Construction Industry Training Australia Pty Ltd and Australian Skills Quality Authority - [2019] AATA 2219

Construction Industry Training Australia Pty Ltd and Australian Skills Quality Authority [2019] AATA 2219 (29 July 2019)
Division:GENERAL DIVISION
File Number(s): 2019/2380
Re:Construction Industry Training Australia Pty Ltd
APPLICANT

AndAustralian Skills Quality Authority
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:29 July 2019
Place:Perth

The Tribunal makes no order.
......................[sgd]..................................................
Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – application for stay of decision under s 41(2) of the Administrative Appeals Tribunal Act 1975 – relevant considerations – is prospects of success a relevant consideration? – consequences of not granting a stay – parties affected – is hearing rendered nugatory? – public interest – conditions attaching to stay – stay order to remain in place
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 37, 41(2), 42C(1)
National Vocational Education and Training Regulator Act2011 (Cth) – ss 2A, 3, 21, 22(1), 36(2), 36(2)(f), 36(3), 39, 39(1), 179(2), 180(2), 185(1), 199, 200(2), 201, 203(2),
Standards for Registered Training Organisations (RTOs) (2015) – cls 1.1, 1.2, 1.3, 1.8, 2.3, 2.4, 3.1, 4.1, 5.2
Oaths, Affidavits and Statutory Declarations Act 2005 (WA) – ss 9, 12
CASES
Australian International College Pty Ltd v Australian Skills Quality Authority [2001] FCA 2097
Institute of Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 4127
Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 250; (2001) 106 FCR 76; 184 ALRD 473; 63 ALD 373
Menzies Institute of Technology and Australian Skills Quality Authority [2019] AATA 343
Re Commonwealth and Quirke [1986] AATA 57; (1986) 9 ALD 92
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re Gurkhas Institute of Technology Pty Ltd trading as Royal Gurkhas Institute of Technology and Australian Skills Quality Authority [2017] AATA 1018
Re Oaklands and Australian Securities and Investments Commission [2011] AATA 199
Rust-Oleum Australia Pty Ltd and Australian Pesticides & Veterinary Medicines Authority [2017] AATA 298
Samir Pty Ltd and Aged Care Standards and Accreditation Agency [2012] AATA 333
Scott and Australian Securities and Investments Commission [2009] AATA 798
Stirling Skills Training (Inc) and Australian Skills Authority [2019] AATA 1721
Sunrise Institute of Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3935
Technical Education Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3047
Windshuttle v Commissioner of Taxation [1993] FCA 553; (1993) 46 FCR 235; 93 ATC 4992; [1993] FCA 553; 27 ATR 88
REASONS FOR DECISION
Deputy President Boyle
29 July 2019
THE APPLICATION

This is an application for an order staying the operation of the Respondent’s decision to cancel that Applicant’s registration under s 39 of the National Vocational Education and Training Regulator Act 2011 (Cth) (the NVR Act) (the Decision).
Pursuant to s 42C(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act),
on 14 May 2019 orders were made by consent that pursuant to s 41(2) of the AAT Act the operation of the Decision be stayed pending further order of the Tribunal and that while the stay is in effect the Applicant:
(i)must not enrol students;
(ii)must not issue VET statements of attainment or VET qualifications;
(iii)must retain, and provide to the Respondent and the Tribunal upon request, copies of completed student assessment records
(the current stay order).
BACKGROUND
The Respondent is the National Vocational Education and Training (VET) Regulator under the NVR Act with powers and functions to regulate NVR registered training organisations (RTO).
The Applicant is an RTO under the NVR Act.
On 8 November 2016 the Applicant obtained RTO registration under the NVR Act. At that time the Applicant’s scope of registration included the following two stand-alone units of competency (subjects) which the Respondent audited prior to granting registration:
(i) RIIWHS202D Enter and work in confined space; and
(ii) RIIWHS204D Work safely at heights.
The Respondent advises that in April 2017 ownership of the shares in the Applicant changed with Mr Charles Posselt as the new CEO and sole director/shareholder of the Applicant. Around this time the Applicant applied to add the following four additional VET courses to its scope of registration which the Respondent approved without audit:
(i) BSB30415 Certificate III in Business Administration;
(ii) CPC40110 Certificate IV in Building and Construction (Building);
(iii) UEE20111 Certificate II in Split Air-conditioning and Heat Pump Systems;
(iv) UEE32211 Certificate III in Air-conditioning and Refrigeration.
The Respondent further advises that prior to acquiring the shares in the Applicant Mr Posselt operated several other companies including:
(i) Total Action Group Pty Ltd;
(ii) Oz Eco Energy Pty Ltd;
(iii) Oz Eco Group Pty Ltd; and
(iv) College of Climate Change Pty Ltd.
It is claimed by the Respondent, and as far as I am aware, not disputed by the Applicant, that the companies referred to in [7] operated as third-party providers of VET courses in partnership with other RTOs.
Commencing on 2 August 2018, the Respondent conducted a site audit of the Applicant’s compliance with the requirements of the NVR Act (the audit)
As a result of the audit the Respondent found the Applicant to be non-compliant with clauses 4.1, 5.2, 1.1, 1.2, 1.3, 1.8, 3.1, 2.3, and 2.4 of the Standards for Registered Training Organisations (RTOs) 2015 (the Standards).
On 3 September 2018 the Respondent issued the Applicant with a notice of audit

non-compliance and intention to make a decision to suspend the Applicant’s registration. A copy of the Respondent’s audit report was provided with that notice which advised that the Applicant could respond to the notice.
On 12 October 2018 the Applicant provided the Respondent with evidence in response to the notice. The Respondent reviewed the evidence but formed the view that the Applicant had failed to rectify the non-compliances identified in the audit report.
On 17 December 2018 the Respondent issued a notice of intention to cancel the Applicant’s registration as an RTO and provided an updated audit report which,

the Respondent says, addressed the responsive information provided by the Applicant.
On 25 January 2019 the Applicant provided the Respondent with further information and material.
On 3 April 2019 the Chief Commissioner of the Respondent signed a document by which he agreed with a recommendation to cancel the Applicant’s registration effective 35 days after the Respondent notified the Applicant of the decision to cancel its registration.
By letter dated 8 April 2019 the Respondent advised the Applicant that the Respondent had decided to cancel the Applicant’s registration as an RTO under s 39 of the NVR Act with effect from 13 May 2019.
JURISDICTION
I refer to the decision that I handed down earlier this month in the matter of Stirling Skills Training (Inc) and Australian Skills Quality Authority [2019] AATA 1721 (Stirling).
That decision was handed down after the hearing in the present matter. The facts in Stirling, in particular the procedures and documents by which the same Respondent made and communicated its decision to cancel that applicant’s registration as an RTO, are for relevant purposes, the same as the procedures and documents by which those steps were taken by the Respondent in the present case.
As the decision in Stirling identified, there were some questions relating to:
(a)Whether there was an effective decision by the Respondent to cancel the RTO’s registration because:
(i)The “decision” upon which the Respondent relies is the agreement by the Chief Commissioner of the Respondent to a recommendation that the RTO’s registration be cancelled under ss 36(2)(f) and 39 of the NVR Act;
(ii)The relevant instrument of delegation did not delegate to the Chief Commissioner (being a Commissioner) the power to cancel registration under s 39, although it did delegate the power under s 36(2)(f) which refers to the exercise of the power to cancel under s 39 of the NVR Act; and
(iii)
Although s 179(2) of the NVR Act provides that the Chief Commissioner is the Chief Executive Officer and that s 180(2) of the NVR Act provides that “[a]ll acts and things done in the name of, or on behalf of, the National VET Regulator by the Chief Executive Officer are taken to have been done by the Regulator”, in agreeing to the recommendation to cancel the registration in the document appearing at pages 13 and 14 of the documents produced by the Respondent under s 37 of the AAT Act,

the Chief Commissioner identified that he was acting as
“Chief Commissioner for the Commissioners”. Section 180(2) of the NVR Act, however, refers to “[a]cts and things done in the name of, or on behalf of, the National VET Regulator by the Chief Executive Officer” as being an act or thing done by the Regulator. In agreeing to the recommendation the Chief Commissioner identified himself to be acting “on behalf of the Commissioners”, not “in the name of, or on behalf of, the National VET Regulator.”; and
(b)
Whether the Tribunal has jurisdiction because s 199 of the NVR Act identifies the decisions made under that act which are reviewable by the Tribunal. That section does identify some decisions made under s 36 (items 9, 10 and 11) as being decisions which are reviewable by the Tribunal and also identifies decisions to cancel registration under s 39 as being reviewable by the Tribunal (item 13).

It does not, however, nominate a decision made under s 36(2)(f) as being a reviewable decision.
In relation to issue (a) in [18], as I did in Stirling, I find in this matter, for the purposes of this application for a stay, that while the instrument of delegation does not specifically delegate to a Commissioner (which would include the Chief Commissioner) the function or power to cancel registration under s 39 of the NVR Act, it does so indirectly by delegating the power under s 36(2) which, by subsection (f), includes the power to cancel registration under s 39.
In relation to issue (b) in [18], I find, as I did in Stirling, that the Chief Commissioner agreeing to the recommendation to cancel the Applicant’s registration, apparently done on

3 April 2019, was a decision to cancel the registration under s 39 of the NVR Act and that it is therefore a decision which this Tribunal can review under s 199 of the NVR Act.
Also, for the same reasons set out in [16] of the Stirling decision, I find that the decision is one that can be reviewed by the Tribunal under s 203(2) of the NVR Act without the need for a reconsideration by the Respondent under s 201 of the NVR Act following a request by the Applicant under s 200(2) of the NVR Act.
For the reasons set out above I am is satisfied that the substantive application was made in accordance with the NVR Act and the AAT Act and that I have jurisdiction to review the Chief Commissioner’s decision, apparently made on 3 April 2019, to cancel the Applicant’s registration. I therefore have jurisdiction to determine the Applicant’s request for a stay under s 41(2) of the AAT Act.
THE STAY APPLICATION HEARING
The request for a stay order was heard on 5 July 2019. The Applicant was represented by Mr D Nagle, and the Respondent was represented by Mr A Grullemans. Appearances were by telephone.
The following materials had been lodged by the parties:
·Outline of Submissions in Relation to a Stay (A1);
·Statement of Charles Posselt dated 17 June 2019 with annexures (A2);
·Applicant’s Evidence Folders 1-8 (A3);
·Letter from ASQA to Mr Posselt & attached Evidence Analysis dated 8 April 2019 (A4);
·Request for Stay Order dated 1 May 2019 (A5);
·Application for Review of Decision dated 1 May 2019 (A6);
·Submissions Opposing Stay Application (R1);
·Affidavit of Paris Anne Arthur affirmed 1 July 2019 with annexures (R2); and
·Affidavit of Amy Lennox affirmed 1 July 2019 with annexures (R3).
The following materials were provided by the parties after the hearing:
·Statement of Charles Posselt dated 5 July 2019;
·Australian Qualifications Framework Second Edition January 2013;
·Industry Skills Council UEENEEJ153A Find and rectify faults in motors and associated controls in refrigeration and air conditioning systems;
·Industry Skills Council UEENEEE105A Fix and secure electrotechnology equipment;
·Industry Skills Council UEENEEJ102A Prepare and connect refrigerant tubing and fittings;
·Correspondence from the Applicant dated 8 July 2019;
·Correspondence from the Respondent dated 8 July 2019.
THE LEGISLATIVE FRAMEWORK
Section 2A of the NVR Act sets out the objects of that Act as follows:
(a) to provide for national consistency in the regulation of vocational education and training (VET); and
(b)       to regulate VET using:
(i) a standards-based quality framework; and
(ii) risk assessments, where appropriate; and
(c)       to protect and enhance:
(i) quality, flexibility and innovation in VET; and
(ii) Australia’s reputation for VET nationally and internationally; and
(d) to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia’s social and economic needs for a highly educated and skilled population; and
(e) to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and
(f)        to facilitate access to accurate information relating to the quality of VET.
Section 3 of the NVR Act contains the following definition:
VET Quality Framework means the following:
(a) the Standards for NVR Registered Training Organisations;
(aa) ...;
(Original emphasis.)
Section 21 of the NVR Act provides:
An NVR registered training organisation must:
(a) comply with the conditions set out in sections 22 to 28; and
(b) ...
Subsection 22(1) of the NVR Act provides:
(1) An NVR registered training organisation must comply with the Standards for NVR Registered Training Organisations.
Subsection 185(1) of the NVR Act provides:
(1) The Minister may, by legislative instrument, make standards for NVR registered training organisations, as agreed by the Ministerial Council.
Pursuant to subsection 185(1) of the NVR Act the Minister made the Standards for Registered Training Organisations (RTOs) 2015 (the Standards).
Subsection 36(2) of the NVR Act is as follows:
(2) The National VET Regulator may do one or more of the following:
(b)give a written direction to an NVR registered training organisation requiring the organisation to notify its VET students, in writing, of a matter set out in the direction;
(c)shorten the period of an NVR registered training organisation’s registration;
(d)amend an NVR registered training organisation’s scope of registration;
(e)suspend all or part of an NVR registered training organisation’s scope of registration under section 38;
(f)cancel an NVR registered training organisation’s registration under section 39.
Subsection 36(3) of the NVR Act is as follows:
(3)In determining what action to take in relation to an NVR registered training organisation, the National VET Regulator may have regard to:
(a)the organisation’s conduct, or circumstances existing, before the Regulator had cause to consider imposing a sanction on the organisation (including before the commencement of this section); and
(b)if section 37 applies–the organisation’s conduct,

or circumstances existing, since the Regulator gave the organisation a written notice as mentioned in that section.
Subsection 39(1) of the NVR Act provides:
(1) The National VET Regulator may, by notice in writing, cancel an NVR registered training organisation’s registration in any circumstances that the Regulator considers it appropriate to do so, including for failure to pay a National VET Regulator annual registration charge by the date on which it is payable (see section 232A).
Subsection 41(2) of the AAT Act 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.
(Original emphasis.)
THE LAW
Both parties identified the relevant considerations, with one exception, for the grant of a stay as being set out by President Downes J in Scott and Australian Securities and Investments Commission [2009] AATA 798 (Scott). As I noted in Stirling at [35]-[36],
a useful restatement of those considerations appears in Member Parker’s decision in Menzies Institute of Technology and Australian Skills Quality Authority [2019] AATA 343 (Menzies) (at [16]):
President Downes J, in Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) set out a number of factors to be considered in determining whether to grant a stay under subsection 41(2) of the AAT Act, as follows:
1. The prospects of success;
2. The consequence for the applicant of the refusal of the stay;
3. The public interest;
4. The consequences for the respondent in carrying out its functions, depending on whether a stay is granted or not;
5. Whether the application for review would be rendered nugatory if a stay were not granted;
6. Other matters that are relevant, amongst which I would include the length of time – in that case, it was the ban – that had already been in place and the gap between today and the hearing of the application.
The one exception referred to in [35] above was that the Applicant did submit that the prospects of success were not a relevant consideration based on the finding of Deputy President Forgie in Rust-Oleum Australia Pty Ltd and Australian Pesticides & Veterinary Medicines Authority [2017] AATA 298 (Rust-Oleum) at [33]-[36] in which, according to the Applicant Deputy President Forgie held consideration of success, the first consideration identified in Scott, to be extraneous to the Tribunal’s discretion to grant a stay.
That position is different to that taken by President Downes in Scott and the various decisions of this Tribunal that have applied the considerations identified by President Downes, including my decision in Stirling and the cases cited therein, one of which was Deputy President Forgie’s decision in Samir Pty Ltd and Aged Care Standards and Accreditation Agency [2012] AATA 333 (in particular at [8]). With respect, my view is different to that of Deputy President Forgie in Rust-Oleum. In that matter Deputy President Forgie relied on the Full Court of the Federal Court judgment in Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 250; (2001) 106 FCR 76;

184 ALR 473; 63 ALD 373 (Madafferi). In her decision Deputy President Forgie refers to the legislative provision being considered in Madafferi as, in effect, being the same as

s 42(1) of the AAT Act. At [34] and [35] she observes:
[34] Having said that, there is a very real question whether the prospects of success are a relevant consideration. No mention is made of them in s 41(2) just as there was no mention made of them in s 482 of the Migration Act 1958 (Migration Act) when the Full Court of the Federal Court decided the case of Madafferi v Minister for Immigration and Multicultural Affairs (Madafferi). I will return to that case below but, for the moment, note that the Full Court was of the view that:
“... For the purpose of s 482, however, it is not a relevant serious question to be tried. Under s 482, there is no requirement that there be a serious question to be tried. There has been no suggestion that the substantive proceeding is an abuse of process or that it should otherwise be dismissed summarily. The only question that arises under s 482 is whether an order is appropriate for the purpose of securing the effectiveness of the hearing and the determination of the appeal.”
[35]It seems to me that the principle is equally applicable to s 41(2) of the AAT Act where no mention is made of the prospects of success. Like s 482(2) of the Migration Act, the focus of the order that may be made is entirely on what the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review…
(Footnotes omitted.)

The legislation being considered by the Full Court in Madafferi was s 482(2) of the Migration Act 1958 (as it then was), which was, relevantly, as follows (from [8] of the judgment in Madafferi):
“(2) If an application is made to the Federal Court under section 476..., a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that... Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.”
The approach taken by the court in Madafferi and Deputy President Forgie in Rust-Oleum seems, in my view, to concentrate only on the first part of the phrase “for the purpose of securing the effectiveness of the hearing and determination of the application for review”. The approach concentrates on securing the effectiveness of the hearing rather than the second element, that of the determination of the substantive matter. If one considers that second element then it is, in my view, relevant to consider whether there is any real matter to determine. If the applicant’s claim has no possible hope of success that would be a matter relevant to “the determination of the application for review”. There would be little point in making an order to stay the operation of a decision if it is inevitable that the decision will be found to be correct. In other words, if there is no prospect of the applicant being successful.
I also note Bromwich J’s comments in Australian International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097 (AIC) to the effect that, while consideration of the prospects of success might not be treated as mandatory given the language of s 41(2) of the AAT Act, it was still a matter that could be taken into account. His Honour said:
[30] The third suggested (mandatory) relevant consideration of the prospects of success of the AIC on its application for review does, upon a reconsideration of the Tribunal’s written reasons, appear to be a matter that was not, in terms, taken into account in those reasons. However, I fail to see why that is something that was mandatory. It is not a consideration that is provided for in s 41(2), and it is hard to see why such a mandatory relevant consideration would be inferred in the manner described in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39-40; see also Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [133]- [139]. As already indicated above, the prospects of success of the application for merits review will depend upon the state of affairs at the time of the Tribunal hearing in May 2019, and perhaps beyond. By that time, the state of compliance may well have improved. Conversely, other problems may have emerged.
…
[32] Thus, to the extent that it was possible to anticipate the outcome of the review application, the Tribunal member raised it, and so could not be said to have had no regard to it, even if that discussion did not feature in the formal written reasons and no concluded view was apparently possible.
The prospects of the applicant being successful are, in my view, also relevant to a number of the other considerations identified by President Downes in Scott which were not identified by Deputy President Forgie as having no place in a consideration under s 41(2) of the AAT Act. As Deputy President Forgie noted at [38], s 41(2) of the AAT Act requires the Tribunal to take into account “the interests of any persons who may be affected by the review”. In considering the effect that a stay would have on the interests of the applicant it would be relevant to take into account whether the applicant had any prospect of success in the application. If it is clear that the application has no prospect of success then the effect of not granting a stay will be less. In those circumstances the operation of the decision under review will come into effect at some point in the not too distant future.

It then becomes only a question of timing of the operation of the decision, not whether the decision will come into operation at all.
While the Applicant’s primary submission was that the prospects of success was not a matter to be taken account, it did make submissions on that issue “should the Tribunal not follow Rust-oleum” (A1, para. 13). The Tribunal takes those submissions into account.
Prospects of success/merits of the Applicant’s substantive application
Senior Member Cameron in Technical Education Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3047 (Technical Education Australia) summarises
(at [68]) the requirement of this consideration as follows:
As has been observed in several authorities, it is not the role of the Tribunal,

in assessing the merits of a stay application under section 41(2), to conduct a preliminary hearing (or sometimes referred to “a mini trial”) of the evidence and issues to be raised subsequently at a final hearing, when evaluating an applicant’s prospect of success. The task of the Tribunal in such an application is to consider whether there exists facts and circumstances which would provide some basis for success.
(Footnotes omitted.)
In making the above observation Senior Member Cameron cited Senior Member Redfern (as she then was) in Re Oaklands and Australian Securities and Investments Commission [2011] AATA 199 and the tribunal’s decision in Re Commonwealth and Quirke [1986] AATA 57; (1986) 9 ALD 92 at [95] and Senior Member Fice in Re Gurkhas Institute of Technology Pty Ltd trading as Royal Gurkhas Institute of Technology and Australian Skills Quality Authority [2017] AATA 1018. In those cases the tribunals reached similar views to that of Senior Member Cameron. As I did in Stirling, I agree with and adopt Senior Member Cameron’s summation of the exercise to be undertaken under this consideration.
The Applicant contends (A1, para. 15) that it can succeed in three ways:
(a)demonstrating that the cancellation of registration was too severe;
(b)demonstrating that the compliance issues identified in the audit report were not well-founded or have been rectified before the hearing; and
(c)demonstrating at the hearing that it is fully compliant.
The evidence
Applicant
Two documents were filed by the Applicant which were headed ‘Affidavit’. Neither document however, was in the form required of an affidavit. Neither document stated that the deponent was swearing or affirming the contents of the statement (see s 9 of

Oaths, Affidavits and Statutory Declarations Act
(2005) (WA) (the Oaths Act)).

Both documents appeared to be “certified” by a public officer at the Malaga Licensed Post Office. Although both documents refer to a “deponent”, neither was in the form of a statutory declaration (see s 12 of the Oaths Act).
Both documents were signed by Mr Charles Posselt, the CEO of the Applicant, and I will take these documents as being signed witness statements of Mr Posselt. The second statement, dated 5 July 2019, went only to providing the information sought by me in the hearing as to the number of employees the Applicant has, the number of students that would be affected by the cancellation of the Applicant’s registration and the alternative RTO (if any), offering the same or similar courses.
In paragraph 16 of its submissions the Applicant says that it has “commenced a significant rectification process” and refers to “remedial material produced by RTO Advance” with a footnote which says “see Rectification material”. Unfortunately that material is not defined or otherwise identified. I assume that the relevant material is that attached to, or referred to in, the statement of Mr Charles Posselt dated 17 June 2019. That statement, however, does not define “Rectification material” nor does it identify material attached to the statement as being produced by the consultant retained by the Applicant, Ms Bowler or her company RTO Advance. At paragraph 8 of his statement Mr Posselt says that the Applicant had engaged Ms Bowler of RTO Advance “to both review the audit report and assist [the Applicant] to rectify all areas of non-compliance”. At paragraph 10 of his statement Mr Posselt says (A2, para. 10):
Having received this expert assistance and guidance, I am confident that

[the Applicant] with respect to both the courses offered and the scope of its courses, is now fully compliant.
No affidavit, statement or other evidence from Ms Bowler was provided as to the Applicant’s compliance or the steps being taken to address the claimed non-compliances identified in the audit.
Paragraphs 12 and 13 of Mr Posselt’s statement is as follows:
12. I have commissioned a series of documents to be filed with the Tribunal. These documents have been served on ASQA electronically and I rely on the Rectification Response Table provided as a snapshot of our current compliance.
ATTACHED AND MARKED ‘CP-1’ IS A COPY OF THE RECTIFICATION RESPONSE TABLE.
13. As I have noted above, in support of the Stay Application, I have commissioned Ms Judith Bowler to assist with the completion of all rectifications.
Exhibit CP-1 is a document called a “Rectification Response Table”. The footer of that document bears the date 3 June 2019, however, that may be the date that that version of the document was printed. Mr Posselt’s statement does not say who prepared that document, when it was created or whether it was provided to the Respondent.

That document, Mr Posselt asserts, is “a snapshot of our current compliance”.

The Tribunal assumes that the references in Exhibit CP-1 to numbered “Folders”, is a reference to the “…series of documents to be filed with the Tribunal” referred to in paragraph 12 of Mr Posselt’s statement. These documents were received by the Tribunal on 21 June 2019. Many of these documents are undated, however, some seem to bear dates in May or June 2019 or note that they were “approved” in those months by the CEO of the Applicant. I therefore assume that these are the documents which, according to the Applicant, show compliance or rectification of the non-compliances identified by the audit.
In paragraph 14 of his statement Mr Posselt concedes “that had the [Applicant] put this evidence before [the Respondent] before this process, it may have prevented the Deregistration Decision taking place in the first place” (R1, para. 14).
Paragraph 16 of Mr Posselt’s statement goes into some detail of how specific

non-compliances identified by the audit have been addressed (e.g. para. 16.2 (erroneously numbered 14.2) states that the references to the Applicant offering a Certificate II in Automotive Air Conditioning has been removed from the website).

This paragraph does not address if, or how, all of the non-compliances identified in CP-1 have been addressed. Mr Posselt also advises that of the 114 students whose files were reviewed by the Respondent 102 of them were qualified electricians and eight were apprentice electricians (R1, para. 16).
Paragraph 16 of Mr Posselt’s statement also refers to efforts that have been made by the Applicant to contact previous students who may be affected by the identified

non-compliances and advised of the possible cancellation of their qualifications and remediation offered.
As a separate matter, Mr Posselt also addresses the claim raised by the Respondent that he is not a fit and proper person to undertake the role of CEO of an RTO. That is not an issue that had been raised in the audit but it is one that the Respondent raises in the substantive application. Mr Posselt’s statement also addresses the financial impact that he says the immediate cancellation of the Applicant’s registration would have.
Respondent
In addition to the material provided by the Respondent under s 37 of the AAT Act
(the T documents), the Respondent relies on two affidavits. They are affidavits of:
(a)Paris Anne Arthur, Lead Regulatory Officer in the Respondent’s Perth Regulatory Operations Unit, affirmed on 1 July 2019; and
(b)Amy Lennox, Principal Regulatory Officer in the Respondent’s Perth Regulatory Operations Unit, affirmed on 1 July 2019.
Ms Arthur’s affidavit says that on 19 February 2019 she was assigned to review the evidence provided by the Applicant on 25 January 2019. She identifies the information provided by the Applicant and says that she “conducted a thorough review of the Response Evidence and determined that the Applicant remained non-compliant…” with identified clauses of the Standards.
Paragraphs 13-20 of Ms Arthur’s affidavit set out the bases on which she says that the Applicant remains non-compliant.
The affidavit refers to complaints that have been lodged against the Applicant “and the Applicant’s third party provider (also owned and directed by the Applicant’s owner and Director, Mr Charles Posselt)…” (R2, 21-29).
In paragraph 26 of the affidavit Ms Arthur refers to what she describes as “a Fit and Proper Person Statutory Declaration signed by Charles Posselt and dated 4 April 2017” apparently signed at the time Mr Posselt took over the Applicant. In this statutory declaration Mr Posselt had answered “no” to the following questions:
1. Have you ever been convicted of an offence against a law of the Commonwealth or of a state or territory of Australia? and;
2. Do you consider there to be any doubt about whether the public is likely to have confidence in your ability to provide, assess or issue nationally recognised qualifications?
Ms Arthur then refers to an article that she had accessed on the Western Australian Department of Commerce website reporting on a fine apparently imposed on Mr Posselt for “misleading consumers over their rights”. The company of which Mr Posselt was a director, Total Action Pty Ltd was, in 2014 according to the article, fined $15,000 and

Mr Posselt was fined $3,000 for breaches of the Australian Consumer Law (ACL)

(R2, PAA-06).
According to the Respondent’s submissions (R1, para. 25) following Mr Posselt being fined $18,000 (I note that based on the article referred to by Ms Arthur that is not correct:

Mr Posselt was fined $3,000 and the company was fined $15,000), Mr Posselt established a third party entity to facilitate short-course training in air conditioning qualifications

“via the companies Oz Eco Group Pty Ltd and College of Climate Change Pty Ltd” and that “[the Respondent] received a plethora of complaints regarding both companies and [the Applicant] from industry stakeholders between 2012-2018”.
Ms Lennox’s affidavit says that she was assigned “to review the Applicant’s Stay Application Hearing Evidence” received via a Dropbox link. She refers to there being six folders that contained sub-folders and assorted documents (R3, para. 5). I assume that these are the files received by the Tribunal on 21 June 2019 referred to in [51] above.
Ms Lennox says that having reviewed that evidence provided by the Applicant she is of the view that:
(a)The Applicant failed to provide any evidence for one of the sampled training products, CPC40110 Certificate IV in Building and Construction (Building);
(b)The Applicant remains non-compliant with Standard 4.1 “as its marketing materials contain incorrect statements, which do not align with other documented information…”;
(c)The Applicant remains non-compliant with Standard 5.2 as the information provided by the Applicant lacks accurate or sufficient pre-enrolment information to students;
(d)The Applicant remains non-compliant with Standards 1.1 and 1.2 for
(i)UEE32211 Certificate III in Air-conditioning and Refrigeration; and
(ii)UEE20111 Certificate II in Split Air-conditioning and Heat Pump Systems
in that the documents do not clearly describe the strategies to be implemented in delivering or assessing the training products;
(e)The applicant remains non-compliant with Standard 1.3 as there is no evidence that students have access to sufficient learning resources or facilities and equipment at each delivery location;
(f)The Applicant remains non-compliant with Standard 2.4 as the third party agreements provided by the Applicant were between the College of Climate Change and third parties;
(g)The Applicant remains non-compliant with Standards 1.8 and 3.1 as it has issued certificates on the basis of flawed assessment practices (3.1) and the assessment system is not compliant with the training package (1.8).
Based on the above identified factors Ms Lennox says that she does not believe “that the Applicant is capable of “quickly and efficiently rectifying the current identified non-compliances” (R3, para. 26).
Consideration of prospects of success
Mr Posselt’s statement and the evidence of Ms Arthur and Ms Lennox are considerably at odds. While the affidavits of Ms Arthur and Ms Lennox address the material that the Applicant provided in January 2019, in the case of Ms Arthur, and material provided some time in or before May 2019 in the case of Ms Lennox, neither of those affidavits addressed the matters raised by Mr Posselt in his statement of 17 June 2019.
The Applicant’s counsel at the hearing submitted that the majority of the non-compliances identified by the Respondent and referred to in the affidavits of Ms Arthur and Ms Lennox were “matters of degree, and subjective degree at that” (Transcript at 21). In relation to one of the non-compliances identified in the Evidence Analysis document Exhibit AL-1 to the affidavit of Ms Lennox, on page 19/27 (as numbered in Ms Lennox’s affidavit) of that document, there is reference to a non-compliance with Standard 1.8 under the heading “Validity and Sufficiency” in relation to the “Performance Criteria”. The statement is made that while “the organisation has provided a mapping document …there was limited information…” (R3, AL-1, 19/27).
Other similar examples from that document were identified by the Applicant’s counsel.
For instance on page 21/27 of Ms Lennox’s evidence analysis document the assessment of non-compliance is based on Ms Lennox being of the view that
“The assessment tool provided for this unit of competency does not contain enough context or observable behaviours of the assessor to reliably and sufficiently assess a candidate…” (R3, AL-1, 21/27).
It does seem to be the case that while both Ms Lennox and Ms Arthur are apparently qualified and experienced, whether documentation or practices comply or not is, in a lot of cases, a question of degree and opinion. It may well be that the opinions and views formed by Ms Arthurs and Ms Lennox are correct and will be found to be so on a substantial hearing, however, given the matters that Mr Posselt has raised, his claims that the documentation does comply and his claims that substantial steps have been taken, with the help of an apparently qualified consultant, Ms Bowler, it would be difficult to find that the Applicant’s case had no prospect of success.
I am also mindful of the fact that neither of the affidavits, undoubtedly due to time constraints, addressed the matters raised by Mr Posselt in his statement of 17 June 2019. That is in no way meant as a criticism of Respondent. That is simply the fact.
The Respondent has also raised a new allegation, new in the sense that it was not part of the audit, being that Mr Posselt is not a fit and proper person to be the CEO of an RTO. The submissions in this regard seem to rely significantly on two answers provided by
Mr Posselt in his statutory declaration of 4 April 2017 and on complaints that have been made against other companies controlled by Mr Posselt (see [59]-[61] above).
In relation to the complaints, it emerged at the hearing that one of the “plethora of complaints” to which the Respondent apparently refers (see [62] above) was in fact dismissed by the Respondent following its own investigation (Transcript at 12).
The document relating to that complaint apparently appears at pages 185-187 of the
T documents. That part of the T document that (according to the Applicant’s counsel) showed the result of the complaint, namely the Respondent dismissing it, was redacted. Counsel for the Respondent was not in a position to confirm or deny that that was the case.

In relation to the answer provided by Mr Posselt in his statutory declaration of 4 April 2017 to the question “Have you ever been convicted of an offence against a law of the Commonwealth or a state or territory of Australia?” the Applicant argues that the answer was not incorrect because “a civil penalty isn’t an offence” (Transcript at 26). Counsel for the Respondent at the hearing advised that the answer that the Respondent was relying on for its argument was the answer to the second question, namely “Do you consider there to be any doubt about whether the public is likely to have confidence in your ability to provide, assess or issue nationally recognised qualifications?” (Transcript at 26).
In relation to the answer to the first question, it is not clear to me that the answer is necessarily belied by Mr Posselt, or companies with which he was associated, being penalised for breaches of the ACL. Similarly, I am not, for current purposes, satisfied that the answer to the second question is, on its face, misleading as the question asks the person answering the question to form a view about doubt that the public might have.
By necessity, any answer to that question is going to be largely subjective opinion so it is again hard to see how an answer to that question could be said to be false or misleading.
In any event, as noted earlier, these issues and the general issue of Mr Posselt not being a fit and proper person to act as the CEO of an RTO were not the subject of the audit or the basis for the decision made by the Chief Commissioner to cancel the Applicant’s registration. That is not to say, as the Respondent points out, that these are not matters that this Tribunal can take into account in making its decision in the de novo review of the cancellation decision (Re Drake and Minister for Immigration and Ethnic Affairs(No.2) (1979) 2 ALD 634).
The Respondent submits that, “[v]iewed as a whole, the evidence presents an impression that [the Applicant]’s prospects of success … are hopeless” (R1, para. 37). I do not agree that the prospects of the Applicant eventually being successful at the hearing are hopeless. The fact is that on the material that the parties have put on there does seem to me to be a bona fide and substantive dispute as to the proper construction and application of certain of the Standards and the adequacy, or otherwise, of the steps that have been taken by the Applicant to address non-compliances. The affidavit evidence of Ms Arthur and Ms Lennox appears to deal only with the further information provided and the steps taken by the Applicant up to some time prior to May 2019 (R3, para. 4). They do not address the information and the matters raised by Mr Posselt in his statement made

17 June 2019. These are matters that can only properly be dealt with at a substantial hearing. Similarly the claim that Mr Posselt is not a fit and proper person can only be dealt with once the Applicant has had reasonable opportunity to put its case on that issue.
I am satisfied that the Applicant has provided material which raises factual and legal arguments that, if resolved in favour of the Applicant at the substantive hearing, would,
or at least may, result in a final decision that the Applicant’s registration under the NVR Act should not be cancelled. The prospects of success in the present case reach the level described by Senior Member Cameron in Technical Education Australia; “whether there exists facts and circumstances which would provide some basis for success”, and the level identified by Von Doussa J in Windshuttle v Commissioner of Taxation [1993]
FCA 553; (1993) 46 FCR 235; 93 ATC 4992; [1993] FCA 553; 27 ATR 88. In that case Von Doussa J found that:
It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends. In other words the assertions can, if the parties so choose, be treated as pleadings are treated where an application is made to strike out an action on the ground that the pleadings disclose no cause of action. On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence. That is left for the trial if there is an arguable case on the pleadings.
The consequence for the Applicant of the refusal of the stay
The Applicant identifies the consequences of a stay not being granted in its submissions as being (A1, 18):
(a) All enrolled students must logically have their enrolments cancelled;
(b) Progression of students will be significantly disrupted;
(c) The Applicant will be unable to train any students;
(d) The staff of the Applicant will lose their employment;
(e) The Applicant will be unable to earn any income;
(f) The directors of the Applicant will lose a significant sum of funds which they have invested into the College and its rectification; and
(g) The reputation of the Applicant will be significantly tainted, the repercussions of which will perpetuate, even if the Applicant is successful at final hearing.
The Applicant also asserts that it does not have sufficient funds to support its existence while the cancellation decision is in effect (A2, para. 19). In support of that claim Mr Posselt attached a bank statement to his witness statement which showed a closing balance as at 30 March 2019 of $24,735.
In his statement provided immediately after the hearing, Mr Posselt advises that:
(a)The Applicant currently has six full-time employees;
(b)The Applicant currently offers the following courses:
(i)
UEE32211 – Certificate III in Air-conditioning and Refrigeration which

(at the time of that statement) had 105 students (47 in WA, 31 in Victoria, 20 in Queensland and seven in New South Wales) all in different stages of their courses
(ii)
UEENEEJ174a – Apply Safety awareness and legal requirements for Hydrocarbon refrigerants and UEENEEJI75a – Service and Repair of

self-contained hydrocarbon Air-conditioning and refrigeration systems

(127 students that have completed training and 170 students wishing to enrol. Only the Applicant offers these courses.)
(iii) UEE20111 – Certificate II in Split Air-conditioning and Heat Pump Systems (30 students have completed training but are awaiting for their qualification. Thirty students are waiting to enrol.)
(c)The Applicant is the only RTO that offers technical support after the students have been trained. The Applicant currently has, amongst others, the following clients:
·BHP;
·Goldfields;
·Coca-Cola;
·Schweppes;
·Ashanti beverages; and
·Scope
(d)As far as he is aware, the Applicant is the only RTO that has over 10 years’ experience dealing in the two units of competencies for natural refrigerants and training in natural refrigerants for the new ranges of products for the refrigeration and air-conditioning industries.
In relation to this consideration the Respondent in its submissions says that:
(a)it accepts that the decision to cancel the registration of an RTO negatively affects its business;
(b)any reputational damage arising from the decision has already occurred because the decision to cancel has been published on the Respondent’s website;
(c)the Applicant has not provided tax returns, lease agreements or balance sheets verified by accountants to verify the “dire predictions made by Mr Posselt” and that the bank statement that has been provided demonstrates the Applicant’s bank account as being intertwined with a series of unexplained transaction with another company;
(d)any prejudice occasioned by the effect of the decision taking effect is outweighed by the detriment to the public interest in the decision not having immediate effect.
(e)It is in the public interest, the interests of stakeholders and students to protect them from non-compliant training and to send a message that cutting corners is unacceptable. In support of that submission the Respondent cites Bromwich J’s comments in AIC at [38]:
…fundamentally, I am not satisfied that AIC’s financial predicament, to the extent that it was demonstrated to the Tribunal and replicated before me, was such as to outweigh the legitimate concerns of ASQA as the regulator, as expressed at the stay hearing before the Tribunal, that “international students should be quarantined from undertaking noncompliant training”. That is especially so given the extended period of time that AIC has had to rectify the identified defects since commenting on the audit report in May 2018. I also note that there is no evidence that I was taken to that indicated that this was no longer any basis for concern,…
The circumstances being considered by Bromwich J in AIC were distinguishable from those in the present case. The argument that came before Bromwich J did not relate to whether a stay should be granted, but rather whether the conditions that were attached to an existing stay order should be removed or changed. The RTO in AIC was seeking to remove, or reduce, the conditions attached to the stay that restricted it from enrolling new students. It was in the context of whether the condition that prohibited AIC from enrolling students, that is the condition that “quarantined” international students from undertaking non-compliant training, should be removed, that his Honour made the above observation.
In the present case there is a stay already in place which prohibits the Applicant from enrolling students or issuing qualifications (see [2] above). There is no suggestion that those conditions be removed or reduced. While I agree with the Respondent’s observation that the financial material provided by the Applicant is far from fulsome, I am prepared to accept the statement made by Mr Posselt (A2, para. 19) that the Applicant does not have sufficient funds to survive if the decision were to have effect now. In that regard I also note the apparent concession by the Respondent at paragraphs 75 and 76 of its submissions in relation to the hearing being rendered nugatory (see [86]-[87] below).
Public interest and consequences to the Respondent
The Respondent cites decisions of the Tribunal in Sunrise Institute of Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3935 and Institute of Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 4127, which in turn cited other Tribunal decisions, which emphasise the importance of the public interest and the maintenance of public confidence in ensuring that providers of VET are compliant. The Respondent submits that it has “a duty to protect future students who may enrol with [the Applicant] and suffer from paying their fees only to find that their training and qualifications are de-valued…” (R1, para. 70)
I am mindful of that need. I am also mindful, however, of the fact that there are in place conditions in the current stay order preventing the Applicant from enrolling any new students, the very limited number of courses that the Applicant offers, the nature of the courses and the nature of the students and prospective students (mainly mature age and already qualified in a trade – see [53] above) that the risk identified by the Respondent is relatively low.
The relevant risk to consider for the purposes of the current application is also the risk associated with an extension of the current stay order, with the same conditions, until the substantial hearing, not the risk that would be associated with indefinitely letting
non-compliant RTOs continuing to operate. While it is obviously not ideal, the likely damage to “prospective students and the reputation of Australia as a provider of quality education both domestically and internationally” (R1, para. 74) in extending the current stay order which prevents the Applicant enrolling any students for three or four months until the final determination of the substantive application, is, in my view, not going to be significant.
Application rendered nugatory
The Respondent observes that (R1, para. 75):
The evidence of [the Applicant] appears to show that if a stay were not granted, [the Applicant] would, by the time of the final hearing on the merits, be unlikely to be able to restore itself to its previous status and position, having presumably lost both students and teachers.
The Respondent, however, submits that “…there are compelling overriding reasons of public interest to have the decision under review come into effect.” (R1, para. 76).
Obviously if the Applicant did not survive financially any final hearing would become academic. In other words, it would be rendered nugatory. By its submissions at paragraphs 75 and 76 of its submissions, the Respondent, in effect, agrees that that would be the case.
CONCLUSION
Applying the considerations identified by President Downes J in Scott, the approach that has generally been taken by tribunal members since the time of that decision, I find that, on balance, the order made by consent on 14 May 2019 that the implementation of the decision under review be stayed and that the Applicant must not enrol students or issue VET statements of attainment or VET qualifications until further order of the Tribunal should remain in place. Given the terms of that order I therefore make no further order.

I certify that the preceding 89 (eighty nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

............................[sgd]............................................
Associate
Dated: 29 July 2019

Date(s) of hearing: 5 July 2019

Counsel for the Applicant: D Nagle

Solicitors for the Applicant: Denison Toyer

Solicitors for the Respondent: A Grullemans

Date(s) of hearing:	5 July 2019
Counsel for the Applicant:	D Nagle
Solicitors for the Applicant:	Denison Toyer
Solicitors for the Respondent:	A Grullemans