

22. The Tribunal does not consider that Professor Chandler’s general poor health since he sustained the car accident, and the subsequent surgery, can explain his excessive reactivity when answering questions before the Tribunal during the hearing. The way he reacted, often lashing out at others involved in the hearing process, does give some weight to the veracity of the assertions made by several former students about Professor Chandler’s conduct toward them and staff when delivering VET courses at the college.

23. The Tribunal also accepts ASQA’s contention that while Professor Chandler repeatedly denied the allegations against him, he was unable to provide any coherent explanation for the similarity between the evidence of the students who appeared before the Tribunal and the complaints of students who had studied at the college, both before and after the time that the former students had studied at the college. Notably, the following exchange took place during cross-examination which revealed that rather than Professor Chandler providing an explanation for the similarity in the complaints, when given the opportunity to do so, he asserts that students who do not pass will “go to any length to condemn the college” or “fuel” negative things and to seek help from lawyers. Specifically, on the third- last day of the hearing, the following exchange took place between Mr Rebikoff and Professor Chalmers (emphasis added):[108]

    MR REBIKOFF: So perhaps if I can ask you to directly, Mr Chandler, what is your explanation for why multiple students in different classes say that you did the things that I’ve just been putting to you?

    PROFESSOR CHANDLER: I don’t really know.  I certainly - I honestly don’t know.  All I know is that they’re all failures, they failed, they didn’t pay their fees, and they refused to take reassessments.

    MR REBIKOFF: Thank you.  You’re aware, aren’t you, that the same allegations have also been made by students who undertook the class in other years, aren’t you?

    PROFESSOR CHANDLER: Not really, they’re very different.

    MR REBIKOFF: I suggest to you, Mr Chandler, that in fact the allegations are consistent across a number of years.  What you say about that?

    PROFESSOR CHANDLER: I don’t agree.

    [108] Refer Transcript, P-329.

24. The Tribunal also notes the further exchange which took place subsequently:[109]

    [109] Ibid, P-344 and 345.

    MR REBIKOFF: We’ve been through all of those allegations from the 2009 complaint, and all of these allegations from the 2017 complaint, and I appreciate that you’ve denied all of them, but do you agree that the conduct described in this complaint is very similar to the conduct described in the earlier complaint?  

    PROFESSOR CHANDLER: I see the similarities.

    MR REBIKOFF: Yes, so both refer to abuse and manipulation of students, don’t they?  

    PROFESSOR CHANDLER: They mention that, yes.

    MR REBIKOFF: Yes, both refer to singling out students for criticism or ridicule?  

    PROFESSOR CHANDLER: Somewhat, yes.

    MR REBIKOFF: Both refer to intolerance towards students with accents and language difficulties?  

    PROFESSOR CHANDLER: There’s some mention of that, yes.

    MR REBIKOFF: And both refer to students being uncomfortable with the way self-massage and massage were treated?  

    PROFESSOR CHANDLER: Yes, I see that, yes.

    MR REBIKOFF: And both refer to being made to complete feedback forms where they felt they could not be honest or provide negative feedback, don’t they?  

    PROFESSOR CHANDLER: Yes.

    MR REBIKOFF: What is your explanation for the similarity?  

    PROFESSOR CHANDLER: I don’t really know.  All I know, he was finished.  If they don’t finish the course they don’t pass, then they’ll go to any length to condemn the college or to fuel all kind of negative things, and receive professional help in the bar, from tribunal lawyers, they’ve had help in the bar, and they don’t even remember (indistinct), so I can’t answer your question, I’m sorry, I don’t know.

    MR REBIKOFF: I suggest to you that the similarity suggests that both students are telling the truth about what happened to them?  

    PROFESSOR CHANDLER: I don’t agree with you at all.

    MR REBIKOFF: And the way they were treated?  

    PROFESSOR CHANDLER: Not at all.

25. ASQA highlights that Professor Chandler had not produced any evidence of contact (let alone collusion) between the Ayurveda students in the 2016-2017 cohort, and the students who complained before and after them (some of whom lodged their complaints many years earlier or later).[110] ASQA contended that Professor Chalmers could offer no other explanation for the similarity in the nature of the allegations other than the “plainly absurd” suggestion that it was a mere “coincidence”.[111]

    [110] Refer ASQA’s Closing Submissions, paragraph [64].

    [111] Ibid; Transcript P-426.

1. The evidence before the Tribunal shows that many of the student witnesses who gave evidence at the hearing, did in fact collaborate in the making of their complaint to ASQA or the Ombudsman, and they worked together to prepare their record of their complaint. Ayurveda contends that the Tribunal should not have regard to those complaints as they came about by a process of collusion between those students.

2. ASQA contends, in response, that while that may be so, “all of those witnesses were open about the manner in which the complaint was prepared and confirmed that the contents accurately reflected their own experience” and that they were “questioned separately about their evidence” and were “able to speak articulately from their own memories about the issues they described”.[112] ASQA contends that the mere fact that they originally chose to work together to transcribe their concerns (particularly given English was not their first language), does not mean that those concerns were not truthfully or validly held.[113]

   [112] ASQA’s Closing Submissions, paragraph [65].

   [113] Ibid.

3. The Tribunal accepts ASQA’s contentions and does not regard the fact that the students colluded in preparing the original complaint as a reason, of its own, to disregard or place less weight on the evidence they gave to the Tribunal at the hearing. They went though the same course together, attended a lot of the same classes conducted by Professor Chandler and attended Ayurveda’s clinical practice together. It is does not seem out of place that they banded together to record their issues in writing in those circumstances. The assertions they made in their respective witness statements, and their records of complaint, were comprehensively tested during cross-examination.

4. ASQA contends that the fact that all the student witnesses failed or withdrew from the course, and that some of them still owe the college money, does not undermine the truthfulness of their evidence about the treatment they experienced. ASQA contends there is no suggestion that the outcome of this proceeding will have any bearing on their course status or fees, and the imputation that the students have conspired to give false evidence simply because they were angry with Professor Chandler and seeking to harm him and the college, plainly lacks credibility.

5. The Tribunal has taken those matters into account when weighing up the evidence. The Tribunal considers that this may have been a potential motivation for why those students had complained about Professor Chandler’s conduct, and the way they were dealt with by Ayurveda, or their desire to receive a refund of their course fees where they, for whatever reason, did not complete the course. Against that, and as mentioned above, is the fact that there was no collusion between the 2016-2017 cohort of students and the cohorts of students before and after those years, and yet, the tenor of their complaints about Professor Chandler and Ayurveda were strikingly similar with no plausible explanation established on the evidence for this. The Tribunal does not accept Professor Chandler’s suggestion that the similarity between those complaints was a mere coincidence.

6. The commonality between the types of complaints being raised about Professor Chandler can be seen from “SCHEDULE A – SUMMARY OF ALLEGATIONS FROM STUDENT COMPLAINTS”, containing a summary of allegations from the different cohorts of students prepared by ASQA, and the “SCHEDULE B – EXTRACTS FROM STUDENT COMPLAINTS” (lodged by ASQA) by a mix of students who gave evidence at the hearing and those who did not.[114] Schedule A is reproduced below:

   SCHEDULE A – SUMMARY OF ALLEGATIONS FROM STUDENT COMPLAINTS

   [114] This Summary was lodged with the Tribunal on 2 November 2020.

ALLEGATION	2008-2009 COMPLAINTS	2015 COMPLAINTS	2017-2018 COMPLAINTS	2020 COMPLAINTS
Derogatory, abusive and racist comments	T7 at 22-23 (Otsu), T9 at 42-43 (anonymous), T16 at 62 (Hinamoto)	T28 at 170 (De Alkmim), De Alkmim witness statement at [20]-[28]	T37 at 191, T40 at 198, 201 (Nelson), T42 at 272-3, 286 (Esser), T43 at 304, 307 (Weustenraad), T45 at 449-50 (Takegawa), T45 at 473 (Ruettimann) T45 at 483, T47 at 517 (Leite), Lopes witness statement at [11]-[12] and [14], Pedrosanto witness statement at [11], [13]-[16]	Pollola witness statement at [17]-[18], Bore attachment 1 (anonymous), Bore attachment 4 (anonymous), Bore attachment 6 (anonymous), Bore attachment 7 (anonymous)
Threatening international students with visa cancellation	T7 at 24, 28 (Otsu), T10 at 48 (Shizuka)	De Alkmim witness statement at [34]	T37 at 191 (Nelson), T42 at 274 (Esser), Pedrosanto witness statement at [19]	Pollola witness statement at [19], Supplementary Pollola witness statement at [12]
Inappropriate exposure of students’ bodies during massage without adequate notice or consent	T4 at 17 (Shibuya and McBride), T7 at 25 (Otsu), T9 at 45 (anonymous), T16 at 62 (Hinamoto)	T37 at 191-2 (Nelson), T42 at 274 (Esser), T43 at 304, 308 (Weustenraad)
Lack of course structure and failure to provide students with copies of or feedback on their assessment	T7 at 25 (Otsu), T9 at 44 (anonymous)	De Alkmim witness statement at [30]-[34] and [38]-[42]	T37 at 191, T40 at 198-9, 204 (Nelson), T42 at 276-7, 279-280 (Esser), T45 at 451-2 (Takegawa), T45 at 475-6 (Ruettimann), T47 at 518 (Leite), Lopes witness statement at [19]-[20], [30]-[36], Pedrosanto witness statement at [27], [32]-[35]	Supplementary Pollola witness statement at [17], Bore attachment 1 (anonymous), Bore attachment 5 (anonymous), Bore attachment 6 (anonymous)
Failing to adequately supervise clinical work	T9 at 44 (anonymous)	De Alkmim witness statement at [36]-[37]	T45 at 451 (Takegawa), T45 at 474-5 (Ruettimann), T47 at 518 (Leite), Lopes witness statement at [23]-[25], Pedrosanto witness statement at [31]
Using students to perform domestic and construction work on unreasonable terms and without adequate protections	T7 at 23 (Otsu), T10 at 48 (Shizuka)	T45 at 453 (Takegawa), T45 at 477 (Ruettimann)
Requiring students to provide positive course ‘feedback’ and abusing or punishing students who fail to do so	T7 at 24 (Otsu), T9 at 43 (anonymous), T10 at 48 (Shizuka)	T42 at 274 (Esser), T43 at 308 (Weustenraad), T45 at 483 (Leite), Pedrosanto witness statement at [18]	Pollola witness statement at [20], Supplementary Pollola witness statement at [9]-[11], Bore attachment 1 (anonymous), Bore attachment 4 (anonymous), Bore attachment 7 (anonymous)

1. ASQA invites the Tribunal to disregard the contention by Ayurveda that the students were “coached, emotionally damaged or affected by drugs”.[115] The Tribunal agrees with ASQA that there was no concrete evidence put before the Tribunal about this. Having said that, the Tribunal accepts Professor Chandler’s evidence that, in effect, it was a constant battle to promote attendance by the students, with some of them choosing instead, to attend their employment to earn money over attending classes; or by undertaking other travel whilst they were present in Australia. For instance, Ms Rodriguez Y Esser prioritised her personal travel over commencing the course she had enrolled in at Ayurveda, in circumstances where the course had already commenced when she undertook her travel. This resulted her in missing the beginning of course and the subsequent need for her to catch up on her studies. The Tribunal acknowledges Professor Chandler’s good intentions in respect of ensuring that overseas students complied with their attendance obligations as a condition of their student visas; and by his efforts, to ensure that the students engaged in the course fully and effectively. He is to be commended for pursuing those outcomes, putting aside for a moment the way he sought to do so.

   [115] Refer ASQA’s Closing Submissions, paragraph [66].

2. ASQA contends that there is a clear and direct connection between the interests of the witnesses who gave evidence in support of Professor Chandler and their denials that the conduct in question occurred.[116] Specifically, Ms Uchiro and Ms Ohira are reliant on him for both their employment and their ability to remain in or return to Australia, and Mr Sherman is reliant on him for Ayurveda supplies to conduct his own business.[117]

   [116] Ibid, paragraph [67].

   [117] Ibid.

3. The Tribunal is required to decide whether to accept the opposing evidence of two groups of people as to whether Professor Chandler engaged in the conduct alleged, which included angry, aggressive and intimidating conduct such as yelling, throwing things at students and staff and making them cry; putting students in fear of being singled out, mocked or picked on, making fun of students and criticising the way they look or speak; and threatening to cancel students’ visas.

4. Ultimately, the Tribunal’s decision about this is heavily influenced by a comparison between the student complaints made by the 2016-2017 cohort of students and the students who attended the college before and after this date. The Tribunal considers the evidence given by the student witnesses in their witness statements and at the hearing, overall, was not overly specific and at times when specific details of incidents were provided, that they described conduct, comments or situations which were open to interpretation as to how they should be perceived. However, it is hard to ignore the similarities of the general assertions between different cohorts of students in the absence of evidence that they were in communication with each other.

5. The Tribunal expects the truth lies somewhere between the allegations made by the student witnesses at the hearing and the denials by Professor Chandler, his staff and Mr Sherman. However, the Tribunal is satisfied, on the balance of probabilities, that Professor Chandler systematically engaged in conduct towards his students which was unprofessional and inappropriate, and which caused many of them to be uncomfortable, embarrassed and/or distressed as they were undertaking their studies. However, the Tribunal considers that his conduct was not as extreme as described by the student witnesses and that it is likely to include an element of exaggeration. There is also a good chance that those students’ memories of events have morphed over the time between when the events occurred in and about 2017 and when they made their witness statements and gave evidence at the hearing.  The Tribunal also finds that some of that conduct took place as an attempt by Professor Chandler to ensure that several overseas students attended classes properly and engaged with their studies. Other conduct and remarks were made by him to be humorous but clearly, his jokes were inappropriate or misfired. The Tribunal considers that Professor Chandler failed in delivering reprimands and guidance to his students in a way that was professional, appropriate, and proportionate to the problem at hand; and to be expected of a teacher and assessor delivering quality VET courses. Instead, at times he engaged in conduct toward his students intended to cause them humiliation, intimidation, and distress.

6. The Tribunal is not prepared to make a finding that Professor Chandler mistreated his staff as they have not registered any complaints themselves about his treatment towards them, but the Tribunal finds that he has a history of mistreating his students.

   Alleged inappropriate conduct of a sexual nature towards students

7. Ms Nelson gave evidence at the hearing about alleged experiences of inappropriate sexual conduct by Professor Chandler during a class when the students were taught full body massage.[118] Ms Nelson said that they (meaning the students) would practice full body massage on each other, and she confirmed they would be required to get undressed down to their underwear. Ms Nelson accepted it was common to need to be undressed for that type of massage.

   [118] Refer Transcript, P-37.

8. Ms Nelson said that in this class she was laying on the massage bed in her underwear and had a towel over her.[119] Ms Nelson said it was “intimidating”. Ms Nelson alleged that Professor Chandler had moved the massage table so that his “favourite” male student could see between her legs.[120] Ms Nelson confirmed that at this time, she was wearing underwear.[121] Ms Nelson accepted that it was possible that Professor Chandler had moved the table for a legitimate reason of ensuring the students could see what was occurring but that notwithstanding this, she felt uncomfortable.[122]

   [119] Ibid.

   [120] Ibid, P-38.

   [121] Ibid.

   [122] Ibid.

9. From the following exchange, the Tribunal considers that it was unclear as to the purpose for which Professor Chandler had repositioned the massage table and that he might have been doing so for a legitimate training purpose. Upon being cross-examined about this incident, Ms Nelson could not recall what Professor Chandler has said (emphasis added):[123]

   [123] Ibid, P-47 and P-48.

   MR REBIKOFF: And just lastly, you were asked about the massage class in which you were the subject of the massage and the massage table was turned, and it was put to you that it was possible that Mr Chandler was simply moving the massage table to ensure everyone could see and you agreed it was possible. Do you remember that?

   MS NELSON: I - I do - I don't know, I guess I didn't think of it being that way because I was at the front of the class so I don't think that anyone couldn't see.

   MR REBIKOFF: My question is how possible do you think it was that that was what was happening as opposed to something else?

   MS NELSON: I think something else was happening. I think I was the subject of more than massage in that case.

   MR REBIKOFF: And why do you think that?

   Ms NELSON: I think that Jason had fun with some of the students - some of the male students and me being naked on the massage table was an opportunity to make a joke and I - a sexual joke and I was very vulnerable in that situation, didn't feel comfortable at that joke.

   MR REBIKOFF: And I am sorry if this is uncomfortable for you but could you just explain to the tribunal what you mean when you say that he made a sexual joke at that time?

   MS NELSON: Just referring to me being naked and the pleasure that the male student may enjoy if he moved the table more.  In any case it was uncomfortable even to just feel the table move as a naked person in front of the class, I just felt really - - -

   MEMBER:  And are you able to say, if you can remember the words that Mr Chandler said at that time he was moving the table?  Can you - - -?

   MS NELSON: I'm sorry, I can't remember the exact words.

10. The Tribunal notes that in an earlier report prepared by an Ombudsman investigation officer, the officer described Ms Nelson’s complaint with greater specificity:[124]

    They were learning a particular full body massage in class, which started with a demonstration. She was the subject… The professor moved the massage bed so that his favourite male student could see between her legs; professor asked him if this view was better for him; the male student said ‘yes’ and offered a lewd compliment to Miss N about what he could now see; the professor asked her how she would respond to the compliment; she said that she was there to learn, and did not require compliments. She felt vulnerable and exposed.”

    [124] Refer T-Documents and ST-Documents Bundle, pages 191-2.

11. In Mr Pedrosanto’s Witness Statement, he gave the following account about Professor Chandler:[125]

    Jason was very intense, very aggressive to everyone, especially to the ladies. Making sexual jokes. Favourite students of Jason also liked to make sexual jokes. It was all the time. People laughed uncomfortably so it didn’t get any worse… Towards the end of the course a female student was helping demonstrate a full body massage. I saw Jason move the massage table and say “Hey Alex do you have a good view from there?” That is something you don’t do when people are in a vulnerable position.

    [125] Refer Exhibit R2, paragraphs [16]-[17].

12. At the hearing, Mr Pedrosanto was asked to provide details of any sexual jokes Professor Chandler had made, and he referred to him requiring the Japanese students to hold the pen in their mouth to make them smile.[126] He did not mention anything about the incident involving the repositioning of the massage table. He was later asked about this incident and said that about 20 students were present in that class. He said that he had met with Ms Nelson sometime after this incident and she had told him how uncomfortable she had felt.[127] It is possible this subsequent meeting may have coloured Mr Pedrosanto’s recollection of this incident.

    [126] Refer Transcript, P-60.

    [127] Ibid, P-69.

13. A further allegation made by Ms Nelson was that during a massage class, Professor Chandler had asked female students to vigorously massage themselves so they could learn how to practice massage on themselves at home.[128] Ms Nelson remarked at the hearing: “I thought it was inappropriate to vigorously massage their breasts in front of the class”.[129] It was put to Ms Nelson that Professor Chandler says he did instruct the students to massage themselves in the class but not to massage their breasts vigorously. Ms Nelson said she disagreed with this.[130]

    [128] Refer Transcript, P-40.

    [129] Ibid, P-41.

    [130] Ibid.

14. In Ms Rodriguez Y Esser’s Witness Statement, she referred to Professor Chandler having asked students wearing a light cloth undergarment with their breasts uncovered, to apply oil all over their bodies and to massage “every single part of it, including their breasts”.[131] At the hearing, Ms Rodriguez Y Esser told the Tribunal that the students involved had volunteered the day before the class to demonstrate and Professor Chandler had told them to bring some relaxed clothes to be comfortable.[132] The Tribunal notes that Ms Nelson was reported to have told the Ombudsman investigating officer that Professor Chandler had chosen those two female students, along with a 60-year-old man, but Ms Rodriguez Y Esser’s evidence revealed this was not the case.[133] They had volunteered.

    [131] Refer Exhibit R8, paragraph [30].

    [132] Transcript, P-227.

    [133] Refer T-Documents and ST-Documents Bundle, page 192.

15. Ms Rodriguez Y Esser said the students were not expecting to have to be naked to demonstrate, and that when one of them tried to withdraw, Professor Chandler had told them they had to do it; otherwise, they should not have volunteered. She said Professor Chandler had explained to them how they were to massage the body starting with the feet. She said at the beginning it was not too bad because they had a towel covering their breasts. She said that when they came to the breasts, that this could have been skipped, as she suggested they all had a “pretty clear idea” of what they needed to do.[134] She said he asked them to massage up across the breast in stokes and then in circles around the breast.[135] Ms Rodriguez Y Esser said, at the hearing, that one of students was “really traumatised by it afterwards” and “felt uncomfortable” exposing her breast to the class, especially as there were males in the class and they all knew each other.[136]

    [134] Transcript, P-227.

    [135] Ibid, P-228.

    [136] Ibid.

16. Ms Rodriguez Y Esser was asked about the incident involving Ms Nelson referred to above, regarding the repositioning of the massage table. Specifically, she was asked whether she remembered the exact words Professor Chandler had said, when he changed the direction of the massage table. Ms Rodriguez Y Esser’s answered: “No, he didn't - to my - in my memory he didn't say anything, he just moved the table and I just know that we were - he just moved the table, he didn't say why he was moving it”.[137] The following further exchange between Ms Rodriguez Y Esser and Mr Rebikoff caused the Tribunal to be satisfied that there was nothing untoward about Professor Chandler moving the position of the massage table with Ms Nelson on it, during the massage class:[138]

    MR REBIKOFF: Do you think it's possible he might have moved the table to give all the students an equal view of the massage that was being undertaken? 

    MS RODRIGUEZ Y ESSER: Maybe that was his intention but I don't think so because it was pretty clear, we could see what was going on. I was sitting at the right-hand of the class and I didn't specifically need that move to be done for me to follow what was - how the massage was being done on her legs, and I had a clear view of what was happening and yes, I don't think it helped me - - -

    MR REBIKOFF: Have you ever seen him do something like that before?  

    MS RODRIGUEZ Y ESSER: No.  That was - - -

    MR REBIKOFF: Have you been in other classes where he's demonstrated a full body massage?  

    MS RODRIGUEZ Y ESSER: No, that was the only - no, the only one he demonstrated.  We eventually had to work on each other so we did have massages and also in the clinic where the supervisors were, you know, showing us and demonstrating to us. That's the only one with Jason teaching us.

    [137] Ibid.

    [138] Refer Transcript, P-229.

1. In the Tribunal’s letter dated 14 December 2022, it invited the parties to make submissions on or before 20 December 2022 about the proposed conditions under contemplation by the Tribunal and other matters. In response, Mr Pritchard, General Counsel of ASQA lodged a letter with the Tribunal on 20 December 2022 contending (among other things) as follows:

   (a)ASQA reiterated its contention that Ayurveda’s registrations as an RTO and a CRICOS provider should be cancelled and that any attempt to allow the Applicant to remain registered but exclude Professor Chandler from teaching or dealing with students, was both “unrealistic and impractical” and would “require ASQA to undertake almost constant supervision to ensure any conditions imposed by the Tribunal were being complied with”;[272]

   (b)if the Tribunal is minded to impose such conditions, it should seek to limit or exclude as far as possible the capacity for Professor Chandler to exercise influence over the activities of Ayurveda, bearing in mind that while he remains in effective control of Ayurveda as its sole shareholder, he continues to be an “executive officer” of the RTO for the purposes of NVR Act and a “related person” for the purposes of s 6A of the ESOS Act;

   (c)in relation to proposed condition 1(a), ASQA suggests that it be made explicit that Professor Chandler is to resign both as a director and CEO of both Ayurveda College Pty Ltd (the company) and a director and CEO of the RTO of the same name;

   (d)ASQA notes that the proposed condition says nothing as to Professor Chandler’s continued shareholding and/or ownership of Ayurveda and that the company and that he would remain an “executive officer” of the RTO for as long as he owns 15% or more of the organisation or is entitled to receive 15% or more of the dividends paid by the organisation. If Professor Chandler is to remain in effective control of the company as its sole shareholder, ASQA is concerned about the ability to enforce the proposed conditions seeking to limit his involvement in the operations of the RTO and delivery of VET courses at the college. ASQA considers that it would not be practicable to enforce such a condition if Ms Uchiro or Ms Ohira were to assume responsibility for the operations of the college, having regard to the matters discussed in ASQA’s Closing Submissions at paragraphs [151] and [152]. ASQA contends that this may be able to be addressed by modifying proposed condition 1(b) in the manner set out in the paragraph below;

   (e)ASQA holds the same concerns in relation to proposed condition 1(b) and notes that from the wording of this proposed condition, that Professor Chandler will continue to have, at least, some financial interest over Ayurveda. ASQA notes that while the proposed condition seeks to give ASQA the right to veto the appointment of the person or persons appointed as CEO and director and Director of Teaching and Assessment if it does not consider them to be a fit and proper person to undertake the role of executive officer and high managerial agent, executive officers and high managerial agents are already required to satisfy that requirement under Clause 7.1(b) of the RTO Standards;

   (f)ASQA submits it is particularly concerned about the ability to enforce proposed condition 1(b), if Ms Uchiro or Ms Ohira assume responsibility for the operations of the RTO, given the evidence as to their close relationship with Professor Chandler and their inability to operate independently from him. As a result, ASQA does not consider them to be sufficiently removed from Professor Chandler for the Tribunal (or the Respondent) to have confidence that the requirements set out in proposed conditions 1(a) and (b) will be met and maintained;

   (g)ASQA contends that it would provide “greater comfort” about Ayurveda’s ongoing compliance with proposed conditions 1(a) and (b), if conditions in those terms are to be imposed, then the right to veto conferred on the Respondent by proposed condition 1(b) should apply if the Respondent does not consider the proposed appointee to be “suitable” to undertake the role of executive officer and high managerial agent for the college. This would make it clear that ASQA could veto Ms Uchiro or Ms Ohira if they were proposed;

   (h)ASQA does not consider it appropriate for it to nominate a proposed external consultant and would prefer to endorse a proposed consultant nominated by the Applicant. Otherwise, ASQA has no objection to the proposed condition;

   (i)ASQA has no objection to proposed condition 3 and indicated that it would provide an email address where complaints can be forwarded, assessed and, if necessary, actioned. ASQA stated that such action may include further regulatory activity and if so, ASQA would engage directly with the Applicant.

   [272] Refer ASQA’s letter dated 20 December 2022, paragraph [4].

2. Otherwise, ASQA responded to the invitation by the Tribunal for either party to make submissions as to whether it was open to the Tribunal, at law, to impose the conditions of registration/registration requirements (as referred to in the Letter), as a lesser sanction on Ayurveda given the provisions in the NVR Act and ESOS Act. ASQA submitted as follows (emphasis added):

   19.The Respondent submits it is open to the Tribunal to impose conditions under s 29 of the NVR Act in lieu of a sanction under s 36 of the NVR Act (noting that it does not consider it is necessary to duplicate the conditions on both NVR and ESOS registrations and it is sufficient they be imposed on NVR registration only).

   20.This question was addressed directly by the Federal Court’s decision in Australian Skills Quality Authority v Brighton Pacific Pty Ltd [2020] FCA 617 (11 May 2020) where her Honour Collier J said:

   88.Before the Tribunal, Brighton Pacific sought an order that ASQA’s cancellation of registration under the NVR Act be set aside. Following reinstatement of Brighton Pacific’s registration under the NVR Act, by operation of s 43(1) of the AAT Act the Tribunal had available to it powers under the NVR Act referable to the registration of Brighton Pacific, including the power to impose conditions on the registration of Brighton Pacific pursuant to s 29(1) of the NVR Act.

   89.ASQA contended that Brighton Pacific would be denied the right to merits review of a decision of the Tribunal imposing conditions under s 29(1) if the Tribunal could exercise that power. This may well be the case. However, such an outcome is no reason to read down the express terms of s 43(1) of the AAT Act and deny the Tribunal’s jurisdiction to exercise all powers and discretions conferred by any relevant enactment. As Brighton Pacific submitted – in my view correctly – there is no qualification in s 43(1) that prevented the Tribunal from exercising a power different to that exercised by the original decision-maker if an exercise of the power by the original decision-maker would have been reviewable.

   90.It follows that it was open to the Tribunal to set aside the decision of ASQA to cancel the registration of Brighton Pacific under the NVR Act, reinstate that registration, but pursuant to s 29(1) of the NVR Act make that registration subject to the conditions set out in the Tribunal’s reasons for decision.

   21.In those circumstances, the Respondent contends that it is open to the Tribunal to impose the conditions proposed.

3. Ayurveda’s legal representative, Mr Nick Galatas who holds the position of Principal of GPZ Legal acting for Ayurveda, also lodged detailed submissions by email on 21 December 2022, while at the same time registering his concerns about not having a proper opportunity to do so. He said he was overseas on leave. Ms Sion had informed the Tribunal she was no longer instructed in this matter. Nonetheless, Mr Galatas made the following submissions in his email on 21 December 2022, on behalf of Ayurveda:

   1.Professor Chandler agrees to resign as director and high managerial agent of the applicant as being considered by the Tribunal but he does not consider a replacement can be found within the time period proposed by the Tribunal. The next month is effectively a ‘dead’ period for this purpose. The applicant is not confident a suitable replacement can be identified and engaged in such a specialised field prior to early in the second half of 2023.

   2.The Respondent’s concerns about Ms Uchira(sic) and Ms Ohiro(sic) can be addressed by the advice neither of them now wish to undertake any such high managerial role. Appropriate flexibility should be built into any condition requiring the hiring of other suitable people as part of its implementation. That is why the Tribunal should not involve itself in such a way with he(sic) operation of a RTO and the discharge by ASQA of its functions but, if it insists on doing so, the condition must be capable of implementation. Flexibility and discretion are therefore necessary given the uncertainty involved and the reliance on third parties (new people) to ensure the condition is able to be imolemented(sic).

   3.Given it is contemplated allowing Professor Chandler to teach one masterclass, it is submitted that until a replacement trainer is found and engaged, Professor Chandler be allowed to deliver two such classes until mid-2023.

   4.The condition imposing a financial commitment on Ayurveda is unwarranted and if it is within power, it traverses ASQA’s functions as regulator. Ayurveda has suffered through government imposed constraints and closures related to the Covid pandemic, three major floods in 7 months and the uncertainty surrounding its registration for many years. The burden of such a condition is unfair, unnecessary, and counterproductive. The applicant must remain financially viable. The combined cost of the proposed conditions constitutes an unfair burden. The applicant will remain responsible for compliance and ASQA retains its regulatory power and function.

   5.Ayurveda can accept a condition requiring Professor’s Chandler’s resignation as contemplated by proposed conditions 1 (a) and (b), subject to the matters above, but the burden of the proposed “investment” will be crushing and put it at immediate risk of failing to comply with its obligation to remain financially viable. The Tribunal should not descend into commercial and financial matters in this way. If that is not beyond power (or function) it is close and it is neither warranted not desirable in this matter.

   6.After the considerable passage of time while the applicant has continued to operate and noting ASQA’s findings of compliance in its report provided in early 2021, the applicant should be left to its responsibility to remain compliant and the respondent to its responsibility to regulate. That is especially appropriate in light of the other conditions.

   7.The applicant does not object to condition 3.

4. Mr Galatas states in his email that he has not had any opportunity to consider the legal issues the Tribunal has raised but had read Mr Pritchard’s submissions on those issues and that, “They largely reflect my understanding of the legal position”.

5. Based on those submissions the Tribunal has decided to modify the initially contemplated proposed conditions.

6. Firstly, the Tribunal has considered Ayurveda’s suggestion on 21 December 2022 to increase the number of masterclasses Professor Chandler may teach per week if it is minded to impose proposed condition 1a. Taking a risk management approach, the Tribunal is not satisfied that given the findings made as to Professor Chandler’s conduct that he should be permitted to teach any more than one masterclass per week as proposed.

7. Secondly, the Tribunal considers it appropriate to specify that Ms Uchiro or Ms Ohira must not be appointed to replace Professor Chandler in compliance with proposed condition 1b; and further, to change the reference to “fit and proper person” in the last sentence of condition 1b to “suitable”. The Tribunal will also add a further sentence to this condition to make clear how it is to be implemented, as follows:

   ASQA must be given the right to veto the appointment of the proposed New Appointee (or their successors) if it does not consider them to be suitable. Prior to the commencement of the proposed New Appointee (or their successors) in compliance with this condition, Ayurveda must inform ASQA in writing of their identity and contact details. ASQA must notify Ayurveda as soon as practicable but at the latest, within 28 days, as to whether it considers the proposed New Appointee (or their successors) to be suitable and upon doing so, Ayurveda may appoint them.

8. Thirdly, the Tribunal acknowledges Ayurveda’s requests for an extension of the time frames referred to proposed condition 1 but considers the original timeframes contemplated by the Tribunal to be appropriate as Ayurveda may make arrangements to place advertisements for those positions immediately and commence its recruitment processes after the New Year.

9. Fourthly, the Tribunal has considered the matters referred to by Ayurveda’s legal representative that the “burden of the proposed “investment” will be crushing and put it at immediate risk of failing to comply with its obligation to remain financially viable” and that “Ayurveda has suffered through government-imposed constraints and closures related to the Covid pandemic, three major floods in 7 months and the uncertainty surrounding its registration for many years”.

10. The Tribunal acknowledges that it has been a difficult few years because of Covid and its impacts on the ability of overseas students to travel to Australia to study and the natural disasters. Having said that, Ayurveda has enjoyed the benefit of a stay over the suspension decisions, preventing a disruption to its operations. For a while there was a No New Enrolments Stay Condition imposed on Ayurveda, but this was removed two years ago.

11. The Tribunal is also cognisant, from the evidence given in this proceeding, that Ayurveda has received the benefit of what is essentially, a free labour force by having its students work for Ayurveda in its clinic, on an unpaid basis, to provide massages and to a lesser extent ayurvedic treatments to the public, based on a fee which is similar, or at least not greatly reduced, from the standard cost of a massage. As mentioned above, the Tribunal has found that Ayurveda was legally entitled to run its clinic in this way and to have its students take up unpaid work placements. However, the Tribunal considers that by Ayurveda having operated based on that model for many years now, it is unlikely to be “crushed” (as its legal representative puts it in his email dated 20 December 2022) by having to invest $50,000 on compliance, in circumstances where it is close to being cancelled altogether, but for the Tribunal being prepared to impose these conditions upon it as an alternative.

12. Despite that observation, the Tribunal considers it appropriate to change proposed condition 2 by removing any stipulation as to the dollar amount Ayurveda is to pay the external consultant to undertake the work as set out in this condition and will stipulate instead that it is to be an adequate amount and leave it to Ayurveda to decide how much it is willing to invest in this critical compliance work. Ultimately, the proof that an adequate amount of funding has been invested by Ayurveda into that work will be evident, or not, when ASQA undertakes its next audit of Ayurveda; or when the external consultant undertakes the audit in compliance with condition 2b; or if its registration is not renewed, and Ayurveda seeks review of the decision not to renew its registration, as part of any such subsequent review proceeding before this Tribunal (requiring an assessment of whether Ayurveda is a compliant organisation with the NVR Act and RTO Standards and an examination of the steps Ayurveda has taken, to achieve and ensure ongoing compliance). It is strongly suggested the Ayurveda spend at least $50,000 to ensure an appropriate overhaul of the way this college operates and to revamp its training and assessment systems/materials and other operational protocols and to conduct the audit in 12 months from now.

13. Finally, the Tribunal does not consider it appropriate to impose a condition which affects the constitution of the shareholding of Ayurveda. This is a matter ASQA will be at liberty to consider further when making its decisions whether to renew the registration of Ayruveda as an RTO; or when considering whether to take any enforcement action against this college for any future non-compliances and ASQA remains concerned about Professor Chandler having had an adverse influence on the college if he remains its sole shareholder or shares of more than 15%. It is always possible that Professor Chandler may, at some point after this Decision, decide to divest his shares, which would extinguish this area of concern of ASQA.

    CONCLUSION

14. Having considered the evidence and contentions of both ASQA and Ayurveda in this proceeding, the Tribunal considers it appropriate, in all the circumstances, to SET ASIDE the Decision Under Review suspending the registration of Ayurveda as an RTO provider under the NVR Act, and in SUBSTITUTION, the Tribunal decides to impose, pursuant to s 29(1) of the NVR Act operating in conjunction with s 43(1) of the AAT Act, the following conditions of registration upon Ayruveda effective immediately (Conditions of Registration):

    (a)Within 90 days from the date of this Decision:

    (i)Professor Jason Chandler is to resign as CEO, company director, and Director/Head of Teaching and Assessment/teacher/assessor of Ayurveda (and as a director and high managerial agent of Ayurveda as an RTO) and must no longer be involved in the operations of or any aspect of delivery of VET courses at the college, except for the limited purpose of teaching one masterclass of his choice to students per week (of a duration no longer than two hours) in a course/unit within Ayurveda’s scope of registration; and

    (ii)Ayruveda is to appoint a new CEO, company director, and a Director of Teaching and Assessment (who may be the same person), of the company (and a director and high managerial agent of Ayurveda as an RTO), in place of Professor Chandler, or any successors thereafter (New Appointee), on the following bases:

    (I)that the New Appointee (or their successors) does not report to or take direction from Professor Chandler except in relation to matters regarding the overall financial management of the company (but excluding any individual financial matters as between Ayurveda and any of its students or staff members);

    (II)the New Appointee (or their successors) must be appropriately senior and qualified and will exclude Ms Uchiro or Ms Ohira; and

    (III)ASQA must be given the right to veto the appointment of the proposed New Appointee (or their successors) if it does not consider them to be suitable. Prior to the commencement of the proposed New Appointee (or their successors), Ayurveda must inform ASQA in writing of their identity and contact details. ASQA must notify Ayurveda as soon as practicable but at the latest, within 28 days, as to whether it considers the proposed New Appointee (or their successors) to be suitable and upon doing so, Ayurveda may appoint them; and

    (b)Within 120 days from the date of this Decision, Ayurveda must invest an adequate sum to pay for an external consultant (to be endorsed by ASQA prior to engagement and shall exclude Professor Chandler and related or associated person), to:

    (i)undertake an immediate comprehensive review of all its practices and procedures and training products for each course within its scope of registration and to make recommendations for improvements (to be confirmed in a report to be immediately provided to ASQA and the New Appointee (or their successors)); and

    (ii)conduct a comprehensive audit within 12 months of the date of this Decision of Ayurveda’s compliance with its obligations under the NVR Act and RTO Standards, and these Conditions of Registration.

    Professor Chandler is not permitted to liaise with the external consultant and instead, they are to liaise only with the New Appointee (or their successors) and/or (as necessary) Ms Uchiro/Ms Ohira. The Audit Report is to be given to ASQA and the New Appointee (or their successors) by the external consultant, on the same date that it is issued; and

    (c)Within the next 12 months from the date of this Decision, a copy of any student or staff complaint received by any staff member of Ayurveda must be immediately forwarded to the New Appointee (or their successors); and in turn, they must immediately forward a copy of the complaint to a nominated person within ASQA so they may place it on Ayurveda’s file. Those complaints may be considered as part of any subsequent investigation or audit to be undertaken in respect of Ayurveda, as ASQA sees fit.

I certify that the preceding 211 (two-hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of

.................[sgd].......................................................

Associate

Dated:  23 December 2022

Dates of hearing:

Date of final closing submission:

Date of submissions on form of final orders:

9, 10, 11 & 12 November 2020, 9 February 2021 and 10, 11 and 12 May 2021

20 August 2021

20 December 2022

Counsel for the Applicant:

Ms R. Sion

Solicitors for the Applicant:

Mr Nick Galatas, GPZ Legal

Counsel for the Respondent:

Mr S. Rebikoff

Solicitors for the Respondent:

Australian Skills Quality Authority

EXHIBIT LIST – AYURVEDA’S EXHIBITS

Exhibit A1       Statement of Peter Sherman dated 16 October 2020

Exhibit A2       Statement of Ms Etsuko Ohira dated 6 October 2020

Exhibit A3       Statement of Ms Yumiko Uchiro dated 16 October 2020

Exhibit A5[273]    Affidavit of Jason Chandler – 23 October 2018

[273] Based on the Transcript it appears there was no exhibit marked Exhibit A4.

Exhibit A6       Affidavit of Jason Chandler – 30 October 2018

Exhibit A7       Affidavit of Jason Chandler – 30 November 2018

Exhibit A8       Affidavit of Jason Chandler – 26 June 2019

Exhibit A9       Affidavit of Jason Chandler – 21 September 2020

Exhibit A10     Affidavit of Jason Chandler – 5 February 2021

Exhibit A11     Affidavit of Jason Chandler - 16 October 2020

Exhibit A12     Affidavit of Jason Chandler – 1 July 2021

Exhibit A13     Witness Statement of Jade Newnham

Exhibit A14     Witness Statement of Shay Maclean

Exhibit A15     Witness Statement of Joanna Dziedzic

EXHIBIT LIST – ASQA’S EXHIBITS

Exhibit R1       Witness Statement by Kathryn Nelson dated 30 October 2020 and Outline of Evidence of Kathryn Nelson

Exhibit R2       Witness Statement of Mr Rodrigo Pedrosanto dated 13 February 2019 and Outline of evidence dated 2 November 2020

Exhibit R3       Witness Statement of Ms Flavia Lopez dated 13 February 2019 and Outline of Evidence dated 5 November 2020

Exhibit R4       Witness Statement of Ms Ana Ruettimann dated 12 February 2019, with Outline of Evidence dated 2 November 2020

Exhibit R5       Witness Statement of Ms Robyn Bore dated 19 August 2020 correction at paragraph 17, the third line should read “COE Status of ‘finished’ or ‘cancelled’”

Exhibit R6       Witness statement of Kayo Takekawa dated 12 February 2019 and corresponding Outline of Evidence dated xxx

Exhibit R7       Handwritten course notes provided by Ms Takekawa during the hearing

Exhibit R8       Witness statement of Ms Judith Rodriguez y Esser dated 13 February 2019 together with Outline of Evidence

Exhibit R9       Bundle of documents comprising email exchange between Ms Judith Rodriguez y Esser and ‘Leo’ in November 2017

Exhibit R10     Statement of Ms Pollola dated 13 August 2020

Exhibit R11     Statement of Ms Pollola dated 22 October 2020

EXHIBIT LIST – TRIBUNAL HEARING EXHIBITS

Exhibit THD1   Work Placement Guide for CHC (Community Services and Health) Training Package, Release 2.0, dated December 2015

Exhibit THD2   Print out of brochure from Ayurveda House webpage downloaded 10 May 2021

Exhibit THD3   Training package documents for Ayurveda courses