Elmi and Australian Skills Quality Authority (Guidance and Appeals Panel)
[2025] ARTA 192
•7 March 2025
Elmi and Australian Skills Quality Authority (Guidance and Appeals Panel) [2025] ARTA 192 (7 March 2025)
GUIDANCE AND APPEALS PANEL
Applicant/s: Amal Elmi
Respondent: Australian Skills Quality Authority
Tribunal Number: 2024/10652
GAP Reference Number: 2024-001-067
Tribunal:Senior Member Harrowell
Place:Sydney
Date: 7 March 2025
Decision:1. The application for stay is refused.
2. The interim stay made 29 January 2025 is discharged.
…………………[SGD]………………………………………
Senior Member Harrowell
Catchwords
REGULATION AND DISCIPLINE – Cancellation of qualificationsPRACTICE AND PROCEDURE- Stay of decision pending determination of proceedings – applicable principles – Tribunal not satisfied it is desirable to make an order staying or otherwise affecting the operation or implementation of the decision under review
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (repealed)- s 41(2)
Administrative Review Tribunal Act 2024 (Cth)- s 32
National Vocational Education and Training Regulator Act 2011(Cth)- ss 56,57 and 58Cases
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd 208 CLR 199; [2001] HCA 63
Birdseye and Tax Practitioners Board [2020] AATA 1250
Poidevin and Australian Securities and Investments Commission [2018] AATA 124
Scott and Australian Securities and Investments Commission [2009] AATA 798Secondary Materials
Nil
Statement of Reasons
INTRODUCTION
These reasons relate to an application for a stay under s 32 of the Administrative Review Tribunal Act 2024 (Cth) (the Act) pending determination of these proceedings seeking review of a decision of the National Vocational Education and Training Regulator (Regulator) made under the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act).
The applicant was a student at a college operated by Gills College Australia Pty Ltd (College), having enrolled in about early 2022. The College was registered under the NVR Act.
The applicant obtained two qualifications (Qualifications) which are the subject of the present dispute. These were:
(a)CHC30121 Certificate III in Early Childhood Education and Care; and
(b)CHC50121 Diploma of Early Childhood Education and Care.
The respondent, as the relevant authority under the NVR Act, reviewed the operations of the College and decided to cancel the registration of the College because it failed to meet various requirements regarding its operation, record keeping and the assessment of students seeking qualifications through it. Subsequently, the respondent also determined to exercise powers under ss 56 and 58 of the NVR, which permits the respondent to cancel qualifications or statements of attainment provided to students of the College.
By decision dated 13 December 2024 (Decision), the respondent sought to cancel the Qualifications.
The reasons for doing so included the following:
“ASQA’s notice to you of 26 November 2024 stated that as part of the investigation which led to the cancellation of the registration of Gills College, ASQA found evidence that the organisation did not provide the training and assessment necessary to ensure students had the skills and knowledge required to be awarded a VET qualification or statement of attainment.
Findings included:
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.
Furthermore, there was evidence that:
f) Students had been issued certification via recognition of prior leaning (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.
Based on these findings, which were evident during the period in which you undertook training with Gills College, ASQA is satisfied that Gills College did not provide you with the training or assessment necessary for you to achieve the learning outcomes or competencies required for the qualification(s) and/or statement(s) of attainment issued to you.
As outlined above, ASQA provided all students with an opportunity to respond. You did not provide a response to ASQA within the specified timeframe, and accordingly ASQA has decided to cancel the qualification and/or statement of attainment issued to you by Gills College based on the evidence described above.”
Power to cancel qualifications
Section 56 provides:
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
(b) the qualification or statement was issued by the organisation:
(i) in error; or
(ii) because of a document or representation that was false or misleading, or was obtained or made in any other improper way; or
(c) it was outside the organisation’s scope of registration to issue the qualification or statement to the person; or
(d) it is appropriate, in all the circumstances, because of action the Regulator has taken, or is taking, in relation to:
(i) the VET course, or part of the VET course, to which the qualification relates; or
(ii) the organisation, in respect of the VET course, or part of the VET course, to which the qualification relates; or
(iii) part of the VET course to which the statement relates; or
(iv) the organisation, in respect of part of the VET course to which the statement relates.
(2) The National VET Regulator may take action under subsection (1) in relation to an NVR registered training organisation if:
(a) the Regulator gives the organisation a written direction requiring the organisation to:
(i) cancel the VET qualification or VET statement of attainment; and
(ii) notify the person concerned, in writing, of the cancellation; within a period specified in the direction; and
(b) the organisation fails to comply with the direction within the period specified in the direction.
(3) To avoid doubt, if an NVR registered training organisation has been given a written direction under paragraph (2)(a), the organisation may cancel the relevant VET qualification or VET statement of attainment even if the organisation’s scope of registration no longer allows the organisation to issue the qualification or statement.
(3A) If the National VET Regulator believes on reasonable grounds that, if the Regulator were to give a direction under subsection (2) to an NVR registered training organisation in connection with a VET qualification or VET statement of attainment, the organisation would not comply with the direction, the Regulator may take action under subsection (1) in relation to the organisation in connection with the qualification or statement.
(4) The National VET Regulator may take action under subsection (1) in relation to a former registered training organisation at any time.
(5) The National VET Regulator must not take action under subsection (1) unless the action is covered by subsection (2), (3A) or (4).
Section 57 relevantly provides:
57 National VET Regulator to notify person concerned of proposed cancellation
(1) Before the National VET Regulator cancels a person’s VET qualification or VET statement of attainment, the Regulator must give the person a written notice:
(a) stating that the Regulator intends to cancel the person’s qualification or statement and the reasons for the proposed cancellation; and
(b) inviting the person to give the Regulator a written response to the notice:
(i) if the Regulator considers that the circumstances require urgent action—within a period specified in the notice, which must be at least 24 hours; or
(ii) in any other case—within a period specified in the notice, which must be at least 14 days.
Section 58 provides:
58 National VET Regulator’s consideration of response
(1) After considering any response received within a period specified in a notice, if the National VET Regulator still considers that the VET qualification or VET statement of attainment should be cancelled, the Regulator must cancel the qualification or statement.
(2) If the National VET Regulator cancels a VET qualification or VET statement of attainment, the person concerned must return the qualification or statement to the Regulator within the period applying under subsection 59(1).
Note: This requirement will not begin unless and until the person is given notice of the decision to cancel (see subsection 59(1)).
(3) Subsection (2) ceases to apply if and when paragraphs 59(2)(a), (aa) and (b) apply.
Note: Subsection 59(2) is about seeking review of the decision to cancel the qualification or statement.
(4) The National VET Regulator must take reasonable steps to give the person concerned written notice of:
(a) the decision to cancel the qualification or statement; and
(b) the requirement in subsection (2) to return the qualification or statement.
Application for review
By application dated 17 December 2024, the applicant sought review of the Decision by this Tribunal pursuant to s 203(2) of the NVR Act. The application was filed in time, being lodged on 19 December 2024.
The applicant also sought a stay of the Decision, pending a determination of these proceedings. An interim order for stay has previously been made by the Tribunal, as well as directions for the filing and service of evidence by the parties in connection with the stay application and the proceedings generally.
In addition, a decision has been made by the President of the Tribunal, the Hon Justice Kyrou, referring these proceedings to the Guidance and Appeal Panel of this Tribunal, in accordance with s 122(1) of the Act.
EVIDENCE, SUBMISSIONS AND HEARING OF THE STAY APPLICATION
The application for stay is supported by an affidavit of the applicant sworn 19 December 2024. In that affidavit, the applicant deposes to the following matters:
(a)her academic record, including tertiary education and various institutions she has attended including the College;
(b)her employment as an educator, coordinator, trainer and assessor in the childcare industry for the past approximately 15 years;
(c)the family and financial circumstances and the likely impact upon her first qualifications are cancel and/or a stay is not granted pending a determination of the present proceedings.
Annexed to her affidavit were various academic transcripts, diplomas, achievement certificates and attendance certificates dating back to 2005 setting out qualification she has obtained. Copies of the Qualifications, the subject of this dispute, were not in evidence, nor was the date they were awarded.
The applicant also filed written submissions in support of her stay application dated 17 February 2025.
In response, the respondent filed a bundle of documents (RB) which included, at RB 5, its reasons for decision in relation to the College (College decision/CD) and various records extracted from the system known as “WeWorkBook”. The respondent also provided written submissions in support of its position opposing a stay.
WeWorkBook is, apparently, a software package which the College used to record student data, including qualifications issued and other records relating to assessment of students. The use of this system apparently commenced on or about 13 February 2023 (CD [21] and following). The respondent said the use of WeWorkBook had not been notified to it nor authorised by the respondent.
A second software package, known as Axcelerate-Learning Management System, was also used by the College. While again unclear, it would appear this was the system the College had informed the respondent it was using in its Annual Declarations on Compliance provided to the respondent in 2023 and 2024.
Having conducted a review of the records, particularly the WeWorkBook system, the respondent said there were various discrepancies in the records of the College and its training activities including:
(a)records did not align with declarations provided by the College’s representative as to the number of student enrolments;
(b)the College had not complied with Conditions of Registration, the Standards for Registered Training Organisations and the National Code 2018;
(c)lack of evidence to support records of testing and competency in the provision of identified courses; and
(d)certificates were issued to persons who said they had not studied at the College.
The hearing of the stay application occurred on 4 March 2025. The applicant was represented by Mr Boden, solicitor and the respondent was represented by Mr Tran of Counsel.
Generally, the parties’ representatives made submissions consistent with the documents they had filed. As necessary, I will deal with those submissions below. However, at the hearing some relevant matters were drawn to the Tribunal’s attention.
First, upon receipt of the College decision contained in the respondent’s bundle, the applicant said she became aware that the substantial non-compliances identified by the respondent said to arise from the operations of the College were based on records kept in the WeWorkBook system. As noted in the College decision, this system was said to have been first used by the College in about February 2023.
Before the Tribunal, the applicant said that she had completed her course work and obtained her qualifications in 2022. As such, even though some records relating to her enrolment are apparently recorded in the WeWorkBook system, that system could not have been a contemporaneous record of her training and assessment by the College. In making this submission, the Tribunal noted that neither the applicant nor respondent appeared to have put a copy of her qualifications in evidence in the stay application. That is, the Tribunal did not have a copy of the certificates which the applicant had been issued or primary evidence of the date it was issued.
The second matter which the applicant’s solicitor drew to the Tribunal’s attention was that the applicant was no longer working as a trainer in areas to which the Certificates relate, now working in the area of first aid training. It is to be noted that at paragraph 27 and following of her affidavit sworn 19 December 2024, the applicant previously gave evidence of her need for those qualifications in order to continue her work in her (then) current employment. This, she said in her affidavit, made critical the need for a stay to be granted.
The applicant’s solicitor quite properly drew this fact to the attention of the Tribunal. In doing so the applicant’s solicitor conceded that he could not assert the applicant would be prejudiced if a stay was not granted. However, the applicant maintained her application for a stay on the basis she had demonstrated she had good prospects of success. On this matter reference was made to the respondent relying upon records in the WeWorkBook system, a system introduced after she was awarded the Certificates and that no enquiry had been made of her at any time prior to a decision having been made in connection with the College.
CONSIDERATION
This application relates to a stay sought in proceedings referred to the Guidance and Appeals Panel by the President pursuant to s 122(1) of Part 5 Division 2 of the Act.
Applicable principles
The power to make a stay is found in the s 32 of the Act. This section relevantly provides:
32 Reviewable decision continues to operate unless Tribunal orders otherwise
General rule
(1) The making of an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
Exception—Tribunal may stay operation or implementation
(2) However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.
(3) The order is subject to any conditions specified in the order.
(4) The order has effect until the decision of the Tribunal on the application for review comes into operation.
…
Preconditions to making, varying or revoking an order
(7) The Tribunal must not make, vary or revoke an order staying or otherwise affecting the operation or implementation of a reviewable decision unless:
(a) the Tribunal has given the parties to the proceeding for review of the decision a reasonable opportunity to make submissions to the Tribunal in relation to the making, variation or revocation of the order; and
(b) the Tribunal has taken into account the interests of any person who may be affected by the review of the decision.
The Tribunal has a discretion to stay the operation of the decision for which review is sought if the Tribunal is of the opinion that is “desirable to do so to secure the effectiveness of any review”. However, the mere making of an application for review to the Tribunal “does not affect the operation of the decision”: s 32(1).
Section 32 is in similar terms to that found in s 41(2) of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act), which applied to decisions subject to review by the former Administrative Appeals Tribunal under that Act.
As to the relevant considerations under section 41(2) of the AAT Act, in Birdseye and Tax Practitioners Board (citations included) (Birdseye),[1] Senior Member Olding said at [28]-[30]:
[1] [2020] AATA 1250 (8 May 2020).
Relevant considerations
…
28 The considerations which it is appropriate for the Tribunal to consider in determining whether to make a stay are well established:
(a) The prospects of success of the application for review.
(b) The consequence for the applicant of refusing a stay.
(c) The public interest.
(d) The consequences for the respondent in carrying out its functions depending on whether a stay is granted or not.
(e) Whether the application for review would be rendered nugatory if a stay were not granted.
(f) Other relevant matters.[21]
29 The Tribunal’s task in considering the prospects of success of the substantive review has been described in this way:
. . . Clearly, it is not the role of the Tribunal in an interlocutory application of this nature to conduct a review of the merits or strength of the arguments, even on a preliminary basis, because such an undertaking would not only be lengthy but it would be unlikely to take into account the possibility of further evidence and submissions that may be more appropriately advanced at the substantive hearing...
The Tribunal is, however, at least obliged to determine whether there are facts or circumstances or points of law that may be argued at a substantive hearing which may lead to a different result . . . If the reviewable decision discloses findings and reasoning that an applicant cannot or does not challenge, this would be critical to the issue of prospects and would be a significant factor that would weigh against the granting of a stay. It is incumbent on the applicant for a stay to establish the existence of such facts and circumstances or the possibility of legal error that may lead to a different result, through new evidence or submissions that were not raised before the delegate or by contesting findings of fact or conclusions of law (or a combination of both) that are open to challenge.[22]
30 Accordingly, I do not conduct a “mini trial”[23] but it is incumbent on the Applicants to establish the existence of facts or the possibility of legal error that may lead to a different result. In particular, to the extent that the Applicants have not disputed key findings of the Board, that may weigh against granting the stays.
As referenced in the citations in Birdseye, Senior Member Olding adopted the approach of earlier decisions of the Administrative Appeals Tribunal in Scott and Australian Securities and Investments Commission,[2] (Scott) and Poidevin and Australian Securities and Investments Commission,[3] in determining whether a stay should be granted. In this regard, as indicated by the then President of the Administrative Appeals Tribunal, the Hon Justice Downes, in Scott, that list of factors is not exhaustive.
[2] [2009] AATA 798.
[3] [2018] AATA 124.
In my opinion, the principles set out by the Senior Member equally apply to this Tribunal when considering whether it is desirable to grant a stay under s 32 of the Act and whether the discretion to do so should be exercised in favour of an applicant. The language of s 41 of the AAT Act is not significantly different to that of s 32 of the Act and there is nothing in the language of the Act that would suggest determination of an application for stay under s 32 of the Act is to be approached in a different manner. Neither party submitted otherwise.
While the applicant relied on the decision of Callinan J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd 208 CLR 199; [2001] HCA 63 at [246] as support for the approach to be adopted in determining whether a party had an arguable case or whether there was a serious question to be tried (a case which the respondent submitted was irrelevant – relating to the grant of injunctions by a court) it was not suggested by the applicant that the approach in the cases referred to above was inappropriate.
Review of the evidence and submissions
As to the prospects of success, it seems to me that the applicant has a reasonably arguable case.
First, as emerged at the hearing of the stay application, there seems a significant question to be resolved about the relevance of the records contained in the WeWorkBook system and whether the applicant completed required training and was appropriately assessed. In the present case there is a dispute about whether there was any failure by the College which could be said to have impacted the efficacy of the training the applicant received and the decision to award her the Certificates.
Further, as set out in s 56 of the NVR Act, there is a discretion to be exercised in connection with cancelling a particular student’s qualification or statement of attainment even if the Regulator is satisfied of the various matters set out in subsection 56(1). The manner in which such discretion should be exercised may well be affected by the nature and extent of non-compliances, if any.
This fact counts in favour of granting a stay.
Second is the consequences for the applicant if a stay is refused.
It can readily be accepted, that employment as a trainer in a role which requires possession of the Certificates could be adversely impacted if those qualifications were cancelled. However, at present there is no such impact because the applicant is not presently undertaking such work. While there may be an impact if she was to resume such work, there is no evidence before the Tribunal to support an intention to do so in the immediate future.
This fact counts against the grant of the stay.
Next, is the question of public interest.
In part, this question is informed by the objects of the NVR Act. Section 2A of the NVR Act provides:
2A Objects
The objects of this Act are:
(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.
As is evident from the Objects, the legislation is protective in the sense that it seeks to:
(a)maintain the quality of the vocational education and training (including Australia’s reputation both nationally and internationally), and;
(b)ensure students who undertake training at the registered training provider are protected in the sense of being provided with “quality VET”, that is quality vocation and education training.
Further, the training itself equips students with skills to pursue employment and other activities using the training provided.
It might readily be accepted that an unqualified person working in an area requiring training to which the Certificates relate could pose a substantial risk to children under their care and supervisions. However, the qualifications and experience of the applicant, obtained independently of the College, suggest she does not pose any real risk to the public if the decision is stayed. Indeed, having regard to the amount of time that has passed since the qualifications were obtained and in the absence of evidence to the contrary, there is no reason to infer any risk to the children that might be under her care (it being noted she was previously a trainer, not a carer) or the public generally. Otherwise, no public interest matter has been identified that might affect this conclusion.
As to the impact on the respondent if a stay is granted, none has been identified.
As to whether any review would be rendered nugatory if a stay was not granted, in the present case I am not satisfied that refusal of a stay would have a negative impact on the applicant or that she would be deprived of any benefit if successful in her review application.
This is because of her concession through her solicitor at the hearing of the stay application that she is not presently employed in an area that requires her to hold the qualifications the subject of this dispute. Having made this concession, there is also no evidence of any existing contract, pending job application or employment opportunity in the immediate future that might be dependent upon having those qualifications.
In the absence of a stay, the applicant remains able to pursue her application for review and, if successful, have the Decision previously made set aside and keep the qualifications to which she says she is entitled. No doubt the prompt attention to preparation of her case will assist in the Tribunal resolving her claim at the earliest opportunity and avoid any longer term detriment.
Stay refused
Weighing the above considerations, I am not satisfied a stay should be granted in the present case.
When taken together:
the fact there is no presumption in favour of granting a stay (to the contrary, the making of an application of itself does not stay any decision the subject of a review application),
the concession made by the applicant that she does not presently use or require the qualifications for her current employment,
the absence of any evidence to show immediate and/or irreversible detriment; and
the absence of any evidence to show the likely need to be able to rely on the Certificates in the immediate future,
satisfy me that this is not a case in which it is desirable to stay the decision under review pending determination of the application for review.
The fact the applicant may have a reasonably arguable case based on the matters I have outlined above does not alter my opinion.
For these reasons the application for a stay should be refused and the existing interim stay discharged.
The Tribunal makes the following orders:
1.The application for stay is refused.
2.The interim stay made 29 January 2025 is discharged.
I certify that the preceding 54 paragraphs are a true copy of the written reasons for the interlocutory decision of Senior Member M Harrowell
.................[SGD].................................
Associate: K. Anderson
Dated: 7 March 2025__________________________
Date(s) of interlocutory hearing:
Counsel for Applicant:
Solicitor for Applicant:Counsel for Respondent:
Solicitor for Respondent:4 March 2024
Mr K Bowden (Solicitor)
Starnet LegalMr C Tran
Clayton Utz
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