Kaur and Australian Skills Quality Authority (Practice and procedure) - [2025] ARTA 491

Kaur and Australian Skills Quality Authority (Practice and procedure) [2025] ARTA 491 (2 May 2025)
Applicant:Sandeep KAUR
Respondent: AUSTRALIAN SKILLS QUALITY AUTHORITY
Tribunal Number: 2024/10803

Tribunal:General Member Darian-Smith
Place:Sydney
Date:2 May 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 23 December 2024 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
Administrative Appeals Tribunal Act 1975 (Cth) s.41
Administrative Review Tribunal Act 2024 (Cth) s. 32
Education Services of Overseas Students Act 2000 (Cth) s.83
National Vocational Education and Training Regulator Act 2011 (Cth) ss. 36, 39, 56, 58, 199
Cases
Bayahow and Australian Skills Quality Authority [2025] ARTA 176
Beezley v Repatriation Commission (2015) 68 AAR 23
Birdseye and Tax Practitioners Board [2020] AATA 1250
Ekeh and Australian Skills Quality Authority [2025] ARTA 264
Greenfield Education Pty Ltd and Australian Skills Quality Authority [2018] AATA 4210
McNamara; Secretary, Department of Social Services [2016] AATA 189
Rozario and Australian Skills Quality Authority [2025] ARTA 241
Scott and Australian Securities and Investments Commission [2009] AATA 798
Site Skills Group and Australian Skills Quality Authority [2019] AATA 1870
Statement of Reasons

The Applicant (Ms Kaur) is a former student of Gills College Australia Pty Ltd (Gills College), which during the time she was a student was a registered vocational education and training (VET) provider under the National Vocational Education and Training Regulator Act2011 (Cth) (NVR Act).
Ms Kaur obtained the qualification CHC 43015 Certificate IV in Ageing 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,[1] and as an overseas provider under section 83(3)(c) of the Education Services of Overseas Students Act 2000 (Cth)[2], effective from 21 November 2024.
[1] T7, T-documents, pages 51 – 57.
[2] T8, T-documents, pages 58 - 62.
On 16 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).[3]
[3] T2, T-documents, pages 16 - 27.
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 Ms Kaur, 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.”[4]
[4] T2, T-documents, pages 22 - 27.
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 said by ASQA to necessarily be applicable in Ms Kaur’s case.
On 23 December 2024, Ms Kaur applied for review of the Reviewable Decision.[5] She also applied for a stay of the Reviewable Decision under s.32(2) of the Administrative ReviewTribunal Act 2024 (Cth) (ART Act).[6]
[5] T1, T-documents, pages 1 - 10. The Reviewable Decision is a reviewable decision under s. 199 of the NVR Act.
[6] T1, T-documents, pages 11 - 14.
On 23 December 2024, 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 30 January 2025. It was further extended on 30 January 2025 until 15 April 2025 and on 15 April 2025 until the date of the publication of Reasons for Decision on the stay application, or until further order.
On 14 April 2025, ASQA filed an Outline of Respondent’s Submissions on Applicant’s Request for a Stay (Respondent’s Submissions).
On 11 April 2025, ASQA filed and served an affidavit of Cain Gordon Sibley dated 10 April 2025 with Annexures “CGS-1” to “CGS-8” inclusive (Sibley 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; …”
The main issue for determination at the substantive hearing of the application for review concerns whether it was appropriate for the Qualification to have been cancelled under section 56 of the NVR Act. Further, Ms Kaur says that she was not given an adequate opportunity to respond to the initial intention notice issued by ASQA. 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.[7] The relevant principles are not reproduced in full here.
[7] See also Ekeh and Australian Skills Quality Authority [2025] ARTA 264, [15 – [16].
The Tribunal notes the following points for present purposes:
(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 (which general rule is to the effect that an application for review does not affect the implementation and operation of the decision under review), 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[8] (Scott) and the cases such as Birdseye and Tax Practitioners Board[9] which have followed Scott.
[8] [2009] AATA 798.
[9] [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.[10]
[10] [2009] AATA 798, [4].
EVIDENCE AND SUBMISSIONS AT HEARING
In exercising its discretion when determining whether a stay is desirable for ensuring the effectiveness of the review, the Tribunal must have a proper evidentiary basis for being satisfied that a stay is “desirable”.
The explanation for this requirement is to be found in Beezley v Repatriation Commission[11], where the Full Court of the Federal Court stated:
“In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute.”[12]
[11] (2015) 68 AAR 23.
[12] (2015) 68 AAR 23, [68].
While Ms Kaur does not bear a formal legal burden of proof to adduce the evidence necessary to support her stay application, the authorities point to the fact that it is the applicant who bears the practical burden of proof if the Tribunal is to exercise its power to grant a stay order.[13]
[13] See for example McNamara v Secretary, Department of Social Services [2016] AATA 189, [12].
In her Request for a Stay Order, Ms Kaur included a ground for the request in the following terms:
“If the decision comes into effect on 20 December 2024 and my qualification is revoked, I risk losing my job and livelihood at a time of year where finding a new job is impossible.”[14]
[14] T1, T-documents, page 12.
In the event, Ms Kaur’s worst fears in respect of her paid employment were not realised. She remains in paid employment but has provided very limited evidence herself to the Tribunal as to the impact of the Reviewable Decision upon her employment situation.
The Sibley Affidavit has a series of exhibits in which the evidence identified or obtained by ASQA’s solicitors which is relevant to Ms Kaur’s employment has been assembled. The Tribunal notes the following points:
(a) Ms Kaur confirms on 21 January 2025 that she is employed at an aged care facility, Frank Whiddon Masonic Homes of NSW (Whiddon). Ms Kaur says that the Qualification is “crucial for this field of employment.” Ms Kaur states that her personal circumstances, being a single mother with 2 children, makes it very difficult for her to re-do the certificate study and the cancellation of the Qualification has added to her stress. Ms Kaur also refers to her certificate work placement of 120 hours, and some ongoing employment at the Royal Freemasons Benevolent Institute Bathurst Masonic Village (Royal).[15]
(b) A letter of employment from the Royal dated 7 February 2023, confirms that Ms Kaur completed 120 hours placement at the Royal as part of her obtaining the Qualification and that she has been a casual employee at the Royal since 7 August 2023. There is also a payslip from Whiddon dated 20 February 2025 confirming her total gross pay for the financial YTD as being $51,437.08.[16]
(c) Ms Kaur confirms that she is the sole provider for a family of 5, that her mother who was living with them has had to return to India to satisfy her visa conditions, that caring for her children in the absence of her mother and going to work leaves her unable to re-do the Qualification and she has been “very stressed” by the Reviewable Decision.[17]
(d) Two file notes of telephone discussions between Mr Duldig (employed by Clayton Utz, ASQA’s solicitors) and Ms Paige Kildare of Royal confirm that Ms Kaur works a maximum of once a month at the Royal and that this casual employment would need to cease if the Qualification was cancelled, as the Royal requires its employees to hold at least a Certificate III qualification.[18] and
(e) A file note of a telephone discussion between Mr Duldig and Ms Sharnie Leeson of Whiddon in which Ms Leeson confirms that Ms Kaur will be able to continue her current employment even if she did not hold the Qualification and that there were no issues with her performance in her current role.[19]
[15] Sibley Affidavit, annexure “CGS-1”.
[16] Sibley Affidavit, annexure “CGS-2”.
[17] Sibley Affidavit, annexure “CGS-5”.
[18] Sibley Affidavit, annexures “CGS-6” and “CSG-7”.
[19] Sibley Affidavit, annexure “CGS-8”.
In her oral submissions, Ms Kaur made the points that she had done all that was asked of her by Gills College in terms of the training, assessment, and work placement to attain the Qualification. I explained to Ms Kaur that she would have an opportunity to be heard on these matters at the substantive hearing of his application for review.
Counsel for ASQA, Mr Freeburn, asked Ms Kaur a few questions about her employment. In her answers, Ms Kaur raised the issue that although Whiddon was currently happy for her to continue in her present employment, that may not continue to be the case for more than a couple of months. There was also a concern raised by Ms Kaur that her hourly rate at Whiddon might go down if the Qualification was no longer in place. There was no other evidence before the Tribunal which could provide substantiation of, or further details about, either of these matters.
ASQA relied mainly on the Respondent’s Submissions in setting out its position on the various Scott factors. These submissions are considered further below.
In oral submissions, Mr Freeburn, made the following points:
(a) The two most important Scott factors for present purposes are the consequences for the Applicant if a stay was refused and the public interest.
(b) In respect of the consequences for Ms Kaur, ASQA accepts that the refusal of a stay will impact her casual employment at Royal, but that is only once a month employment. Ms Kaur’s principal employment at Whiddon is not dependant on the Qualification. There is nothing to indicate that Whiddon will not continue to employ her or that her income going forward will be materially impacted.
(c) In respect of the public interest, ASQA submits that this factor is a fundamental consideration which weighs heavily, if not decisively, against the granting of a stay. The Qualification pertains to aged care, which is an industry sector in which cares are providing services to some of the most vulnerable people in the community. The Qualification is a prima facie indicator of competence, and the evidence is that by reason of the issues with Gills College, the Qualification cannot be considered to be a reliable indicator of competence.[20] To allow Ms Kaur to continue to hold the Qualification, even on an interim basis, erodes trust in the aged care system and represents a risk to the public.[21]
(d) Ms Kaur’s contention that the holding of the Qualification is “crucial” to her work at the Royal, should weigh heavily against the granting of a stay in the circumstances where having a Certificate III is a minimum requirement of the position at the Royal.[22] and
(e) The regulatory regime is designed to protect the public. Given the “protective” nature of the legislative framework, the Tribunal should be reluctant to grant a stay in a case such as this because that outcome will serve to frustrate ASQA’s regulatory function.
[20] Respondent’s Submissions, [25], [26].
[21] Respondent’s Submissions, [29].
[22] Respondent’s Submissions, [28].
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.[23]
[23] Greenfield Education Pty Ltd and Australian Skills Quality Authority [2018] AATA 4210, [7].
ASQA’s position is that Ms Kaur’s prospects of success in these proceedings “appear to be very limited.”[24]
[24] Respondent’s Submissions, [13].
ASQA states that there is a clear basis for the Tribunal to be satisfied at the substantive hearing that the reasons provided in support of the Reviewable Decision can be made out. ASQA will contend that Gills College failed to provide Ms Kaur with the training and assessment needed to achieve the competencies required to hold the Qualification. Reference is made by ASQA to the present lack of any evidence from Ms Kaur that she had been “assessed by a suitably qualified VET assessor as having acquired the requisite learning outcomes and competencies for the issued qualification.”[25]
[25] Respondent’s Submissions, [16].
The Tribunal is not in a position now to conclude that Ms Kaur does not have at least an arguable case. There will be a further opportunity for Ms Kaur to put on additional evidence and a Statement of Facts, Issues and Contentions prior to the determination of the application for review. As matters presently stand, this factor only weighs very slightly in favour of a stay. It is outweighed by the public interest and other Scott factors in determining the stay application.
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 Ms Kaur of the Reviewable Decision, is the impact that the cancellation of the Qualification is likely to have on her current permanent employment as Assistant in Nursing at Whiddon, and on her casual employment at Royal. As previously noted, ASQA have filed the Sibley Affidavit to provide some additional evidence to enable the Tribunal to better evaluate Ms Kaur’s submissions on this factor.
The Tribunal accepts that there have been negative impacts for Ms Kaur’s mental health and emotional well-being arising from the Reviewable Decision. The Tribunal also accepts that Ms Kaur’s casual employment of one day a month at Royal will probably not be able to continue pending the determination of the application for review. However, I am not satisfied that Ms Kaur’s employment at Whiddon is at risk. Further, there is no evidence to suggest that if Ms Kaur is successful at the substantive hearing, she could not resume her casual work at Royal.

It follows that the Tribunal is not satisfied that the granting of a stay is desirable to preserve Ms Kaur’s ability to continue working in his current role at Whiddon 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[26] (Site Skills) in ensuring that people who hold a qualification issued by a Registered Training Authority “have been properly trained to a high standard.”[27]
[26] [2019] AATA 1870.
[27] [2019] AATA 1870, [87].
The Tribunal in Site Skills placed great emphasis on the importance of the regulation of Registered Training Organisations (RTOs), which provide the training needed to ensure that the vocational qualifications issued by the RTO are a true reflection of competency. The Tribunal went on to state:
“… it is important that there is a minimum standard required to receive a particular qualification; that there is a rigorous assessment process; and that there is consistency in those standards throughout the country.”[28]
[28] [2019] AATA 1870, [20].
The Tribunal accepts that the potential risk to the safety of care recipients in having their care entrusted to people who may not be suitably qualified is critical to the consideration of the public interest in the context of the protective nature of the NVR Act.
The Tribunal in Rozario and Australian Skills Quality Authority[29] recently stated:
“As to the NVR Act, when considering the question of public interest … this legislation is protective. As such, depending on the nature of the qualification, permitting a person not properly qualified to maintain use of certificates and qualifications inappropriately awarded may pose a substantial risk to those who might rely on the person in question being suitably qualified.”[30]
I endorse that statement.
[29] [2025] ARTA 241.
[30] [2025] ARTA 241, [19].
The Tribunal agrees with ASQA’s submission that, pending the determination of the review, any work carried out by Ms Kaur is not conducted in reliance upon the cancelled Qualification.[31] The Tribunal also agrees with Mr Freeburn’s submissions, which are summarised at paragraph 26 (c), (d) and (e) above. It follows that the Tribunal is satisfied that the public interest factor tends strongly towards the refusal of a stay in this matter.
[31] Respondent’s Submissions, [32].
STAY FACTOR (D) CONSEQUENCES FOR THE RESPONDENT IN CARRYING OUT ITS REGULATORY FUNCTION
The Tribunal accepts that if a stay was to be granted, Ms Kaur would continue to hold a qualification issued by a VET provider who has had its registration cancelled by ASQA. In this case, it appears that Ms Kaur will not be depending on the Qualification to keep working until the substantive hearing. On balance, 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
Ms Kaur has not made a submission to the Tribunal that the substantive hearing in this matter would be rendered pointless if her application for a stay was to be refused. She has indicated that she wishes to progress his application for review to a substantive hearing, without delay, irrespective of whether she 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 Ms Kaur will suffer any irreversible detriment in the short to medium term as the result of the Reviewable Decision. The refusal of a stay will not affect her prospects of success on his application for review. The parties have both indicated that they are willing to proceed to the substantive hearing of this matter without delay.
Accordingly, the application for a stay is refused and the interim stay order made on 23 December 2024 is to be discharged.
Date of Hearing:  15 April 2025
Date of Decision:  23 April 2025
Advocate for the Applicant:      Ms S Kaur, Self-represented
Counsel for the Respondent:    Mr D Freeburn
Solicitors for the Respondent:   Ms M Munro, Clayton Utz