Barkly International College Pty Ltd and Australian Skills Quality Authority (Practice and Procedure)
[2025] ARTA 242
•6 March 2025
Barkly International College Pty Ltd and Australian Skills Quality Authority (Practice and Procedure) [2025] ARTA 242 (6 March 2025)
Applicant: Barkly International College Pty Ltd
Respondent: Australian Skills Quality Authority
Tribunal Number: 2024/10180, 2024/10359, 2024/10360, 2024/10361
Tribunal: General Member R Smith
Place: Adelaide
Date: 6 March 2025
Corrigendum
Date of Corrigendum: 12 March 2025
Pursuant to section 114 of the Administrative Review Tribunal Act 2024, the following alterations are made to the decision:
1. At page 18 of the decision, replace “2024” from the dates of hearing and final submissions with “2025”.
.................................[sgnd].................................
R Smith General Member
Decision and Reasons for Decision
Applicant: Barkly International College Pty Ltd
Respondent: Australian Skills Quality Authority
Tribunal Number: 2024/ 10180, 2024/10359, 2024/10360, 2024/10361
Tribunal: General Member R Smith
Place: Adelaide
Date: 6 March 2025
Decision:The application for a stay of each decision of the Respondent is refused.
The interim stay order is discharged.
Statement made on 06 March 2025 at 10:56am
CATCHWORDS
PRACTICE AND PROCEDURE – application to stay decision – decision to cancel registration – rejection of renewal application – non-renewal of registration – consideration of factors – prospects of success - consequences to applicant – public interest – stay refused.
LEGISLATION
Administrative Appeal Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Vocational Education and Training Regulator Act 2011 (Cth)
Education Services for Overseas Students Act 2000 (Cth)
CASES
Australian International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097
Australian Securities and Investment Commission (ASIC) v Administrative Appeals Tribunal
[2009] 181 FCR 130
Hana Group Pty Ltd v Australian Skills Quality Authority [2019] AATA 4146 Kender v Australian Securities and Investments Commission [2018] AATA 4445 Le’Sam Accounting Pty Ltd v Tax Practitioners Board [2020] AATA 890
Re Australian Institute of Technical Training Pty Ltd v Minister for Education and Training
[2018] AATA 1281
Scott v Australian Securities and Investment Commission [2009] AATA 798
Shi v Migration Agents Registration Authority [2008] HCA 31
Sher-E Punjob Pty Ltd v Australian Skills Quality Authority [2018] AATA 46
Trades College Australia Pty Ltd v Australian Skills Quality Authority [2018] AATA 1360
SECONDARY MATERIALS
Explanatory Memorandum to the Administrative Review Tribunal Bill 2023 (Cth)
Statement of Reasons
This is an application by Barkly International Pty Ltd (BIC or the Applicant) for an unconditional stay of the decisions made by the Australian Skills Quality Authority (ASQA or the Respondent) to:
a.cancel its registration under the National Vocational Education and Training Regulator Act 2011 (the NVR Act);
b.to cancel its registration under the Education Services for Overseas Students Act 2000
(Cth) (the ESOS Act);
c.to reject an application for renewal of registration as a Registered Training Organisation under the NVR Act; and
d.not renew the registration to provide courses to overseas students under the ESOS Act. (Collectively the Decisions)
PROCEDURAL HISTORY
On 3 May 2023, BIC applied to renew its Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registration and its Registered Training Organisation (RTO) registration.1
On 10 July 2023, the Respondent advised the Applicant that it was undertaking an audit and requested information in pursuance of that compliance activity.2 Over the next few months, ASQA requested, and BIC provided further material relevant to the audit.3
In September 2023, ASQA conducted interviews with a number of key personnel connected to BIC. The Applicant provided more material to ASQA later that same month.4
1 Exhibit R1, T5 and T6
2 Exhibit R1, T7
3 Exhibit R1, T8, T9, T10, T11, T12, T13 and T14
4 Exhibit R1, T17
On 5 December 2023, ASQA advised BIC that it had determined the Applicant was not compliant with its obligations, and on that basis, it was intending to cancel its NVR and ESOS registration and to reject its renewal applications (notice of intent).5
As part of that communication, the Applicant was advised that it could provide a further submission, supported by evidence, as to why the proposed decision should not be made. ASQA provided a document outlining the issues to be addressed by the Applicant as part of any submission.
A number of requests to extend the deadline to provide a response to the notice of intent were made by the Applicant in December 2023.6 BIC provided its response on 9 February 2024, being after the deadline imposed by the Respondent.7
Further material was provided by the Applicant (at the invitation of the Respondent) in late March 2024.8
On 20 May 2024, ASQA made the original Decisions and in a statement of reasons outlined the non-compliance against a number of regulatory requirements as prescribed by of the Standards for Registered Training Organisations 2015 (the Standards) and National Code of Practice for Providers of Education and Training to Overseas Students 2018 (the National Code). The Decisions were to come into effect on 24 June 2024. The Applicant was notified of the Decisions on 22 May 2024.9
On 7 June 2024, the Applicant requested an extension of time to submit an application for an Internal Review of the Decisions and the effective date. ASQA granted an extension in respect of the Internal Review to 10 July 2024 and extended the effective date to 15 July 2024.10
5 Exhibit R1, T18
6 Exhibit R1, T20 and T21
7 Exhibit R1, T22
8 Exhibit R1, T23, T24, T26 and T28
9 Exhibit R1, T32
10 Exhibit R1, T33 and T34
On 10 July 2024, BIC made a second request for an extension of time to apply for an Internal Review for a further week.11
On 19 July 2024, BIC submitted an application for Internal Review together with a request that the effective date of the Decisions be stayed.12 On 30 July 2024, ASQA granted the request for an unconditional stay.13
On 22 October 2024, ASQA sent to the Applicant a list of queries in respect of the Internal Review.14 On 1 and 6 November 2024, the Applicant provided a response.15
On 11 November 2024, the Internal Review affirmed the original Decisions. The Applicant was advised of the outcome on 11 November 2024.16
On 3 December 2024, the Applicant filed a review of the Decisions together with an application to stay the Decisions with the Tribunal.17
On 11 December 2024, the Tribunal ordered by consent that the Decisions be stayed on an interim basis until determination of the stay application on the condition that the Applicant does not do anything for the purpose of recruiting or enrolling students in any course and that the Applicant does not enrol any new student in any course.
LEGISLATIVE FRAMEWORK
The objects of the NVR Act are found in section 2A and provide as follows:
(a) to provide for national consistency in the regulation of vocational education and training (VET); and
(b) to regulate VET using:
(i)a standards - based quality framework; and
(ii)risk assessments, where appropriate; and
(c) to protect and enhance:
11 Exhibit R1, T35
12 Exhibit R1, T36
13 Exhibit R1, T38
14 Exhibit R1, T40
15 Exhibit R1, T41 and T42
16 Exhibit R1, T43
17 Exhibit R1, T1
(i)quality, flexibility and innovation in VET; and
(ii)Australia's reputation for VET nationally and internationally; and
(d) to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia's social and economic needs for a highly educated and skilled population; and
(e) to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and
(f) to facilitate access to accurate information relating to the quality of VET.
This is achieved, in part, through the VET Quality Framework, which is comprised of the Standards, Standards for VET Accredited Courses 2021, Fit and Proper Person Requirements, Financial Viability Assessment Requirements and the Australian Qualifications Framework.
Training organisations must meet the standards if they wish to join the national registration system and become a Registered Training Organisation (RTO) and each registered RTO is obliged to comply with them.
ASQA is the National VET Regulator created under the NVR Act. It may conduct a compliance audit of an RTO at any time to ensure compliance with the registration regime. ASQA may cancel an RTOs registration if it is satisfied it is appropriate to do so subject to satisfaction of certain natural justice requirements. Cancellation is one of a number of sanctions or remedies available to ASQA.
The objects of the ESOS Act are found in section 4A as follows:
(a) to provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and
(b) to protect and enhance Australia's reputation for quality education and training services; and
(c) to complement Australia's migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas.
The National Code, which is a legislative instrument made under the ESOS Act, supports these objects by establishing a nationally consistent standards that govern the protection of international students and the delivery of courses by CRICOS providers. Compliance with the National Code is a prerequisite for registration and sanctions may be imposed on an RTO who breaches the National Code.
ASAQ is the ESOS Agency under the ESOS Act. ASQA may cancel a registered provider’s registration in a number of circumstances, including when it believes on reasonable grounds there has been a breach of the National Code. This is one of a number of sanctions or remedies available to ASQA for non-compliance.
THE RESPONDENT’S DECISIONS
On 20 May 2024, ASQA made the original Decisions under review. The original Decisions were made at the completion of a compliance activity which had been ongoing for approximately ten (10) months and included several opportunities for the Respondent to provide a detailed response to the notice of intent which was provided in December 2023.
In making the original Decisions, ASQA determined that BIC was non-compliant with a number of clauses in the Standards and standards in the National Code summarised below.
Practice The Standards
The National Code
Training and Assessment
1.1, 1.2, 1.3, 1.8, 1.9, 1.13
and 1.16
11.2
Completion
3.1
-
Marketing and Recruitment
4.1
1.1
Enrolment
5.1, 5.2
2.1, 2.2, 3.1, 3.3
Support and Progression
-
8.1, 8.3, 8.4, 8.6, 8.9
Regulatory Compliance and Governance
2.2, 2.3, 2.4, 8.3, 8.5,
4.1, 8.2 8.16
At the Internal Review stage, the original Decisions were not only affirmed by the delegate but the failure of BIC to co-operate with the Respondent during the course of the Internal Review resulted in a new finding of non-compliance in relation to Clause 8.1 of the Standards.
The Internal Review concluded the Applicant’s conduct was significant in circumstances where non-compliance with the Standards and the National Code was across multiple aspects of the business, student experience and training products. The delegate was not satisfied that the Applicant demonstrated the necessary knowledge, skills and capacity to return BIC to compliance.
STAY APPLICATIONS
Making an application to the Tribunal seeking a review of a decision does not affect the operation of the decision.18 However, on an application by a party to a proceeding for a review of a reviewable decision, the Tribunal may 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.19
There is no automatic right to a stay and the process should not be seen to be a mechanism for either subverting the decision of the Regulator; providing additional time for additional compliance steps to be taken or avoiding the consequences of any actions by the Applicant which have led to the decision under review.20
The grant of the stay must only be for the specific purpose of securing the effectiveness of the review and this purpose must be kept front of mind when determining the application.21 It is not enough, by way of an example, that the Applicant will experience hardship or some other consequence. Nor should the stay simply focus on the interests of the Applicant without considering the interests of any person who may be affected by the review of the decision as required by section 32(7)(b) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act). 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.
18 Administrative Review Act 2024 (Cth) ss 32(1).
19 Ibid ss 32(2).
20 Hana Group Pty Ltd v Australian Skills Quality Authority [2019] AATA 4146 at [25].
21 See the comments of Deputy President McCabe (as he then was) in Kender v Australian Securities and Investments Commission [2018] AATA 4445 at [5].
The Explanatory Memorandum to the Administrative Review Tribunal Bill 2023 (Cth) makes it clear that section 32 of the ART Act is to have the same operation and effect as section 42 of the Administrative Appeal Tribunal Act 1975.22 The authorities concerning the former section are therefore still of relevance.
In determining whether it is desirable to make an order for that purpose, the matters relevant to the granting of a stay are well established.23 They are:
(i)the prospects of success;
(ii)the consequences for the Applicant of the refusal of a stay;
(iii)the public interest;
(iv)the consequences for the Respondent in carrying out its functions;
(v)whether the application for a view would be rendered nugatory if a stay were not granted;
(vi)any other relevant matter.
The factors as outlined in Scott and Australian Securities and Investment Commission (2009) 51 AAR 114 should not be viewed as fixed list noting that the decision to grant a stay is ultimately in the discretion of the Tribunal. The onus of satisfying the Tribunal that a stay is desirable in the circumstances lies with the Applicant.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant provided the Tribunal with the following material in support the stay application:
(a) Affidavit of Evelin Cruz24 (Ms Cruz), the Chief Operating Officer of BIC sworn on 12 February 2025 (the First Affidavit);
22 Explanatory Memorandum, Administrative Review Tribunal Bill 2023 (Cth) at [339].
23 Scott v Australian and Securities and Investment Commission [2009] AATA 798.
24 Exhibit A1
(b) Supplementary affidavit25 of Ms Cruz sworn on 12 February 2025 (the Second Affidavit); and
(c) The oral evidence of Ms Cruz given at the interlocutory hearing.
The Tribunal also had the benefit of written submissions from both parties and the Tribunal documents.26
CONSIDERATION OF FACTORS
Prospects of success
The Tribunal acknowledges that in considering whether to grant or to revoke 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. What is required is a rough and ready assessment such as a permit an informed view as to whether a more favorable outcome in the review proceeding is likely.27 The Tribunal needs to be persuaded that the Applicant has established there is sufficient evidence to call into question the merits of ASQA’s Decisions.
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.28 While not determinative of the Tribunal’s decision, noting that there needs to be consideration of all the relevant factors, the Tribunal will be more inclined to form an opinion that it is desirable to revoke the interim stay, if it forms a general impression that the Applicant’s prospects of success are low, and less inclined to do so if the Applicant’s prospects of success are high.29
The Applicant submitted that the Tribunal has been provided with evidence that the mode of BIC’s operation has changed since ASQA’s determination of non-compliance in October
25 Exhibit A2
26 The documents considered are separately identified in these reasons. Not all the documents contained within the Tribunal documents were reviewed. The Tribunal documents filed are in excess of 14,000 pages.
27 Le’Sam Accounting Pty Ltd v Tax Practitioners Board [2020] AATA 890 at [13].
28 Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].
29 Sher – E Punjab Pty Ltd v Australian Skills Quality Authority [2018] AATA 46 at [30].
2024, and that with the exception of a few pending matters, all necessary rectification has taken place. On this basis BIC has prospects of success in the substantial review.
Ms Cruz in her evidence, advised the Tribunal that from when BIC first became aware of ASQA’s concerns in December 2024, that a number of steps have been taken in response to those concerns. More specifically, that the training and assessment strategy had been reviewed, industry consultation had been undertaken and a number of changes made to staffing, timetabling and scheduling. In or around 18 December 2024, BIC also engaged Mr. James Nash (Mr. Nash), an external consultant, to assist with the response to ASQA’s assessment report and Statement of Reasons.
Exhibited to the Second Affidavit30 was a document which set out the actions taken by the Applicant, with the assistance of Mr. Nash, in response to ASQA’s findings. The document (referred to in these reasons as “the Table”) was in essence a table which set out ASQA’s findings and BIC’s comments against those findings. Some of the responses indicated they were “completed” and others indicated they were “pending”.
Ms Cruz clarified in her evidence that responses in the Table that were “completed” meant no further work was required by Mr. Nash. Responses that were recorded in the Table as “pending” required further work from Mr. Nash. In the Table, 13 of the responses were marked as “pending” and 8 were marked as “completed”.
The Table also referred to other key documents, although those documents were not exhibited to the Second Affidavit or tendered at the hearing. Ms Cruz explained in her evidence that this was because she thought that it was necessary for her to make a “complete submission” in respect of the stay application.
The Applicant submitted to the Tribunal that the facts in this matter are “fluid” and that a concession should be made on this basis. Even if I were to accept the responses in the Table at face value (which requires the Tribunal to assume that those tasks which have been marked “completed” result in compliance), there were a number of entries which on the Applicant’s own case are still “pending”. There was no evidence submitted to the
30 Exhibit A2, EC-1
Tribunal which was directed to current compliance (which is particularly relevant to the registration Decisions) or remedial action in respect of past students.
In the circumstances of a stay application, one would expect the Applicant to put their “best foot forward” by way of evidence to show compliance with the Standards.31
However, the evidence before the Tribunal rises no higher than assurances that the mode of operation has changed and some of the non-compliant conduct has been addressed. The documents referred to in the Table have not been provided to the Tribunal. A working draft of Mr. Nash’s report was not tendered nor was he called to give evidence as to his activities since his engagement. The Tribunal is therefore unable to determine whether BIC’s responses in the Table are corroborated or made good in some way.
The Applicant has been on notice of the non-compliance since May 2024 and despite this, the evidence relied upon is of a general nature. On the basis of the material before it, the Tribunal cannot conclude there are any prospects of success in relation to any of the Decisions. This factor therefore weighs against the grant of a stay.
Consequences for the Applicant
The Applicant asserted that should the Tribunal revoke the stay then BIC would immediately cease to exist, which in turn would have detrimental consequences to the staff and students. Further, the harm suffered by BIC would be irreparable should ASQA’s Decisions be wrong and later overturned on review.
The Applicant also argued that a conditional stay would not materially improve the situation, just that cessation of the business may take a little longer. Without a pipeline of students, the Applicant would not be able to maintain their premises, facilities and compliance requirements. The only source of income available to BIC is through the provision of educational services.
The Applicant, in their closing submissions, did not draw to the Tribunal’s attention any specific evidence in support of these submissions, nor did Ms Cruz state in her evidence
31 Trades College Australia Pty Ltd v Australian Skills Quality Authority [2018] AATA 1360 at [19].
that it would be necessary for the Company to go into liquidation. It was left to the Tribunal to review the exhibits in the First Affidavit (being bank statements up until mid-December 2024, the lease agreements and various invoices) and to draw its own conclusion as to the financial viability of BIC should the stay be revoked or made on a conditional basis.
In her evidence, Ms Cruz confirmed BIC’s lease commitments are $66,000 per month and that the Applicant had not committed to a second term for the Commercial Cookery Kitchen. Upon cessation of the kitchen lease, there would be a material reduction in BIC’s lease expenses.
In the First Affidavit, remuneration expenses for staff are stated to be $83,000 per month. Ms Cruz stated in her evidence that BIC has only two employees, with the remaining 13 staff being contractors, who only require two-week notice. Copies of the relevant contracts were not provided to the Tribunal meaning the financial impact of any redundancies or terminations could not be assessed.
The First Affidavit also outline some other ancillary expenses including regulatory fees, operational and administrative expenses.32 Some of these would fall away should the Applicant cease trading.
The Tribunal accepts that should the stay be revoked that it would lose its primary source of revenue being the student fees, pending the conclusion of the review process. However, the Tribunal does not accept that a cessation of trading would necessarily cause BIC to be wound up. There are no financial statements or reports, tax returns or more recent bank statements from which the current financial position of the Applicant can be ascertained, including whether it has access to alternate resources.
Further, the Applicant has engaged Mr Nash to assist with the review – it is unknown whether he has been remunerated for his services. If he has, then presumably BIC has been able to access sufficient resources to ensure that these expenses can be met.
32 These are $21,337 per annum for operational and administrative expenses such as software and licencing fees, $19,100 per annum in RTO compliance fees, insurance of $3919.96 pe annum and up to $5000 per month in miscellaneous expenses.
The Tribunal notes that BIC has had time and opportunity to compile and provide to the Tribunal financial evidence in support of its contentions relating to the financial consequences of a stay. This is evidence that should be readily available to the Applicant.
The Tribunal is in the same position as that in Australia International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097. There are “…too many gaps in the financial evidence relied upon…”33 to be able to test any of the assertions or be satisfied as to the viability or otherwise of the company.
The Tribunal considers that the financial consequences to BIC weighs in favour of a stay, but not heavily so. The Tribunal does not consider there to be sufficient evidence before it to find that BIC will necessarily collapse as a result of ceasing to trade, pending the completion of the review process. Any financial harm to the Applicant will be limited if the matter is listed for hearing within the coming months.
The Applicant argues that current students (of which there are currently 180) would be disrupted should the stay be revoked. More specifically, students may face difficulties transferring to other institutions, obtaining recognition of prior learning or be delayed in in obtaining qualifications. There was no evidence provided in support of these contentions.
Ms Cruz advised the Tribunal that BIC had conducted a series of workshops in June 2024 to current students about ASQA’s compliance action and the Decisions. The Tribunal has not been provided with a copy of the power point presentation made to the students during the course of those workshops.
This appears to be the only formal communication by the Applicant to the students in relation to the Decisions under review. The workshops occurred more than eight months ago and since that time there has been an Internal Review and the commencement of these proceedings. Although the Tribunal accepts that revoking the stay is likely to cause a temporary disruption to current students, the extent of that disruption could have been minimised by transparent, clear and timely communication by the Applicant to the students.
33 Australia International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097 at [37].
The inconvenience to the students should the stay not be granted, needs to be weighed against the risk posed to continuing students who may be “…at risk of paying money and not obtaining the results they have paid for”34 or otherwise being exposed to non-compliant teaching. At the conclusion of the substantive review, a possible outcome is that the Decisions to cancel and not renew the registrations is affirmed. Should this be the case, then the qualifications obtained by the students will be undermined. For this reason, the Tribunal considers that, on balance, the interests of the students weigh against the granting of a stay.
In relation to the disruption to the staff of BIC, the Tribunal has taken into account the evidence in the First Affidavit that BIC has two employees and 13 contractors who may be impacted should the stay be revoked. Although no specific evidenced was provided by the Applicant, the Tribunal and accepts those people will be affected if the Applicant ceased trading, at least in the short term. This weighs in favour of a stay.
The public interest and consequences on ASQA in carrying out its functions
The Applicant argued that the public interest is not served by interrupting the tuition of students, the engagement of staff or for BIC to go out of business. Although, the Applicant accepted that the public interest is a relevant factor in determining the stay, they rejected any argument that public interest was a decisive factor.
In its submissions, ASQA contended the public interest is an overriding consideration, and that the Tribunal should take into account the objects of the regulatory regime underpinning the Decisions when forming an opinion about whether it is desirable to revoke the stay or to allow the stay (with or without conditions) to remain in place.
In Australian Securities and Investment Commission v the Administrative Appeal Tribunal [2009] 181 FCR, the Court held that in balancing interests that are competing, priority must be given to those whose interests are protected in the statutory scheme.35 The protection of students, the integrity of the VET export sector and student visa system and the
34 Re Australian Institute of Technical Training Pty Ltd and Minster for Education and Training [2018] AATA 1281 at [57].
35 At [51].
reputation of the vocational education and training sector generally, are at the heart of the NRV Act and the ESOS Acts.
The interests of the students, both current and future, are therefore paramount. Students are entitled to expect that courses offered by any education provider are compliant and that they receive a quality education which fulfils their requirements. ASQA, as the Regulator, protects students, the public interest and the integrity and reputation of the VET by taking appropriate action against non-compliant providers.
As stated by the Tribunal in the decision of Metro College of Technology Pty Ltd and Australian Skills Quality Authority (unreported):36
But there is also the question of the public interest. The regulatory system was devised to protect consumers of these courses, and to protect the good name of Australian educational institutions overseas. Many students travel long distances from overseas ... The regulatory regime assumes there is a public interest in ensuring these programs are properly run according to recognized standards. Failures to adhere to standards – particularly where those failures suggest systemic problems, poor judgment or an unwillingness to comply with the law – must be taken very seriously.
It is in the public interest that registered educational providers comply with the statutory requirements and that the Regulator fulfill its statutory functions. The Applicant has been on notice of ASQA’s concerns from December 2023 and has had ample time to rectify the non- compliance. In the absence of evidence about the financial consequences of revoking the stay, the Tribunal prefers to give weight to the protection of the public interest by not exposing current or new students to non-compliant courses and teaching. This factor weighs against the granting of a stay.
Whether the review application, if successful, would be rendered nugatory should the stay be revoked
The Applicant argued that should the stay be revoked and BIC ceased to operate that the review would be rendered nugatory. For the reasons canvassed in an early part of these
36 Metro College of Technology Pty Ltd v Australian Skills Quality Authority unreported decision of Deputy President McCabe in application number 2015/6137 as cited in Sher-e-Punjab Pty Ltd v Australian Skills Quality Authority [2018] AATA 46 at [108].
reasons, the Tribunal is not satisfied that BIC is likely to collapse pending the review of Decisions.
Based on the present evidence available to the Tribunal, it does not consider that the review would be rendered nugatory should the stay be revoked. This weighs against the granting of a stay.
CONCLUSION
Having regard to all the factors, the Tribunal considers that a stay, even on conditions, is not desirable for securing the effectiveness of the review.
Although the disruption to staff and students and, to a lesser extent, the financial consequences to Applicant weigh in favour of granting a stay, the Tribunal is satisfied that those matters are outweighed by the failure to provide evidence as to prospects of success in the substantive review, the public interest in minimising the potential exposure of the current students to non-compliant teaching or a devalued qualification and the public interest in minimising the risk of damage to the reputation of the VET sector by permitting the Applicant to continue to operate pending the review.
DECISION
The application for a stay of each Decision of the Respondent is refused. The interim stay order is discharged.
I certify that the preceding seventy two
(72) paragraphs are a true copy of the reasons for the decision herein of General Member R Smith.
.........................[sgnd]..........................
Associate
Dateofhearing: 20 February 2024 Datefinalsubmissionsreceived:
20 February 2024
CounselfortheApplicant:
Mr J Wheelahan
SolicitorsfortheApplicant:
Nick Galatas, GPZ Legal
CounselfortheRespondent:
Ms S Wright
SolicitorsfortheRespondent:
Australian Government Solicitor
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