Elite Academy Australia Pty Ltd and Australian Skills Quality Authority
[2019] AATA 79
•5 February 2019
Elite Academy Australia Pty Ltd and Australian Skills Quality Authority [2019] AATA 79 (5 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7507
Re:Elite Academy Australia Pty Ltd
APPLICANT
AndAustralian Skills Quality Authority
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:5 February 2019
Place:Sydney
The application for a stay is refused.
............................[sgd]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application to stay decision of Australian Skills Quality Authority – decision to cancel registration – prospects of success – consequences for Applicant – public interest – consequences for parties – whether review would be rendered nugatory – stay application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Vocational Education and Training Regulator Act 2011 (Cth)
CASES
Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority (Unreported, Administrative Appeals Tribunal, Deputy President Bernard J McCabe, 11 December 2018)
LED Technologies Pty Ltd v Elecspess Pty Ltd (No 2) [2009] FCA 141
Panganiban and Australian Securities & Investments Commission[2016] AATA 703
Re Metro College of Technology Pty Ltd and Australian Skills Quality Authority (Unreported, Administrative Appeals Tribunal, Senior Member McCabe, 24 December 2015)
Rust-Oleum Australia Pty Ltd and Australian Pesticides and Veterinary Medicines Authority [2017] AATA 298
Scott and Australian Securities and Investments Commission [2009] AATA 798
SECONDARY MATERIALS
training.gov.au, Qualification details “CHC33015-Certificate III in Individual Support” < of Industry, NSW Government, Smart and Skilled – Certificate III in Individual Support
< FOR DECISION
Chris Puplick AM, Senior Member
5 February 2019
ISSUE
This is an application by Elite Academy Australia Pty Ltd (the Applicant) seeking the stay of a decision made by the Australian Skills Quality Authority (ASQA) to cancel the applicant’s registration as a Registered Training Organisation (RTO) under provisions of the National Vocational Education and Training Regulator Act 2011 (the NVR Act). The date of that decision was 22 November 2018.
TIMETABLE
ASQA undertook an audit of the Applicant in July 2018 and a final audit report was produced dated 18 October 2018 (the Audit Report). Following consideration of the Audit Report ASQA moved to cancel the Applicant’s registration as an RTO. The details of correspondence between the parties does not need to detain the Tribunal in relation to a stay application.
ASQA notified the Applicant by letter dated 22 November 2018 that its registration had been cancelled and that the effective date of that cancellation would be 4 January 2019. On 19 December 2018 the Applicant applied to the Tribunal for a review of the ASQA decision. That review is yet to be heard.
Nevertheless, on 23 January 2019 the Applicant applied to the Tribunal for a stay of the ASQA decision and on 24 January an interim stay (with conditions) was granted by the Tribunal effectively extending the effective cancellation date to 31 January 2019 or until further order by the Tribunal.
On 30 January 2019 the matter returned to the Tribunal which extended the interim stay (with the same conditions) until Tuesday 4 February 2019 by which time it undertook to give a final determination of the original stay application.
This decision constitutes the final determination of the stay application.
RELEVANT PRINCIPLES
Applications for a stay are made under section 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act):
(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.
The Tribunal stresses that the essential purpose of this section of the AAT Act is not to canvass the substantive issues in dispute between the parties but to secure the effectiveness of the hearing at which such matters are to be determined.
The centrality of this purpose was elucidated by the Federal Court where Gordon J remarked, in dismissing a stay application:
“ It is now well established that the grant of a stay does not require special or exceptional circumstances and a court will ordinarily grant a stay where the appeal would otherwise be rendered nugatory: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 693 and 695. Counsel for the Applicant submitted that none of the Respondents had provided any, let alone a sufficient, basis for a stay and that the Applicant should have the fruits of the litigation. In my view, I agree. The Respondents did not identify any reason why in the absence of a stay the appeal would be rendered nugatory”.[1]
[1] LED Technologies Pty Ltd and Elecspess Pty Ltd (No 2) [2009] FCA 141 at [30].
Certain principles have been developed which guide the Tribunal in assessing whether or not a stay application should be granted. They are set out in the judgement of (then) AAT President Downes J in Scott v Australian Securities and Investments Commission[2] as follows:
(1) The prospects of success.
(2) The consequence for the applicant of the refusal of a stay.
(3) The public interest.
(4) The consequences for the respondent in carrying out its functions depending upon 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 that the ban has already been in place and the gap between today and the hearing of the application.
[2] Scott and Australian Securities and Investments Commission [2009] AATA 798 at [4]. See also Panganiban and Australian Securities & Investments Commission[2016] AATA 703 at [6]-[10] per Senior Member Taylor SC.
SUBMISSIONS
Both parties supplied material to the Tribunal shortly before the hearing. The Applicant (on 29 January 2019) supplied two sworn affidavits from Mr Tejinder Singh who is the sole director of the Applicant together with an Outline of Submissions. On the morning of the hearing on 30 January 2019 ASQA supplied a response to those submissions and a sworn affidavit of Ms Chrystal Fellows, a Lead Regulatory Officer of ASQA. Both parties were legally represented before the Tribunal. Mr Singh was given the opportunity to participate in the hearing but elected not to do so. Nothing adverse is taken from this.
In short, the Applicant claims that failure to grant the stay application would have a “disastrous effect” upon its business and may well cause it to cease trading so that any chance of matters being determined at a merits hearing would be rendered nugatory. It also advances the proposition that, at such a hearing, its chances of ultimate success in challenging the ASQA cancellation would be substantial.
ASQA maintains that the initial and continuing level of non-compliance, originally identified in the Audit Report is of such a nature as to justify the cancellation decision and that to allow the Applicant to continue to operate would not only be against, but would be dangerous, in terms of the public interest.
The Applicant responded by asserting that it had given clear evidence of undertaking steps to bring itself into compliance with the matters identified in the ASQA Audit Report while ASQA maintains that these assertions are no more than inadequate “statements of intent or good will”, offered “at a minute to midnight” by an organisation “facing inevitable extinction.”
Rhetorical flourishes aside, the questions before the Tribunal amount to these:
(a)Would a failure to grant a stay render any eventual merits review nugatory?
(b)Without a detailed examination of the evidence presented by both parties is there any reason to believe that the Applicant would be successful at such a merits hearing?
(c)Are there any compelling reasons that the stay application should not be granted, bearing in mind that the Applicant is not required to establish that there are any “special or exceptional circumstances” justifying such a request?
DISCUSSION
The Applicant has put before the Tribunal both in affidavit and submission form a list of initiatives which it says it has undertaken to remedy the non-compliances and defects identified in the Audit Report. These include (inter alia):
(a)No longer offering some of the courses where non-compliance was identified[3]
(b)Engaging “two experienced industry consultants” to review its operations
(c)Removing a trainer criticised in the Audit Report
(d)Purchasing new equipment
(e)Reviewing the course brochure(s) and student handbook.
[3] The Applicant also indicates that were a stay to be granted it would be willing “for the remaining period of the review application, to confine its course delivery to this one course.” First Affidavit of Mr Tejinder Singh (29 January 2019) at paragraph [8].
Moreover the Applicant asserts that it faces a monthly rental bill of some $7700[4] and that without income from students in its one remaining course (Certificate III in Individual Support) its financial viability is under threat.
[4] Ibid at [5].
It also states that it has some 73 students currently enrolled in that single course, all of whom will have completed their studies by 28 March 2019 and where approximately 20 of them have completed the course and been assessed, although they are now undergoing reassessment “to ensure their education is up to an acceptable standard.”[5]
[5] Ibid at [9].
Finally it claims that since all its recruitment is by word-of-mouth, primarily in the Indian community, loss of registration at this stage would (due to reputational damage) make it impossible to recruit new students and resume its operations at some later date.
ASQA claims that the Applicant is “seriously” non-compliant and that this level of non-compliance (with the requirements established under the NVR Act) is established by the Audit Report. It further asserts that the steps taken by the Applicant to remedy some or all of the identified non-compliances remain inadequate and that the list of remediation initiatives set out in the Applicant’s affidavit and submission give no comfort to ASQA as the systems regulator and still fail to address key issues.
It goes on to claim, inter alia, that[6]:
(a)The 73 students in the sole remaining course (Certificate III in Individual Support) were recruited into that course after the findings of the Audit Report had identified critical non-compliance in that course, such deficiencies not having been remedied in the interim;
(b)In relation to these students it states that of the 20 who are said to have completed the course a majority have not been provided with the required workplace placements and there is no information about what the reassessment of these students constitutes;
(c)The revised enrolment procedures remain inadequate;
(d)There is no evidence as to what any revised training and assessment strategies might be or the adequacy of the purchased equipment or the current level of learning resources;
(e)It questions the employment of the “experienced industry consultants” on the basis that the Applicant has given no details as to who they might be, what their qualifications are and exactly what their brief is and timetable.
[6] Affidavit of Chrystal Fellows (dated 30 January 2019) at paragraph [5].
ASQA goes on to make a point of substantial significance in relation to the one course still being offered - Certificate III in Individual Support. The Australian Government website outlines details of this course as follows:
This qualification reflects the role of workers in the community and/or residential setting who follow an individualised plan to provide person-centred support to people who may require support due to ageing, disability or some other reason. Work involves using discretion and judgement in relation to individual support as well as taking responsibility for own outputs. Workers have a range of factual, technical and procedural knowledge, as well as some theoretical knowledge of the concepts and practices required to provide person-centred support.
To achieve this qualification, the candidate must have completed at least 120 hours of work as detailed in the Assessment Requirements of the units of competency.[7]
[7] Training.gov.au, Qualification details “CHC33015-Certificate III in Individual Support” >
ASQA asserts that should there be any deficiencies or non-compliance in relation to people being trained for this qualification, then vulnerable people (people in the aged care or disability sector) would be put at risk.
The Tribunal finds that it cannot but agree with this proposition.
The Tribunal notes that the Applicant drew its attention to the Audit Outcome Decision Record in which the Manager, Regulatory Operations had indicated that a future stay would be supported “to provide assurance to students during any appeal process”.[8] This document is dated 9 November 2018. This however, appears to be related to a previous decision of 5 September 2018. The same document nevertheless contains a subsequent recommendation for the cancellation of the RTO’s registration to be considered by a full Commissioner’s meeting. At that meeting the Commissioners agreed with the cancellation decision, such decision being recorded as being made on 14 November 2018.[9] The Tribunal must give weight to the decision of the full Commissioner’s meeting decision rather than to any preliminary recommendations which may have been made to it.
[8] ASQA: Audit Decision Outcome Record, 14 November 2018, attached to Respondent’s submission to the Tribunal made by email on 29 January 2019 at page [4].
[9] Ibid page [1].
Considering all the material put before it, and relating that to the question of whether or not denial of a stay would render the merits review nugatory, the Tribunal makes the following findings:
(a)The Applicant has not provided sufficient evidence that it has adequately addressed the identified non-compliances set out in the Audit Report and in particular it has failed to:
(i)Identify or give details of the external expert consultants engaged including details of their qualifications, brief or timetable.
(ii)Provide ASQA with a revised training and assessment strategy for the Certificate III Individual Support course which is now the sole course which it is offering.
(iii)Address, in a comprehensive manner, other non-compliance findings in the Audit Report.
(b)The Applicant has failed to provide the Tribunal with sufficient details of its financial position in order to be in a position to demonstrate that it would not be able to continue its operations until the time of the merits hearing. The Tribunal expresses some concern about what appears to be a pattern of the Applicant receiving NSW Smart and Skilled educational grants which are given for the support of students, but which the Applicant has not apparently applied for this purpose.[10]The Applicant is not listed as having Smart and Skilled money recorded against the Certificate III Individual Support on the Smart and Skilled website of the NSW Department of Industry.[11] The Tribunal takes this into account only to the extent that it finds the Applicant’s submission in relation to potential financial hardship were the stay not to be granted, to be manifestly inadequate.
(c)Together, these findings would tend to the conclusion that the Applicant’s prospect of success at the merits hearing should be rated as low.
[10] First Affidavit of Mr Tejinder Singh (29 January 2019) at paragraph [11].
[11] < (accessed 4 February 2019).
In consideration of some of the other matters raised in Scott, the Tribunal notes the submission of ASQA to the effect that the cancellation of the Applicant’s registration is already a matter of public record, being published on the ASQA website and hence any reputational damage feared by the Applicant has, most likely, occurred already.
The Tribunal accepts that the consequences for the Applicant of being forced to terminate its activities after 4 February 2019 would be severe, and that there would be an impact upon the staff and students as well as the organisation itself. However non-compliance is not something which can be ignored even in the face of significant consequences.
The Tribunal accepts that there is a genuine public interest in making sure that people are not improperly issued with qualifications[12] which would allow them to work with vulnerable individuals and that there is a risk of that happening in this instance. The Tribunal accepts the stricture of Deputy President Forgie in saying that “care must be taken as to the way in which regard is had to the public interest”[13] but it believes that in this instance the public interest is a matter of high importance.
[12] See Re Metro College of Technology Pty Ltd and Australian Skills Quality Authority, (unpublished) AAT General Division no 2015/6137 (24 December 2015) at [10] per Senior Member (as he then was) McCabe.
[13] Rust-Oleum Australia Pty Ltd and Australian Pesticides and Veterinary Medicines Authority [2017] AATA 298 at [38].
The Tribunal does not accept that there would be any substantial impact upon ASQA were a stay to be granted, especially if it were one continuing the conditions imposed on the previous occasion. The Tribunal recognises that ASQA has the primary responsibility to ensure the integrity of the VET system and that there is always a concern that other RTO’s may fail to comply if any one of them is seen to be excused for non-compliance,[14] but the Tribunal does not think that this position would necessarily be compromised were a stay granted.
[14] Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority [11 December 2018] 2017/0290 at [39].
The Tribunal believes that in considering the positions of both the Applicant and ASQA and noting the impact of decisions on staff, students and the public, it has fulfilled its responsibility to consider the interests “of any persons who may be affected by the review” in accordance with the requirements of the AAT Act.
The Tribunal believes that the Applicant has failed to identify any substantial basis why a stay should be granted nor has it demonstrated that a failure to grant a stay would render the final review and merits consideration process nugatory. By contrast ASQA has demonstrated that there is a genuine public interest in its initial cancellation decision being allowed to take effect.
DECISION
The application for a stay is refused.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 5 February 2019
Date(s) of hearing: 30 January 2019 Solicitors for the Applicant: Mr J Broadbent, Broadbent Legal (by phone) Solicitors for the Joined Party: Mr John Pritchard, Australian Skills Quality Authority (by phone)
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