Greenfield Education Pty Ltd and Australian Skills Quality Authority

[2018] AATA 4210

Greenfield Education Pty Ltd and Australian Skills Quality Authority [2018] AATA 4210 (9 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/5228

Re:Greenfield Education Pty Ltd

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:9 November 2018

Place:Sydney

The application for a stay of ASQA’s decision dated 7 August 2018 is refused.

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Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – application to stay decision of Australian Skills Quality Authority – registered training organisation – decision to cancel registration – prospects of success of substantive matter – consequences if stay refused – decision already in effect – public interest – stay application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 41(2)

National Vocational Education and Training Regulator Act 2011 (Cth) ss 3, 22, 39

CASES

Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114

SECONDARY MATERIALS

Standards for Registered Training Organisations (RTOs) 2015

REASONS FOR DECISION

Senior Member A Poljak

9 November 2018

1. In May 2014, Greenfield Education Pty Ltd, the applicant, was registered as a ‘NVR registered training organisation’ (“RTO”) under the National Vocational Education and Training Regulator Act 2011 (Cth) (“NVR Act”). The applicant’s business model is to provide skills recognition services, via an “assessment only” pathway using recognised prior learning (“RPL”), to migrants who have established overseas experience and qualifications.

2. The Australian Skills Quality Authority (“the respondent or ASQA”) is the national vocational education and training regulator as those terms are defined in section 3 of the NVR Act. Section 22(1) of the NVR Act states:

   “An NVR registered training organisation must comply with the Standards for NVR Registered Training Organisations”. [Emphasis added]

3. The Standards for Registered Training Organisations are contained in the legislative instrument Standards for Registered Training Organisations (RTOs) 2015, which came into effect at various times between 1 January and 1 April 2015 (“RTO Standards”).

4. In these proceedings, the applicant is seeking a stay of a decision of the respondent dated 7 August 2018, cancelling the applicant’s registration as a RTO under section 39 of the NVR Act, with effect from 11 September 2018 (“the cancellation decision”). In general terms, it is alleged that the applicant is non-compliant with Clauses 1.8, 1.13, 1.16 and 3.1 of the RTO Standards as prescribed by the NVR Act.

   Consideration

5. Section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) provides:

   “The Tribunal may, on request being made by a party to the 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”.

6. I accept that the matters outlined by a former President of the Tribunal, Downes J, in Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114 are relevant matters that will usually arise when considering an application under section 41(2). They include:

   “… In considering the application, it is appropriate for me to consider a range of matters, including:

   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”.

7. The authorities establish that a consideration of the prospects of success of an application and so the merits of the substantive application must not involve the Tribunal undertaking a full consideration of those merits. While it is neither necessary nor appropriate for me to determine the substantive matter on an interlocutory application, I must be satisfied that the applicant has some prospects of success.

8. Ms Nadine Khoury, a Principal Regulatory Operations Officer of ASQA, has provided an affidavit in these proceedings affirmed 25 October 2018, detailing a chronology of the applicant’s audit history, ASQA’s findings and Greenfield’s relevant conduct. The evidence shows that during the period from 2014 to 2018, ASQA’s audit activity on the applicant identified non-compliances with the RTO Standards on eight (8) separate occasions.

9. ASQA submits that the applicant’s prospects of success in the substantive matter are anything but hopeless given the history of the applicant’s non-compliance with its legislative obligations. Additionally, ASQA contends that the applicant has not provided evidence as to rectification of the alleged non-compliances which are the subject of the cancellation decision.

10. In written submissions the applicant claims to have evidence of rectification and contends that from past conduct, it is plain that the applicant is capable of rectifying any compliance issues. I do accept that on previous occasions where non-compliances were identified, the applicant satisfactorily rectified the compliance issues. However, on the available evidence, I am unable to form a view that the applicant has good prospects of success.

11. In regards to the consequences for the applicant if a stay is refused, I note that the hearing of the stay application took place on 30 October 2018. At that time, the decision under review had already been in effect for some 7 weeks; since 11 September 2018. At hearing, Mr Ahmad, CEO of the applicant, advised that since the decision had come into effect, no students were enrolled with the applicant. In regards to staff members, Mr Ahmad advised that staff were on contract and were only engaged and paid as needed.

12. The applicant has not provided evidence to substantiate any financial impact suffered as a result of the cancellation decision coming into effect. While I accept that the applicant would no longer be accepting students and as such, would not be generating income through the receipt of fees, I can assume that any immediate financial impact suffered by the applicant as a result of the cancellation decision would be minimal. As stated above, staff employed by the applicant are on contract and are not an ongoing liability. Additionally, the applicant has not provided evidence of any leases of premises which would result in the applicant incurring an ongoing liability.  

13. Any reputational damage caused to the applicant as a result of the cancellation decision coming into effect has already occurred. At hearing, Mr Ahmad confirmed that the applicant had ceased advertising as an RTO on its website and the decision has been published on the National Register and ASQA’s website since 11 September 2018.

14. Finally, there is the question of the public interest and I consider the protection of consumers and the protection of the good name of Australian educational institutions overseas to be of significant importance, particularly in light of recent complaints, from a student and industry, about the applicant’s assessment practices and alleged deficiencies leading to the award of qualifications. As such, I find that the public interest does not favour the granting of a stay.

    Decision

15. Having taken into account the factors advanced by both the applicant and respondent, I have reached the view that on balance, it is not desirable to order a stay under section 41(2) of the AAT Act in the circumstances.

16. The stay application is refused.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 9 November 2018

Date(s) of hearing:	30 October 2018
Applicant:	In person
Respondent:	A Grullemans, Australian Skills Quality Authority