Business Institute of Australia Pty Ltd and Australian Skills Quality Authority - [2019] AATA 699

Business Institute of Australia Pty Ltd and Australian Skills Quality Authority [2019] AATA 699 (16 April 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0670
Re:Business Institute of Australia Pty Ltd
APPLICANT

AndAustralian Skills Quality Authority
RESPONDENT

File Number(s): 2019/0697
Re:Wells International College Pty Ltd
APPLICANT

AndASQA
RESPONDENT

File Number(s): 2019/0703
Re:Warwick Institute of Australia Pty Ltd
APPLICANT

AndASQA
RESPONDENT

DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:16 April 2019
Place:Sydney

1.The decision of ASQA made on 5 February 2019 under section 10B of the ESOS act, to impose conditions upon the registration of:
(a)Business Institute of Australia Pty Ltd
(b)Wells International College Pty Ltd
(c)Warwick Institute of Australia Pty Ltd

under section 10 of the ESOS act, is stayed until further order of the Tribunal;
2.Within 72 hours of the publication of these orders, ASQA is to take all measures reasonably available to it to remove from any website under its control any publication of the Decision and all the conditions imposed by the Decision
3.ASQA is to refrain from publicising the Decision and all the conditions imposed by it until further order of the Tribunal.

...................................[sgd].....................................
The Hon. Dennis Cowdroy OAM QC
Deputy President

CATCHWORDS
POLICY AND PROCEDURE – application to stay decision of Australian Skills Quality Authority – decision to impose conditions on Applicants’ registration – stay granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) section 41
Education Services for Overseas Students Act 2000 (Cth) ss 4A, 6E, 9, 10A, 10B, 19, 83, 93, Div 3
National Vocational Education and Training Regulator Act 2011 (Cth) ss 2A, 16, 155
CASES
Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685
Australian Securities and Investments Commission and PTLZ [2008] FCAFC 164
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37
Burris v Hallit [2014] NSWCATAP 39
“Confidential” and Australian Prudential Regulation Authority [2002] AATA 1346
Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 289
Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257
Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380
Re Scott and the Australian Securities and Investments Commission [2009] AATA 798
SAS Realty Developments Pty Ltd v Kerr [2012] NSWCA 233 12 July 2012
VBJ and Australian Prudential Regulatory Authority (2005) 87 ALD 747
Young and Secretary, Department of Agriculture, Fisheries and Forestry [2002] AATA 1231
Zou v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 289
SECONDARY MATERIALS
National Code of Practice for Providers of Education and Training to Overseas Students 2018
REASONS FOR DECISION
The Hon. Dennis Cowdroy
16 April 2019

The applicants apply, pursuant to section 41 (2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT act”) for a stay of three decisions made by the respondent (“ASQA”), in respect of colleges conducted by the applicants, namely Business Institute of Australia Pty Ltd (“BIA”), Wells International College Pty Ltd (“WIA”), and Warwick Institute of Australia Pty Ltd (“WIC”), which are collectively referred to hereunder as “the colleges”.
Each of the colleges is a registered training organisation pursuant to the provisions of the National Vocational Education and Training Regulator Act2011 (Cth) (“the NVR act”).
Pursuant to the provisions of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS act”), ASQA has been appointed as an ESOS agency and accordingly is invested with powers to regulate “approved providers” under the ESOS act.
The applicants are privately owned companies and are registered under the NVR act as registered training organisations and “approved providers” under the ESOS act.
ACTION BY ASQA
At approximately 10:30 AM on 15 January 2019 three officers from ASQA attended, without prior notice, the premises of WIC in Sydney. With the consent of the chief executive officer of the colleges (CEO) namely Sirapha Wunnacharoensri (otherwise known as “May” or “May Wunna”), the officers entered the premises of WIC to check the attendance at each class. A camera was used to film the activities. At approximately 11:30 AM the officers again walked around the premises to check the attendance at each class and then spoke to WIC’s academic manager and requested copies of the attendance register kept by the academic manager, together with samples of student assessments.
Later on the same day at 2:30 PM, again without prior notice, the same officers entered BIA’s premises in Sydney and with permission, they walked around the premises to check on the attendance of the classes and again used a camera to film the attendance. A copy of the student attendance record folder for term four 2018 was photocopied.
On 18 January 2019, the CEO forwarded two emails to ASQA attaching student consultation attendance register and two student assessment samples’ relating to WIC.
On 29 January 2019 ASQA sent a letter to each of the colleges (“the intention letter”) informing them that ASQA had, on the evidence it obtained, decided to take action. Specifically, the letter advised each college that ASQA had decided to give written notice, pursuant to section 93 (2) of the ESOS act, of ASQA’s intention to impose conditions under section 10B of the ESOS act. The conditions proposed were as follows:
·for the purposes of clause 8.12 of the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code) the registered provider's process for determining the point at which an overseas student has failed to meet satisfactory course attendance must be at the point that the student has failed to attend any greater amount than 20% of the total of the scheduled contact hours for the course in a study period;
·for the purposes of clause 8.12.3 of the National Code the registered provider's policy and process for monitoring and recording attendance of the overseas students must require the registered provider to identify, notify and assist students who have been absent for five consecutive days of the scheduled course contact hours, even where those days are not adjacent to one another;
·for the purposes of clause 8.13 of the National Code the registered provider must assess whether a student a has maintained satisfactory course attendance at the end of each week in the study period;
·from 6 February 2019 on every Wednesday for the prior week, the registered provider must produce to ASQA to [email protected] marked attention to The Proper Officer, a spreadsheet with the following information:
ofor every cohort, on a separate tab for each cohort, on each tab:
§    one axis of the spreadsheet listing each student with their first name, last name and student ID In that cohort, and;
§    on the other axis of the spreadsheet identifying each class by date, time (identifying scheduled commencement and ceasing time) and length (measured in hours and minutes of the class) as well as the trainer/assessor scheduled to train or assess that class and room location; that each student in the cohort is required to attend because it is part of the scheduled contact hours for the course;
odata:
§    populating the spreadsheet identifying each class that each student did or did not attend in each week in the study period;
§    totals identifying for each student; the total hours scheduled for the study period, the total hours attended in each week and a cumulative total of the percentage hours attended as a proportion of the total scheduled contact hours;
§    identifying if each student has been issued an warning letter, a breach of attendance letter or has been reported for non-attendance; and,
·from 6 February 2019 in accordance with 8.1 and 8.10 of the National Code, the registered provider must implement and maintain minimum attendance requirements for overseas students as a condition of its registration; and, must keep, maintain and produce those records on request to Australian Skills Quality Authority {ASQA);
·the registered provider must maintain and produce on request to the ASQA, class rolls for each class, containing the name of each student scheduled to attend that class, signed by each student who did attend that class at the commencement and ceasing of each class and signed by each trainer/assessor training or assessing in that class for all VET courses.
The intention letter, issued pursuant to section 93(2) of the ESOS act, gave each registered provider 72 hours to give ASQA written submissions concerning the above conditions. Such time allowance is provided in section 93(3) of such act.
The intention letter stated the purpose of such conditions and provided a statement of reasons. Such letter referred to the power provided by section 83 (1) of the ESOS act which allowed an agency (i.e. in this instance, ASQA) to take action referred to in subsection 83 (3) if the agency believed on reasonable grounds that the provider is breaching or has breached the provisions of the ESOS act or is breaching or has breached the National Code.
The letter referred to an analysis of the evidence obtained as a result of the inspection of the colleges, and an analysis drawn from the Provider Registration and International Student Management System (PRISMS) from which it was stated that the colleges had:
(a)breached paragraph 19 (1) (d) of the ESOS act by failing to report, on 110 occasions over 12 months preceding 15 January 2019, the termination of a student’s studies before students course was completed, within the 31 days as required by section 19 (1) (d) and subsection 19 (1A) of the ESOS act;
(b)breached paragraph 19 (1) (f) of the ESOS act by failing to report on other prescribed matter relating to accepted students (including deferment due to student misbehaviour or in compassionate and compelling circumstances) within 31 days, as required by paragraph 19 (1) (d) and subsection 19 (1A) of the ESOS act. ASQA claimed such notification was not given on six occasions over the preceding 12 months.
ASQA alleged that the breaches demonstrated a lack of due care in the discharge of the reporting functions.
ASQA further alleged that the percentage of students in attendance at BIA identified that, whereas 46 students were said to be enrolled in a course in Room 1, only one student attended; another course conducted in Room 2 of 33 enrolled, there was no attendance; in Room 3, 35 students were meant to be in attendance but only 2 were in attendance; and in Room 4, 10 students were enrolled but there were no students present in the room.
The intention letter referred to the following requirement of the National Code:
“Registered providers must safeguard the integrity of Australia’s migration laws by supporting overseas students to complete their course within the required duration and fulfil their visa requirements for course attendance and course progress”.
The intention letter also stated that ASQA was concerned that the colleges were failing to ensure students met minimum attendance requirements.
The intention letter stated that ASQA considered that the provider’s attendance records required by Standard 8 of the National Code showed significant levels of non-attendance, it could indicate that the provider was not complying with the obligations under clause 1.1 and clause 1.2 of the Standards for RTOs and clause 11.2.1 of the National Code. The letter continued:
“Those provisions require the RTO to determine the amount of training for each student based on their existing skills and competencies and to ensure the courses for international students do not exceed the time required to complete the course on a full-time basis with a minimum attendance of 20 course contact hours a week. The evidence of low attendance observed during the site visit indicates the provider may not be meeting these obligations. The application of attendance monitoring conditions is an appropriate and proportionate regulatory response to concerns that a reasonable proportion of the provider’s students may be non-genuine.”
APPLICANTS’ REPLY
By letters dated 1 February 2019 the applicants responded pointing out certain alleged deficiencies in the allegations, for example the relevant date for the commencement of the calculation of the 31 day notice period. It was alleged that ASQA had selected the “last day of study” rather than the date of termination for a student studies in its assessment of whether section 19 (1) (d) of the ESOS act had been breached .Further the letter challenged the claim that that there was a lack of care in the providers reporting obligations; alleged that the “snapshot” of student attendance was not “necessarily a fair and accurate assessment of the Provider’s overall student attendance performance”; and all allegations of breaches were denied.
The statement of May Wunna filed in support of this application dated 8 February 2019 (“the statement”) states that the majority of students enrolled at the colleges are overseas students; that BIA has 574 overseas students enrolled; WIA has 505 overseas students enrolled and WIC has 698 overseas students enrolled.
Such statement discloses that BIA has been an RTO and VET provider since 2004; and it has invested expenses of approximately $850,000 in a fit out of its premises and purchase of computers and furniture. The statement also disclosed that WIA has been an RTO and VET provider since 2006. WIA invested approximately $500,000 in fit out of its premises in 2009 together with computer equipment and campus furniture. A further $350,000 was expended in 2017 in fitting out a new campus in Brisbane. A similar amount was expended by WIC which has been a registered training organisation and VET provider since 1998.
The colleges state that no conditions have ever been imposed upon the registration of the colleges requiring them to monitor the absence of the overseas students. It is asserted that the conditions imposed will, at least, have a deleterious effect upon the colleges because the mandatory reporting of unsatisfactory course attendance “may cause students to be in breach of their visa condition 8202, even though, prior to ASQA’s recent action, there was no mandatory attendance requirement” for the colleges; that the business of the colleges will suffer because the students will apply to another VET provider and will then leave the colleges; that prospective students and recruitment agents will regard the courses at the colleges as less flexible compared courses offered by other VET providers. It is claimed that there will be a loss of profit and revenue in the immediate future which will diminish the business of the colleges.
The supplementary statement of May Wunna dated 7 March 2019 provides details of the 20 scheduled contact hours in each week during the term and attaches spreadsheets relating to 30 students who have attended each of the colleges between 7 January 2019 and 3 February 2019, and again between 4 February 2019 and 3 March 2019. The schedules set out the contact hours for each student.
As at the date of such statement 535 of BIA’s 576 students were overseas students whose visas were subject to condition 8202; in respect of WIA, 475 of the 526 students were overseas students who are subject to such condition; and in respective WIC, 645 of 697 students were overseas students whose visas were subject to such condition. Ms Wunna states that the numbers provided in her first statement were approximations as there had been additions and cessations of enrolment of students between the making of such statements.
The applicants assert that the conditions of registration did not require an 80% attendance by its students; that other RTOs and VETs are not subject to such requirements; and that the enrolled students are unaware of such a requirement.
PRINCIPLES
The power to provide a stay is contained in section 41 (2) of the AAT act. Significantly, before a stay is granted the Tribunal must determine whether it 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 has been held that the consideration which must be foremost in the Tribunal’s consideration is the scheme embodied by the legislation.
In Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130 at paragraph 52, the Full Court of the Federal Court stated:
The context set by that scheme is a ‘fundamental element’ in the formation of the opinion according to law.
The Tribunal also observes that the operation of section 41 (2) of the AAT act must include consideration of the persons whose interests are to be taken into account by the Parliament in giving the decision-maker power to make the decision as part of its regulatory role. See VBJ and Australian Prudential Regulatory Authority (2005) 87 ALD 747 at paragraph 42.
The Tribunal has previously determined that the following considerations must be taken into account when determining whether to exercise the power generally to grant a stay.
1The prospects of success,
2The consequences of the application of the refusal of a stay,
3The public interest,
4The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not,
5Whether the application for review would be rendered nugatory if a stay were not granted, and
6Other matters which are relevant include the length of time that has been in place already and the gap between the day of the application and the day of the hearing of the application.
Such principles were stated in Re Scott and the Australian Securities and Investments Commission [2009] AATA 798. The same considerations have been referred to in Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380. Similar observations were made by the Full Court of the Federal Court of Australia in Australian Securities and Investments Commission and PTLZ [2008] FCAFC 164. The principles have also been adopted in state courts, for example, see Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 693-694, 695; SAS Realty Developments Pty Ltd v Kerr [2012] NSWCA 233 12 July 2012; Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 289 at [25]. The same principles have also been adopted in New South Wales tribunals; see, for example, Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 at paragraphs 7 to 9; and Burris v Hallit [2014] NSWCATAP 39 at paras 11 to 13.
The Tribunal has recognised that hardship may arise involving a private applicant and that public and private interests must often be weighed together. See for example re Young and Secretary, Department of Agriculture, Fisheries and Forestry [2002] AATA 1231. See also “Confidential” and Australian Prudential Regulation Authority [2002] AATA 1346. In the latter case a stay was refused because it was considered that the applicant’s own conduct had contributed to its failure to obtain a licence within the requisite time to continue its business, and the prospects of success in a substantive application of principles were weak.
STATUTORY PROVISIONS
The NVR act makes provision for the creation of a National Vocational Education and Training (VET) Regulator, as provided by section 155 of such act. The objects of the NVR act are, inter alia, to provide for national consistency in the regulation of VET and to protect students by ensuring the provision of quality VET (see section 2A of the NVR act). Pursuant to section 16, a person may apply to the National VET Regulator for registration as a registered training organisation (RTO).

The ESOS act is stated to be an act “to regulate education services for overseas students, and for related purposes. The objects of the ESOS act are stated in section 4A to be:
“The principal objects of this Act are:
(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.”
A “provider” is defined in section 6E of the ESOS act to include, relevantly, a registered higher education provider (6E (1) (a)), or a registered VET provider (6E (1) (b)). By virtue of section 9, a “provider” may apply to be registered to provide a course or courses at a location or locations to overseas students: see section 9 (1).
Where a provider makes the application referred to in section 9, the ESOS agency for the provider may register the provider to provide the course or courses at a location or locations if the provider meets the registration requirements. It is common ground that ASQA is the relevant ESOS agency for the purposes of registration of the applicants as providers.
Section 10A provides that where the provider makes an application under section 9 and the ESOS agency for the provider decides to register the provider, notice of such registration is provided containing the details set out in section 10A.
Subdivision B entitled “Conditions of registration” contained in Division 3 of the ESOS act empowers the ESOS agency to impose conditions on a provider’s registration. Such conditions comprises an exercise of its regulatory duty to ensure that registered organisations under the NVR act and providers under the ESOS act are complying with the statutory requirements which permit them to conduct their businesses. Such function constitutes an important aspect of the regulation of international colleges, particularly where Australia’s reputation as a provider of courses for learning and qualifications is viewed as part of the regulatory purpose.
To achieve such purpose section 10B of the ESOS act provides:
1The ESOS agency for a provider or registered provider may at any time:
(a) impose a condition on the provider’s registration; or
(b) vary or remove a condition of the provider’s registration.
Each of the colleges is registered as a RTO and as an ESOS provider. As such, they are required to observe conditions imposed upon their registration, and where course standards and attendance records are concerned, each is required to observe the statutory requirements relating to such matters.
CONSIDERATION
The applicants’ submissions refer to the Statement of May Wunna forecasting the possibility of students leaving the college because of the existence of the conditions and possibly enrolling at another college. Reliance is also placed upon the fact that the decision made in respect of each college is unclear as to its effect; that in particular BIA’s overseas students could face serious prejudice if a stay is not granted because they may be placed in breach of their visa conditions by virtue of the imposition of the conditions; that contractors and staff may also suffer similar prejudice because of damage to BIA’s business; that there is no attack on the quality of the courses provided by BIA nor of its monitoring processes; that as a consequence, irreparable damage may be suffered by each college if a stay be not granted.
The applicants refer to the conditions imposed before the decision, and points the fact that there was no imposition of any minimum attendance requirements at the college. Previously, under the 2017 Code, minimum attendance requirements were stipulated. However, such requirement was no longer referred to in the 2018 version. Instead, progress requirements as stipulated in standard (for convenience referred to hereafter as clauses) clause 8.9 of the 2018 Code state the comprehensive requirements. Clause 8.9 provides that a registered provider of a VET course must have and implement a documented policy and process for assessing course progress.
Further, clause 8.10 of the Code provides:
“The registered provider must have and implement a documented policy and process for monitoring the attendance of overseas students if the requirement to implement and maintain minimum attendance requirements for overseas students is set as a condition of the provider’s registration by an ESOS agency.”
Clause 8.11 of the Code provides:
“If an ESOS agency requires a VET provider to monitor overseas student attendance as a condition of registration, the minimum requirement for attendance is 80% of the scheduled contact hours for the course.”
Further, the applicants rely upon the fact that clause 8.12 of the 2018 Code provides:
“If an ESOS agency requires a VET provider to monitor overseas student attendance, the registered provider must have and implement a documented policy and process for monitoring and recording attendance of the overseas student, specifying:
8.12.1 the method for working out minimum attendance under the standard
8.12.2 processes for recording course attendance
8.12.3 details of the registered provider’s intervention strategy to identify, notify and assist overseas students who have been absent for more than five consecutive days without approval, or who are at risk of not meeting attendance requirements before the overseas students attendance drops below 80%
8.12.4 processes for determining the point at which the overseas student has failed to meet satisfactory course attendance.”
The applicants refer to the use of the word “course” in the final words of clause 8.12.4, observing that it does not refer to term attendance; rather course attendance, thereby meaning the whole duration of the course.
The applicants submit that the decision is uncertain. For example, condition 5 under the challenged decisions require the provider to implement and maintain minimum attendance requirements for overseas students and produce such records upon request. However clause 8.11 of the 2018 Code only requires such records to be maintained if such recordkeeping is a condition of its registration. Further, the interrelationship between the proposed condition requiring the implementation and keeping of attendance records and clause 8.13 and 8.14 that relates to attendance requirements is unclear. Those clauses require a registered provider only to report unsatisfactory course progress or unsatisfactory course attendance where certain procedures have been followed.
Clauses 8.13 and 8.14 of the Code provides:
8.13Where the registered provider has assessed the overseas student as not meeting course progress or attendance requirements, the registered provider must give the overseas student a written notice as soon as practicable which:
8.13.1notifies the overseas student that the registered provider intends to report the overseas student for unsatisfactory course progress or unsatisfactory course attendance
8.13.2informs the overseas student of the reasons for the intention to report
8.13.3advises the overseas student of their right to access the registered provider’s complaints and appeals process, in accordance with Standard 10 (Complaints and appeals), within 20 working days.
8.14The registered provider must only report unsatisfactory course progress or unsatisfactory course attendance in PRISMS in accordance with section 19(2) of the ESOS Act if:
8.14.1the internal and external complaints processes have been completed and the decision or recommendation supports the registered provider, or
8.14.2the overseas student has chosen not to access the internal complaints and appeals process within the 20 working day period, or
8.14.3the overseas student has chosen not to access the external complaints and appeals process, or
8.14.4the overseas student withdraws from the internal or external appeals processes by notifying the registered provider in writing.
The applicants submit that conditions contained in bullet points 1 to 5 of the respondent’s intention letter are in effect irreconcilable with the 2018 Code. In particular, whether the minimum attendance requirements are applicable to students of BIA who were existing as at 6 February 2018; if so, whether the minimum attendance requirements were intended to mean that any student who fails to attend 80% of their courses scheduled contact hours with reference to the entirety the course, including the part of the course that occurred prior to 6 February 2019, is in breach of attendance requirements; or whether any student fails to attend 80% of the scheduled contact hours for part of the course that occurs from 6 February 2019 onwards is in breach of attendance requirements.
The applicants also submit that it is not clear whether, even if the minimum attendance requirements were intended to apply to students of BIA who were existing as at 6 February 2018, such requirements apply to the students in respect of term one of 2019, being a study period as defined in the 2018 Code; and if so whether the minimums attendance requirements were intended to mean that any student who fail to attend 80% of their courses scheduled contact hours for term 1 of 2019 with reference to the entirety of the term, including the part that occurred prior to 6 February 2019 is in breach of attendance requirements; or alternatively any student who fails to attend 80% of the schedule contact hours of term one that occur from 6 February 2019 onwards is in breach of the attendance requirements.
The applicants refer to the response of ASQA that states that it is intended that the minimum attendance requirements imposed by the conditions apply “for the remainder of the course of study from the date the condition came into effect”, namely 6 February 2019 and onwards. However, in reply the applicants say that such condition does not accord with the wording of clause 8.11 of the 2018 Code. Condition 1 refers to “the total of the scheduled contact hours for the course in a study period”, not part of the study period. Further, clause 8.11 refers to “the scheduled contact hours for the course”, not for part of a course.
The applicants submit that ASQA’s interpretation leads to unfairness: no minimum attendance requirements were imposed before the decisions on any of the BIA’s students who were entitled to assume that they would not become subject of minimum attendance requirements part way through their courses, especially with no notice. The effect of the conditions would be to impose a considerably stricter burden on students who are currently with BIA as at 6 February 2019 than the 2018 Code envisages which applies the 80% requirement across the whole course, not merely part of a course.
For these reasons, it is submitted that the Tribunal should find that it is not “desirable” under section 42 (1) of the act that a stay should be imposed. Further, it is submitted that the applicants have strong prospects of success, especially when the aspect of prejudice to the students and the colleges is considered. The applicants submit that if BIA is forced to give notice under section 19 of the ESOS act in respect of the students who failed to comply with a minimum attendance requirements, this will not only be damaging to BIA’s business but would lead to the conclusion that the students were clearly prejudiced. Clause 2.1.8 of the 2018 Code states:
“2.1. Prior to accepting an overseas student or intending overseas student for enrolment in a course, the registered provider must make comprehensive, current and plain English information available to the overseas student or intending overseas student on:
2.1.8 the grounds on which the overseas students enrolment may be deferred, suspended or cancelled…”
Further, clause 9.3 of the 2018 Code refers to the grounds on which a registered provider may suspend or cancel an overseas student’s enrolment:
“9.3. A registered provider may suspend or cancel a student’s enrolment including, but not limited to, on the basis of:
9.3.3 a breach of course progress or attendance requirements by the overseas student which must occur in accordance with Standard 8 (Overseas student visa requirements).
The applicants maintain that irreparable damage could be caused to BIA’s reputation and through loss of employment of work by staff and contractors and that the publication of the decision by ASQA on the website is damaging and that no interest is served by the publication remaining in place while the principal application is under review.
The respondent replies, stating that ASQA , having noted the attendance at the college on the day of its inspection, considered that it has a duty to safeguard the integrity of Australia’s migration laws by supporting overseas students to complete their courses; that it is concerned that the colleges are failing to ensure the students meet minimum attendance requirements. Further, ASQA has considered the attendance records maintained and finds that the records show significant levels of student non-attendance resulting in the conclusion that the colleges may not be complying with their obligations under clause 1.1 and 1.2 of the standards for RTOs and clause 11.2.1 of the Code. Such provisions require an amount of training for each student based upon their existing skills and competencies and to ensure that courses for international students do not exceed the time required to complete the course on a full-time basis with a minimum attendance of 20 course contact hours a week.
FINDINGS
The Tribunal is not required, on this application, to determine the correctness of the contentions of either party. Rather, the only consideration is whether it is desirable to impose a stay of the proceedings under section 41 (2) of the AAT act.
The respondent has far-reaching powers to impose conditions on the registration of a provider. Such conditions may be imposed at any time: see section 10B of the ESOS act, and may impose conditions whether or not they were imposed upon registration. Accordingly, the control which the respondent seeks to exercise over the colleges by way of the imposition of conditions is clearly within the power of the respondent. Such power can be exercised irrespective of the conditions which may apply to other providers.
But this is not the only issue raised in these proceedings. The applicants have pointed to issues which require explanation. For example, it appears to be undoubted that the requirements of the decision are inconsistent with the requirements of the Code. As has been emphasised, the colleges do not have any requirement, as existed prior to the introduction of the 2018 Code, to monitor overseas student attendance; see clause 8.10, 8.11 of the Code.
The Code is a statutory instrument. It is difficult, at this stage, to see how the respondent can impose a condition which might be inconsistent with the provisions of a statutory instrument. Further, there are difficulties in the way in which the decision conditions have been expressed, namely the doubt concerning whether the condition requiring monitoring of attendance must be over the whole course or part of the course and whether if it is part of the course, whether that in itself is inconsistent with clause 8.11 of the Code. The difficulties in determining such requirements with precision were considered in Zou v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 289 at [23] – [24]. There is also a finding that the 80% attendance requirement cannot be tested until the particular course of a student is concluded: see Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257 at [36] – [38]. It would place the applicants in an invidious position if they committed a breach of the conditions when the condition was founded upon an invalid premise or was interpreted incorrectly by ASQA.
Further, issues of fairness in relation to the notification to students of the requirement for minimum course attendance is a matter of consideration, especially if Australia’s reputation internationally as a place of learning for students is concerned.
The respondent has not proffered answers to the specific issues raised by the applicants in their submissions relating to the apparent conflict between the requirements of the conditions in the decision under review, and the requirements of the Code in respect of attendance requirements, course monitoring, and the operation of such requirements.
The issues raised by the applicants will require careful consideration and scrutiny at a hearing of the Application for Review. The Tribunal is satisfied that the applicants have prospects of success which are not fanciful: ultimately, the respondent will be able to exercise its statutory power to impose conditions, but the form of the conditions, and whether the challenge decision is correct, based upon the issues raised above, remains to be determined.
The public interest requires that the regulation of providers be strictly observed. However it must be observed in accordance with the statutory requirements, including the requirements of the Code.
Taking into consideration the important issues raised, and the possible prejudice to the colleges if it is found that the decision under review imposed conditions which were inconsistent with the Code, damage to reputation of the colleges could result. Whether this would extend to loss of student enrolment and possible termination of staff is speculation. However the Tribunal is mindful that the colleges have been registered as providers for 15 years. It can be assumed that they have built up a significant reputation over this time. Further the evidence shows that they have expended significant capital sums in the setting up of the colleges in two capital cities.
The Tribunal has indicated to the parties that it can arrange for a prompt final hearing of the Application for Review. The Tribunal considers that an early hearing is desirable, and that in the interim the applicants have made out reasons why a stay should be granted. The applicants have moved promptly for a stay, and there is no evidence of any prejudice that will be suffered by the respondent if the stay is granted in the interim. For these reasons, the Tribunal makes the orders below.
ORDERS
The Tribunal makes the following orders:
The decision of ASQA made on 5 February 2019 under section 10B of the ESOS act, to impose conditions upon the registration of:
(c)Business Institute of Australia Pty Ltd
(d)Wells International College Pty Ltd
(e)Warwick Institute of Australia Pty Ltd
under section 10 of the ESOS act, is stayed until further order of the Tribunal;
Within 72 hours of the publication of these orders, ASQA is to take all measures reasonably available to it to remove from any website under its control any publication of the Decision and all the conditions imposed by the Decision.
ASQA is to refrain from publicising the Decision and all the conditions imposed by it until further order of the Tribunal.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy.

..................................[sgd]......................................
Associate
Dated: 16 April 2019

Date(s) of hearing: 15 March 2019

Counsel for the Applicant: S Lloyd SC and B Mostafa

Solicitors for the Applicant: M Hung, Clearsky Legal

Solicitors for the Respondent: D Cox, ASQA

Date(s) of hearing:	15 March 2019
Counsel for the Applicant:	S Lloyd SC and B Mostafa
Solicitors for the Applicant:	M Hung, Clearsky Legal
Solicitors for the Respondent:	D Cox, ASQA