BHATT and AUSTRALIAN SKILLS QUALITY AUTHORITY (Practice and procedure) - [2025] ARTA 468

BHATT and AUSTRALIAN SKILLS QUALITY AUTHORITY (Practice and procedure) [2025] ARTA 468 (29 April 2025)
Applicant:Urmila BHATT
Respondent: AUSTRALIAN SKILLS QUALITY AUTHORITY
Tribunal Number: 2024/11101

Tribunal:General Member Darian-Smith
Place:Sydney
Date:29 April 2025

Decision:1. The Tribunal refuses the Applicant’s application for 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 18 December 2024.
2. The interim stay order made on 13 January 2025 is discharged.

.....................[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 refused.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s.41
Administrative Review Tribunal Act 2024 (Cth) s. 32
Education Services of Overseas Students Act 2000 (Cth) s.83
National Vocational Education and Training Regulator Act 2011 (Cth) ss. 36, 39, 56, 58, 199
Cases
Bayahow and Australian Skills Quality Authority [2025] ARTA 176
Beezley v Repatriation Commission (2015) 68 AAR 23
Bringans and Australian Securities and Investments Commission [2022] AATA 3403
Birdseye and Tax Practitioners Board [2020] AATA 1250
Ekeh and Australian Skills Quality Authority [2025] ARTA 264
Greenfield Education Pty Ltd and Australian Skills Quality Authority [2018] AATA 4210
McNamara; Secretary, Department of Social Services [2016] AATA 189
Rozario and Australian Skills Quality Authority [2025] ARTA 241
Scott and Australian Securities and Investments Commission [2009] AATA 798
Site Skills Group and Australian Skills Quality Authority [2019] AATA 1870
Statement of Reasons

The Applicant (Ms Bhatt) is a former student of Gills College Australia Pty Ltd (Gills College), which during the time she was a student was a registered vocational education and training (VET) provider under the National Vocational Education and Training Regulator Act2011 (Cth) (NVR Act).
Ms Bhatt obtained the qualification CHC 33015 Certificate III in Individual Support (Qualification) from Gills College, issued in 2023.
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, and as an overseas provider under section 83(3)(c) of the Education Services of Overseas Students Act 2000 (Cth)[1] effective from 21 November 2024.
[1] Supplementary T-documents, ST1 – ST3, pages 1-46.
On 18 December 2024, the CEO of ASQA, acting in her role as the National VET Regulator, made the decision to cancel the Qualification, under s.56 of the NVR Act, effective on 27 December 2024 (Reviewable Decision).[2]
[2] T3, T-documents, pages 44 - 49.
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 Ms Bhatt, had the skills and knowledge necessary to be awarded a VET qualification. The findings, and evidence, in question were:
“(a) 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.
(b) Gills College did not demonstrate it had a system in place to ensure all trainers and assessors were suitable qualified or experienced.
(c) Gills College did not implement an assessment system that ensured assessment complied with the requirements of the relevant training package.
(d) 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.
In addition:
(e) 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.
(f) 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.
(g) 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, pages 45 and 48 - 49.
The findings and evidence in sub-paragraphs (e), (f) and (g) were generic to the body of Gills College students who had been awarded VET qualifications and were not said by ASQA to be applicable in Ms Bhatt’s case.
In essence, the Qualification was cancelled because ASQA was not satisfied that Gills College had provided Ms Bhatt with the training or assessment necessary to achieve the outcomes and competencies necessary to support the Qualification.[4]
[4] T3, T-documents, page 49, [3], [7].
On 20 December 2024, Ms Bhatt applied for review of the Reviewable Decision.[5] She also applied for a stay of the Reviewable Decision under s.32(2) of the Administrative ReviewTribunal Act 2024 (Cth) (ART Act).
[5] T1, T-documents, pages 1 - 10. The Reviewable Decision is a reviewable decision under s. 199 of the NVR Act.
On 13 January 2025, the Tribunal ordered that the Reviewable Decision be stayed on an interim basis until 17 January 2025 (interim stay order).
The interim stay order was extended on 17 January 2025 until 31 January 2025. It was further extended on 31 January 2025 until 17 April 2025 and on 17 April 2025 until the date of the publication of Reasons for Decision on the stay application, or until further order.
On 10 April 2025, ASQA filed an Outline of Respondent’s Submissions on Applicant’s Request for a Stay (Respondent’s Submissions).
On 10 April 2025, ASQA filed and served an affidavit of Monique Munro dated 9 April 2025 with Annexure “MM-1” (Munro Affidavit). Annexure “MM-1” is a file note recording a telephone discussion between Ms Munro and Karen Loiterton (Ms Loiterton), Administration Manager of Catholic Healthcare Ltd, which conducts The Haven in Wagga Wagga, New South Wales where Ms Bhatt has been, and currently is, employed.
CANCELLATION OF THE QUALIFICATION
The cancellation of the Qualification was made under ss. 56(1)(a) and 56(1)(d) of the NVRAct which relevantly read:
“56 National VET Regulator may cancel VET qualifications and VET statements of attainment
(1) 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…
(d) it is appropriate, in all the circumstances, because of action the Regulator has taken, or is taking, in relation to: …
(ii) the organisation, in respect of the VET course, or part of the VET course, to which the qualification relates; …”
The principal issue for determination at the substantive hearing of the application for review will be about whether it was appropriate for the Qualification to have been cancelled under s. 56 of the NVR Act. Consideration of that issue, other than at a high level in forming a view about likely prospects of success, does not need to be undertaken by the Tribunal in determining this application.
TRIBUNAL’S POWER TO GRANT A STAY
The Tribunal’s power to grant a stay has been considered in some detail by me in Bayahow and Australian Skills Quality Authority [2025] ARTA 176 (Bayahow) at paragraphs [14] – [23], and subsequently in Ekeh and Australian Skills Quality Authority[6] (Ekeh). Both Bayahow and Ekeh are matters in which the applicant is a former student of Gills College whose qualifications had been cancelled by ASQA. The relevant principles are not reproduced in full here.
[6] [2025] ARTA 264 at paragraphs [15] – [16].
The Tribunal notes the following points for present purposes:
(a) Although the wording in s. 32(2) of the ART Act differs from the wording of its predecessor s. 41 of the AdministrativeAppeals Tribunal Act 1975 (Cth) (AAT Act), its operation and effect are similar, and the authorities determined under s.41 of the AAT Act remain relevant.
(b) A stay order operates as an exception to the General rule stated in s.32(1) of the ART Act (which general rule is to the effect that an application for review does not affect the implementation and operation of the decision under review), and may be granted by the Tribunal under s. 32(2) if it “considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.” and
(c) The range of factors to be considered by the Tribunal in the consideration of a stay are well established by the decision in Re Scottand Australian Securities and Investments Commission[7] (Scott) and the cases such as Birdseye and Tax Practitioners Board[8] which have followed Scott.
[7] [2009] AATA 798.
[8] [2020] AATA 1250.
The 6 factors 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.[9]
[9] [2009] AATA 798, [4].
EVIDENCE AND SUBMISSIONS AT HEARING
A feature of this application for a stay is the lack of evidence provided by Ms Bhatt in support of her application. The making of an order under section 32(2) of the ART Act requires the Tribunal to be satisfied that a stay is desirable to assure the effectiveness of the review. As the granting of a stay will prevent the operation and implementation of the Reviewable Decision until the final hearing, there must be a proper evidentiary basis for the Tribunal to form the requisite state of mind that a stay order is “desirable”.
While Ms Bhatt does not bear a formal legal burden of proof to adduce the evidence necessary to support her application, the authorities make it clear that this a practical burden usually borne by the applicant. The Tribunal in McNamara; Secretary, Department of Social Services[10], stated:
“Although no party bears a burden of proof 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.”[11]
This statement has been adopted in subsequent Tribunal decisions[12], and was endorsed by me in Bayahow.[13]
[10] [2016] AATA 189.
[11] [2016] AATA 189, [12].
[12] For example, Bringans and Australian Securities and Investments Commission [2022] AATA 3403, [47].
[13] [2025] ARTA 176, [17].
The explanation for this requirement is to be found in Beezley v Repatriation Commission[14], where the Full Court of the Federal Court stated:
“In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute.”[15]
[14] (2015) 68 AAR 23.
[15] (2015) 68 AAR 23, [68].
Ms Bhatt did not file written submissions or a witness statement for the purposes of her stay application. In her oral submissions, Ms Bhatt gave evidence, assisted by an interpreter of the Nepali language, that she had done everything required of her by Gills College in a “proper way”, including the completion of her student placement and the submission by her of assignments. I explained to Ms Bhatt that these matters went to the question of the appropriateness of the Reviewable Decision and that she would have an opportunity to be heard on these matters at the substantive hearing of her application for review.
In relation to the present consequences for her of the Reviewable Decision, Ms Bhatt submitted it was impacting her work and causing her significant mental stress. As Ms Bhatt had not provided evidence of her own as to the impact of the Reviewable Decision on her present employment with Catholic Haven Healthcare, I requested that the interpreter read the summary of Ms Loiterton’s evidence, which appears at paragraph 6.16 of the Respondent’s Submissions, to Ms Bhatt to enable her to comment as appropriate on the accuracy of the summary.
Paragraph 6.16 of the Respondent’s Submissions states:
“… The file note records the following information provided by Ms Loiterton:
(a) The Applicant is employed 3 days a week as a Personal Care Assistant and one day on the weekend as a Housekeeping Assistant.
(b) The Housekeeping Assistant role does not require a Certificate III.
(c) Although an application for a role as Personal Care Assistant requires a Certificate III, Catholic Haven Healthcare could continue to employ the Applicant in the Housekeeping Assistant role.
(d) The number of days per week that the Applicant would be employed in the Housekeeping Assistant role would depend on the master roster and shift availability. The Applicant previously worked 5 days a week in the Housekeeping Assistant role.
(e) There is a pay difference between the Personal Care Assistant role and the Housekeeping Assistant role (the Personal Care Assistant rate is higher), but the difference is slight.
(f) Ms Loiterton provided the “Statement of Service” dated 19 December 2024 to the Applicant. The Applicant has not made Ms Loiterton aware of the cancellation of her Certificate III.”
Ms Bhatt indicated, in response to each of sub-paragraphs (a) – (f), that she agreed with the statements made.
ASQA relied primarily on their written submissions, outlining in the Respondent’s Submissions its position on the various Scott factors. These are considered further below.
In oral submissions, Ms Van Proctor, appearing for ASQA, made the following points:
(a) The principal submission for ASQA is there is really very little reason to issue a stay because there is no evidence that a stay order is required to prevent materially adverse outcomes for Ms Bhatt resulting from the cancellation of the Qualification. and
(b) The public interest considerations are critical in the aged care sector and should be accorded primary importance by the Tribunal when considering the Scott factors in the present application.
STAY FACTOR (A) PROSPECTS OF SUCCESS
The Tribunal’s decision in Bayahow contains a statement of the relevant principles in respect of this Scott factor at paragraphs [32] – [36]. The key points for present purposes are that the Tribunal is not required to conduct a full consideration of the merits when determining a stay application, but it does need to be satisfied that the Applicant has “some prospects of success” before a stay can be granted.[16]
[16] Greenfield Education Pty Ltd and Australian Skills Quality Authority [2018] AATA 4210, [7].
Counsel for ASQA submitted that on the material currently before the Tribunal, Ms Bhatt’s “prospects of success are limited.”[17] In making that submission, ASQA accepts that a comprehensive assessment of the merits of the application for review is neither necessary nor appropriate for the purposes of the stay application.
[17] Respondent’s Submissions, [6.24].
Ms Van Proctor took the Tribunal to paragraph [6] of the Statement of Reasons, which forms part of the Reviewable Decision, in which ASQA states that, having provided Ms Bhatt with an opportunity to respond to the notice of intent, her response showed that there was insufficient evidence that Ms Bhatt:
(a)” … was provided with appropriate training and/or assessment by Gills College.
(b) … was assessed as fully meeting the requirements of the issued qualification/statement of attainment by Gills College prior to it being awarded.
(c) … has been assessed by a suitably qualified VET assessor as having acquired the requisite learning outcomes and competencies for the issued qualifications, either at the time qualifications and/or statements of attainment were issued or since.”[18]
[18] T3, T-documents, page 49.
The Tribunal was then taken by counsel to T6 in the T-documents, which contains copies of assessment records[19] and Ms Bhatt’s completed Workplace Experience Logbook.[20] In respect of the assessment records, ASQA submitted that no evidence of external assessment is apparent on the face of the documents or of who conducted the assessment, if one was completed. In respect of the Workplace Experience Logbook, it was submitted that it was not possible to identify either the supervisor of the workplace experience noted in the log, or who had assessed Ms Bhatt. ASQA said that on the material currently in evidence, there was a doubt that there had been an assessment of Ms Bhatt’s skills by someone who was appropriately qualified.
[19] T6, T-documents, pages 64-94.
[20] T6, T-documents, pages 99-105.
ASQA acknowledges that the Tribunal “cannot be satisfied that either: (a) the Respondent’s decision is unassailable; or (b) the Applicant’s case is plainly hopeless (although the Respondent contends that the Applicant’s prospects are limited).”[21]
[21] Respondent’s Submissions, [7.3].
The Tribunal would have no difficulty in finding that Ms Bhatt meets the threshold requirement of having “some prospects of success”, which would be needed to support the granting of a stay. While this factor weighs only slightly in favour of a stay, it is outweighed in this case by the public interest considerations and the remaining Scott factors, which indicate that a stay is not desirable.
STAY FACTOR (B) CONSEQUENCES FOR THE APPLICANT OF THE REFUSAL OF A STAY
At a practical level, the most important consideration in determining the consequences for Ms Bhatt of the Reviewable Decision, is the impact that the cancellation of the Qualification is likely to have on her current employment at Catholic Haven Healthcare. In evidence is a “Statement of Service” dated 19 December 2024[22] provided by Ms Bhatt’s employer, Catholic Healthcare, which records that she has been employed from 10 April 2024 as Housekeeping Assistant and from 2 July 2024 as Personal Care Assistant and her status is Permanent Part Time. It further notes:
“Urmila started working with us as a Housekeeping Assistant. After completing her Cert 3 we have now offered her a role as Personal Care Assistant.”
[22] T6, T-documents, page 98.
As previously noted, in the absence of further evidence from Ms Bhatt concerning her employment situation at the Haven, the Munro Affidavit is the main source of information on this point. ASQA’s submission is:
“This evidence establishes that there is no immediate threat or risk to the Applicant’s continued employment with Catholic Haven Healthcare, that the applicant can continue her employment in the role as Housekeeping Assistant, and although this role has a lower pay rate than the role of Personal Care Assistant, the difference is slight.”[23]
ASQA further submits, and the Tribunal agrees, that in this respect the present case is very similar to the facts in Ekeh.
[23] Respondent’s Submissions, [6.17].

The Tribunal accepts Ms Bhatt’s evidence that she has experienced considerable stress and that her mental health and emotional well-being have been adversely affected by the Reviewable Decision. However, the Tribunal is not satisfied that her employment with Catholic Healthcare is seriously at risk. I am not persuaded that the granting of a stay is required to preserve Ms Bhatt’s ability to continue her paid employment with Catholic Healthcare, at least in the capacity of Housekeeping Assistant at the Haven, pending the substantive hearing of the application for review.
STAY FACTOR (C) THE PUBLIC INTEREST
ASQA submits that the public interest considerations in this case weigh strongly against the granting of a stay.[24]
[24] Respondent’s Submissions, [6.2] – [6.7] and [6.12].
The Respondent’s Submissions refer to the public interest, identified in the Tribunal’s decision in Site Skills Group Pty Ltd and Australian Skills Quality Authority[25], in ensuring that people who hold a qualification issued by a Registered Training Authority “have been properly trained to a high standard.”[26]
[25] [2019] AATA 1870.
[26] [2019] AATA 1870, [87].
The Qualification in issue relates to the provision of care and support in the aged care and disability sectors, in which there is significant public interest in ensuring the safety and well-being of particularly vulnerable members of the community. ASQA notes that the published findings of recent Royal Commissions into Aged Care Disability and Safety and, separately, into Violence, Abuse, Neglect and Exploitation of People with Disability, have thrown light onto the serious issues around the widespread provision of sub-standard care.
The Tribunal recognises, and accepts, that the potential risk to the safety of care recipients in having their care entrusted to people who may not be suitably qualified is critical to the consideration of the public interest in the context of the protective nature of the NVR Act. SM Harrowell in Rozario and Australian Skills Quality Authority[27] recently stated: ‘As to the NVR Act, when considering the question of public interest … this legislation is protective. As such, depending on the nature of the qualification, permitting a person not properly qualified to maintain use of certificates and qualifications inappropriately awarded may pose a substantial risk to those who might rely on the person in question being suitably qualified.”[28] I respectfully agree.
[27] [2025] ARTA 241.
[28] [2025] ARTA 241, [19].
ASQA contends that the cancellation of the Qualification is appropriate as part of its obligation as the National VET Regulator in upholding the purposes of the NVR Act. ASQA submits that:
“… it is in the public interest to ensure that:
(a) the Applicant should not be able to conduct any employment on the basis of her Certificate III.
(b) the Applicant’s employer or future employers should be entitled to know what skills, knowledge and competencies the Applicant actually possesses (rather than making that assumption on the basis of a cancelled qualification) and be able to engage the Applicant in appropriate employment and supervision that is commensurate with her past experience.”[29]
[29] Respondent’s Submissions, [6.7].
Ms Van Proctor directed the Tribunal to Ms Loiterton’s evidence, noted in Annexure “MM-1” to the Munro Affidavit, that in relation to the supervision arrangements for Ms Bhatt:
“… generally Personal Care Assistants work in pairs but there are times when care is provided only by one staff member such as when a staff member is on break or is assisting a resident.”
The Tribunal accepts the force in the submission that the public must have confidence that those who are providing one-on-one care to the most vulnerable people in the community are suitably trained and qualified to provide that care.
The Tribunal agrees with ASQA’s submission that the public interest factor tends strongly towards the refusal of a stay in this matter.
STAY FACTOR (D) CONSEQUENCES FOR THE RESPONDENT IN CARRYING OUT ITS REGULATORY FUNCTION
The Tribunal accepts that if a stay was to be granted, Ms Bhatt would continue to hold a qualification issued by a VET provider which has had its registration cancelled by ASQA. The Tribunal also accepts that it is important that the public can have confidence that a person holding a Certificate III in Individual Support has completed the training and assessment required to hold that qualification.
However, in circumstances where proceedings between Gills College and ASQA are yet to be completed, the Tribunal must exercise some caution in weighing this factor. With that caveat, the Tribunal finds that this factor weighs to some extent against the granting of a stay.
STAY FACTOR (E) WHETHER THE APPLICATION FOR REVIEW WOULD BE RENDERED NUGATORY IF A STAY WERE NOT GRANTED
Ms Bhatt has not made a submission to the Tribunal that the substantive hearing in this matter would be rendered pointless if her application for a stay was to be refused. She has indicated that she wishes to progress his application for review to a substantive hearing, without delay, irrespective of whether she persuades me that a stay is desirable in the circumstances. The Tribunal finds that the application for review would not be rendered nugatory if the stay is not granted.
CONCLUSION AND DECISION
I am not persuaded that it is desirable to grant a stay for the purpose of ensuring the effectiveness of the review.
On the material before the Tribunal, it does not appear that Ms Bhatt will suffer any irreversible detriment in the period between the publishing of these Reasons and the substantive hearing as the result of the Reviewable Decision. Further, the refusal of a stay will not affect her prospects of success on her application for review. The parties have both indicated a preparedness to proceed to a final determination of this matter promptly, which should assist Ms Bhatt to mitigate any ongoing detriment to her which might arise, or continue, in the period until the substantive hearing.
Accordingly, the application for a stay is refused and the interim stay order made on 13 January 2025 is to be discharged.
Date of Hearing:  17 April 2025
Advocate for the Applicant:      Ms U Bhatt, Self-represented
Counsel for the Respondent:    Mr C Van Proctor
Solicitors for the Respondent:   Ms M Peake, Clayton Utz