Balintad and Australian Skills Quality Authority (Practice and procedure)
[2025] ARTA 1209
•4 August 2025
Balintad and Australian Skills Quality Authority (Practice and procedure) [2025] ARTA 1209 (4 August 2025)
Applicant/s: Claire Ann Balintad
Respondent: Australian Skills Quality Authority
Tribunal Number: 2025/2574
Tribunal:General Member R Smith
Place:Adelaide
Date: 4 August 2025
Decision:The application for a stay of the decision is refused
..........................[SGND]...............................
General Member R Smith
Catchwords
PRACTICE AND PROCEDURE – application to stay decision – decision to cancel qualifications obtained from a deregistered training organisation – whether desirable for the purpose of ensuring the effectiveness of the review – consideration of factors – prospects of success – consequences to the applicant – public interest – application refused
Legislation
Administrative Review Tribunal Act 2024 (Cth) s32
National Vocational Education and Training Regulator Act 2011 (Cth) ss 56, 57,58Cases
Bayahow and Australian Skills Quality Authority [2025] ARTA 176
Ekeh and Australian Skills Quality Authority [2025] ARTA 265
Elmi and Australian Skills Quality Authority (Guidance and Appeals Panel) [2025] ARTA 192
McNamara v Secretary, Department of Social Services [2016] AATA 189 at [12]
Panganiban and Australian Securities and Investments Commission [2016] AATA 703
Poidevin and Australian Securities and Investments Commission [2009] AATA 798
Rozzario and Australian Skills Quality Authority [2025] ARTA 241
Scott v Australian and Securities and Investments Commission [2009] AATA 798
Shi v Migration Agents Registration Authority [2008] HCA 31Statement of Reasons
Ms Balintad (also referred to as the Applicant) was issued with a Certificate III in Individual Support (CHC33015) (the Qualification) by Gills College Pty Ltd (Gills College) in October 2023. At the time, Gills College was a registered vocational and training (VET) provider under the National Vocational Education and Training Regulator Act 2011 (Cth) (the NVR Act).
In November 2024, the Australian Skills Quality Agency (ASQA or the Respondent) decided to cancel Gills College’s registration as a VET provider under sections 36(2)(f) and 39 of the NVR Act. In making the cancellation decision, the Respondent was satisfied that Gills College was critically non-compliant with its registration obligations and did not provide the training and assessment necessary to ensure students had the skills and knowledge required to be awarded VET qualifications or statements of attainment.
On 26 November 2024, the Respondent wrote to Ms Balintad to notify her that it intended to cancel the Qualification issued to her by Gills College. That notice also invited her to provide a written response to ASQA within 7 days. Ms Balintad did not provide a response to the notice.
On 13 December 2025, the Respondent decided to cancel the Applicant’s Qualification pursuant to section 58(1) of the NVR Act (the Reviewable Decision), to take effect on 20 December 2025. The decision was based on the findings in respect of Gills College, which ASQA says were evident during the period in which she undertook her training.
On 17 March 2025, the Applicant applied to the Tribunal for a review of the Reviewable Decision together with an application seeking a stay of the Reviewable Decision under section 32(2) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act)[1].
[1] The application for a stay of the Reviewable Decision was only received by the Tribunal on 17 March 2025, notwithstanding the date on the form is 19 December 2024. The Tribunal granted an extension in time to the Applicant to file the substantive application for review.
The Respondent opposes the stay application.
THE STATUTORY FRAMEWORK
The NVR Act
Section 56 (1) of the NVR Act provides as follows:
The National VET Regulator may cancel a VET qualification or VET statement of attainment issued to a person by an NVR registered training organisation or former registered training organisation if the Regulator is satisfied on reasonable grounds that:
(a) the organisation did not provide, or arrange for another person to provide, all or part of the assessment necessary for the person to achieve the learning outcomes or competencies required for:
(i) the qualification; or
(ii) the units of competency or modules specified in the statement; or
(b) the qualification or statement was issued by the organisation:
(i) in error; or
(ii) because of a document or representation that was false or misleading, or was obtained or made in any other improper way; or
(c) it was outside the organisation’s scope of registration to issue the qualification or statement to the person; or
(d) it is appropriate, in all the circumstances, because of action the Regulator has taken, or is taking, in relation to:
(i) the VET course, or part of the VET course, to which the qualification relates; or
(ii) the organisation, in respect of the VET course, or part of the VET course, to which the qualification relates; or
(iii) part of the VET course to which the statement relates; or
(iv) the organisation, in respect of part of the VET course to which the statement relates.
Section 57 requires the National VET Regulator to give the person written notice of the intention to cancel the qualification with the reasons for the proposed cancellation and invite them to give a written response to the notice.
If, after receiving a response, the National VET Regulator still considers that the VET qualification should be cancelled, they must cancel the qualification. Reasonable steps must be taken to give the person concerned notice of the decision and the requirement to return the qualification.[2]
[2] s 58 of the National Vocational Education and Training Regulator Act 2011 (Cth)
STAYING DECISIONS
The general rule is that making an application to the Tribunal seeking a review of a decision, does not affect the operation of the decision.[3] There is no automatic right to a stay and the Tribunal will only make an order staying or otherwise affecting the implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.[4] A stay order can be subject to conditions[5] and usually has effect until the decision of the Tribunal on the application for review comes into operation.[6]
[3] s 32(1) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act)
[4] s 32(2) of the ART Act.
[5] s 32(3) of the ART Act
[6] s 32(4) of the ART Act
Section 32(7) of the ART Act provides that the Tribunal must not make an order staying the decision unless the Tribunal has given the parties to the proceeding a reasonable opportunity to make submissions to the Tribunal. Further, in determining whether to grant a stay, the Tribunal should not limit its enquiry to the interests of the Applicant. Section 32(7)(b) of the ART Act prescribes that the Tribunal must consider the interests of any person who may be affected by the review of the decision. In weighing the potential competing interests, the Tribunal should have regard to the objects of the statutory scheme under which the reviewable decision was made.
It is generally accepted that the determinative criterion for the exercise of the Tribunal stay power, being to secure the effectiveness of the review, is not subject to an exhaustive list of permissibly relevant considerations.[7] There are, however, a number of key factors that have been identified in the case law,[8] which can be summarized as follows:
·the prospects of success;
·the consequences to the Applicant;
·the public interest;
·the consequences for the Respondent in carrying out its functions depending on whether a stay is granted or not;
·whether the application for review would be rendered nugatory if a stay were not granted; and
·any other relevant matter.
[7] Panganiban and Australian Securities and Investments Commission [2016] AATA 703 at [7]
[8] The cases frequently cited being Re Scott and Australian Securities and Investments Commission (2009) 51 AAR 114 and Poidevin and Australian Securities and Investments Commission [2009] AATA 798.
While no party has a specific onus of proof, it is generally accepted that it is the Applicant who will need to provide the Tribunal with sufficient evidentiary material to ensure the discretion is exercised in accordance with the law.[9]
[9] McNamara v Secretary, Department of Social Services [2016] AATA 189 at [12]
EVIDENCE AND SUBMISSIONS BEFORE THE TRIBUNAL
The Tribunal had the benefit of the following material in respect of the stay application:
·A statement and some supporting documents provided by Ms Balintad dated 3 July 2025;
·The oral evidence given by Ms Balintad at the stay hearing;
·The Tribunal documents;
·Written submissions filed on behalf of the Respondent.
In her statement and oral evidence, Ms Balintad deposed that:
(a)she is currently employed with Southern Cross Care (Southern Cross) in an aged care facility. She has worked for this employer for approximately two years;
(b)her employer is aware of the cancellation decision. Although there is no immediate risk to her employment, there has been a change in the scope of her day-to-day duties. For example, she is no longer able to administer medication and she has been precluded from participating in advanced training courses;
(c)Southern Cross has confirmed to Ms Balintad that should she be unsuccessful in this review, her hourly pay rate will be reduced. The change in pay will also be backdated to the cancellation decision and she will be required to repay any overpayment. She is not, however, at risk of losing her employment;
(d)Ms Balintad is currently studying a Diploma of Community Services with the Australian Health and Science Institute. She has not advised them of the cancellation decision. She is concerned that a reduction in her income may mean she can no longer afford to complete the Diploma;
(e)Ms Balintad is married with a 17-month-old son. Her husband works as a repair technician. They are currently renting and in addition to the normal household bills and expenses, the Applicant has tuition fees associated with the Diploma of Community Services. The family relies upon her income and they will be disadvantaged should her hourly rate be reduced;
(f)the cancellation of the Qualification does not arise from any non-compliance or misconduct on her part. She says she has complied with all course requirements including assignments, external certifications and a placement. She could not recall if the Qualification was obtained through a recognition of prior learning but did say that she provided a copy of her Bachelor of Nursing, which she obtained overseas, to Gills College.
CONSIDERATION OF ISSUES
Prospects of success
The Tribunal acknowledges that in considering whether to grant a stay, it is not appropriate to undertake a full consideration of the merits of the substantive application, especially in circumstances where there are a number of factual matters in dispute and the evidence before the Tribunal is untested.
The Tribunal must arrive at its opinion on the basis of the material before it at the time of the stay hearing, some of which may not have been before the original decision-maker at the time when the reviewable decision was made.[10] In circumstances where the stay is being considered at a very early stage in the review process, it follows that some caution should be exercised by the Tribunal given the incomplete body of relevant evidence.[11] The Tribunal need only be persuaded that the Applicant has established there is sufficient evidence to call into question the merits of ASQA’s Decisions.
[10] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].
[11] Bayahow and Australian Skills Quality Authority [2025] ARTA 176 at [36]
ASQA contends the prospects are poor having regard to the findings as against Gills College and that any other knowledge and expertise of the Applicant is beside the point.
The Tribunal notes the findings relied upon in the reasons for decision are standard to the cohort of Gills College students who have had qualifications or statements of attainment cancelled by the Respondent.[12] That decision is also subject to review, and the Tribunal cannot assume that the non-compliance of Gills College with the conditions of its registration will be affirmed.
[12] See Bayahow and Australian Skills Quality Authority [2025] ARTA 176 at 5; Ekeh and Australian Skills Quality Authority [2025] ARTA 265 at 5; Elmi and Australian Skills Quality Authority (Guidance and Appeals Panel) [2025] ARTA 192 at 6; and Rozzario and Australian Skills Quality Authority [2025] ARTA 241 at 7.
Ms Balintad told the Tribunal she met all course requirements in good faith, including training, assignments and a placement as instructed by Gills College. There is some, albeit very limited, evidence in support of this contention. Only a few documents accompanied her application primarily because, as the Applicant explained, she did not keep copies of the handwritten assignments and Gills College has declined to provide to past students copies of assignments or logbooks.
The Tribunal is therefore satisfied on the material presently before it, that the Applicant’s case is not entirely hopeless and therefore this weighs ever so slightly in favour of granting the stay.
Consequences to the Applicant
From Ms Balintad’s evidence, it is clear the Qualification is not required for her to remain employed with Southern Cross. Any financial and personal hardship will only occur when her employer reduces her hourly rate to that of an unqualified worker. She confirmed that this will not occur until after the determination of the proceedings.
The cancellation decision has been in effect since December 2024 and the Tribunal did not grant and interim stay pending the determination of the stay application. There does not appear to be any significant change in the Applicant’s financial circumstances following the implementation of the decision. Ms Balintad has continued to be paid at qualified rate and will do so until the conclusion of these proceedings.
On the evidence before the Tribunal there does not appear to be any immediate adverse consequences to the Applicant should the stay not be granted. The interests of Ms Balintad are better served by the timely resolution of the review and certainty over the Qualification. This factor weighs against the granting of stay.
The public interest and consequences on ASQA in carrying out its functions
Ms Balintad did not make any submissions in respect of this issue but notes her evidence of the that Southern Cross has changed the scope of the Applicant’s duties since the implementation of the decision to those of an unqualified support worker. Therefore, any direct risk to the public is likely minimised in the specific circumstances of this case.
Notwithstanding this, the Tribunal otherwise agrees with the submissions of the Respondent that the public interest weighs against the granting of a stay as public confidence in the VET sector would be diminished if individuals with qualifications cancelled by the Respondent are permitted to continue to rely upon, or represent they hold those qualifications. Further, the Respondent’s regulation of the VET sector is essential to protecting and maintaining the reputation of the VET sector more broadly.
Whether the review would be rendered nugatory
The review would not be rendered nugatory should the stay be refused. This weighs against the granting of a stay.
CONCLUSION AND DECISION
In circumstances where there are no immediate consequences for the Applicant, the application for review would not be rendered nugatory and there are public interest factors against the stay, the Tribunal is satisfied that it is not desirable to grant the stay in order to secure the effectiveness of the review, even though the prospects of success are not hopeless.
The application for a stay is therefore refused.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for the decision herein of General Member R Smith.
..........................[SGND]..................................
Feng J, Associate (dated 4/08/2025)
Date(s) of hearing: 29 July 2025 Date final submissions received: 29 July 2025 Applicant: Self-represented Counsel for the Respondent: Ms C Roberts Solicitor for the Respondent: Ms E Letcher-Boldt (Clayton Utz)
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