Care Education and Training Services Pty Ltd and Australian Skills Quality Authority

[2020] AATA 4699

Care Education and Training Services Pty Ltd and Australian Skills Quality Authority [2020] AATA 4699 (25 November 2020)

Division:GENERAL DIVISION

File Number:          2020/4337

Re:Care Education and Training Services Pty Ltd

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:25 November 2020

Place:Sydney

The Tribunal refuses the applicant’s application for a stay pursuant to subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth).

..........[sgd]..............................................................

Mr Rob Reitano, Member

CATCHWORDS

PRACTICE AND PROCEDURE – STAY APPLICATION – cancellation of registration of a registered training organisation – where applicant failed to comply with “Standards” – reputational damage – where Tribunal considers interests of persons affected by the decision – prospects of success in application for review – stay refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Vocational Education and Training Regulator Act 2011 (Cth)

CASES

Scott and Australian Securities and Investments Commission [2009] AATA 798

REASONS FOR DECISION

Mr Rob Reitano, Member

25 November 2020

1. Care Education and Training Services Pty Ltd (CETS) has asked the Tribunal to make an order staying the operation of the Australian Skills Quality Authority (ASQA) decision dated 19 June 2020 to cancel CETS’s registration under the National Vocational Education and Training Regulator Act 2011 (Cth) (NVET Act), with effect from 24 July 2020.

2. I have decided to refuse the application for a stay, and these are my reasons for doing so.

   BACKGROUND

3. On 25 February 2015, CETS was registered as a registered training organisation under the NVET Act.

4. On 25 and 26 February 2020, ASQA conducted an audit of CETS’s operations. The audit found that CETS was not compliant with various standards laid down by the Standards for Registered Training Organisations (Standards).

5. On 17 March 2020, ASQA notified CETS that it was intending to cancel CETS’s registration and would not renew its registration. ASQA invited CETS to respond and, if it chose to, provide evidence of its compliance with the Standards.

6. On 6 June 2020, after receiving CETS’s response, a further audit report was prepared which also found that CETS was still not compliant with many of the Standards.

7. On 19 June 2020, ASQA advised CETS that it would proceed to cancel CETS’s registration.

8. On 17 July 2020, CETS filed an application to the Administrative Appeals Tribunal (the Tribunal) for review of ASQA’s decision cancelling its registration.

9. On 23 July 2020, the Tribunal granted a conditional interim stay of ASQA’s decision. The conditions of that stay were in effect that CETS cease all enrolment, training activities or engage in any marketing. It has offered those as conditions that it is prepared to abide by if a final stay was granted.

10. CETS has indicated that it is no longer enrolling students, assessing students or undertaking any marketing and, so it would seem, does not intend to do so until it is compliant with the Standards.

    ISSUE

11. The only issue is whether an order should be made under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) staying the operation and implementation of ASQA’s decision to cancel CETS’s registration.

    THE DISCRETION TO STAY A DECISION

12. There is no issue that the Tribunal has power to make an order staying the operation or implementation of a decision like the one that is subject to review in this case. The power to make such an order is found in subsection 41(2) of the AAT Act, which provides:

    (2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), 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, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

13. The power to make an order under subsection 41(2) includes the power to make an order with conditions. Also, subsection 41(3) permits the Tribunal, on request being made by a party, to vary or revoke an order made under subsection 41(2) so the matter can be revisited after an order is made if that should become necessary.

14. The discretion in subsection 41(2) involves considering the desirability of making an order after considering the interests of those affected by the review as well as identifying the purpose of securing the effectiveness of the hearing and determination of the matter.

15. In determining the question of whether it is desirable to grant a stay, it is also necessary to consider the matters identified by Downes J in Scott and Australian Securities and Investments Commission [2009] AATA 798, in particular, whether there are prospects of an applicant succeeding in its application and whether the review would be rendered nugatory if a stay were not granted.

16. In cases like this one, involving cancellation of registration of a registered training organisation, the interests of person affected by the review would ordinarily be those of CETS itself, employees, students, and probably future students. But given that CETS is not undertaking, and does not propose to undertake, any training or assessment and is not marketing itself, those kinds of interests do not really need to be considered.

17. The two interests that CETS puts forward is its interest arising from ‘reputational damage’ occasioned by the cancellation of its registration and the effect that that will have on staff.

18. I accept that there would inevitably be some reputational damage associated with cancellation of the registration of a registered training organisation. I do not consider that evidence is necessary to make good that proposition because it is a fairly rational consequence of cancellation of registration. The extent of any such damage in a given case might be a matter that calls for proof. I consider that the reputational damage to CETS is a matter that I can, and should, take into consideration as an interest of a person affected by the review.

19. Next, for reasons that were not clearly explained, it was suggested by CETS that cancellation of registration would have the effect of requiring a reconsideration of whether staff levels should be reviewed even though no training, enrolment, assessment or marketing was taking place. There was no identification of how staff would be affected or how many staff would be affected if a stay were not granted such that it makes it difficult to identify in any precise way the effect on staff. I am unable to put much weight on this interest.

20. I consider on the material before me, and as things presently stand, that assessment of CETS’s prospects of success is problematic to say the least. The material suggests that CETS is not compliant with the Standards and there is nothing before me that suggests that it has does take any steps to bring about compliance with the Standards at any time in the future.

21. I do not consider that the review will be rendered nugatory by refusing a stay because CETS’s could still present its case and, if it were able to persuade the Tribunal that its registration should not be cancelled, a decision could be made restoring its registration.

22. For much the same reason, I do not consider that a stay is necessary in this case for the ‘purpose of securing the effectiveness of the hearing and determination of the matter’. The refusal to grant a stay will have no obvious effect on the capacity of the hearing to proceed or a decision to be made concerning the substantive application for review.

23. Although I have accepted there may be some reputational damage of an indeterminate nature to CETS and some indeterminate effect on its staff, I do not consider in all the circumstances that this is an appropriate case to grant a stay. No other interests justifying a stay was put forward. The other considerations, CETS’s likelihood of success, the fact that it will still be able to run its case and the fact that it is not, in any event, proposing to operate as a registered training organisation until it rectifies its non-compliance, weigh against granting a stay. This is especially so because the purpose for which a stay is intended is unable to be satisfied.

    CONCLUSION

24. I refuse the applicant’s application for a stay pursuant to subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

.........[sgd]...............................................................

Associate

Dated: 25 November 2020

Date of hearing:	19 August 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Mr T Lloyd, Australian Skills Quality Authority