Bayahow and Australian Skills Quality Authority (Practice and procedure)

Case [2025] ARTA 176

Bayahow and Australian Skills Quality Authority (Practice and procedure) [2025] ARTA 176 (4 March 2025)

Applicant:Omar A. Bayahow

Respondent:  Australian Skills Quality Authority

Tribunal Number:                2024/10656

Tribunal:General Member Darian-Smith

Place:Sydney

Date:4 March 2025

Decision:The interim stay order made on 24 December 2024, and extended on 15 January 2025 until 19 February 2025, and on 19 February 2025 until the date of the determination of the stay application, is to become an order under s.32(2) of the Administrative Review Tribunal Act 2024 (Cth) staying the operation or implementation of the decision of the Respondent dated 13 December 2024 (Stay Order). The Stay Order applies from the date of this decision until 5:00pm on the date of the substantive hearing of the application for review or until further order of the Tribunal.

.........................[SGD]...............................................

General Member Darian-Smith

Catchwords

PRACTICE AND PROCEDURE – application for stay of decision to cancel a VET provider’s qualifications obtained from a deregistered RTO – factors relevant to the grant of a stay – prospects of success – consequences for applicant of refusal of a stay – the public interest – application for stay order granted

Legislation

National Vocational Education and Training Regulator Act 2011 (Cth) ss. 36, 39, 56, 199
Administrative Appeals Tribunal Act 1975 (Cth) s.41

Administrative Review Tribunal Act 2024 (Cth) s. 32

Cases

Re Oaklands and Australian Securities and Investments Commission [2011] AATA 199
McNamara and Secretary, Department of Social Services [2016] AATA 189
Scott and Australian Securities and Investments Commission [2009] AATA 798
Technical Education Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3047
Hopfner and Tax Practitioners Board [2019] AATA 851
Trades College Australia Pty Ltd and Australian Skills Quality Authority [2020] AATA 812
Greenfield Education Pty Ltd and Australian Skills Quality Authority [2018] AATA 4210
Rust-Oleum Australia Pty Ltd and Australian Pesticides & Veterinary Medicines Authority [2017] AATA 298
Poidevin and Australian Securities and Investments Commission [2018] AATA 124
Panganiban and Australian Securities and Investments Commission [2016] AATA 703
Site Skills Group Pty Ltd and Australian Skills Quality Authority [2019] AATA 1870

Sydney Training Academy Pty Ltd and Australian Skills Quality Authority [2018] AATA 3361

Secondary Materials

Explanatory Memorandum to the Administrative Review Tribunal Bill

Statement of Reasons

  1. The Applicant (Mr Bayahow) is a former student of Gills College Australia Pty Ltd (Gills College), which at the time he was a student was a registered vocational education and training (VET) provider under the National Vocational Education and Training Regulator Act2011 (Cth) (NVR Act).

  2. Mr Bayahow obtained two qualifications from Gills College, being:

    (a)CHC30121 Certificate III in Early Childhood Education and Care, issued on 26 January 2022; and

    (b)CHC50121 Diploma of Early Childhood Education and Care, issued on 31 March 2022. (Collectively, the Qualifications).[1]

    [1] Bayahow Statement, [9] - [10] and Annexure ‘OB-3’.

  3. On 20 November 2024, the Chief Executive Officer (CEO) of the Respondent (ASQA), acting in…

Continue reading Bayahow and Australian Skills Quality Authority (Practice an...

Sign in free to access the full text

Details
AGLC
Bayahow and Australian Skills Quality Authority (Practice and procedure) [2025] ARTA 176
Case
[2025] ARTA 176
Decision Date

CaseChat Overview and Summary

In the matter of Bayahow and the Australian Skills Quality Authority, the applicant, Mr Bayahow, sought a stay of the decision by the CEO of ASQA to cancel the VET provider’s qualifications obtained from a deregistered Registered Training Organisation (RTO). This case came before the Administrative Appeals Tribunal (AAT) for review and to determine whether a stay should be granted. The dispute centred around the cancellation of qualifications obtained by Mr Bayahow from Gills College, an RTO which had been deregistered by ASQA. The primary legal issues were whether the application for a stay should be granted and what factors should be considered in making that decision. The court was required to determine the prospects of success of Mr Bayahow’s application for review of the decision, the consequences of refusing a stay for Mr Bayahow, and the public interest considerations.

The AAT considered several factors in determining whether to grant a stay. The prospects of success of Mr Bayahow’s application for review were assessed based on the evidence presented and the likelihood that the Reviewable Decision would be overturned. The court also considered the consequences for Mr Bayahow if the stay was not granted, including the potential impact on his ability to continue working in his profession. Furthermore, the public interest was evaluated, taking into account the need to maintain the integrity of the vocational education and training system and the potential consequences for other students who had obtained qualifications from the same RTO. After weighing these factors, the AAT found that the application for a stay should be granted, and the Reviewable Decision should be stayed until the application for review was determined.

The AAT concluded that Mr Bayahow had a reasonable prospect of success in his application for review, as there were genuine questions about the adequacy of the evidence relied upon by ASQA to make the Reviewable Decision. The court also found that the consequences for Mr Bayahow if the stay was not granted would be significant, as it could potentially result in him losing his qualifications and being unable to work in his profession. Additionally, the AAT determined that the public interest would not be adversely affected by granting the stay, as the stay would not undermine the integrity of the vocational education and training system. As a result, the AAT granted the application for a stay, and the Reviewable Decision was stayed until the application for review was determined.

In conclusion, the AAT granted the application for a stay of the Reviewable Decision, and the cancellation of Mr Bayahow’s qualifications was stayed until the application for review was determined. The AAT found that Mr Bayahow had a reasonable prospect of success in his application for review and that the consequences for him if the stay was not granted would be significant. The AAT also determined that the public interest would not be adversely affected by granting the stay. The AAT's decision ensures that Mr Bayahow can continue working in his profession while the application for review is being determined.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 13 December 2024, the CEO of ASQA, acting in her role as the National VET Regulator, made the decision to cancel the Qualifications, under s.56 of the NVR Act, effective on 20 December 2024 (Reviewable Decision).[2][2] T2, T- documents bundle pages 16-22. A decision under s.56 of the NVR Act is a reviewable decision under s.199 of the NVR Act. The Reviewable Decision was based on findings, and evidence, that Gills College had not provided the training and assessment necessary to ensure that students at Gills College, including Mr Bayahow, had the skills and knowledge necessary to be awarded a VET qualification. The findings, and evidence, in question were: “Findings included: (a)Gills College did not implement a training and assessment strategy to enable each student to meet the requirements for each unit of competency in which they enrolled. (b)Gills College did not have sufficient facilities, whether physical or virtual, and equipment to accommodate and support the number of learners undertaking the training and assessment at each delivery location. (c)Gills College did not demonstrate it had a system in place to ensure all trainers and assessors were suitable qualified or experienced. (d)Gills College did not implement an assessment system that ensured assessment complied with the requirements of the relevant training package and is conducted in accordance with the principles of assessment and rules of evidence. (e)Gills College did not conduct adequate assessment or ensure that only students who have fully demonstrated competence against all training package requirements have been issued with certification and captured consistent and accurate information about students and training outcomes. Furthermore, there was evidence that: (f)Students had been issued certification via recognition of prior learning (RPL) although the provider denied having conducted any RPL assessment during the period of issuance. (g)Students denied they had studied with the provider at all, although the provider’s student management system said it had issued certification to the students. (h)Students completed qualifications via RPL and said they had not attended classes or undertaken a work placement and were told by the provider it was not necessary to attend classes.”[3][3] T2, T-documents bundle at page 17. The findings and evidence were generic to the body of Gills College students, in that, for example it is not asserted by ASQA that the references to evidence in sub-paragraphs (f), (g) and (h) above necessarily applied in Mr Bayahow’s case. On 19 December 2024, Mr Bayahow applied for review of the Reviewable Decision.[4] He also sought a stay of the Reviewable Decision under s. 32(2) of the Administrative ReviewTribunal Act 2024 (Cth) (ART Act).[5][4] T1, T- documents bundle pages 1-11.[5] T1, T - documents bundle pages 12-15. On 24 December 2024, the Tribunal ordered that the Reviewable Decision be stayed on an interim basis until 17 January 2025. On 15 January 2025, the Tribunal ordered that the stay order made on 24 December 2024 be extended on an interim basis until 19 February 2025, when the stay application was listed to be heard by the Tribunal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.