Mantra Training and Development Pty Ltd and Australian Skills Quality Authority

[2018] AATA 1967

Mantra Training and Development Pty Ltd and Australian Skills Quality Authority [2018] AATA 1967 (29 June 2018)

Division:GENERAL DIVISION

File Number(s):      2018/2442

Re:Mantra Training and Development Pty Ltd

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:29 June 2018

Place:Canberra

The time for the lodgement of an application for review of the decision of the Australian Skills Quality Authority to refuse an extension to the scope of registration of Mantra Training and Development is extended to 7 May 2018.

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Mark Hyman, Member

Catchwords

PRACTICE AND PROCEDURE – extension of time – principles governing grant or refusal – explanation of delay – where the applicant had lodged an application to the tribunal but withdrawn it – availability of internal review by ASQA – opaque and misleading documentation – underlying merits of the application – prejudice to applicant and respondent – extension of time granted

Legislation

Administrative Appeals Tribunal Act 1975, s 29

Administrative Decisions (Judicial Review) Act 1977, s 11

National Vocational Education and Training and Regulator Act 2011, ss 3, 33, 155, 185, 199, 200, 201, 203, 224, 225

National Vocational Education and Training Regulator Regulations 2011, s 15

Standards for Registered Training Organisations (RTOs) 2015

Cases

Accord Australasia and Director, National Industrial Chemicals Notification and Assessment Scheme [2013] AATA 414

Comcare v A’Hearn [1993] FCA 498

Hamden v Secretary, Department of Human Services [2013] FCA 3

Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305

Shi v Migration Agents Registration Authority [2008] HCA 31

REASONS FOR DECISION

Mark Hyman, Member

29 June 2018

1. Mantra Training and Development Pty Ltd (Mantra), the applicant, is a registered training organisation (RTO) under the National Vocational Education and Training and Regulator Act 2011 (the NVR Act). On 24 or 27 October 2017 (the date is contested but nothing turns on it) Mantra applied to ASQA to extend its scope of registration by the addition of a qualification in training and assessment. That application was rejected on 28 February 2018 on the grounds that Mantra had failed to comply with some of the standards set out in the Standards for Registered Training Organisations (RTOs) 2015 (the Standards – an instrument made under the NVR Act) and that decision was notified to Mantra on 6 March 2018. On 7 May 2018 Mantra lodged an application with this tribunal for review of that decision. That application was 34 days past the date set in the Administrative Appeals Tribunal Act 1975 (the AAT Act) by which such an application must be lodged. Mantra sought an extension of time for the lodgement of its application. ASQA opposed that extension of time.

2. This decision is about whether Mantra should be allowed an extension of time to lodge its application to the tribunal for review of ASQA’s decision.

3. Section 29 of the AAT Act governs the process for making applications for review. Subsection 29(1) specifies (relevantly) that the application must be made within the prescribed time; subsection 29(2) provides that, subject to exceptions not presently relevant, the prescribed time is 28 days after the decision for which review is sought is given to the applicant. Subsection 29(7) provides that the tribunal may, on written application, extend the time for making an application for review if satisfied that “it is reasonable in all the circumstances to do so”. Subsection 29(9) allows the tribunal to ensure that a person affected by an application for an extension of time is notified of the application; and subsection 29(10) requires the tribunal to hold a hearing on an extension of time application if that application is opposed by whoever was notified under subsection 29(9).

4. ASQA having opposed Mantra’s extension of time application, the tribunal held a hearing on 13 June 2018. Mantra was represented by Ms Donna Moulds, Mantra’s Chief Executive Officer. ASQA was represented by Ms Louise McDermott, Legal Officer with that Authority. The parties appeared by telephone.

5. The tribunal had before it various papers submitted in connection with the application by Mantra, including the rejection letter and audit by ASQA, and papers submitted by ASQA before the hearing, comprising a submission and attachments, among them correspondence between ASQA and Mantra and extracts from other ASQA documents, including a fact sheet on the ASQA website.

6. The discretion to grant an extension of time established by subsection 29(7) of the AAT Act is given in the broadest terms. Similar discretion is typically available to the courts. A body of case law has developed that sets out, non-exhaustively, the considerations that influence how the discretion is exercised. Among the best known of the cases dealing with these matters is Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305 in which Wilcox J set out a number of principles (that case related to an extension of time to seek judicial review of a decision under section 11 of the Administrative Decisions (Judicial Review) Act 1977 but the principles apply equally in present circumstances).These principles include:

   ·the starting position is that an application made outside time will not in general be entertained, so there must be an acceptable explanation for the delay;

   ·the applicant must not have “rested on his rights”; an attempt by the applicant to continue agitation of the matter will be to advantage and a shorter rather than longer delay before the application is lodged is therefore to the advantage of the applicant;

   ·any prejudice to the respondent will militate against the grant of an extension, but mere absence of prejudice is not enough of itself to warrant a grant of extension;

   ·the merits of the substantial application are to be taken into account;

   ·fairness between the applicant and others in a similar position is also relevant.

   LEGISLATION

7. Section 155 of the NVR Act establishes the National Vocational Education and Training Regulator (National VET Regulator). Part 8 allows for the establishment by legislative instrument of a number of framework standards and requirements for providers and courses, as agreed by the Commonwealth-State Ministerial Council, including in section 185 standards for NVR RTOs. These Part 8 requirements, taken together, form the “VET Quality Framework”, as defined in section 3 of the Act. Section 33 allows the National VET Regulator to grant an application for a change in the scope of an applicant’s registration; in doing so, the Regulator must consider, among other things, the applicant’s ability to provide a course in accordance with the VET Quality Framework, as well as the applicant’s current compliance with that framework. Section 15 of the National Vocational Education and Training Regulator Regulations 2011 specifies that the National VET Regulator may also be known as the Australian Skills Quality Authority.

8. This matter turns in part on the application of the legislative provisions in the NVR Act governing the review of a decision. Section 199 of that Act provides that certain decisions are reviewable, including decisions taken under section 33. Section 200 provides that where such a decision is taken by a person to whom power is delegated under section 224 or 225 of the NVR Act, a person dissatisfied with the decision can apply for reconsideration of the decision; and section 201 requires the National VET Regulator to reconsider the decision. Subsection 203(1) then states that application may be made to this tribunal for review of a decision by the Regulator under section 201 and subsection 203(2) states that application may be made to the tribunal for review of a reviewable decision “made a by a person other than a member of staff of the Regulator”.

9. The effect of the above provisions is that the review pathway for decisions under the NVR Act is divided: those decisions made under delegation are subject to an internal review by the Regulator (section 201) and it is that Regulator’s decision which is reviewable by this tribunal (subsection 203(1)); but if the decision is taken not under delegation but by a Commissioner (for example), then there is no internal review and that initial decision is reviewable by this tribunal (subsection 203(2)).

   THE APPLICANT’S ARGUMENT

10. Ms Moulds explained that when ASQA had first rejected Mantra’s application to change the scope of its registration Mantra had lodged an application for review with this tribunal, on 6 March 2018 (the day Mantra received notification of the rejection from ASQA). Mantra had then sought legal advice, which had been to the effect that the AAT application should be withdrawn while Mantra sought internal review. Mantra withdrew its application to this tribunal on 23 March 2018 and submitted an application for internal review to ASQA on 29 March 2018. On 10 April ASQA wrote to Mantra explaining that the decision was not reviewable internally. By that date the period for application to this tribunal had already passed. Ms Moulds said that none of the correspondence or other papers from ASQA made the choices and options clear, and Mantra was accordingly misled into following the wrong path in seeking review.

11. After Mantra had sought to change the scope of its registration, ASQA had made an audit of its compliance with the Standards. ASQA had identified four areas where there were “serious non-compliance issues” and had invited Mantra to address them. Mantra made some changes, but ASQA subsequently decided that three areas remained non-compliant, and that judgment was the basis for the rejection of Mantra’s application. Ms Moulds maintained at the hearing, however, that significant steps had been made towards compliance in the three areas, although she acknowledged that not all areas of compliance had been adequately resolved. Ms Moulds took the view that Mantra was not so far from satisfying the requirements of the Standards.

    THE RESPONDENT’S ARGUMENT

12. Ms McDermott argued that:

    ·the decision letter of 28 February 2018 clearly set out Mantra’s review options; that letter, and other correspondence with Mantra, did not at any stage suggest that internal review was available to Mantra;

    ·Mantra was subsequently given further advice that review was to be sought from this tribunal (rather than internally from ASQA);

    ·similar information was available on the ASQA website and the internal review application form encouraged applicants to consult that information;  

    ·the website information clearly distinguished between decisions that were subject to internal review and those that were not;

    ·there is no adequate explanation for the delay by Mantra in taking action (including the delay from about 12 April, when Mantra eventually understood the review pathway, until lodgement of the application with the tribunal on 7 May);

    ·the merits of Mantra’s substantive case are in any case weak, as evidenced by its failure to remedy three of four areas of non-compliance when they were brought to its attention;

    ·grant of an extension would prejudice ASQA by compelling it to apply its resources in the tribunal review process; and

    ·there would be no prejudice to the applicant in refusing an extension because it was always open to Mantra to lodge a new application.

13. With regard to the confusion created by the legal advice, Ms McDermott said that ASQA should not be held responsible for ill-informed or mistaken legal advice given to Mantra.

    CONSIDERATION

14. ASQA’s argument rests mainly on the assertion that Mantra has no acceptable explanation for its delay. That argument rests in turn on the provision of information to Mantra regarding review options. A survey of the information provided to Mantra in the decision letter of 6 March 2018, the application form for internal review, the website and the letter from ASQA of 10 April 2018 reveals the following:

    ·the decision letter of 6 March 2018 conveys the decision (“your application has been rejected”) but does not explain who has taken that decision. The letter is signed by Drew Ward, Manager Regulatory Operations, but does not explain whether it is he or some other person who has taken the decision. The letter offers two options for further action as follows

    Submit new application

    You may choose to address the issues that ASQA has identified and submit a new application to change your scope of registration.

    You can seek a review of this decision as it is a reviewable decision under section 199 of the NVR Act.

    Submit review application to AAT

    You may apply to the Administrative Appeals Tribunal…

    This text certainly puts forward appeal to this tribunal as the review option available and it is indeed the case that it does not offer internal review as an option, but it does not explain that AAT review is the only review option available because the decision has been taken other than by a member of staff of ASQA.

    ·The application form for internal review encourages applicants to read the information available on the website and then notes “Only ‘reviewable decisions’ as specified in section 199 of the National Vocational and Training Regulator Act 2011 (NVR Act) … can be reconsidered by ASQA.”

    ·The ASQA website includes pages on the review process and there is in those pages a section dealing with the distinction between decisions that are internally reviewable and those that are not. That section notes that only reviewable decisions under section 199 of the NVR Act can be reviewed internally and then adds the following:

    Additionally, if a decision is made jointly by ASQA’s Commissioners, a review of that decision can only be made by an external authority (such as the Administrative Appeals Tribunal). When you are informed of ASQA’s decision, you will also be advised whether ASQA can review that decision.

    ·Mantra had lodged its application for review on 29 March 2018; ASQA replied on 10 April noting that the review could not proceed. Mantra sought clarification of why internal reconsideration was not available, and on 11 April ASQA explained that the decision was not internally reviewable because it had been made jointly by ASQA’s Commissioners.

15. I would be more likely to be persuaded by ASQA’s argument if Mantra had clear guidance on what was expected of it. That is not the case. Mantra tried from the very day of its rejection letter to have the matter reconsidered. They chose the wrong path, but can hardly be blamed. ASQA’s website says that applicants will be told whether they can seek review internally or only from this tribunal, but I can find nothing in the letter of 6 March that indicates, for example, by whom the rejection decision was taken. The letter is signed by the Manager Regulatory Operations, and the attached audit has the name of a lead auditor, Mr Stephen Auburn. The Commissioners are not mentioned in the letter nor, so far as I can see, in the audit report. It would be reasonable for an applicant receiving the letter to assume that the decision was taken either by Mr Ward or Mr Auburn (and those are the names entered into Mantra’s application for internal review as decision makers). The form for application for internal review notes that only decisions taken under section 199 of the NVR Act are reviewable – but there is no dispute that the decision in the present instance is reviewable: the relevant distinction is that made in section 203 regarding the level at which review is available. The website makes the distinction between levels of review, but that distinction is of no use unless the applicant knows who took the decision. The only clue I can find in the materials that Mantra had access to is that in the rejection letter the only review option set out is review by this tribunal. Presumably an applicant is expected to infer from that that internal review is unavailable.

16. The final nail in the coffin is that when Mantra submitted its application for internal review on 29 March, 12 days were allowed to elapse before ASQA wrote advising that the review could not proceed. A prompt response might have allowed Mantra to lodge an application to this tribunal within time (the deadline was 3 April). Ms Moulds also said that ASQA staff would not engage earlier with Mantra or explain why the application had been rejected.

17. It seems likely to me that the delay following receipt of ASQA’s first clear explanation on 13 April resulted from Mantra taking some time to consider its options. In the scheme of things, that is understandable and in any case the delay is not a long one.

18. As for the legal advice, the question before me is not whether ASQA is to be responsible for Mantra’s incorrect legal advice but rather whether it is a consideration I can take into account in arriving at a decision whether to grant an extension. There is ample authority for the latter proposition: see Comcare v A’Hearn [1993] FCA 498 where the full Federal Court stated that in this context errors by a solicitor should not be visited on a client. And it is also relevant that a person, even with the benefit of legal training, could easily be led into error in giving advice over which review path to follow, given the materials in evidence in this case.

19. On the underlying merits of Mantra’s review application, the considerations raised by Besanko J in Hamden v Secretary, Department of Human Services [2013] FCA 3, are relevant. In that case his Honour noted that an extension of time hearing was not an opportunity for determination of the substantive merits of the case, but that no extension of time should be granted unless the person seeking the extension had an arguable case. Plainly weak and plainly strong cases would lend weight to the rejection or grant, respectively, of the application.

20. Ms McDermott suggested that there were serious failures remaining in Mantra’s case for extension of scope of registration. The audit report assesses Mantra as falling short of requirements in a number of clauses from the Standards (clauses 1.1, 1.2 and 1.8). Ms McDermott said that failure against clause 1.8 (which deals with the assessment system) was especially worrying. Ms Moulds said that Mantra had taken steps to improve compliance, and was continuing to take such steps. The audit report does not appear to suggest that Mantra was grossly non-compliant with the Standards, nor that the failures to comply could not be addressed by further changes and improvements to the educational framework.

21. These are issues best addressed in greater depth at a hearing. They do not seem to me to indicate such a fundamental weakness in Mantra’s case that a review by this tribunal would be futile. And I note that, in accordance with the High Court’s ruling in Shi v Migration Agents Registration Authority [2008] HCA 31, the tribunal, when it comes to decide the matter, can take into account any further improvements in compliance that Mantra may be able to make up to that time.

22. Ms McDermott referred me to Accord Australasia and Director, National Industrial Chemicals Notification and Assessment Scheme [2013] AATA 414. That case turned on rather different facts and considerations, however, and I do not find it of assistance in present circumstances.

23. Taking all the matters into consideration, it is plain that Mantra at no stage rested on its rights; it provided a persuasive explanation for delay, which was contributed to by opaque and untimely communications with ASQA and (understandably) misguided legal advice; there would be no prejudice to the respondent (in that ASQA will need to put the resources in more or less equally in a tribunal review and to consider a new application); and the merits of Mantra’s case are sufficiently substantial that a hearing is unlikely to be futile. I think that in all the circumstances it is reasonable to grant the extension of time.

24.     I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Mark Hyman, Member.

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Associate

Dated: 29 June 2018

Date(s) of hearing:	13 June 2018
Date final submissions received:	13 June 2018
Applicant:	Ms D Moulds, Mantra Training & Development Pty Ltd
Solicitors for the Respondent:	Ms L McDermott, Australian Skills Quality Authority