Complete Training Institute Pty Ltd and Australian Skills Quality Authority - [2018] AATA 4638

Complete Training Institute Pty Ltd and Australian Skills Quality Authority [2018] AATA 4638 (18 December 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1836
Re:Complete Training Institute Pty Ltd
APPLICANT

AndAustralian Skills Quality Authority
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:18 December 2018
Place:Melbourne

The Tribunal, being satisfied that the application has no reasonable prospect of success, dismisses the application under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.
..........................[sgd]..............................................
Senior Member D. J. Morris
Catchwords
PRACTICE AND PROCEDURE – application for review of rejection of registration as a registered training organisation – applicant alleges improper conduct by respondent – applicant admits flaws in original application – factors to be considered in terms of no reasonable prospect of success – what is threshold – fabricated document submitted – Tribunal satisfied application will not succeed on substantive review – substantive review being futile, Tribunal dismisses application without proceeding to review substantive decision
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 37, 42B
Federal Court of Australia Act 1976 (Cth), s 31A
Tribunals Amalgamation Act 2015 (Cth), Sch 1
National Vocational Education and Training Regulator Act 2011 (Cth), ss 2A, 3, 16, 17, 116, 155, 185, Sch 3
Standards for Registered Training Organisations (RTOs) 2015, made under subsection 185(1) and subsection 186(1) of the National Vocational Education and Training Regulator Act 2011 (Compilation date 6 July 2017)
Statutory Declarations Act 1959 (Cth)
Cases
Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority [2017] AATA 480
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60
REASONS FOR DECISION
Senior Member D. J. Morris
18 December 2018

On 30 November 2018, at the request of the Respondent, the Australian Skills Quality Authority (ASQA), an interlocutory hearing was held to consider whether the Tribunal should exercise its discretion to dismiss an application by Complete Training Institute Pty Ltd (Complete Training). The application relates to a reviewable decision by ASQA on 28 February 2018 to reject Complete Training’s application for registration as a registered training organisation (RTO), under section 17 of the National Vocational Education and Training Regulator Act 2011 (Cth)(the NVR Act).
At the hearing, Mr Stephen Rebikoff, of counsel, appeared with Ms Laura Hilly for ASQA and made oral submissions. Mr Fahad Ben Yousaf appeared as the representative of the Applicant, and also made oral submissions. The sole director and company secretary of the Applicant, Mr Ahmed Khalif Mohamed, who is also the Chief Executive Officer of Complete Training, was not present but Mr Ben Yousaf said he would be present at the substantive hearing of the application.
The Tribunal also had written submissions before it relating to summary dismissal of the application from the Respondent, dated 20 November 2018, and from the Applicant, dated 27 November 2018. The Tribunal also had before it two volumes of documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the second volume lodged following a direction from a Deputy President of the Tribunal (the T-documents).
At the commencement of the hearing, the Tribunal framed the matter for consideration as being whether the Tribunal should exercise its powers under section 42B of the AAT Act to dismiss the application. That section states:
Power of Tribunal if a proceeding is frivolous, vexatious etc.
(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a)       is frivolous, vexatious, misconceived or lacking in substance; or
(b)       has no reasonable prospect of success; or
(c)       is otherwise an abuse of the process of the Tribunal.
(2)If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(3)The direction has effect despite any other provision of this Act or any other Act.
It was accepted as common ground between the parties that the contention by ASQA is that Complete Training’s application has no reasonable prospect of success, and the hearing proceeded on that basis. It was also understood by the parties that, should the application for dismissal be refused, the matter would proceed to a substantive hearing by the Tribunal early in the New Year.
Opening submissions from ASQA
Counsel submitted that, from an analysis of the application for registration lodged with ASQA, the Applicant has sought to obtain registration as an RTO by submitting information and documents which do not genuinely reflect the reality of its conduct or the nature of its business. He submitted that, in so doing, Mr Mohamed has sought to mislead the regulator, including by presenting evidence of Complete Training’s business operations that was not truthful and [by] fabricating evidence in order to address concerns raised by ASQA.
[A]s a result, regardless of evidence subsequently submitted on behalf of the Applicant, ASQA contended that Complete Training has betrayed the trust and confidence necessary to satisfy the requirements for registration under the NVR Act. Counsel submitted that it therefore cannot be said that Complete Training complies with the VET Quality Framework established under the NVR Act or that the individuals in control of the Applicant are fit and proper persons to be involved in an organisation that provides, assesses or issues nationally recognised qualifications.
The legislative context
The NVR Act provides a framework for the national regulation of vocational education and training (VET) and ASQA is established as the National VET Regulator under section 155 of the NVR Act. Section 2A sets out the Objects of the NVR Act which are, amongst others, to protect and enhance Australia’s reputation for VET nationally and internationally and to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET.
Section 116 of the NVR Act provides that it is an offence to provide or offer to provide all or part of a VET course without registration as an RTO. Section 16 provides that a person may apply to be registered as an RTO. Section 17 provides that ASQA may grant an application for registration and, in considering such a grant, ASQA must consider whether the applicant complies with the VET Quality Framework and the applicable conditions of registration set out in the NVR Act.
Mr Rebikoff stated that the VET Quality Framework is defined in section 3 of the NVR Act and, relevantly in this matter, that framework includes the Standards for NVR Registered Training Organisations (the Standards) made under section 185 of the NVR Act. And the Standards, in turn, at Schedule 3, include ‘Fit and Proper Person Requirements’. At section 185 of the NVR Act are Financial Viability Risk Assessment Requirements.
The Fit and Proper Person Requirements include criteria for suitability to which ASQA should have regard in assessing whether a person meets those requirements. These Requirements include whether the person being assessed has ever provided a VET Regulator with false or misleading information or made a false statement to a VET Regulator and, if so, whether it is reasonable to assume that the person knew that the statement was false or misleading, and whether the public is likely to have confidence in the person’s suitability to be involved in an organisation providing nationally-recognised qualifications.
Complete Training
Before the Tribunal (T7, pp 51-54) was an Australian Securities & Investments Commission Current Company Extract dated 10 October 2016 for Complete Training Institute Pty Ltd (ACN 614 538 706). It records that the sole director is Mr Ahmed Khalif Mohamed, who also beneficially holds all of the 100 issued shares in the company. In his application to ASQA dated 10 October 2016, Mr Mohamed advised that he is also the Chief Executive Officer of Complete Training.
The application stated that Complete Training intended to deliver and assess a single qualification, namely a Diploma of Business, from an address in Caroline Springs, later changed to an address in Mount Waverley. On 13 February 2017 ASQA requested further information from Mr Mohamed including a copy of Complete Training’s business plan, financial projections and a bank statement.
On 17 February 2017 Mr Mohamed provided documents in response to ASQA’s request for further information (T20, p 175). One of the documents was a business plan prepared in October 2016 (T20.1, p 177). The business plan stated (all sic):
Executive Summary
Who We Are
The business is currently being established as a new RTO, specialising in courses for the business studies and we offer Diploma of business. The focus of the RTO is to deliver raining and assessment to support the community and specific industries with skilled labour.
Business is committed to ensure that teaching and learning processes are highly innovative and engaged with the result not just about gaining a qualification. Business will adopt a variety of learning strategies, which recognise and support the needs of learners from a variety of backgrounds. Training programs will be highly interactive and complemented by a motivated and dedicated team who will promote positive outcomes and provide a supportive learning environment. Business educators will be qualified workplace trainers and assessors and participate in ongoing professional development.
What We Sell
The resources will reflect its commitment – with a dedicated management team that has a strong background in industry and education. The team is focused on ensuring that the education experience is a positive one, with a comprehensive range of support services allowing students to learn in a healthy and supportive environment.
We offer diploma of business which has 8 units in it.
The Respondent drew the attention of the Tribunal to the business plan of a different RTO, ACET Pty Ltd (ST32, p 993). The contents of the Executive Summary for ACET Pty Ltd was identical to the text reproduced above in Complete Training’s business plan, including the same typographical and grammatical errors and infelicities of language. The Complete Training business plan also included the Diploma Program and Course Details (T20.1, p 179) which was identical to that of ACET Pty Ltd (ST32, p 994).
The Complete Training business plan stated (T20.1, p 184), under the heading Market Research (again all sic):
Demand for training is continuing to grow, demand for a professional acute training Organisation who will identify and up skill professionals within VET specializing in the First aid Course providers.
The ACET Pty Ltd business plan stated (ST32, p 999)
Demand for training is continuing to grow, demand for a professional acute training Organisation who will identify and up skill professionals within VET specializing in the First aid Course providers.
The Tribunal notes that neither Complete Training nor ACET Pty Ltd was actually offering first aid courses as part of their proposed business diplomas.
However, the business plan for another proposed RTO for which Mr Ben Yousaf is the compliance adviser, Paramount Training Institute, was also before the Tribunal (ST35, p 1043) and this entity is proposed to provide a first aid course. In the Market Overview for this company stated (ST35, p 1051) (all sic):
Demand for training is continuing to grow, demand for a professional training Organisation who will identify and up skill professionals within VET specializing in the First aid.
The VET Quality Framework includes (at clause 1.6 of the Standards for NVR Registered Training Organisations) a requirement that applicants for registration as an RTO undertake consultation with industry. Complete Training stated (T26.44, p 823) that on 3 October 2017 it had provided an industry consultation form to “Caroll” Ramsay of the organisation Mind Australia. The Applicant provided a document to Ms Ramsay and invited her to review the course overviews within the document (reproduced at T26.44 pp 824 to 829) and then to answer six typed questions.
The Tribunal had before it the questions with, in a different typewritten font, the answers. The document was purported to be signed by Ms Ramsay and dated 4 October 2017 (T.26.44, p 831). On the next page of the Respondent’s lodged documents was a form for the RTO manager to complete, apparently signed by Mr Mohamed, also on 4 October 2017.
In undertaking its assessment of Complete Training’s application, ASQA contacted Ms Carroll Ramsay about her completion of this form. The Lead Regulatory Officer of ASQA sent an email dated 10 January 2018 (T28, p 901) to Ms Ramsay, which relevantly said:
Further to our telephone conversation, please find attached a scanned copy of a completed Industry Consultation – Business form presented to ASQA by COMPLETE TRAINING INSTITUTE PTY. LTD.
Ms Amina Mohamed is the training manager of the applicant organisation and Mr Ahmed Mohamed is the CEO of the organisation.
Could you please review the form and let me know by return email if you recognise the form, the circumstances surrounding the form, if you sighted any documentation or what you can tell me about the signature on the form.
Your assistance in this matter is much appreciated.
The following day, on 11 January 2018, Ms Ramsay sent the following email to the relevant ASQA officer, with the subject heading “RE: Industry consultation”:
Further to our discussion yesterday, I have read over this form. I would like to withdraw my name from this application. I had been asked to sign paper work for Amina but did not cite [sic] any of the attached documentation and was not aware of the questions on this form that I certainly did not complete. I was under the impression that I was signing paper work for Amina and at no time did she explain the nature of the documents. Please feel free to call me if you have any questions or need to clarify anything further regarding this matter.
Yours sincerely
Carroll Ramsay
(Emphasis added.)
On the final page of the Industry Consultation Form was a document for the RTO manager to complete, to certify certain requirements about information given to the industry representative as part of the industry consultation. This document was apparently signed by the director of the Applicant company, Mr Ahmed Mohamed, and dated 4 October 2017.
Mr Rebikoff submitted that the similarities between the business plan of Complete Training and the other business plans with Mr Ben Yousaf as compliance adviser support the view that the business plans were, in fact, sham templates provided to ASQA only for the purposes of registration. He said the fact that the Applicant subsequently revised his business plan demonstrates that Mr Mohamed was initially willing to put forward false documents simply to gain registration.
Mr Rebikoff told the Tribunal that an initial audit had found some areas of compliance needed to be rectified but did not, at that time, identify similarities between Complete Training and other applications before ASQA in which Mr Ben Yousaf was compliance adviser. He said that between April and September 2017 ASQA senior managers began to notice similarities in completed documentation provided by a number of proposed RTOs. These similarities were not confined only to business plans but also in the names of proposed trainers and certain other commonalities. This discovery led to a more intense examination of specific applications by ASQA, including that of Complete Training.
Counsel submitted that Ms Ramsay’s complete disavowal of the industry consultation form submitted by Mr Ben Yousaf and certified by Mr Mohamed is evidence that no industry consultation in fact occurred, that Complete Training’s training manager, Mr Mohamed, misled Ms Ramsay as to the nature of the document in order to obtain her signature, and that the document was then submitted to ASQA in an attempt to pass it off as evidence of bona fide consultation in accordance with the requirements of the VET Quality Framework.
Submissions from Complete Training
Mr Ben Yousaf submitted that it is important that the regulator is honest and transparent. He said that there was much hearsay within ASQA which was not based on fact. Mr Ben Yousaf submitted that the use of the Commissioners of ASQA to consider Complete Training’s application was, in his words, “to kill a spider with a shotgun.” He said that the initial audit found that Complete Training was compliant but that this finding within ASQA was later “tampered with” and non-compliance was then found. Mr Ben Yousaf drew the Tribunal’s attention to an ASQA Risk Assessment form dated 11 October 2016 (T11, p 82) which had at its foot Regulatory Operations recommendation “Approve Application”.
Mr Ben Yousaf submitted to the Tribunal an email dated 5 February 2018 from the compliance area of ASQA’s Melbourne office which stated:
“Ismail Gabow is enquiring about his application which is part of the Ben Yousaf/Khan group.”
Mr Ben Yousaf said that this email illustrates that ASQA had invented a ‘Ben Yousaf/Khan group’, which was in fact a creation of ASQA. Mr Ben Yousaf said that he had provided compliance consultancy for around forty RTOs since 2014 and that, towards the end of 2016, ASQA “started to sit on the file”, which he submitted offended against their own requirements as a regulator to act promptly in regard to considering applications for registration.
Mr Ben Yousaf submitted that a view was adopted in ASQA that “any application from these boys should be rejected”. As a consequence, it appears to the Tribunal that he was alleging that an attitude of administrative unreasonableness was taken by ASQA simply because he was involved in assisting the Applicant with Complete Training’s submissions to the agency.
Mr Ben Yousaf conceded that there were a number of errors in the business plan submitted by Complete Training, and himself offered the example of including the reference to first aid courses in the plan which were not in fact proposed to be offered. Mr Ben Yousaf said that many of these errors were corrected in later documents submitted to ASQA. Mr Ben Yousaf also submitted that it was unreasonable for Mr Ahmed Mohamed to be found not to be a fit and proper person under the NVR Act because Mr Mohamed was not present and did not have an opportunity to be cross-examined and respond to some of the claims made.
ASQA’s response
Mr Rebikoff said that Mr Ben Yousaf’s citing of internal documents relating to initial audits of Complete Training could not be regarded as supporting the view that the organisation’s application should be approved. He said that the Risk Assessment form which contained the words “Approve Application” did not support this contention because plainly on the face of the document the regulatory compliance part of the form had not been completed and signed so there was no approval, initial or otherwise.
In terms of the use of the Commissioners to consider Complete Training’s application, Mr Rebikoff said that the NVR Act provided for this pathway and it was not a matter for the Tribunal to consider the internal processes of ASQA, provided the agency complied with the requirements of the legislation; such internal processes are a matter for ASQA management. Mr Rebikoff submitted that the reason this application was elevated to the notice of the Commissioners was because senior management at ASQA had identified the Complete Training application as being one of a group of 17 applications received between June and November 2016 that were submitted with the assistance of one or more of three consultants, including nine applications assisted by Mr Ben Yousaf.

The Respondent drew the Tribunal’s attention to a brief, prepared for a meeting of the ASQA Commissioners on 27 February 2018 (T5, p 40), on 17 initial applications for RTO registration and the report on the outcome of the audit of each of those applications and make recommendations. The nine lodged by Mr Ben Yousaf in the period between 14 June and 29 November 2016 include Complete Training and are listed in the brief (T5, p 40) as:
ACET Pty Ltd
Apple Education Pty Ltd
Avicenna Services Pty Ltd
Complete Training Institute Pty Ltd (the Applicant in this matter)
Enabling Training Institute Pty Ltd
National Education and Training Institute Pty Ltd
Sitti Institute of Education Pty Ltd
South Pacific Education College Pty Ltd; and
The Educators Pty Ltd.
Mr Rebikoff noted that eight other applications were lodged which involved the assistance of a Mr Hassan Khan and/or a Mr Shahzad Khan and that these two gentlemen (not believed to be related to each other) were formerly business colleagues of Mr Ben Yousaf. These eight applications were listed in the brief (T5, p 41) as being from:
Education and Care Skills Training Pty Ltd
Education and Skills Training Pty Ltd
Innovative Training Provider Pty Ltd
Nationwide Education Group Pty Ltd
Paramount Training Institute Pty Ltd
Patience Training Institute Pty Ltd
Skillwise Education Institute of Australia Pty Ltd; and
Victorian Education and Training Pty Ltd.
The brief for the Commissioners also referred to Mr Ben Yousaf’s involvement in the establishment of eleven other RTOs since June 2015. In regard to Complete Training’s application, the brief relevantly stated (T5, p 42), at paragraph 9:
Mr Ben Yousaf’s business model involves applying for a small number of units of competency from the Health Training Package or a single qualification from the Financial or Business Services Training Packages. The model includes pre-filled templates for financial viability, training and assessment strategies, assessment tools, industry engagement as well as policies and procedures to meet the requirements of initial registration.
Mr Rebikoff drew the Tribunal’s attention to the fact that the Commissioners had been advised of similarities in the applications in terms of some personnel, several trainers, business plans, and the use of the same accountancy firm, Fountain Gate Financial Services. The brief to the Commissioners states, at paragraph 12(e) “Industry consultation is identical across multiple applications.”
CONSIDERATION
The discretionary power of the Tribunal to dismiss an application was provided when section 42B of the AAT Act was amended by the Tribunals Amalgamation Act 2015 (Cth) (the Amalgamation Act). The Explanatory Memorandum, when the Amalgamation Act was being considered by the Parliament, stated that the proposed new grounds are similar to dismissal powers available to other bodies such as the Federal Court and the Queensland Civil and Administrative Tribunal and said ‘These powers would provide the Tribunal with greater power to dismiss unmeritorious matters early when appropriate.’
The dismissal powers of the Federal Court are provided in section 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act). That section reads:
Summary judgment
(1)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)    the first party is prosecuting the proceeding or that part of the proceeding; and
(b)    the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)    the first party is defending the proceeding or that part of the proceeding; and
(b)    the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)    hopeless; or
(b)    bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Court has apart from this section.
(5)This section does not apply to criminal proceedings.
In considering this section, Finkelstein J said in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60, at [22]:
[22] …If the test under s 31A raises the hurdle for the opposing party, it may be necessary for that party at a minimum to provide an outline of the evidence that will be relied upon. The outline must be sufficient to show that there is a genuine dispute about facts that are material to the outcome of the case. That will enable the judge to make some assessment of the merits. It would not, of course, be necessary, in most cases, to require the party to do more than provide an outline, because that would turn the summary judgment application into a trial.
[23] In other words, the section requires the judge to conduct what might loosely be described as a preliminary trial and look more closely than he would under an O 14 application to a party’s assertion that there is a real question of law or fact to be decided. Such an assertion is to be examined with a critical eye. The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial. There will be others where the opposing party has not been able to show that the asserted facts are likely to be established at a trial.
In Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority [2017] AATA 480, Deputy President McCabe considered a request by the Respondent to dismiss an application to review a decision to cancel the registration of the Applicant in that matter as an RTO. He said:
The power under s 42B is not exercised lightly. Its exercise denies the applicant the opportunity to put its case at a hearing where all of its evidence and submissions might be considered de novo. Where the application for dismissal relies on s 42B(1)(b), the Tribunal will need to be confident it can make any necessary findings of fact on the basis of the material before it that is not seriously contested. (It may not be necessary to make findings of fact in some circumstances: for example, where the applicant is unable to succeed as a matter of law.) It will also need to be confident that material which has not yet been adduced would not change the outcome. Ultimately, the Tribunal should be satisfied it is not appropriate to wait for a final hearing because there are no reasonable prospects of success.
With respect, the Tribunal agrees with Deputy President McCabe’s view that the power in section 42B is not to be exercised lightly. It is a discretionary power to be used rarely and always with a high degree of caution. In determining whether the Tribunal is satisfied that the dismissal power be exercised, that determination must be considered in the context of section 2A of the AAT Act which exhorts the Tribunal to purse the objective of providing a mechanism of review that is, amongst other things, accessible and proportionate to the importance and complexity of the matter.
In my view that does not mean that the dismissal power should only be used if the application cannot succeed as a matter of law or is, on the facts before the Tribunal, ‘hopeless’ or ‘bound to fail’ because the Parliament did not include a provision equivalent to section 31A(3) of the FCA Act when it amended section 42B of the AAT Act. It would accordingly be wrong for the Tribunal to equate the phrase ‘no reasonable prospect of success’ as meaning that for an application to be dismissed it must be meritless. What it means is that the Tribunal must be comfortably satisfied that there is no reasonable prospect, on an objective examination of the information before the Tribunal and having considered submissions from parties, of the Applicant succeeding in the objective he is seeking. The objective that Complete Training is seeking is to be registered as an RTO under the NVR Act.
In the hearing, Mr Ben Yousaf suggested that ASQA had “tampered” with material submitted by Complete Training. There was no evidence to support this assertion. He also submitted that officers of ASQA had adopted a predetermined position to reject applications with which he or the Messrs Khan have been involved, simply because of their involvement, rather than because of the content of the applications themselves. He cited the email of 5 February 2018, which referred to an application being “part of the Ben Yousaf/Khan group” in support of this contention.
The documents provided under section 37 of the AAT Act disclose that ASQA was considering Complete Training’s application with sixteen others in a more thorough way, precisely because of the similarities that had been identified in each of these applications. In the light of this, the fact that an ASQA officer used the shorthand term “part of the Ben Yousaf/Khan group” in an email does not indicate anything sinister to the Tribunal at all. Had Mr Ben Yousaf been able to point to evidence of ASQA somehow singling out Complete Training’s application for more critical assessment over and above that legislatively required by the provisions of the NVR Act, in particular the VET Quality Framework referred to above, that might possibly point to some irregular treatment. But he offered no such evidence.
I qualifiedly accept Counsel’s submissions on behalf of ASQA that the internal arrangements of the agency in considering Complete Training’s application are not a matter for adjudication by the Tribunal. The qualification is that where such internal arrangements might be found to have affected the exercise of discretion, that fact may be relevant. However, the general approach of the Tribunal is that, provided the government department or agency required to administer a statute does so consistently with the requirements of that statute, how the matter is considered is not usually relevant. If Mr Ben Yousaf was intimating that the more rigorous consideration and more detailed audit affected the likelihood of approval under the NVR Act, this indeed may be the case.
Mr Ben Yousaf’s frank submissions that the business plan of Complete Training was, effectively, a template (which is how he explained the wrong references to first aid courses) indicates, on his own admission, not only as Mr Mohamed’s representative in this hearing but as Complete Training’s compliance adviser, that the business plan is inconsistent with a proposed RTOs obligations under the NVR Act. Persons applying for registration as RTOs are expected to provide more than ‘cut and paste’ documents.
ASQA submitted that the engagement of the same accounting firm by Complete Training, as was engaged by a large number of other applicants, pointed towards the application not being bona fide. By itself, the Tribunal does not find this particular point compelling. The fact that an accounting firm has established experience with other RTOs may well encourage other prospective registrants of RTOs to seek out their services.
In terms of the industry consultation forms signed by Ms Ramsay (T26.44, p 831), and the certification by the RTO Manager that the consultation had occurred, signed by Mr Mohamed (T26.44, p 832), the Tribunal was troubled by the uncertain origins of these documents. They appear, at least in the photocopied versions before the Tribunal, to have signature blocks in a larger font size and bolder typeface than the other parts of the same document on the same page. Mr Ben Yousaf confirmed that the documents had been scanned and sent to ASQA but that he had retained the originals on behalf of Mr Mohamed.
The Tribunal directed that the Applicant provide the originals of these two pages so that the Tribunal could satisfy itself that the signatures were original and to remove any doubt that they might have been added from another document. The Tribunal took this step because Ms Ramsay’s email indicated that she had in fact signed either a blank document or a document that Ms Amina Mohamed had already signed, which Ms Ramsay thought she was simply signing as a witness. It is apparent (T28, p 831) that Ms Amina Mohamed did not sign the document purportedly signed by Ms Ramsay.
Mr Ben Yousaf said that he held the original documents on behalf of Mr Mohamed either in his office, or stored in his garage, and agreed he would provide them to the Tribunal by 5 December 2018, or advise if he could not. On 5 December 2018 he advised the Tribunal in writing (all sic):
I have gone through my office files and records kept against complete Training institute and regret to inform that I cannot find originals signed documents
Because the originals cannot be provided by the Applicant, the Tribunal is unable to make a finding regarding their authenticity, but in terms of the industry consultation report, Ms Ramsay has already totally repudiated it by stating that she did not fill in the answers on the form submitted by Mr Mohamed and purporting to be written by him. The documents therefore carry no weight.
Among the other concerns about Complete Training’s application, this is the most stark, because it indicates, on its face, that Mr Mohamed has supplied a document, holding out that it was signed by a third party as genuine industry consultation, when it was completely fabricated and intended to mislead the assessors in ASQA.
As a result of this fact, the Tribunal is satisfied that there are no reasonable prospects of the substantive application for registration under the NVR Act, succeeding. In terms of whether Mr Mohamed fulfils the requirements of being a fit and proper person to be Chief Executive Officer of an RTO, the Tribunal acknowledges Mr Ben Yousaf’s submissions that, in his view, it would be unfair to make such a determination in Mr Mohamed’s absence. Balancing that point, is the fact that Mr Mohamed is Chief Executive Officer of the Applicant company in this matter and had the opportunity to appear at the interlocutory hearing but chose not to.
In addition, the Tribunal is also satisfied on the evidence that Mr Ahmed Mohamed apparently certified that Ms Ramsay had completed a form which she has said she had not completed, and then sent that certification to ASQA, presenting it as valid documentation for the assessment of Complete Training’s registration.
While it would have been desirable for Mr Mohamed to be able to explain himself in person to the Tribunal, the facts before the Tribunal are incontrovertible. Mr Mohamed signed the Fit and Proper Person Requirements declaration (T8, p 58) which makes clear it is a statutory declaration under the Statutory Declarations Act 1959 (Cth). Question 10 of the form asks:
Have you ever provided false or misleading information or made a false or misleading statement to:
i. a regulatory authority (or delegate) of registered training organisations; or
….
Mr Mohamed crossed the box marked ‘no’ to this question.
On the evidence before the Tribunal and the open admissions of Mr Ben Yousaf about the ‘cut-and-paste’ business plan and fabricated industry consultation, the Tribunal also concludes that the fit and proper person requirements cannot be satisfied.
Overall, the Tribunal is troubled that the Applicant in this matter has, at best, what can only be described as an insouciant attitude to his application. As mentioned, he did not attend the hearing and when Mr Ben Yousaf was asked about his non-attendance, the Tribunal was told Mr Mohamed and the training manager, Ms Amina Mohamed, were too busy.
It would appear to the Tribunal that Complete Training has little of the architecture expected of a bona fide RTO. The site of its operations was a set of serviced offices in Mount Waverley rented on a month-by-month basis. The business plan it submitted was inaccurate, flawed and largely a cut-and-paste document from other applications separately lodged with ASQA around the same time. In terms of its financial viability, Complete Training’s bank account (T20.5, p 204) showed a total balance as at 8 November 2016 of $1,645.57. In addition, as outlined above, the industry consultation purportedly undertaken by Mr Mohamed was fabricated.
The Commonwealth Parliament has included in the NVR Act a range of particular provisions to protect the reputation of Australia’s VET sector. It would appear that there are some people who view the establishment of RTOs purely through the lens of setting up a marketable business product. For these people, the acquisition of registration has little to do with providing genuine vocational and skills training courses to students, and a lot to do with acquiring some ‘value’ for the entity to be used only to generate income, or to be on-sold. In this interlocutory decision the Tribunal does not make a formal finding that Complete Training is in this category, but the consistency of the evidence before the Tribunal does all points inexorably in that direction. The evidence before me reflects a worrying lack of truthfulness in the material submitted to ASQA and an equally worrying lack of appreciation of ethical and legislative obligations. This is inconsistent with the Objects of the NVR Act and the reasonable expectations of an RTO.
As mentioned above, the test in terms of section 42B(1)(b) of the AAT Act is whether there is a reasonable prospect of an application for review succeeding in terms of the matter reviewable under an enactment, in this case registration under the NVR Act. Although the dismissal power under section 42B of the AAT Act should be used sparingly and cautiously, I am comfortably satisfied in this case on the material before me that Complete Training’s application has no reasonable prospect of success. Proceeding to a hearing under these circumstances would be futile and an inappropriate use of the time and resources of the Tribunal. The Respondent’s application for dismissal is granted.
DECISION
The Tribunal, being satisfied that the application has no reasonable prospect of success, dismisses the application under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.

64. I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the written reasons for the decision herein of Senior Member D. J. Morris

..............[sgd]...........................
Associate
Dated: 18 December 2018