Ayurveda College Pty Ltd and Australian Skills Quality Authority [2022] AATA 4427 (23 December 2022)
Division:General Division
File Number:2018/6054
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 Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) provider under the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) and in SUBSTITUTION, the Tribunal decides to impose, pursuant to s 83(3)(a) of the ESOS 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 a CRICOS provider) 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 a CRICOS provider), 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 ESOS Act, National Code, 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 registration as a CRICOS provider under the Education Services for Overseas Students Act 2000 (Cth) – allegations of inappropriate conduct by Applicant toward overseas students and Applicant’s staff – whether Applicant is “fit and proper person” to operate as a CRICOS provider – whether Applicant made false statements to ASQA and the Tribunal – consideration of non-compliances with National Code – decision under review set aside and substituted with a decision to impose several conditions of registration on the Applicant’s registration as a CRICOS provider
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
Australian Skills Quality Authority v Brighton Pacific Pty Ltd [2020] FCA 617
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 31Re 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 Organisation 2015 (Cth)
REASONS FOR DECISION
The Applicant, Ayurveda College Pty Ltd (Ayurveda or the college), seeks review of a decision made by the Respondent, the Australian Skills Quality Authority (ASQA), to suspend Ayurveda’s registration as a registered Commonwealth Register of Institutions and Courses for Overseas Students provider (CRICOS provider) under s 83(3)(b) and s 95 of the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) (Decision Under Review).[1]
[1] Refer T-Documents, Pages 8-10.
On the same day, 21 September 2018, ASQA also suspended Ayurveda’s registration as a registered provider (RTO) under ss 36 and 38 of the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act).[2] Ayurveda also seeks review in relation to this decision by application numbered 2018/6050. 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.
[2] Ibid, Pages 3-5.
The Tribunal has made the decision in the present application number 2018/6054 based on many of the findings of fact made in the Reasons for Decision in application number 2018/6050. For this reason, the Tribunal will refer to the Reasons for Decision in respect of application numbered 2018/6050 in these Reasons for Decision and will refer to them as the 6050 Reasons for Decision when it does so. The 6050 Reasons for Decision and these Reasons for Decision will be published on the same day.
ASQA is the statutory body responsible for regulating CRICOS providers to comply with their legislative obligations under the ESOS Act and the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code).
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 afforded under the ESOS Act”.[3] Originally, the Decision Under Review was based on a single complaint by a former student of Ayurveda, Ms Kathryn Nelson, as explained in 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].
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 enrolled with Ayurveda (No New Enrolments Stay Condition). The Tribunal granted the requested stay and imposed the requested stay condition. 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 its registration 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”.
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 CRICOS provider and in substitution decides to impose, pursuant to s 83(3)(a) of the ESOS Act, several conditions of registration upon Ayruveda, effective immediately.
ISSUES
ASQA contends that the Tribunal should set aside the Decision Under Review, and in substitution should cancel the registration of Ayurveda as a CRICOS provider, on the basis that:
(a)Ayurveda is not a “fit and proper person” to be registered as a CRICOS provider;[4] and
(b)Ayurveda has also failed to comply with Standards 10.1-10.6 and 13.4 of the National Code.[5]
[4] Refer ASQA’s Closing Submissions, paragraphs [3.2].
[5] Ibid, paragraph [3.3].
Essentially, this matter boils down to whether the Tribunal’s discretion is enlivened under s 83 of the ESOS Act and if so, whether the Tribunal considers it appropriate to exercise its discretion by imposing sanctions on Ayurveda as a CRICOS provider, and specifically, whether its registration should be cancelled, suspended, or have conditions imposed upon its registration (and if so, what those conditions should be).
In reaching this decision, the Tribunal must consider:
(a)whether Ayurveda is a “fit and proper person” to be a registered CRICOS provider under the ESOS Act (ESOS Fit and Proper Person Issue); and
(b)whether Ayurveda has failed to comply with Standards 10.1-10.6 and 13.4 of the National Code (Non-Compliance with National Code Issue).
LEGISLATIVE FRAMEWORK
Objectives of ESOS Act
The objectives of the ESOS Act are set out in s 4A of the ESOS Act. They include the following:
(a) to provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and
(b) to protect and enhance Australia's reputation for quality education and training services; and
(c) to complement Australia's migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas.
Section 33 of the ESOS Act provides that the Minister may make a national code by legislative instrument, that is, the National Code. The purpose of the National Code is set out in s 34 of the ESOS Act as follows:
The purpose of the national code is to provide nationally consistent standards and procedures for registered providers and persons who deliver educational services on behalf of registered providers.
The ESOS Act provides that compliance with the National Code is a prerequisite for registration (see section 11); and that sanctions under Division 1 of Part 6 may be imposed on a registered provider who breaches the National Code.
The regulator - ASQA
ASQA is a Commonwealth statutory body responsible for regulating compliance by CRICOS providers of their obligations under the ESOS Act and the National Code.
CRICOS provider registration and sanctions
Under s 9 of the ESOS Act, a “provider” may apply to be registered to provide a course or courses to overseas students. A “provider” is defined in s 6E of the ESOS Act as including “a registered VET provider”. Under s 5 of the ESOS Act, “a registered VET provider” means an NVR registered training organisation (RTO).
Section 10 of the ESOS Act provides the authority for ASQA to register a provider as a CRICOS provider if they meet the registration requirements. When doing so, subsection (2) requires ASQA to use a risk management approach when considering whether to register the provider. Section 11 of the ESOS Act sets out the registration requirements which include, as relevant:
(a)under s 11(b), that ASQA is satisfied that the provider is complying, or will comply, with the ESOS Act and the National Code; and
(b)under 11(c), that ASQA is satisfied that the provider is fit and proper to be registered;
(c)under s 11(e), that ASQA has no reason to believe that:
(i)the provider does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or
(ii)the provider has not been providing, or will not provide, education of a satisfactory standard.
ASQA may grant registration to an RTO under the ESOS Act as a CRICOS provider for a period of up to seven years, following which ASQA may renew an RTO’s CRICOS registration under s 10E of the ESOS Act. Under s 10B of the ESOS Act, ASQA may impose conditions of registration on a CRICOS provider at any time or vary or remove such conditions. Section 10B(2) provides that ASQA must adopt a risk management approach when imposing, varying, or removing such conditions.
If a CRICOS provider is not compliant with the ESOS Act, National Code, ELICOS Standards, the Foundation Program Standards, or a condition of their registration, ASQA can take enforcement action by imposing sanctions under Division 1 of Part 6 of the ESOS Act. Division 3 of Part 6 also provides for certain offences, such as providing false or misleading information (s 108). Specifically, ASQA may, under s 83(3) of the ESOS Act, impose one or more condition on the CRICOS provider’s registration (under subsection 83(3)(a); suspend its registration (under s 83(3)(b) and s 95); or cancel its registration (under s 83(3)(c)).
Section 86 of the ESOS Act provides as follows:
86 Examples of conditions
(1)Examples of the conditions that the ESOS agency for a registered provider may impose under section 83 are conditions that:
(a)there be no net increase, or only a limited net increase, in the number of overseas students enrolled with the provider;
(b) the provider enrol only a limited number of new overseas students;
(c) the provider not accept any new students from a specified country;
(d)the provider not deal with a specified agent in relation to overseas students or intending overseas student;
(e) the provider not provide a specified course.
(2)The examples do not limit the kinds of condition that the ESOS agency for a registered provider may impose.
EVIDENCE AND SUBMISSIONS
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;[6]
(d)Ayurveda’s 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).
[6] An earlier SFIC was lodged but it was supeceded by an updated SFIC.
The substantive hearing of this matter took a protracted course and was held over three different stages over a period of six months. This was due in part to an unexpected development that arose upon surgery undertaken to Professor Chandler’s jaw following his involvement in an earlier car accident. This made it difficult for Professor Chandler to speak and the rehabilitation from this surgery was expected to take some time. There were also 11 witnesses called by both parties to this application to give evidence in this matter, including former students and current staff members of the college. Some of Ayurveda’s key witnesses were unavailable/unable to give evidence at the time of the first stage of the substantive hearing, so arrangements were made for them to give evidence on 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 matters before it.
BACKGROUND
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.[7] Ayurveda’s registration was transferred to ASQA in July 2012.[8] On 26 March 2018, Professor Chandler described Ayurveda as a “one-person company” and that he does all the teaching.[9] 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.[10]
[7] Refer ASQA’s SFIC, paragraph [10].
[8] Ibid, paragraph [17].
[9] Refer T-Documents and ST-Documents Bundle, page 545.
[10] Refer Ms Newnham’s Statement dated 16 October 2020, paragraph [8].
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.[11] 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.[12] The registered office of Ayurveda, as of 12 November 2020, was “Ayurvedahouse”, 27 Campbell Road, Kyogle, New South Wales.
[11] Refer T-Documents and ST-Documents Bundle, page 184.
[12] Lodged with the Tribunal by Ayurveda with the Tribunal on 12 November 2020. Ayurveda’s former company name was Traditional Ayurveda Pty Ltd, and before that Neem Trees Processing & Ayurvedic Products Co. Pty Ltd.
Ayurveda lodged a set of affidavits by Professor Chandler in this proceeding and relies upon his oral evidence given at the hearing. This includes Professor Chandler’s affidavits/witness statement sworn/signed on:
(a)23 October 2018 (Professor Chandler’s First Affidavit);[13]
(b)30 October 2018 (Professor Chandler’s Second Affidavit);[14]
(c)30 November 2018 (Professor Chandler’s Third Affidavit);[15]
(d)26 June 2019 (Professor Chandler’s Fourth Affidavit);[16]
(e)21 September 2020 (Professor Chandler’s Fifth Affidavit);[17]
(f)16 October 2020 (Professor Chandler’s Sixth Affidavit);[18]
(g)5 February 2021 (Professor Chandler’s Seventh Affidavit);[19] and
(h)1 July 2021 (Professor Chandler’s Eight Witness Statement).[20]
[13] Refer Exhibit A5.
[14] Refer Exhibit A6.
[15] Refer Exhibit A7.
[16] Refer Exhibit A8.
[17] Refer Exhibit A9.
[18] Refer Exhibit A11.
[19] Refer Exhibit A10.
[20] Refer Exhibit A12.
Ayurveda’s scope of registration includes the following three vocational, education and training (VET) courses, which it delivers to both domestic and international students:
(a)Diploma of Ayurvedic Lifestyle Consultation (course code: HLT52615); and
(b)Advanced Diploma of Ayurveda (course code: HLT62615); and
(c)unit of competency which has now been superseded: Provide First Aid (unit code: HLTAID003).
“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.
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 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 subsequently found Ayurveda to have “significant” non-compliances after the first and second tranches of rectification evidence was providing by Ayurveda to QLD DET;[21]
(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 27(a) above.
[21] Refer T-Documents and ST-Documents Bundle, page 32.
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.[22] ASQA informed Ayurveda that this complaint raised concerns about whether Ayurveda was compliant with Standards 9, 10, 11, 13 and 14 of the National Code 2017 (and the NVR Act and RTO Standards) and invited Ayurveda to respond.[23] A follow-up email was sent by ASQA on 26 March 2018, noting that no response from Ayurveda had been received.[24]
[22] Ibid, pages 526-527.
[23] Ibid.
[24] Ibid, pages 551-553.
Professor Chandler responded by email on 26 March 2018 refuting the complaints made against him and the college.[25] 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”.[26] 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.
[25] Ibid, pages 545-547.
[26] Ibid, page 546.
Commencing on 20 April 2018, ASQA conducted a Compliant Evidence Analysis review,[27] and on 6 June 2018 completed a Complaint Decision Record, recording that Ayurveda was compliant with Standard 9 and non-compliant with Standards 10, 13 and 14.[28] ASQA sent to Ayurveda a Notice of audit non-compliance and intention to make a decision to suspend its registration as a CRICOS provider or impose a sanction of lesser severity.[29] In response, Ayurveda provided further evidence of compliance, including evidence of the qualifications held by some of its trainers and assessors, and several statutory declarations made by former students indicating that they had a positive experience training at the college.[30] By their descriptions, their experience was very different from those of the students who had made complaints about Ayurveda and Professor Chandler’s conduct.
[27] Ibid, pages 711-717.
[28] Ibid, pages 720-724.
[29] Ibid, pages 725-727.
[30] Ibid, pages 741-761.
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 Standards 10, 13 and 14 of the National Code (and clauses 7.1 and 8.1 of the RTO Standards, relevant to Ayurveda’s registration as an RTO) (2018 Evidence Analysis).[31] In response to that evidence, Ayurveda lodged Professor Chandler’s Third Affidavit (Exhibit A6, sworn on 30 November 2018).
[31] Ibid, pages 814-818.
In September 2018, ASQA decided to suspend Ayurveda’s registrations under the ESOS Act and the NVR Act, as a CRICOS provider and an RTO respectively. 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.[32]
[32] Refer ASQA’s Closing Submissions, paragraph [2].
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.[33] The Tribunal (differently constituted) granted the requested stay on 25 October 2018 and again, on 14 December 2018, subject to the No New Enrolments Stay Condition.
[33] Refer affidavits of Anthony Barkey affirmed on 8 November 2018 and Alana Cunningham affirmed on 7 November 2018.
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;[34]
(c)Ms Judith Rodriguez Y Esser – who attended from August 2016 to November 2017;[35]
(d)Ms Flavia Lopes – who attended from March 2014 to October 2017;[36]
(e)Ms Ana Ruettimann – who attended from October 2013 to March 2015, and for a second period from June 2015 to November 2017;[37] and
(f)Ms Kayo Takekawa – who attended from April 2014 to October 2017.[38]
[34] Refer Transcript, P-51.
[35] Refer Statement of Judith Rodriguez y Esser dated 13 February 2019, paragraph [7]; Transcript, P-194.
[36] Refer Statement of Flavia Lopes dated 13 February 2019, paragraphs [7] and [39]-[40]; Transcript, P-78.
[37] Refer Statement of Ana Ruettimann dated 12 February 2019, paragraphs [6]-[9]; Transcript, P-126.
[38] Refer Statement of Kayo Takekawa dated 12 February 2019, paragraphs [8]-[11]; Transcript, P-161.
Ayurveda responded to this evidence by lodging Professor Chandler’s Fourth Affidavit (sworn on 26 June 2019).[39]
[39] Refer Exhibit A8.
Ayurveda’s registration as a CRICOS was due to expire on 31 December 2018.[40] On 30 September 2018, Ayurveda applied for renewal of its CRICOS registration.[41] A decision record indicates that this application was referred to Regulatory Operations within ASQA due to the stay that was in progress, the history of non-compliances, and the “substantiated complaint”.[42] ASQA confirmed shortly before the Decision in this matter was to be handed down that this renewal application is still pending.
[40] refer T-Documents and ST-Documents Bundle, page 914.
[41] Ibid, page 876.
[42] Ibid, pages 914-916.
ASQA conducted a further compliance audit of Ayurveda in September 2019 for the stated purpose of considering whether to renew Ayurveda’s registration as a CRICOS provider (and RTO) (Renewal Audit).[43] ASQA states that this audit focussed on matters of “general compliance”, rather than the matters which were 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.
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.
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.[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.
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.[47] 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.[48]
[46] Refer ASQA’s Reply Closing Submissions, paragraph [1.6]
[47] Ibid.
[48] Ibid; and Transcript, P-146.
The Tribunal was informed that ASQA has not yet made a decision to renew the registration of Ayurveda as a CRICOS provider (or RTO). The expiry date of Ayurveda’s registration as a CRICOS provider was 31 December 2018. Given this date has passed, the Tribunal notes s 10F of the ESOS Act (emphasis added):
10F Registration continues until decision on renewal takes effect
If:
(a) a registered provider makes an application under section 10D; and
(b) the ESOS agency for the provider has not made a decision on the application before the end of the day on which the provider’s registration is due to expire;
the provider’s registration continues until the agency’s decision on the application is stated to take effect.
Ayurveda has continued to operate as a CRICOS provider because its registration is deemed to have continued in force by operation of s 10F (subject, of course, to the Decision Under Review and the stay operating on this decision).
ASQA states that on 13 May 2020, it received an unsolicited further complaint from an Ayurveda student.[49] On 16 June 2020, Ms Robyn Bore, an ASQA regulatory officer, was tasked with investigating this complaint.[50] This included contacting former students who had recently completed their studies with Ayurveda, to ascertain whether the 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.
On 19 August 2020, ASQA lodged with the Tribunal further witness statements as follows:
(a)Statement of Ms Robyn Bore dated 19 August 2020;[52] and
(b)Statement of Ms Carla Pollola dated 13 August 2020. Ms Pollola states she attended the college from January 2019 to 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.
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 trainers, assessors, and clinic supervisors, including:
(i)Ms Yumiko Uchiro;[54]
(ii)Ms Etsuko Ohira;[55] and
(iii)Ms Jade Newnham (former staff member).[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.
ASQA lodged a further Witness Statement by Ms Pollola signed on 22 October 2020.[60]
[60] Refer Exhibit R11.
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.
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].
ASQA contends there is nothing improper about its seeking to rely upon evidence which was not before the original decision-maker, or in investigating the unsolicited complaint from the student in the way it did.[63]
[63] Refer ASQA’s Reply Closing Submissions, paragraph [4].
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 ESOS 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.
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, by the opportunity to make oral submissions at hearing (held over eight days in three different stages and leading to over 500 pages of transcript), and by being permitted to lodge detailed written closing submissions after the hearing of this matter had concluded.
CONSIDERATION
ESOS Fit and Proper Person Issue
Section 11(c) of the ESOS Act requires that ESOS agencies must be satisfied that CRICOS providers are “fit and proper” to be registered, with s 7A setting out the matters to which the Tribunal must have regard in subsection (2).
7ADeciding whether a provider or registered provider is fit and proper to be registered etc.
(1) This section applies if it is necessary for the purposes of a provision of this Act for:
(a) the ESOS agency for a provider or registered provider to decide whether:
(i) the agency is satisfied, or no longer satisfied, that the provider is fit and proper to be registered; or
(ii) the agency believes on reasonable grounds that the provider is not fit and proper to be registered; or
(b) the designated State authority for a provider or registered provider that is an approved school provider to decide whether the authority is satisfied that the provider is fit and proper to be registered.
(2) In deciding the matter, the ESOS agency… must have regard to:
…
(ga) the matters (if any) specified by the Minister in an instrument under subsection (2A): and
(h) any other relevant matter.
(2A) The Minister may, by legislative instrument, make a determination specifying matters for the purposes of paragraph (2)(ga).
(3) A related person of a provider or registered provider is:
(a) an associate of the provider who has been, is or will be, involved in the business of the provision of courses by the provider; or
(b) a high managerial agent of the provider.
ASQA contends that Ayurveda is not a fit and proper person because Professor Chandler has:[65]
[65] See ASQA’s Closing Submissions, paragraph [58].
(a)engaged in bullying, and 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 of 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.
In Ayurveda’s Closing Submissions, it opposes each of the assertions above made by ASQA.[66] The Tribunal has set out the evidence and its finding in relation to these allegations in the 6050 Reasons for Decision. The Tribunal will not repeat them here and for brevity, will refer instead to parts of them as specified below in relation to the four main allegations.
[66] Refer Ayurveda’s Closing Submissions, paragraphs [47]-[77].
Alleged Bullying, derogatory and abusive treatment of students and staff
The Tribunal has addressed this allegation in paragraphs [57] to [94] of the 6050 Reasons for Decision.
Alleged inappropriate conduct of a sexual nature towards students
The Tribunal has addressed this allegation in paragraphs [95] to [108] of the 6050 Reasons for Decision.
Alleged abuse or exploitation of Professor Chandler’s position of responsibility as a teacher and CEO of an RTO
The Tribunal has addressed this allegation in paragraphs [109] to [131] of the 6050 Reasons for Decision.
Allegation that Professor Chalmers misled ASQA and attempted to subvert or obstruct its investigations
The Tribunal has addressed this allegation in paragraphs [132] to [136] of the 6050 Reasons for Decision.
In Conclusion
ASQA contends that Professor Chandler’s conduct involved an abuse of his of power and responsibility as a teacher and the CEO of a CRICOS provider, which “must invariably destroy the public’s confidence in his suitability to be involved in an organisation that provides, assesses or issues nationally recognised qualifications”.[67] ASQA contends that this was not conduct that was isolated or unlikely to recur and is “plainly a product of his essential character and demeanour and has remained consistent for a long time”. [68]
[67] Refer ASQA’s Closing Submissions, paragraph [70].
[68] Ibid.
The Tribunal is satisfied that Professor Chandler has not engaged in sexually inappropriate behaviour (see the 6050 Reasons for Decision). However, the Tribunal finds that Professor Chandler’s other inappropriate conduct toward students in his college and in his attempt to mislead the Tribunal in relation to the payment of monies to consultants as described above, demonstrates that Ayurveda is non-compliant with its statutory obligation, by virtue of Professor Chandler’s conduct, to be a “fit and proper person” to operate as a CRICOS provider under the ESOS Act. The Tribunal also considers that this will continue to be the case unless Professor Chandler’s involvement in running the operations and teaching and assessments at the college should cease (except for some very limited involvement which will be addressed below).
Based on the findings as to Professor Chandler’s conduct referred to above, the Tribunal is satisfied that Ayurveda is not presently a fit and proper person under s 11(c) of the ESOS Act to be registered as a CRICOS provider.
Non-Compliance with National Code Issue
Compliance with Standards 10.1 and 10.6 of the National Code – student support
ASQA contends that the evidence of the student witnesses establishes Ayurveda is non-complaint with its obligation under Standards 10.1 and 10.6 of the National Code to notify and counsel students who are at risk of failing to meet course progress requirements.[69]
[69] Ibid, paragraph [120.1].
ASQA contends that the student witnesses gave evidence that they felt they were not given adequate feedback in relation to their course progress or support with their studies, and instead, the main form of “support” Professor Chandler offered was to berate students for not doing well or single them out for criticism in front of the class. One aspect of this, was the claim by the students that they never received marked copies of their assignments, or any written feedback in relation to their results. ASQA contends that many of the students had indicated that they felt confused by the lack of course structure and the failure to provide them with any course outline or curriculum.
The Tribunal addressed this matter in detail under the heading “Compliance with 1.7 of the RTO Standards – student support” in its 6050 Reasons for Decision. For the sake of brevity, it will not set out those matters again, other than to say that by Professor Chandler’s own evidence, students were not provided with marked copies of their assignments as a “rule” of the college, and that the formal assessments took place at the end of the courses, because Ayurveda “clustered” the units of the course, meaning that the students were unable to gauge their progress at any stage during the course.
ASQA contends that the Tribunal should find there was no clear system for providing students with written feedback in relation to their work or keeping students informed about their course progress, and no support provided to students to enable them to meet the requirements of the course. Based on the findings made in the 6050 Reasons for Decision as referred to in the above paragraph, the Tribunal accepts ASQA’s contentions and is satisfied that Ayruveda is non-compliant with Standards 10.1 to 10.6 of the National Code.
Compliance with Standards 13.4 of the National Code – notice of enrolment suspension or cancellation
ASQA contends that the evidence of the student witnesses establishes Ayurveda is non-complaint with its obligation under Standards 13.4 of the National Code to inform students of its intention to suspend or cancel their enrolment and notify the student that he or she has 20 working days to access the Applicant’s internal complaints and appeals process.
ASQA relies upon an incident in November 2017 involving Ms Nelson, where it is asserted that Ayruveda failed to provide her with written notice of its intention to cancel her enrolment or that she had 20 business days to access Ayurveda’s internal complaints and appeals process prior to cancellation.[70] Professor Chandler’s evidence is that he provided her with such notice six weeks earlier.[71] Ms Nelson denies having received it.[72] ASQA contends that even if this notice was sent to Ms Nelson, which Ms Nelson denies, it was not connected with the cancellation of Ms Nelson’s enrolment because she continued to be treated by the college as a student. The Tribunal does not follow the logic of this last contention and cannot think why the college would not treat Ms Nelson other than as a student during the “notice” period.
[70] Refer ASQA’s Closing Submissions, paragraph [140].
[71] Refer Transcript, P-462.
[72] Refer Transcript, P-11.
The Tribunal considers the evidence in relation to this non-compliance is not clear enough to find there had been non-compliance in this instance. Furthermore, the Tribunal is not satisfied on the evidence that there was systemic non-compliance by Ayurveda in respect of this Standard 13.4 of the National Code.
What, if any, sanction(s) should be imposed upon Ayurveda?
Administrative sanctions under the ESOS Act
Further to paragraph [18] above, the Tribunal considers that it was open to ASQA, and to the Tribunal upon review, to impose sanctions upon Ayruveda if it “believes on reasonable grounds that”:
(a)the provider, or an associate or high managerial agent of the provider, is breaching or has breached, as relevant, the ESOS Act, National Code, and conditions of registration;[73]
(b)the provider is not “fit and proper” to be registered;[74]
(c)the registered provider does not have the “clearly demonstrated capacity to provide education of a satisfactory standard”; or “has not been providing, or has not provided, education of a satisfactory standard”.[75]
[73] Refer ESOS Act, s 83(1).
[74] Refer ESOS Act, s 83(1B).
[75] Refer ESOS Act, s 83(1C).
The Tribunal “believes” or is satisfied that Ayruveda is in breach of the ESOS Act, National Code and its conditions of registration, that it is not “fit and proper” to be registered as a CRICOS provider and does not have a clearly demonstrated capacity to provide and has not been providing education of a satisfactory standard, based on the findings of the Tribunal about the conduct of Professor Chandler as set out in these Reasons for Decision. The Tribunal considers that it is appropriate to exercise its discretion enlivened under ss 83(1), (1B) or (1C) of the ESOS Act, to impose a sanction upon Ayurveda.
The parties’ contentions as to what, if any, sanctions should be imposed
Ayurveda contends that the Tribunal should set aside the Decisions Under Review and “in light of the passage of time since Ayurveda applied to renew its registrations and the completion by ASQA of its assessment of those applications resulting in favourable findings, renew the registrations of [Ayurveda] effective from 19 October 2019 for a period of up to seven years”.[76]
[76] Refer Ayurveda’s Closing Submissions, paragraph [101].
Ayurveda has indicated that it is prepared to accept, as a condition of registration, that it is required to engage, at its own expense, an external consultant (subject to approval of the nominated consultant by ASQA), within a reasonable timeframe (that is, commencing 18 months after it is notified as to the renewal of its registration) to undertake an audit and to provide the report to ASQA upon its completion.[77] Ayurveda states that it is appropriate that Ayurveda ensures it satisfies the Tribunal and ASQA that it will remain compliant with all its obligations, and that it demonstrate this.[78]
[77] Ibid, paragraphs [100] and [102].
[78] Ibid, paragraph [100].
Ayurveda further contends as follows:[79]
93.The matters the subject of the hearing before the Tribunal all relate to historical complaints. Many of the students who made those complaints and provided witness statements did so upon an invitation by ASQA to do so, rather than from their own volition, and after being contacted by an investigator who suggested to those students that ASQA’s registration had been cancelled when that was not the case.
94.The campaign by ASQA to collect student complaints about historical matters, well after a decision has been made, and after it conducted an extensive and exhaustive audit assessing Ayurveda’s application to renew its registration resulting in a finding of compliance with the relevant Standards, in order to support its position at trial based on historical complaints, should be condemned by the Tribunal. It was a plain attempt to bolster its position at trial while at the same time to subvert and undermine the current compliance of Ayurveda, as confirmed by ASQA’s own compliance audit in 2019.
95.Given the colossal attempts by ASQA to procure student complaints, these must be critically analysed and weighed in the context of and against the backdrop of the vast number of former and current students who have not complained, all of whom are deemed to have experienced satisfactory training at Ayurveda. The level of dissatisfaction is extraordinarily low given the large number of students who have not complained as for those who have complained, the weight of their complaints needs to be considered in the context of which they were procured. On the issue of context, it is also appropriate that the Tribunal take into account the nature of the courses which Ayurveda delivers and the type of students it attracts and enrols.
96.After much reluctance, ASQA conceded to the Tribunal that Ayurveda was considered, in 2019, compliant with its obligations. [footnote omitted] In the circumstances, the student complaints ought be assessed and critically examined alongside ASQA’s confirmation of current compliance.
97.The decisions under review are decisions to suspend Ayurveda’s registrations. They are not cancellation decisions. It is Ayurveda’s submission that the correct or preferrable decision is to set aside the decisions under review. If the Tribunal adopts that approach, the suspension decisions will be set aside which will result in Ayurveda remaining registered pursuant to Section 31(3) of the NVR Act and Section 10(f) of the ESOS Act, respectively, until ASQA makes a formal decision on Ayurveda’s applications to renew its registration.
[79] Ibid, paragraphs [93]-[97].
In response, ASQA contends that the only appropriate sanction that the Tribunal should impose upon Ayurveda is cancellation for the following reasons:[80]
[80] Refer ASQA’s Closing Submissions, paragraphs [149]-[157].
APPROPRIATE SANCTION
149. As set out in ASQA’s Amended SOFIC at [62]-[71], if the Tribunal is satisfied that Mr Chandler is not a fit a proper person to be involved in the provision of education and training (particularly the provision of education and training to overseas students), and that the Applicant is non-compliant with the provisions of the RTO Standards and National Code, then ASQA contends that the only appropriate sanction is cancellation of the Applicant’s registration as an RTO and as a CRICOS provider.
150. The conduct of Mr Chandler identified above is conduct that strikes at the very heart of the responsibilities of a teacher and a registered provider under the regulatory regime. It is conduct that is totally repugnant to the position of trust and confidence the operator of an RTO and CRICOS provider holds under the legislation, as this Tribunal has repeatedly emphasised.[81] It is also conduct that undoubtedly places the reputation of this country for quality education and training in jeopardy.[82] Accordingly, it is conduct that warrants a sanction of the utmost seriousness.[83]
151.It cannot be said that a sanction short of cancellation would provide the Tribunal with the necessary confidence that the strict requirements of the regulatory regime will be complied with by the organisation on a sustainable basis going forward.[84] Though the students all gave evidence that Ms Uchiro and Ms Ohira were kind and competent teachers, they are plainly unable to conduct the operations of the RTO on their own: Ms Ohira stated that even in his absence Mr Chandler continued to prepare a daily program to be delivered by her in accordance with his instructions,[85] while Ms Uchiro was adamant that her role in the college was limited to teaching and “record-keeping”[86] and that she had no interest in the way in which the administration was being run by the college, and would just accept whatever decisions Mr Chandler made.[87]
152. Further, insofar as some of the non-compliances identified above relate to the college’s unfair assessment practices and failure to provide adequate feedback to students in relation to their course progress, there is no suggestion that Ms Ohira or Ms Uchiro would change those practices in any way. On the contrary, both were adamant that the existing practices were perfectly appropriate.[88]
153. In any event, while he remains in effective control of the Applicant as the sole director and shareholder of the business, Mr Chandler will continue to be an executive officer of the RTO for the purposes of the NVR Act (and a related person for the purposes of s 6A of the ESOS Act) and have the capacity to exercise ultimate control over its activities.[89] In those circumstances, any attempt to allow the organisation to remain registered but exclude Mr Chandler from teaching or dealing with students is 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.[90]
154. In considering whether to impose a different or lesser sanction, it is also important to have regard to the objects of the legislation,[91] and the need to give effect to the protective purposes of the regulatory regime. In this regard, it is well-established that one of the legitimate purposes of imposing a sanction is to encourage compliance and act as a deterrent for others who might be tempted to engage in similar conduct.[92]
155. Having regard to the nature of the conduct described above, including bullying and harassment of students, unfair teaching practices, taking improper advantage of the position of teacher and operator of an RTO, refusing to co-operate with the regulator and actively seeking to mislead and obstruct its investigations, ASQA contends that it is important a sanction is imposed on the Applicant that makes it clear such conduct is completely unacceptable under Australia’s system of nationally accredited vocational education and training, and that providers who permit or facilitate such conduct will not be allowed to remain registered. A sanction which permits the college to remain registered and Mr Chandler to remain associated with it as its nominal figurehead would completely undermine such a purpose.
156. On that basis, ASQA contends that the only sanction which is consistent with the objects of the legislation, which protects both the interests of students who are interested in quality vocational education and training, and Australia’s reputation for vocational education and training both nationally and internationally, is to cancel the Applicant’s registration.
157. For these reasons, ASQA contends that the decisions under review should be set aside and the Tribunal should make decisions in substitution for those decisions cancelling the Applicant’s registration as an RTO and a CRICOS provider.
[81] “See Re Ivy Education Group Pty Ltd and ASQA [2013] AATA 138 at [103], Re Trades College Australia Pty Ltd and ASQA [2018] AATA 1703 at [67] and Re Sher-e-Punjab Pty Ltd and ASQA [2018] AATA 46 at [108], citing Re Metro College of Technology Pty Ltd and ASQA (unreported)”
[82] “See Re Australian Institute of Technical Training Pty Ltd and Minister for Education and Training [2018] AATA 1281 at [57] and Re Sher-e-Punjab Pty Ltd and ASQA [2018] AATA 46 at [108]”
[83] “Recognising that cancellation is not the most serious sanction that can be imposed under the regulatory regime: see s 40 of the NVR Act and Re Australian Academy of Management & Science Pty Ltd and ASQA [2013] AATA 530 at [12]-[13]”
[84] “Cf Re Claredale Academy Pty Ltd and ASQA [2019] AATA 1869 at [328]”
[85] “Transcript page 289 lines 26-37”
[86] “Transcript page 311 lines 27-30”
[87] “Transcript page 311 lines 13-26”
[88] “See transcript page 294 line 31 to page 295 line 28 and page 310 lines 6-34”
[89] “See transcript page 324 lines 5-29”
[90] “Cf Re Austwide Institute of Training Pty Ltd and Secretary, Department of Education and Training [2016] AATA 266 at [76]”
[91] “See s 2A of the NVR Act and s 4A of the ESOS Act”
[92] “See Re Australian Academy of Management & Science Pty Ltd and ASQA [2013] AATA 530 at [12] and Re Australian Tertiary Academy Pty Ltd and ASQA [2018] AATA 4875 at [39]”
Ayurveda acknowledged the Tribunal’s powers under s 43 of the AAT Act, empowering it to make a decision in substitution for the decision under review, but questioned whether this would extend to the Tribunal making a decision to renew the registration of Ayurveda.[93] Nonetheless, Ayurveda contended that the Tribunal should renew the registrations of Ayurveda as set out in paragraph [71] above. The Tribunal considers that it does not have the power to do so, and its powers upon review are confined to the question of what, if any, administrative sanctions are appropriate to be imposed upon Ayurveda. The Tribunal considers that the issue of the renewal of Ayurveda’s registration is a separate administrative process and therefore, a matter yet to be decided by ASQA. In a letter received from ASQA on 20 December 2022, ASQA confirmed that it had made no decision in relation to the renewal application by Ayurveda as an RTO or CRICOS provider.[94] ASQA informed the Tribunal as follows:[95]
If the Tribunal decides not to cancel the Applicant’s registrations under the NVR Act and ESOS Act, the Respondent expects to be in a position to make a decision on those applications once it receives the outcome of the Tribunal’s decision.
[93] Refer Ayurveda’s Closing Submissions, paragraph [98].
[94] Refer ASQA’s letter to the Tribunal and Ayurveda sent by email on 20 December 2022, paragraph [24].
[95] Ibid, paragraph [25].
The Tribunal has found that Ayurveda Is not presently a fit and proper person to operate as a CRICOS provider under the ESOS Act based on its findings about Professor Chandler’s conduct, as addressed above.
The absence of Ayurveda having a fit and proper person to conduct and govern its operations is a serious matter, causing the Tribunal to consider whether to cancel the registration of Ayurveda as a CRICOS provider altogether, or to impose some other lesser sanction. The decision to impose conditions instead of cancelling Ayurveda’s registration was a borderline decision.
The Tribunal has taken into account the lack of specificity in relation to some of the allegations made by the student witnesses against Professor Chandler in relation to his conduct towards students in classes, and the denials by him and Ayurveda staff that that conduct occurred. The Tribunal has also taken into account that ASQA found Ayurveda to be compliant with its obligations as a CRICOS provider upon conducting the Renewal Audit except for those matters the subject of this application. However, the Tribunal has found that Ayurveda is non-compliant with Standards 10.1 to 10.6 of the National Code and this non-compliance requires immediate rectification.
The Tribunal has taken into account the underlying seemingly good intentions of Professor Chandler in wanting to deliver quality courses and his desire to ensure his students (including those from overseas who might be drawn to other endeavours while they are present in Australia, such as employment and/or making trips elsewhere within Australia), properly attend and engage with their studies at the college. This is to be compared to some other non-compliant CRICOS colleges, which do not take the delivery of their courses seriously, and do not enforce compliance with attendance obligations, either actively or sometimes at all, provided the overseas students continue to pay the CRICOS provider their course fees.
There is also evidence before the Tribunal from students preparing statements in support of Ayurveda, as well as other student witnesses called by ASQA in this proceeding, providing accounts of Professor Chandler being highly knowledgeable as an ayurveda teacher, despite their other concerns about his conduct and the concerns expressed by other students relied upon by ASQA. The Tribunal has taken into account that Ayurveda has been delivering ayurvedic courses for a very long time and it has loyal, dedicated, and competent ayurvedic employees in Ms Uchiro and Ms Ohira, who would lose their longstanding employment if the college registration were to be cancelled. Self-evidently, cancellation would also cause significant disruption to the students currently part way through undertaking courses at the college.
Given Professor Chandler’s wealth of experience in the field of ayurveda, the Tribunal considers that he is capable of offering competent in-class teaching of ayurveda Diploma and Advanced Diploma courses provided he can curb his behaviours toward Ayurveda students. If he does not refrain from doing so, there is a new complaint system imposed under the Conditions of Registrations forming part of this Decision. ASQA is also at liberty to take further enforcement action against Ayurveda. The Tribunal considers Professor Chandler should be permitted to remain involved in a teaching capacity with Ayurveda, but only in a limited way, to mitigate the risk of students being subjected to any further inappropriate conduct, which the Tribunal considers was aimed at causing the students humiliation, intimidation, and distress.
For these reasons, the Tribunal considers that Professor Chandler be removed from his position as head of Ayruveda, both in terms of running the company and its course delivery, and that he be replaced by a newly appointed CEO/Director of Teaching and Assessment to be employed by Ayurveda. The Tribunal considers it appropriate to restrict Professor Chandler’s oversight of the newly appointed CEO/Director of Teaching and Assessment in relation to only general financial matters and specifically, excluding financial matters relating to individual students and staff members. This will ensure the newly appointed CEO/Director of Teaching and Assessment has the requisite autonomy to ensure that Ayurveda operates as an RTO and CRICOS provider which is compliant with all its obligations under the NVR Act and ESOS Act. And that when they make representations to ASQA in relation to regulatory matters, that those representations may be relied upon as being truthful and accurate. If this is not something that Ayurveda or Professor Chandler are comfortable with, they are at liberty to voluntarily cease the operations of Ayurveda as an RTO and CRICOS provider, or to offer the company up for sale.
On 14 December 2022, the Tribunal wrote to the parties with an indication of the conditions that the Tribunal was contemplating imposing upon Ayurveda as set out below:
The Tribunal is contemplating whether to set aside the decisions under review. The Tribunal is also contemplating whether, if it takes that course, it should substitute those decisions with decisions to impose the following conditions of registration (under the NVR Act) and registration requirements (under the ESOS Act) upon Ayurveda, as an appropriate sanction:
1. within 90 days from the date of this decision:
a)Professor Chandler is to resign as a director and teacher/ assessor of Ayurveda and must no longer be involved in the operations of or any aspect of delivery of VET curses 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 2 hours); and
b)Ayurveda is to appoint a new CEO and director of the company and a Director of Teaching and Assessment (who may be the same person), in place of Professor Chandler, on the basis that the new appointee(s) does not report to or take direction from Professor Chandler except in relation to matters regarding the overall financial management of the company (excluding any individual financial matters as between Ayurveda and any of its students or staff members). The appointed person must be appropriately senior and qualified. ASQA must be given the right to veto the appointment of the person if they do not consider them to be a fit and proper person to undertake the role of executive officer and high managerial officer of Ayurveda (to the exclusion of Professor Chandler); and
2.within 120 days from the date of this decision, Ayurveda must invest a sum, not less than $50,000.00, to pay for an external consultant (to be nominated or endorsed by ASQA prior to engagement), to:
a)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 appointed CEO); and
b)conduct a comprehensive audit within 12 months of the date of this decision of Ayurveda’s compliance with its obligations under the RTO Standards, National Code and those condition of registration/ registration requirements.
Professor Chandler is not permitted to liaise with the external consultant and instead, they are to liaise only with the new CEO/ Director of Teaching and Assessment and/or Ms Uchiro/ Ms Ohira. The Audit Report is to be given to ASQA and the newly appointed CEO directly by the external consultant, on the same date that it is issued; and
3.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 newly appointed CEO/ Director of Teaching (or any successor thereafter), and in turn, he, she or 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.
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 (copied to Ayurveda’s legal representative), 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”;[96]
(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 of 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 the nomination of 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.
[96] Refer ASQA’s letter dated 20 December 2022, paragraph [4].
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 ss 36 to 40 of the NVR Act (in particular, s 40) and likewise, in relation to the corresponding provisions in the 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.
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.
Mr Galatas states in his email dated 21 December 2022 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”.
Based on those submissions, the Tribunal has decided to modify the initially contemplated proposed conditions.
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.
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.
Thirdly, the Tribunal acknowledges Ayurveda’s request for an extension of the time frames referred to in 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 holiday.
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”.
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 the No New Enrolments Stay Condition imposed on Ayurveda, but this was removed two years ago.
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 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 having its registration cancelled altogether, but for the Tribunal being prepared to impose these conditions upon it as an alternative.
Despite those observations, 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. It 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 in 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 ESOS Act and National Code 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.
Finally, the Tribunal does not consider it appropriate to impose any condition in respect of the constitution of the Ayurveda’s shareholding. This is a matter ASQA will be at liberty to consider further when making its decisions whether to renew the registration of Ayruveda as a CRICOS provider (and RTO); or when considering whether to take any enforcement action against this college for any future non-compliance and ASQA remains concerned about Professor Chandler having had an adverse influence on the college if he remains its sole shareholder or owns 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
Having considered the evidence and contentions of ASQA and Ayruveda in this proceeding, the Tribunal considers that its discretion to impose sanctions against Ayurveda has been enlivened under each of ss 83(1), (1B) and (1C) of the ESOS Act. The Tribunal is satisfied that it is appropriate to exercise its discretion arising under those provisions to impose a set of conditions upon Ayurveda’s registration as a CRICOS provider.
The Tribunal SETS ASIDE the Decision Under Review suspending the registration of Ayurveda as a CRICOS provider under the ESOS Act and in SUBSTITUTION, the Tribunal decides to impose, pursuant to s 83(3)(a) of the ESOS 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 a CRICOS provider) 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 a CRICOS provider), in place of Professor Chandler, and 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 (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 ESOS Act, National Code, 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.
I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker.
.......................[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: 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[97] Affidavit of Jason Chandler – 23 October 2018
[97] 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
- AGLC
- Ayurveda College Pty Ltd and Australian Skills Quality Authority [2022] AATA 4427
- Case
- [2022] AATA 4427
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether Ayurveda was a "fit and proper person" to be registered as a CRICOS provider, and whether it had failed to comply with specific standards of the National Code. ASQA contended that these failures warranted the cancellation of Ayurveda's registration.
The Tribunal considered evidence from numerous witnesses, including former students and current staff, and voluminous documentation. While acknowledging ASQA's concerns and some non-compliances, the Tribunal found that the decision to suspend Ayurveda's registration was not appropriate in all the circumstances. Applying the provisions of the *Education Services for Overseas Students Act 2000* (Cth) and the National Code, the Tribunal determined that the evidence did not support the complete cancellation of registration.
Consequently, the Tribunal set aside ASQA's decision to suspend Ayurveda's registration. In substitution, the Tribunal imposed several conditions on Ayurveda's registration as a CRICOS provider, effective immediately, pursuant to section 83(3)(a) of the *Education Services for Overseas Students Act 2000*.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
ASQA is a Commonwealth statutory body responsible for regulating compliance by CRICOS providers of their obligations under the ESOS Act and the National Code.CRICOS provider registration and sanctions Under s 9 of the ESOS Act, a “provider” may apply to be registered to provide a course or courses to overseas students. A “provider” is defined in s 6E of the ESOS Act as including “a registered VET provider”. Under s 5 of the ESOS Act, “a registered VET provider” means an NVR registered training organisation (RTO). Section 10 of the ESOS Act provides the authority for ASQA to register a provider as a CRICOS provider if they meet the registration requirements. When doing so, subsection (2) requires ASQA to use a risk management approach when considering whether to register the provider. Section 11 of the ESOS Act sets out the registration requirements which include, as relevant:(a)under s 11(b), that ASQA is satisfied that the provider is complying, or will comply, with the ESOS Act and the National Code; and(b)under 11(c), that ASQA is satisfied that the provider is fit and proper to be registered;(c)under s 11(e), that ASQA has no reason to believe that:(i)the provider does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or(ii)the provider has not been providing, or will not provide, education of a satisfactory standard. ASQA may grant registration to an RTO under the ESOS Act as a CRICOS provider for a period of up to seven years, following which ASQA may renew an RTO’s CRICOS registration under s 10E of the ESOS Act. Under s 10B of the ESOS Act, ASQA may impose conditions of registration on a CRICOS provider at any time or vary or remove such conditions. Section 10B(2) provides that ASQA must adopt a risk management approach when imposing, varying, or removing such conditions. If a CRICOS provider is not compliant with the ESOS Act, National Code, ELICOS Standards, the Foundation Program Standards, or a condition of their registration, ASQA can take enforcement action by imposing sanctions under Division 1 of Part 6 of the ESOS Act. Division 3 of Part 6 also provides for certain offences, such as providing false or misleading information (s 108). Specifically, ASQA may, under s 83(3) of the ESOS Act, impose one or more condition on the CRICOS provider’s registration (under subsection 83(3)(a); suspend its registration (under s 83(3)(b) and s 95); or cancel its registration (under s 83(3)(c)). Section 86 of the ESOS Act provides as follows:86 Examples of conditions(1)Examples of the conditions that the ESOS agency for a registered provider may impose under section 83 are conditions that:(a)there be no net increase, or only a limited net increase, in the number of overseas students enrolled with the provider;(b) the provider enrol only a limited number of new overseas students;(c) the provider not accept any new students from a specified country;(d)the provider not deal with a specified agent in relation to overseas students or intending overseas student;(e) the provider not provide a specified course.(2)The examples do not limit the kinds of condition that the ESOS agency for a registered provider may impose. EVIDENCE AND SUBMISSIONS