Ekeh and Australian Skills Quality Authority (Practice and procedure) - [2025] ARTA 264

Ekeh and Australian Skills Quality Authority (Practice and procedure) [2025] ARTA 264 (27 March 2025)
Applicant/s:  Ugochukwu Joseph EKEH
Respondent:  AUSTRALIAN SKILLS QUALITY AUTHORITY
Tribunal Number:                2024/11222

Tribunal:General Member Darian-Smith
Place:Sydney
Date:27 March 2025

Decision:1. The Tribunal refuses the Applicant’s application for an order under s.32(2) of the Administrative Review Tribunal Act 2024 (Cth) staying the operation or implementation of the decision of the Respondent dated 13 December 2024.
2. The interim stay order made on 13 January 2025 is discharged.

..........................[SGD]..............................................
General Member Darian-Smith
Catchwords
PRACTICE AND PROCEDURE – application for stay of decision to cancel a VET provider’s qualifications obtained from a deregistered RTO – factors relevant to the grant of a stay – prospects of success – consequences for applicant of refusal of a stay – the public interest – application for stay order refused.
Legislation
National Vocational Education and Training Regulator Act 2011 (Cth) ss. 56, 58, 199
Administrative Appeals Tribunal Act 1975 (Cth) s.41
Administrative Review Tribunal Act 2024 (Cth) s. 32
Cases
Scott and Australian Securities and Investments Commission [2009] AATA 798
Bayahow and Australian Skills Quality Authority [2025] ARTA 176
Birdseye and Tax Practitioners Board [2020] AATA 1250
Greenfield Education Pty Ltd and Australian Skills Quality Authority [2018] AATA 4210
Site Skills Group and Australian Skills Quality Authority [2019] AATA 1870
Statement of Reasons

The Applicant (Mr Ekeh) is a former student of Gills College Australia Pty Ltd (Gills College), which at the time he was a student was a registered vocational education and training (VET) provider under the National Vocational Education and Training Regulator Act2011 (Cth) (NVR Act).
Mr Ekeh obtained the qualification CHC33015 Certificate III in Individual Support (Qualification) from Gills College, issued in 2023.
On 20 November 2024, the Chief Executive Officer (CEO) of the Respondent (ASQA), acting in her role as the National VET Regulator, made the decision to cancel Gills College’s registration as a VET provider, under ss. 36(2)(f) and 39 of the NVR Act, effective from 21 November 2024.
On 13 December 2024, the CEO of ASQA, acting in her role as the National VET Regulator, made the decision to cancel the Qualification, under s.56 of the NVR Act, effective on 20 December 2024 (Reviewable Decision).[1]
[1] T2, T-documents, pages 36 - 39.
The Reviewable Decision was based on findings, and evidence, that Gills College had not provided the training and assessment necessary to ensure that students at Gills College, including Mr Ekeh, had the skills and knowledge necessary to be awarded a VET qualification. The findings, and evidence, in question were:
(a)“Gills College did not implement a training and assessment strategy to enable each student to meet the requirements for each unit of competency in which they enrolled.
(b)Gills College did not have sufficient facilities, whether physical or virtual, and equipment to accommodate and support the number of learners undertaking the training and assessment at each delivery location.
(c)Gills College did not demonstrate it had a system in place to ensure all trainers and assessors were suitable qualified or experienced.
(d)Gills College did not implement an assessment system that ensured assessment complied with the requirements of the relevant training package and is conducted in accordance with the principles of assessment and rules of evidence.
(e)Gills College did not conduct adequate assessment or ensure that only students who have fully demonstrated competence against all training package requirements have been issued with certification and captured consistent and accurate information about students and training outcomes.
In addition:
(f)Students had been issued certification via recognition of prior learning (RPL) although the provider denied having conducted any RPL assessment during the period of issuance.
(g)Students denied they had studied with the provider at all, although the provider’s student management system said it had issued certification to the students.
(h)Students completed qualifications via RPL and said they had not attended classes or undertaken a work placement and were told by the provider it was not necessary to attend classes.”[2]
[2] T2, T-documents, pages 40 - 43.
The findings and evidence in sub-paragraphs (f), (g) and (h) were generic to the body of Gills College students who had been awarded VET qualifications and were not necessarily said by ASQA to be applicable in Mr Ekeh’s case.
On 19 December 2024, Mr Ekeh applied for review of the Reviewable Decision.[3] He also applied for a stay of the Reviewable Decision under s.32(2) of the Administrative ReviewTribunal Act 2024 (Cth) (ART Act).[4]
[3] T1, T-documents, pages 1 - 35. The Reviewable Decision is a reviewable decision under s. 199 of the NVR Act.
[4] T4, T-documents, pages 51 - 54.
On 13 January 2025, the Tribunal ordered that the Reviewable Decision be stayed on an interim basis until 17 January 2025 (interim stay order).
The interim stay order was extended on 17 January 2025 until 28 January 2025. It was further extended on 28 January 2025 until 21 March 2025 and on 21 March 2025 until the date of the publication of Reasons for Decision on the stay application, or until further order.
On 11 February 2025, Mr Ekeh filed a Submission in Support of the Stay Application (Applicant’s Submissions) and supporting evidence.
On 25 February 2025, ASQA filed an Outline of Respondent’s Submissions on Applicant’s Request for a Stay (Respondent’s Submissions).
On 21 March 2025, ASQA filed and served an affidavit of Ingmar Duldig dated 20 March 2025 with Annexure “ID-1” (Duldig Affidavit).
CANCELLATION OF THE QUALIFICATION
The cancellation of the Qualification was made under ss. 56(1)(a) and 56(1)(d) of the NVRAct which relevantly read:
“56 National VET Regulator may cancel VET qualifications and VET statements of attainment
(1) The National VET Regulator may cancel a VET qualification or VET statement of attainment issued to a person by an NVR registered training organisation or former registered training organisation if the Regulator is satisfied on reasonable grounds that:
(a) the organisation did not provide, or arrange for another person to provide, all or part of the assessment necessary for the person to achieve the learning outcomes or competencies required for:
(i) the qualification: or
(ii) the units of competency or modules specified in the statement; or…
(d) it is appropriate, in all the circumstances, because of action the Regulator has taken, or is taking, in relation to: …
(ii) the organisation, in respect of the VET course, or part of the VET course, to which the qualification relates; …”
There are issues for determination at the substantive hearing of the application for review about whether it was appropriate for the Qualification to have been cancelled under s. 56 of the NVR Act, including consideration of whether Mr Ekeh received notice of intention to cancel the Qualification in accordance with ss. 57(1) and 58(4) of the NVR Act. Those issues, other than at a high level in forming a view about likely prospects of success, do not need to be considered in detail by the Tribunal in determining this application.
TRIBUNAL’S POWER TO GRANT A STAY
The Tribunal’s power to grant a stay has been considered in some detail by me in Bayahow and Australian Skills Quality Authority [2025] ARTA 176 (Bayahow) at paragraphs [14] – [23], in a similar context involving a former student of Gills College whose qualifications had been cancelled by ASQA. The relevant principles are not reproduced in full here.
Rather, the Tribunal makes the following observations:
(a) Although the wording in s. 32(2) of the ART Act differs from the wording of its predecessor s. 41 of the AdministrativeAppeals Tribunal Act 1975 (Cth) (AAT Act), its operation and effect are similar, and the authorities determined under s.41 of the AAT Act remain relevant.
(b) A stay order operates as an exception to the General rule stated in s.32(1) of the ART Act and may be granted by the Tribunal under s. 32(2) if it “considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.” and
(c) The range of factors to be considered by the Tribunal in the consideration of a stay are well established by the decision in Re Scottand Australian Securities and Investments Commission[5] (Scott) and the cases such as Birdseye and Tax Practitioners Board[6] which have followed Scott.
[5] [2009] AATA 798.
[6] [2020] AATA 1250.
The 6 factors listed by Downes J. in Scott are as follows:
(a)The prospects of success.
(b)The consequence for the applicant of the refusal of a stay.
(c)The public interest.
(d)The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.
(e)Whether the application for review would be rendered nugatory if a stay were not granted; and
(f)Other matters that are relevant.[7]
[7] [2009] AATA 798, [4].
EVIDENCE AND SUBMISSIONS AT HEARING
Mr Ekeh relied principally on the Applicant’s Submissions and some of the supporting documents accompanying them, in particular Attachment E Work Placement Logbook[8] and Attachments F and G[9], which were correspondence from his current employer, Nazareth Care Tamworth (Nazareth Care).
[8] T1, T-documents, pages 19 – 23.
[9] T1, T-documents, 34, 35.
The main points in the Applicant’s Submissions which are relevant for the stay application (as opposed to being matters for the substantive hearing) are the following:
“10. Impact on Employment: My current job with Nazareth Care Tamworth is directly linked to the now-cancelled qualification, putting my job security at risk.
11. Personal Impact: The cancellation has significant repercussions on my personal life, including my mental health, emotional well-being and financial. It jeopardises my career reputation developed over the past twenty months and could necessitate taking lower-paid job, increasing financial strain on my family.
12. Employer Support: Attached are letters from my employer affirming my competence and the impact of the cancellation on the workplace and community.”
In his oral submissions, Mr Ekeh made the points that he had done all that was asked of him by Gills College in terms of the training and assessment for the Qualification and he had put in the time and money required to complete it. I explained to Mr Ekeh that he would have an opportunity to be heard on these matters at the substantive hearing of his application for review. His present concern was not so much about his employment with Nazareth Care (where he is well regarded) but was concerned more with the effect the cancellation of the Qualification might have if he was to seek other employment opportunities.
ASQA did not seek to cross-examine Mr Ekeh about any of the matters raised by him.
ASQA also relied mainly on their written submissions, outlining in the Respondent’s Submissions its position on the various Scott factors. These are considered further below.
In oral submissions, Mr Tran, appearing for ASQA, made the following points:
(a)The principal submission for ASQA is there is really very little reason to issue a stay because there is no evidence that a stay is required to prevent materially adverse outcomes for Mr Ekeh resulting from the cancellation of the Qualification.
(b)The evidence before the Tribunal does not disclose sufficient detriment. ASQA conceded that Mr Ekeh’s income would be adversely affected if the terms of his employment with Nazareth Care were changed from a qualified to an unqualified carer and that there were some adverse impacts on his health and well-being – but submitted that these issues were not sufficiently material adverse outcomes to support a stay order. and
(c)In respect of the possible use of the Qualification by Mr Ekeh to obtain alternative employment, whilst not suggesting that Mr Ekeh would seek to mislead a prospective employer, the use of the Qualification to obtain fresh employment was one of the circumstances that ASQA had been seeking to avoid by the cancellation of the Qualification.
STAY FACTOR (A) PROSPECTS OF SUCCESS
The Tribunal’s decision in Bayahow contains a statement of the relevant principles in respect of this Scott factor at paragraphs [32] – [36]. The key points for present purposes are that the Tribunal is not required to conduct a full consideration of the merits when determining a stay application, but it does need to be satisfied that the Applicant has “some prospects of success” before a stay can be granted.[10]
[10] Greenfield Education Pty Ltd and Australian Skills Quality Authority [2018] AATA 4210, [7].
ASQA’s position is that Mr Ekeh’s prospects of success in these proceedings are limited.[11] It makes the following submission as to how the Tribunal should proceed in relation to this factor:
“However the Respondent acknowledges that the Applicant has not yet had the opportunity to file evidence or the benefit of understanding the Respondent’s position by way of a statement of issues prior to a case conference. Accordingly, while keeping in mind that it is neither necessary or desirable to undertake a comprehensive assessment of the merits, and acknowledging the limits of the material before the Tribunal, the Respondent submits the Tribunal should not be satisfied that either:
(a) The Respondent’s decision is unavailable; or
(b) the Applicant’s case is plainly hopeless (although the Respondent contends that the Applicant’s prospects are limited.)”[12]
[11] Respondent’s Submissions, [3.7].
[12] Respondent’s Submissions, [3.6].
Even without the benefit of ASQA’s submission on this factor, the Tribunal would have no difficulty in finding that Mr Ekeh meets the threshold requirement of having “some prospects of success”, which would be needed to support the granting of a stay. While this factor weighs slightly in favour of a stay, it is outweighed by other Scott factors which indicate that a stay is not required in this case.
STAY FACTOR (B) CONSEQUENCES FOR THE APPLICANT OF THE REFUSAL OF A STAY
At a practical level, the most important consideration in determining the consequences for Mr Ekeh of the Reviewable Decision, is the impact that the cancellation of the Qualification is likely to have on his current employment at Nazareth Care. Mr Ekeh contends that his job at Nazareth Care is “directly linked” with the cancelled Qualification, such that his job security is at risk. ASQA have filed the Duldig Affidavit to provide some additional evidence to enable the Tribunal to better evaluate Mr Ekeh’s submission.
The Duldig Affidavit exhibits (Exhibit “ID-1”) a contemporaneous email prepared on 20 March 2025 by Mr Duldig, a solicitor at Clayton Utz, with Barbara Anderson at Nazareth Care. The key points which emerge from this evidence are that there appears to be no immediate threat to Mr Ekeh’s continued employment at Nazareth Care, although there may be a reduction of $2 - $3 per hour in Mr Ekeh’s pay rate if the cancellation of the Qualification results in him being paid as an “unqualified carer’ rather than as a “qualified carer”.
The Tribunal accepts that there have been negative impacts for Mr Ekeh’s mental health and emotional well-being arising from the Reviewable Decision. It also accepts that there is a real risk of some reduction in Mr Ekeh’s hourly pay rate if his carer role is re-rated to an unskilled position. However, the Tribunal is not satisfied that his employment at Nazareth Care is at serious risk.
In addition to the evidence provided by the Duldig Affidavit, the correspondence from Ms Anderson dated 17 November 2024 is very positive about Mr Ekeh, stating: “Joseph has displayed the skills, compassion and respect required of a carer in our employ and has continued to be a strong advocate for the residents that call Nazareth House Tamworth home.”[13] and “Joseph consistently displays the intuition, kindness, compassion and respect for the elderly which is expected in Nazareth Care’s Code of Conduct and the Aged Care Code of Conduct.”[14]
[13] T1, Attachment G to Application for Review, T-documents page 35.
[14] T1, Attachment F to Application for Review, T-documents page 34.
It follows that I am not persuaded that the granting of a stay is required to preserve Mr Ekeh’s ability to continue working in his current role at Nazareth Care pending the substantive hearing of the application for review.
STAY FACTOR (C) THE PUBLIC INTEREST
The Respondent’s Submissions refer to the public interest, identified in the Tribunal’s decision in Site Skills Group Pty Ltd and Australian Skills Quality Authority[15], in ensuring that people who hold a qualification issued by a Registered Training Authority “have been properly trained to a high standard.”[16]
[15] [2019] AATA 1870.
[16] [2019] AATA 1870, [87].
ASQA contends that the cancellation of the Qualification is appropriate as part of its obligation as the National VET Regulator in upholding the purposes of the NVR Act. More specifically, it submits that “it is in the public interest to ensure that:
(a) any care work conducted by the Applicant is not conducted on the basis of the [Qualification]; and
(b) minimum standards for RTO’s and the VET sector are maintained.”[17]
[17] Respondent’s Submissions, [3.13].
The Tribunal agrees with ASQA’s submission that the public interest factor tends towards the refusal of a stay in this matter.
STAY FACTOR (D) CONSEQUENCES FOR THE RESPONDENT IN CARRYING OUT ITS REGULATORY FUNCTION
The Tribunal accepts that if a stay was to be granted, Mr Ekeh would continue to hold a qualification issued by a VET provider who has had its registration cancelled by ASQA. However, in circumstances where proceedings between Gills College and ASQA are yet to be completed, the Tribunal must exercise some caution in weighing this factor. With that caveat, the Tribunal finds that this factor weighs slightly against the granting of a stay.
STAY FACTOR (E) WHETHER THE APPLICATION FOR REVIEW WOULD BE RENDERED NUGATORY IF A STAY WERE NOT GRANTED
Mr Ekeh has not made a submission to the Tribunal that the substantive hearing in this matter would be rendered pointless if his application for a stay was to be refused. He has indicated that he wishes to progress his application for review to a substantive hearing, without delay, irrespective of whether he persuades me that a stay is desirable in the circumstances. The Tribunal finds that the application for review would not be rendered nugatory if the stay is not granted.
CONCLUSION AND DECISION
I am not persuaded that it is desirable to grant a stay for the purpose of ensuring the effectiveness of the review.
On the material before the Tribunal, it does not appear that Mr Ekeh will suffer any irreversible detriment in the short to medium term as the result of the Reviewable Decision. Importantly, he has a supportive employer in Nazareth Care. The refusal of a stay will not affect his prospects of success on his application for review. The parties have both indicated a preparedness to proceed to a final determination of this matter promptly, which should assist Mr Ekeh to mitigate any ongoing detriment to him which might arise, or continue, in the period until the substantive hearing.
Accordingly, the application for a stay is refused and the interim stay order made on 13 January 2025 is to be discharged.
Date of Hearing:  21 March 2025
Date of Decision:  27 March 2025
Advocate for the Applicant:      Mr U J Ekeh, Self-represented
Solicitor for the Respondent: Mr C Tran, Solicitor, Clayton Utz