Bayahow and Australian Skills Quality Authority (Practice and procedure)
[2025] ARTA 176
•4 March 2025
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.41Administrative 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 1870Sydney 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
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).
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’.
On 20 November 2024, the Chief Executive Officer (CEO) of the Respondent (ASQA), acting in her role as the National VET Regulator, made the decision to cancel Gills College’s registration as a VET provider, under ss. 36(2)(f) and 39 of the NVR Act, effective from 21 November 2024.
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.
On 23 December 2024, Mr Bayahow filed an Outline of Submissions in relation to a Stay dated 23 December 2023 (Applicant’s Submissions), together with a witness statement of Mr Bayahow, affirmed on 20 December 2024 (Bayahow Statement) and a Bundle of the Applicant’s documents. Mr Bayahow subsequently filed a supplementary Outline of Submissions dated 14 January 2025 (Applicant’s Supplementary Submissions).
ASQA has set out its position in opposing the granting of a stay in its correspondence with the Tribunal dated 20 December 2024 (Respondent’s 20 December 2024 Letter) and has filed an Outline of Submissions in relation to the Stay dated 7 February 2025 (Respondent’s Submissions). ASQA filed its Section 23 T-documents on 17 January 2025.
In advance of the initial Case Management Directions Hearing in the matter, held on 15 January 2025 (CMDH), the Tribunal sent the parties an email dated 6 January 2025 which set out 12 questions to be answered by the parties for the purposes of the CMDH (Tribunal’s Request). Mr Bayahow’s response to the Tribunal’s Request is set out in the Applicant’s Supplementary Submissions. ASQA’s response to the Tribunal’s Request is set out in the Respondent’s Submissions for the CMDH dated 14 January 2025 and in the Respondent’s Submissions in Response to the Tribunal’s Request for Information dated 29 January 2025. This aspect is mentioned for completeness. The parties agree that their respective responses to the Tribunal’s Request do not bear directly on the application for a stay.
At the conclusion of the hearing of the stay application on 19 February 2025, the Tribunal made directions for Mr Bayahow to provide the Tribunal with any further documents and submissions by 21 February 2025 with ASQA to file any evidence and submissions in reply by 26 February 2025. Mr Bayahow provided Supplementary Submissions dated 21 February 2025 (Applicant’s Post-hearing Submissions) and ASQA provided Supplementary Submissions dated 26 February 2025 (Respondent’s Post-hearing Submissions).
TRIBUNAL’S POWER TO GRANT A STAY
The Administrative Appeal Tribunal’s power to stay was found in s.41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The equivalent provision in the ART Act is found in s.32(2), which reads:
“However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or 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.”
It is important to bear in mind that s.32(2) operates as an exception to the General rule which is stated in s.32(1) of the ART Act, as follows:
“The making of an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision.”
The Tribunal must observe the pre-conditions set out in s.32(7) of the ART Act before it makes an order staying a reviewable decision, which are to give the parties to the application for review an opportunity to make submissions in relation to the making of a stay order[6] and that it “has taken into account the interests of any person who may be affected by the review of the decision.”[7]
[6] ART Act s.32(7)(a).
[7] ART Act s.32(7)(b).
The power to order a stay under s.32(2) of the ART Act is only to be exercised for the purpose of ensuring the effectiveness of the review. It is the Applicant who, for practical purposes, bears the onus of satisfying the Tribunal that a stay is desirable for the requisite purpose, and the Tribunal must have sufficient evidence before it to draw that conclusion.[8]
[8] Re Oaklands and Australian Securities and Investments Commission [2011] AATA 199, [11].
The Explanatory Memorandum to the Administrative Review Tribunal Bill makes it clear that although the wording in s.32 of the ART Act is different in some respects to the wording of s.41 of the AAT Act, those changes were made to reflect “modern drafting practices” and “not to affect the operation or effect of the provision.”[9] It follows that the authorities relevant to the principles to be applied in respect of s.41 of the AAT Act, remain relevant when considering s.32 of the ART Act.
[9] Explanatory Memorandum to the Administrative Review Tribunal Bill, [339].
The Tribunal’s discretion to be exercised under s. 32(2) of the ART Act, as with its predecessor s.41(2) of the AAT Act, is, as the Tribunal said in McNamara; Secretary, Department of Social Services[10], the exercise of a power which “largely mirrors the general power of a court to grant relief by way of a stay.”[11] The Tribunal also explained in relation to the burden of proof: “Although no party bears a burden of p[roof to establish facts or make out a case, it will usually be the applicant who will need to provide the Tribunal with sufficient evidentiary material to enable it to exercise its discretion in accordance with law.”[12]
[10] [2016] AATA 189.
[11] [2016] AATA 189, [4], citing Broadbent v Civil AviationAuthority [1999] FCA 1871.
[12] [2016] AATA 189, [12], citing McDonald v Director-General of SocialSecurity [1984] FCA 57; (1984) 6 ALD 6.
The range of factors relevant to the Tribunal’s consideration of a stay are well established by the decision in Re Scott andAustralian Securities and Investments Commission[13] (Scott), and the Tribunal cases which have followed it[14]. The 6 matters listed by Downes J. in Scott are as follows:
(a)The prospects of success.
(b)The consequence for the applicant of the refusal of a stay.
(c)The public interest.
(d)The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.
(e)Whether the application for review would be rendered nugatory if a stay were not granted; and
(f)Other matters that are relevant.[15]
[13] [2009] AATA 798.
[14] See for example Technical Education Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3047 at [59]; Birdseye and Tax Practitioners Board [2020] AATA 1250.
[15] [2009] AATA 798, [4].
The Tribunal notes that the Scott factors should not be treated as a complete checklist, as that risks losing sight of the discretion which the Tribunal is being asked to exercise when considering whether it is “desirable” to award a stay “for the purpose of ensuring the effectiveness of the review.” The Tribunal adopts what was said in Technical Education Australia Pty Ltd and Australian Skills Quality Authority[16] by SM Cameron:
“Whilst these matters identified by Downes J in Re Scott are relevant to the exercise by the Tribunal of the discretion conferred upon it by section 41(2), they are not a complete code or a “checklist” that limits or fetters the exercise of such discretion.”[17]
[16] [2018] AATA 3047.
[17] [2018] AATA 3047 at [60].
Further, the facts and circumstances of the case, including the nature and content of the reviewable decision, will affect the respective weighting to be given to each of the factors under consideration with respect to the granting of a stay.[18] Matters specific to the Scott factors which are under consideration in this matter are dealt with below.
[18] Hopfner and Tax Practitioners Board [2019] AATA 851, [7].
In Trades College Australia Pty Ltd and Australian Skills Quality Authority,[19] the Tribunal (Deputy President Rayment and Senior Member Fairall) stated: “We have concluded that in future cases where there is a contest about non-compliances, ASQA must start and do so without the assumption that its allegations of non-compliance are prima facie correct.”[20] Mr Bayahow submits that there is such a contest in the present case and that ASQA bears the onus of establishing the evidentiary basis as to why its decision should take effect.[21]
[19] [2020] AATA 812.
[20] [2020] AATA 812, [13].
[21] Applicant’s submissions, [11].
In particular, the Reviewable Decision appears to have been made by ASQA on the assumption that the non-compliance of Gills College with the conditions of its registration will be made out and that the decision taken by the CEO on 20 November 2024 was the correct decision for ASQA to have taken in respect of Gills College’s de-registration. In the fullness of time, that assumption may prove to be correct, but the Tribunal cannot make that assumption at present.
In the Bayahow Statement, Mr Bayahow gives evidence as to the following facts:
(a)He holds earlier qualifications issued by other providers, which are:
(i)CHC30712 Certificate III in Children’s Services, issued on 2 September 2014 by Partners in Training (Registered Training Organisation (RTO) Code 21837)[22] and
(ii)CHC 50113 Diploma of Early Childhood Education and Care, issued on 7 August 2017 by St Adam College (RTO Code 21063)[23]
(b)In late 2021, he decided to update his Certificate III and his Diploma to make his qualifications current, and so he could continue to meet the current qualification requirements for employment as a vocational education and training trainer.[24]
(c)In around December 2021, he enrolled with Elite College Australia to complete the updating of his qualifications and states that he “completed the gap training and assessment required of me by the College.” [25]
(d)He obtained the Qualifications with the updated Certificate III being issued on 26 January 2022 and the updated Diploma being issued on 31 March 2022.[26]
(e)On 26 November 2024, Mr Bayahow received an email from ASQA advising him of ASQA’s intention to cancel the Qualifications and giving him until 7:00 pm on 4 December 2024 to respond.[27]
(f)On 29 November 2024, he instructed solicitors, Denison Toyer, to represent him. His solicitors then corresponded with ASQA to request further information and additional time to respond.[28] and
(g)On 13 December 2024, he received an email from ASQA advising him that the Qualifications were to be cancelled with effect from 12:01 am on 20 December 2024.[29]
[22] Bayahow Statement, [4] and Annexure ‘OB-1’.
[23] Bayahow Statement, [5] and Annexure ‘OB-2’.
[24] Bayahow Statement, [6] - [7].
[25] Bayahow Statement, [8].
[26] Bayahow Statement, [9], [10] and Annexure ‘OB-3’.
[27] Bayahow Statement, [11] - [12] and Annexure ‘OB-4’.
[28] Bayahow Statement, [13] - [16] and Annexure ‘OB-5’ to ‘OB-7’.
[29] Bayahow Statement, [17] - [18] and Annexure ‘OB-8’.
The Bayahow Statement goes on to set out his assessment of the consequences of the Reviewable Decision taking effect. Those consequences are said to be “personal, professional and financial” in nature, and include:
(a)Mr Bayahow works as a vocational education and training trainer and his ability to train people in early childhood education and care will be compromised by a lack of the Qualifications, which he says will result in a fortnightly loss of income of $3,142.60;[30]
(b)There are six Bayahow household members, including 5 children under 14 years of age, who largely depend on Mr Bayahow (for 90% of the household expenditure). If Mr Bayahow cannot maintain his current employment, he says that would impact upon his ability to make mortgage repayments on the family home;[31] and
(c)Mr Bayahow also operates an existing fee-for service family day care business and his ability to conduct his fee-for-service family day care business might be compromised if he no longer holds the Qualifications.[32]
[30] Bayahow Statement, [21] - [23] and Annexure ‘OB-9’.
[31] Bayahow Statement, [24] and Annexure ‘OB-10’.
[32] Bayahow Statement, [25] and Annexure ‘OB-11’.
Mr Bayahow submits that a number of the findings in the reasons said to support the Reviewable Decision (set out in paragraph [5] above) relate to Gills College and not to him, and are matters, with the exception of sub-paragraph (f), which he cannot respond to directly as he has no knowledge of the conduct of Gills College referred to in the reasons.[33]
[33] Applicant’s Submissions, [12].
CROSS EXAMINATION OF MR BAYAHOW
Mr Bayahow was cross examined as to aspects of the impact upon him of the Reviewable Decision. Mr Bayahow gave evidence that he already had pre-existing qualifications, skills and knowledge relevant to the Qualifications, and had been working in the family day care industry for 15 years.
Mr Bayahow accepted that he did not strictly need to hold the Qualifications to operate the family day care business, but he obtained the Qualifications because it is “best practice.” He went on to say that he was in the process of becoming a regulated early childhood service in Victoria, having lodged an expression of interest with the Victorian Government to do this, and that he needed the Qualifications (both the Certificate and the Diploma) for the application to be a nominated day care supervisor to succeed.
Mr Sibley solicitor for ASQA asked Mr Bayahow if there was documentary evidence available supporting the fact of his making the application and that the Qualifications were required for the application to succeed. Mr Bayahow said that there was such evidence. As previously stated at paragraph [13] above, directions were made by the Tribunal at the hearing in relation to the lodging of additional material and submissions by the parties, including evidence of this application.
Mr Bayahow also gave evidence that he is self-employed as a vocational educator and training trainer working in a business part owned by him trading as Skills for Excellence. He was taken to Annexure ‘OB-9’ of his statement, which is comprised of a redacted OSKO payment receipt and asked how that document evidenced payments received by him for the provision of training. Mr Bayahow agreed that it would be of assistance to ASQA and the Tribunal if an unredacted version of the receipts could be produced. The Tribunal invited Mr Bayahow to provide evidence of these matters in the post-hearing submissions, and an unredacted version was produced to the Tribunal showing receipt of a payment by Skills for Excellence.[34]
[34] Applicant’s Post-hearing Submissions, [18] and Annexure 4.
STAY FACTOR (A) PROSPECTS OF SUCCESS
The Tribunal’s consideration of the Applicant’s prospects of success for the purpose of determining the stay application does not require me to conduct a full consideration of the merits of the review or what is, in effect, a “mini trial” (on the evidence before the Tribunal) of the application for review. As was explained in Greenfield Education Pty Ltd and Australian Skills Quality Authority[35], by Senior Member Poljak:
“The authorities establish that a consideration of the prospects of success of an application and so the merits of a substantive application must not involve the Tribunal undertaking a full consideration of those merits. While it is neither necessary or appropriate for me to determine the substantive matter on an interlocutory application, I must be satisfied that that the applicant has some prospects of success.”[36]
[35] [2018] AATA 4210.
[36] [2018] AATA 4210, [7].
It follows that the Tribunal must be satisfied that the Applicant’s prospects of success are high enough to clear the threshold of “some prospects of success” before a stay can be granted.
It also follows that I am not adopting what was said by the Tribunal in Rust-Oleum AustraliaPty Ltd and Australian Pesticides & Veterinary Medicines Authority[37], where Deputy President Forgie expressed the view that “[p]rospects of success have no place in [the] consideration” of whether a stay order is, or is not, desirable to secure the effectiveness of the hearing and determination of the application for review.[38]
[37] [2017] AATA 298.
[38] [2017] AATA 298, [34] - [36].
In Poidevin and Australian Securities and Investments Commission[39], Deputy President Redfern stated:
“If the reviewable decision discloses findings and reasoning that an applicant cannot or does not challenge, this would be critical to the issue of prospects and would be a significant factor that would weigh against the granting of a stay. It is incumbent on the applicant for a stay to establish the existence of such facts and circumstances or the possibility of legal error that may lead to a different result, through new evidence or submissions that were not raised before the delegate or by contesting findings of fact or conclusions of law (or a combination of both) that are open to challenge.”[40]
[39] [2018] AATA 124.
[40] [2018] AATA 124, [40].
There will necessarily be an incomplete body of relevant evidence and other information before the Tribunal at the interlocutory hearing of a stay application. It follows that some caution must be exercised by the Tribunal in forming a view as to the applicant’s prospects of success. The way in which the Tribunal is to approach the exercise was usefully explained in Panganiban and Australian Securities and Investments Commission[41], which stated:
“Consideration of an applicant’s prospects of obtaining a more favourable outcome in the review proceedings must take into account the potentially incomplete awareness of all material issues, the state and quality of the available primary evidence, and the prospect of additional relevant material. Those kinds of considerations require an appropriate degree of caution in evaluating an applicant’s apparent prospects of success at the time a stay application falls for determination: see Re McLean and Australian Securities and Investments Commission [2016] AATA 22 at [8]; Re Jeffers and Australian Securities and Investments Commission [2015] AATA 537 at [38]. Nevertheless, it is appropriate to consider the extent to which the available material is either apparently (i) unlikely to lead to a favourable variation of the reviewable decision, or (ii) sufficient to provide grounds for real confidence that such a variation may be appropriate.”[42]
[41] [2016] AATA 703.
[42] [2016] AATA 703, [8].
The Applicant’s Submissions contend that Mr Bayahow’s prospects of success “are far from hopeless” and that he could succeed on his application for review in one or more of five ways:
(a)“demonstrating that the decision was too severe.
(b)demonstrating that the decision did not consider evidence of training and assessment held by the College that directly relates to the Applicant.
(c)demonstrating that evidence of the training and assessment having been conducted exists and is available.
(d)demonstrating that some of the evidence sought extends beyond the required retention period of The College in relation to the Applicant, an Australian domestic student. and
(e)demonstrating at final hearing that the Applicant’s certificates were validly issued by The College and should not be cancelled.”[43]
[43] Applicant’s Submissions, [28] - [29].
The Bayahow Statement provides some evidence as to his having completed the training and assessment required of him by Gills College to obtain the Qualifications.[44] The Applicant’s Submissions indicate that there is further “substantial evidence” on these issues to be filed.[45]
[44] Bayahow Statement, [8].
[45] Applicant’s Submissions, [26].
The parties differ in their respective high-level assessments of prospects of success. Mr Bayahow submits that as the reasons for the Reviewable Decision are mostly outside his knowledge, and the decision is not supported by the documents in the s.23 T-documents provided by ASQA, he “has good prospects of success.”[46] ASQA contends that Mr Bayahow’s prospects of success are “limited”, in circumstances where it has taken steps to cancel Gills College’s registration under s. 56 of the NVR Act, and can show that there were reasonable grounds upon which the cancellation decision was based.[47]
[46] Applicant’s Supplementary Submissions, [17(a)].
[47] Respondent’s Submissions, [3.5] - [3.7].
Whilst accepting that the findings and evidence supporting the Reviewable Decision (summarised at paragraph [5] above) largely relate to the failings of Gills College rather than Mr Bayahow himself, ASQA says that there are steps which he could take to “rebut” those findings, which are:
(a)“provide evidence of assessments undertaken, for example results or returned work.
(b)liaise with Gills College to obtain information as to the assessments carried out by the college. and
(c)if unable to obtain information in this manner, issue a summons on Gills College.”[48]
[48] Respondent’s Submissions, [3.8].
Mr Bayahow’s response to ASQA’s rebuttal steps submission is that ASQA’s guidance material entitled “Retention requirements for completed student assessment items” only imposes a requirement that an RTO retain completed assessments for a period of 6 months and contends that “it is unlikely the RTO still has those records available.”[49] ASQA acknowledges the guidance material, but points to the lack of evidence of attempts by Mr Bayahow to locate or obtain the assessment information.[50]
[49] Applicant’s Post-hearing Submissions [17] and Annexure 3.
[50] Respondent’s Post-hearing Submissions, [3.1].
The Tribunal accepts that there may still be documents in the possession of Gills College bearing on Mr Bayahow’s assessments when he was a student at Gills College, and that further steps could be taken by the parties, or by the Tribunal itself, to seek to make that material available for the substantive hearing of the application for review. However, the Tribunal is reluctant to make a finding which imposes an expectation or requirement that Mr Bayahow should have pursued the steps described by ASQA for the purposes of the early interlocutory hearing of the stay application.
The Tribunal is satisfied on the material presently before it that Mr Bayahow has at least an arguable case and accordingly some prospects of success on his application for review. I find that this factor weighs slightly in favour of the granting of a stay.
STAY FACTOR (B) CONSEQUENCES FOR THE APPLICANT OF THE REFUSAL OF A STAY
Mr Bayahow’s principal contentions in relation to the consequences for him if his application for a stay is refused, and the Qualifications are cancelled forthwith thereafter, are that his present employment will cease, he will be unable to earn an income, his household (comprising himself and five, possibly six, dependants) will suffer hardship and the reputational damage he will suffer by having his qualifications invalidated will not be repaired even if he ultimately succeeds on the application for review.[51]
[51] Applicant’s Submissions, [30].
ASQA’s primary submission on this factor is that Mr Bayahow has not to this point adduced evidence which is sufficient to satisfy the Tribunal that he “will suffer any material consequences if the decision under review is implemented.”[52] More specifically, ASQA contends: “the implementation of the decision under review is unlikely to have any impact on the Applicant’s ability to engage in paid employment.”[53]
[52] Respondent’s 20 December 2024 Letter, [4.6].
[53] Respondent’s Submissions, [3.13].
In relation to the fee-for-service family day care service which Mr Bayahow says he operates, ASQA submits:
(a)Mr Bayahow is not required, and has acknowledged that he is not required,[54] to hold the Qualifications to operate a family day care service;[55]
(b)The Certificate III in Children’s Services CHC30712, held by Mr Bayahow since 2 September 2014, is sufficient to allow Mr Bayahow to continue to work at a centre-based family day care service, even if the Reviewable Decision is implemented and the Qualifications are cancelled;[56] and
(c)There has been no evidence put before the Tribunal that customers of the family day care business are aware of the Reviewable Decision or have decided or would decide to remove their children from a family day care business operated by Mr Bayahow as the result of the Reviewable Decision.[57]
[54] Bayahow Statement, [25].
[55] Respondent’s Submissions, [3.10].
[56] Respondent’s Submissions, [3.11] - [3.12].
[57] Respondent’s Submissions, [3.9].
In relation to Mr Bayahow’s evidence that he works as a “vocational education and training trainer” and may no longer be able to deliver that training if the Reviewable Decision is implemented, with a consequential loss of his regular fortnightly income,[58] ASQA submits:
(a)The payslip annexed to the Bayahow Statement at OB-9 is not sufficient evidence to identify the nature of the training he provides, whether his employer is an RTO or whether the Qualifications are a pre-requisite to his employment;[59] and
(b)Mr Bayahow has not established that his employment will cease if the Tribunal refuses to grant a stay order.[60]
[58] Bayahow Statement, [22] - [23].
[59] Respondent’s Submissions [3.15].
[60] Respondent’s Submissions, [3.16].
The consequences for Mr Bayahow of the refusal of a stay were the focus of the Applicant’s Post-hearing Submissions. Mr Bayahow summarised those submissions as:
(a)“The Applicant owns the entity Salaar which has submitted a Day Care Application. Without the grant of a stay order, the Day Care Application is rendered nugatory.
(b)The Applicant owns the entity Skills for Excellence, an RTO for which he is trainer/assessor. Without the grant of a stay order he will not be able to continue as the trainer/assessor.
(c)If a stay order is not granted, the Applicant will be significantly impacted financially as a result of (a) and (b).”[61]
[61] Applicant’s Post-hearing Submissions, [23].
In respect of the Day Care Application, Mr Bayahow submitted, on behalf of his company Salaar Family Day Care Pty Ltd (Salaar), an “application for Provider Approval to the Victorian Department of Education (VDE) through the national Quality Agenda IT System for approval as a Family Day Care (FDC) service.”[62]
[62] Applicant’s Post-hearing Submissions, [4], [5] and Annexure 2.
Mr Bayahow contends that there is a fit and proper person test included as part of the application process,[63] and that if the Reviewable Decision takes effect “he would be an ineligible person to hold the role of person in day-to-day charge and nominated supervisor.”[64] He further contends that if the Day Care Application was deemed to have been made by an ineligible person it is likely to be rejected.
[63] Applicant’s Post-hearing Submissions, [9], [10].
[64] Applicant’s Post-hearing Submissions, [11].
ASQA disputes these contentions, stating its understanding to be that Salaar and Mr Bayahow were subject to the operation of the Education and Care Services National Law (Victoria) (National Law), submitting that Mr Bayahow is not a prescribed ineligible person and not prevented from applying for provider approval under the National Law.[65]
[65] Respondent’s Post-hearing Submissions, [2.4] - [2.10].
The Tribunal agrees with the statement in the Respondent’s Post-hearing Submissions that it is not a matter for the Tribunal to make findings in this application about whether Mr Bayahow has complied with the regulatory requirements for the operation of his family day care business.[66] There is enough substance in the competing submissions for the Tribunal to conclude that the refusal of a stay might have a material impact on the Day Care Application.
[66] Respondent’s Post-hearing Submissions, [2.4].
Mr Bayahow submitted that he has an obligation to notify the families who are clients of his family day care business about the cancellation of the Qualifications. The obligation is said to arise under the National Quality Standard (NQS)[67] which Victorian FDC’s are required to adhere to by the VDE. Mr Bayahow references NQS Element 6.1.1 which requires that “[f]amilies are supported from enrolment to be involved in the service and contribute to service decisions.”[68] His concern is that if families are informed, they might then cease to use the services of his family day care business.
[67] The NQS is contained in the Schedule to the Education and Care Services National Regulations.
[68] Applicant’s Post-hearing submissions, [13].
ASQA disputes that NQS Element 6.1.1 imposes any obligation upon Mr Bayahow to notify families of the Reviewable Decision.[69]
[69] Respondent’s Post-hearing Submissions, [2.15] - [2.16].
The Tribunal makes no finding as to whether NQS Element 6.1.1 imposes a legal obligation on Mr Bayahow to inform families as to the cancellation of the Qualifications but accepts that Mr Bayahow feels at least a moral obligation to do so, given the position of trust he holds with the families of the children who are users of his family day care services.
Mr Bayahow also makes submissions about his role as a trainer/assessor for Skills for Excellence.[70] He states that Skills for Excellence currently has only one qualification, the CHC30121 Certificate III in Early Childhood Education and Care, listed in its scope of registration. Mr Bayahow is concerned that if this qualification was cancelled and removed from its scope of registration, he would no longer be able to demonstrate that he is a compliant trainer/assessor holding “both current industry skills and vocational competencies.”[71] If that were to happen, Mr Bayahow would have to employ a replacement for his role or withdraw the registration of Skills for Excellence.[72]
[70] Applicant’s Post-hearing Submissions, [19] - [22].
[71] Under the Standards for Registered Training Organisations 2015, clause 1.13.
[72] Applicant’s Post-hearing Submissions, [22].
ASQA acknowledges that the outcomes described in the previous paragraph may occur if the stay application is refused. However, ASQA maintains that the Tribunal cannot be satisfied on the evidence before the Tribunal that Mr Bayahow’s ability to work as a trainer/assessor for Skills for Excellence will be materially affected.[73]
[73] Respondent’s Post-hearing Submissions, [2.19].
The Tribunal accepts that there is a lack of detail around the precise nature of Mr Bayahow’s current employment with Skills for Excellence, what that employment will look like in future and as to the nature of the OSKO transactions. While the current evidence before the Tribunal may need further work for the purposes of the substantive hearing, the Tribunal is satisfied for the purposes of the interlocutory stay hearing that the refusal of a stay may well have an adverse impact on Mr Bayahow’s ability to continue as a trainer/assessor.
On balance, this factor weighs in favour of the grant of a stay.
STAY FACTOR (C) THE PUBLIC INTEREST
ASQA submits that the public interest under consideration is that of ensuring that Registered Training Organisations (RTOs) like Gills College are properly regulated in accordance with the objects set out in s.2A of the NVR Act and the relevant standards for RTO’s made by legislative instrument under ss. 185(1) and 186(1) of the NVR Act.
In Site Skills Group Pty Ltd and Australian Skills Quality Authority[74], Deputy President Hangar QC described the public policy setting in which ASQA operates in the following terms:
“The importance of proper regulation of RTO’s cannot be overstated. The proper training of people to work is of vital importance to the country. The public rely on the integrity of the sector to properly educate people entering the workforce; to ensure that the work they perform is of a high standard; that they know what they are doing; and that in performing their work they do not present a danger to themselves or to members of the public who rely on the quality of the work performed. Furthermore, it is important that there is a minimum standard required to receive a particular qualification; that there is a rigorous assessment process; and that there is consistency in those standards throughout the country.”[75]
[74] [2019] AATA 1870.
[75] [2019] AATA 20]. See also [87].
Mr Bayahow accepts that the public interest is a “highly pertinent and fundamental consideration”[76], further noting what has been said by the Tribunal in Sydney Training Academy Pty Ltd and Australian Skills Quality Authority[77] concerning this factor:
“There is a major public interest in ensuring that all RTOs are fully compliant with VET requirements, especially where issues of safety (e.g., safety on building sites; first aid; cardiopulmonary resuscitation; child welfare; the provision of aged care) are concerned and these must be given primary consideration. The interests of consumers, employers and those reliant upon people with appropriate qualifications are encompassed within this descriptor.”[78]
[76] Applicant’s Submissions, [33].
[77] [2018] AATA 3361.
[78] [2018] AATA 3361, [28(c)].
Mr Bayahow’s position is that he is an established and highly qualified person who has been operating in the early childhood care sector for 15 years. There is nothing before the Tribunal to suggest that Mr Bayahow is not a highly qualified early childhood care provider and trainer or that any risk is posed to the community by his continuing to provide those services.
Although there is no evidence before the Tribunal as to the previous background of the large cohort of Gills College students who are the subject of a similar decision by ASQA to cancel their qualifications, Mr Bayahow’s previous qualifications and experience and low risk to the community in continuing to provide those services, may well differentiate his position from that of other students of Gills College, when considering this factor. Having said that, each application for a stay must be determined on its own facts.
The Tribunal notes that the early childhood care industry sector benefits from having providers with Mr Bayahow’s experience and qualifications, which are in demand. On balance, the Tribunal considers it to be contrary to the public interest to implement the Reviewable Decision before determining his application for review if that would make it difficult for him to continue working as he currently does, in the interim period.
Accordingly, I find that this factor weighs slightly in favour of the grant of a stay.
STAY FACTOR (D) CONSEQUENCES FOR THE RESPONDENT IN CARRYING OUT ITS REGULATORY FUNCTION
ASQA’s position is that if the stay is granted, Mr Bayahow will continue to hold the Qualifications, which have been issued by a VET provider whose registration it has cancelled. That fact will serve to undermine public confidence both in VET qualifications and in the work ASQA does in the regulation of RTOs.[79]
[79] Respondent’s Submissions, [3.22].
Mr Bayahow contends, on the other hand, that as he is just one of some thousands of students at Gills College subject to a comparable decision, the granting of a stay in his individual case will not pose any threat to the “regulatory architecture of the Respondent.”[80]
[80] Applicant’s Submissions, [37].
The Tribunal accepts that there is merit in the respective position of each of the parties on this factor. It considers that this factor weighs slightly in favour of ASQA but is outweighed by my findings on discretionary factors (a), (b) and (c).
STAY FACTOR (E) WHETHER THE APPLICATION FOR REVIEW WOULD BE RENDERED NUGATORY IF A STAY WERE NOT GRANTED
Mr Bayahow’s submission is that by reason of the consequences to him (summarised in paragraph [26] above) if his application for a stay is refused, his application may be rendered nugatory. He says that this may be the effect, even if his application for review is successful in due course.
ASQA’s response is to say that Mr Bayahow’s application for review will not be rendered nugatory because Mr Bayahow has not established that he will be unable to pursue employment as a family day care educator in the period up to the determination of his application for review. Further, if his employment as a family day care educator was to cease, and he was ultimately successful in having the Reviewable Decision set aside, ASQA contends that there is no reason, supported by evidence, why that employment could not be taken up again.[81]
[81] Respondent’s Submissions, [3.23].
The Tribunal is not persuaded that the application for review would necessarily be rendered nugatory or pointless if a stay was not granted, but again this factor is outweighed by my findings on discretionary factors (a), (b) and (c).
CONCLUSION AND DECISION
I am persuaded on balance that the preponderance of the relevant factors to be weighed in the exercise of the Tribunal’s discretion as to whether a stay should be granted favour the granting of a stay. The Tribunal considers that it is desirable to make an order under s.32(2) of the ART Act, staying the implementation of the Reviewable Decision until the determination of the application for review, for the purpose of ensuring the effectiveness of the review.
The prejudice, if any, to ASQA which might flow from the Tribunal granting a stay order in this matter can be mitigated by the parties working with the Tribunal to have the substantive hearing of the application for review heard and determined as expeditiously as that can sensibly be achieved.
Date of hearing: 19 February 2025 Solicitors for the Applicant: Mr P. Doukas, Denison Toyer Solicitors for the Respondent: Mr C Sibley, Clayton Utz
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