BJSB Pty Ltd (t/a The Imperial College of Australia) and Australian Skills Quality Authority
[2019] AATA 1053
•30 May 2019
BJSB Pty Ltd (t/a The Imperial College of Australia) and Australian Skills Quality Authority [2019] AATA 1053 (30 May 2019)
File Numbers: 2018/7618 and 2018/7626
Division:GENERAL DIVISION
File Number(s): 2018/7618 & 2018/7626
Re:BJSB Pty Ltd (t/a The Imperial College of Australia)
APPLICANT
AndAustralian Skills Quality Authority
RESPONDENT
DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:30 May 2019
Place:Melbourne
Pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders that the decisions of the Respondent dated 12 December 2018 are stayed until the decision of the Tribunal on the applications for review comes into operation.
..........[sgd].............................................
Dr Damien Cremean, Senior Member
Catchwords
PRACTICE AND PROCEDURE – application for stay of decision under s 41(2) of the Administrative Appeals Tribunal Act 1975 – renewal as registered training organisation and CRICOS provider refused by respondent – consideration of factors in deciding whether to grant a stay – application granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Education Services for Overseas Students Act 2000 (Cth)National Vocational Education and Training Regulator Act 2011 (Cth)
Cases
Josip Dekanic and Tax Agents Board of New South Wales, Re [1982] AATA 195
Shi v Migration Institute of Australia Ltd (2003) 134 FCR 326
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
30 May 2019
The Applicant applies under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) section 41 for a stay of the decisions of the Respondent made on 12 December 2018 to refuse renewal of the Applicant’s registration as a ‘registered training organisation’ under the National Vocational Education and Training Regulator Act 2011 (Cth) and as a ‘CRICOS provider’ under, ultimately, the Education Services for Overseas Students Act 2000 (Cth).
The Applicant has sought review of those decisions by applications lodged with the Tribunal on 21 December 2018.
By section 41(2) of the AAT Act; ‘…if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review…’ it may make an order or orders staying the operation of a decision or decisions under review ‘…for the purpose of securing the effectiveness of the hearing and determination of the application [or applications] for review.’
The application for a stay is opposed by the Respondent.
In support of the application for a stay, the Applicant relied on two affidavits (said to be ‘sworn’) of Paramjit Jaswal, Chief Executive Officer of the Applicant, dated 6 February 2019 and 21 March 2019.
Mr Jaswal, unusually in a matter of this kind, was called to give evidence and was cross‑examined by the Respondent’s Counsel on aspects of his affidavits including reference to certain financial or banking details. It should not be thought to be common practice to call persons to give evidence in stay applications.
The cross‑examination of Mr Jaswal clarified certain matters for me but did not go further in my view, and certainly did not satisfy me that I should reject his affidavit evidence in light of the cross‑examination.
In opposition to the application, the Respondent relied on two affidavits. One of David Keith Scott, officer of the Respondent, dated 15 February 2019 and one of Roxanne Elizabeth Sheehan, former officer of the Respondent, dated 25 March 2019 (amended).
In addition, the Applicant lodged short Submissions outlining the arguments in support of its application while the Respondent lodged lengthier Submissions detailing the reasons why, in its submission, the application should not be granted.
Senior Counsel on behalf of the Applicant submitted that the stay should be granted considering there were ‘contestable’ issues about the correctness of the decisions under review. He made particular reference to the evidence deposed to by Mr Jaswal in relation to the state of the kitchen at the premises where the Applicant, as Imperial College, has been conducting classes.
Counsel for the Respondent addressed the issue of the state of the kitchen in reply, and relying on the Respondent’s affidavit material, went on further to submit that it was clearly in the public interest not to accede to the Applicant’s application for the stay.
The public interest, I agree, is a factor to be considered, but only along with other factors, in deciding whether to exercise the discretion under section 41(2) to grant a stay.
There are a number of cases on the Tribunal’s power to order a stay, some of which appear in the written submissions of the parties. As was said by Davies J in Re Josip Dekanic and Tax Agents’Board of New South Wales [1982] AATA 195, however, the jurisdiction of the Tribunal under section 41(2) is ‘wide and diverse [such that] it is not practicable to lay down a principle or a set of specific principles applicable to every type of case in respect of which there may be an application for a stay.’ In that case His Honour granted a stay of a decision cancelling a tax agent’s registration.
Section 41(2) ‘is framed in broad general terms’ said Tamberlin J in Shi v Migration Institute of Australia Ltd (2003) 134 FCR 326 at [25] and should be given a ‘liberal interpretation’.
Although I was pressed by the Respondent’s Counsel very strongly with the public interest argument, I consider that whether that argument is right or not depends largely on whether the decisions under review are the correct or preferable ones or not. It cannot be in the public interest for the Applicant to go out of business, which is the effect of the decisions under review, if those decisions may be set aside upon a hearing as not being the correct or preferable ones on the evidence.
That latter conclusion can only be made, in my view, following a hearing in light of all the evidence presented to the Tribunal. I am unable to form a view that those decisions are or are not the correct or preferable ones until the hearing of the review has been concluded.
I do not consider it is proper for me at this point merely to guess about whether the Applicant will succeed in its review or not. However, I am satisfied that on a stay application it is proper to consider a party’s prospects of success. Doing that very thing, I am satisfied that the Applicant presents an arguable case based on its affidavit materials.
But this is not the place to conduct a hearing before a hearing to decide whether the Respondent’s contentions about the merits of the review are correct or not.
It would be tragic in my view not to grant a stay and then find out, later on, that the decisions under review, upon a hearing of the review applications, are not the correct or preferable ones and should be set aside.
This also raises a further point. The Tribunal has a review function and I consider that function is subverted if a stay is not granted. That is to say, the purpose of conducting a review hearing will be futile if the Applicant cannot carry on business awaiting the outcome of the review. There seems to be no point in conducting the review hearing if the Applicant has gone out of business as a result of the decisions under review not being stayed.
Therefore, in terms of the requirements of section 41(2), I do not see how I can secure the “effectiveness” of the review hearing, or its efficacy, unless a stay is granted.
Moreover, I am quite satisfied on the affidavit evidence of Mr Jaswal that a failure to grant a stay would have very serious consequences indeed, both for the Applicant and its employees in a wide range of ways. Those persons I consider are persons whose interests ‘may be affected by the review’ as section 41(2) stipulates.
In addition, as I have indicated, I am satisfied that there are contestable issues which need to be properly ventilated for determination at a substantive review hearing and not beforehand.
Indeed in a way, in joining issue so strongly with the Applicant over the issue of the state of the kitchen, the Respondent was self-defeating. The more there was to argue about that issue the more it became apparent to me that that issue alone, even apart from any others, was one which could only be determined at a proper review hearing.
In all the circumstances, I am quite satisfied that section 41(2) allows me to grant a stay in this matter.
DECISION
Pursuant to section 41(2) of the AAT Act, the Tribunal orders that the decisions of the Respondent dated 12 December 2018 are stayed until the decision of the Tribunal on the applications for review comes into operation.
I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member ......[sgd]................................................
Associate
Dated: 30 May 2019
Date(s) of hearing: 5 February, 1 and 26 March 2019
Solicitors for the Applicant: GPZ Legal
Nick GalatasCounsel for the Applicant: Mr Daryl Williams, QC
Solicitors for the Respondent: In house
Pidor SengCounsel for the Respondent: Ms Elizabeth Bennett
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