King Eeducational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 2)

In King Educational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 2), the applicant sought a stay of a decision by the Administrative Appeals Tribunal (AAT) affirming the respondent’s decision not to renew the applicant’s registration under the Education Services for Overseas Students Act 2000 (Cth). The applicant also sought to stay the respondent’s original decision. The court was required to determine whether the AAT's decision came into effect despite the AAT's stay of the original decision, whether the court could make an order under section 44A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) with retrospective effect, and whether the stay should be granted unconditionally or on terms.

The court found that until the respondent questioned the continued effect of the AAT's order, the parties assumed the order was effective, and the applicant did not enter a default situation under Part 5 of the ESOS Act. This supported the court's discretion to stay the operation of the AAT's decision from 7 January 2021 and to believe that such an order would not have unjust consequences in this case. The court considered the principles applied in Shi v Migration Institute of Australia Ltd and held that the applicant's business as a going concern should not be interrupted pending the full hearing of the appeal. The court accepted the grounds of appeal were worthy of argument and noted the respondent's submissions about the applicant's non-compliance with statutory requirements. The court differentiated between breaches found by the AAT and other breaches, noting that past breaches did not preclude a conditional renewal of registration under the NVR Act, which formed a basis for the applicant's appeal.

ORDERS:
1. The operation and implementation of the AAT decision dated 10 December 2020 and the respondent's related decision, effective from 7 January 2021, shall be stayed until the hearing and determination of the appeal.
2. The applicant must review its data in the PRISMS system, remedy any inaccuracies, and inform the respondent of the completion of this task by 4.00 pm on 12 March 2021.
3. The respondent's name is amended to "Chief Executive Officer of the Australian Skills Quality Authority."
4. The proceeding is listed for hearing on 19 April 2021.
5. The applicant must serve Parts A and B of the appeal book by 4.30 pm on 22 March 2021, along with an outline of submissions and a chronology of relevant events.
6. The respondent must file and serve an outline of submissions, a chronology of relevant events, and a list of materials to be included in Part C of the appeal book by 4.30 pm on 7 April 2021.
7. The applicant must file and serve any reply submissions by 4.30 pm on 13 April 2021, along with Part C of the appeal book and a chronologically ordered appeal book in electronic form.
8. The applicant must file a joint list of legislation and authorities and provide electronic copies of each authority to the court by 4.30 pm on 13 April 2021.
9. The applicant has leave to rely on an amended interlocutory application in the form previously submitted to the court.
10. Costs of the interlocutory application are to be costs in the proceeding.