National College of Trade Pty Ltd and Australian Skills Quality Authority

[2019] AATA 797

National College of Trade Pty Ltd and Australian Skills Quality Authority [2019] AATA 797 (3 May 2019)

ReviewNumber:       2018/6047, 2019/1304

Division:GENERAL DIVISION

File Number(s):      2018/6047, 2019/1304

Re:National College of Trade Pty Ltd

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:3 May 2019

Place:Sydney

The applications for a stay of the cancellation decision (proceedings 2019/1304) and the remove from scope decision (proceedings 2018/6047) are refused.

....................................[SGD]....................................

Mrs J C Kelly, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – application to stay decision of Australian Skills Quality Authority – registered training organisation – decision to remove nationally recognised qualification from scope of registration – Standard for RTOs 2015 cll. 1.8, 1.13, 1.14, 1.15, 1.16, 3.1 – decision to cancel registration – Standard for RTOs 2015 cll. 4.1, 5.1, 5.2, 5.3, 7.3, 1.7, 1.1, 1.2, 1.3, 1.8, 1.13, 1.14, 1.15, 1.16, 3.1, 3.2 - consideration of factors in Re Scott and Australian Securities and Investments Commission – majority of non-compliances not rectified – no current enrolments – stay application refused for remove from scope decision – stay application refused for cancellation decision

LEGISLATION

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

National Vocational Education and Training Regulator Act 2011 (Cth), ss 2A, 22(1), 22-28, 39

Standards for Registered Training Organisations 2015 cll. 1.1, 1.2, 1.3, 1.7, 1.8, 1.13, 1.14, 1.15, 1.16, 2.1, 3.1, 3.2, 4.1, 5.1, 5.2, 5.3, 7.3,

CASES

Re Scott and Australian Securities and Investments Commission [2009] AATA 798

SECONDARY MATERIALS

Australian Qualifications Framework

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

3 May 2019

THE STAY APPLICATIONS

1. This decision addresses applications for stays of two decisions made by the Respondent, the Australian Skills Quality Authority (ASQA).

2. The first decision ASQA made was to remove from the Applicant’s scope of registration CHC50113 Diploma of Early Childhood Education and Care (the remove from scope decision).  The reviewable decision was made on 19 September 2018 and the Applicant notified on 27 September 2018.  The reviewable decision affirmed a decision made on 13 July 2018.  The Applicant was notified of that decision on 17 July 2018 and applied to ASQA for reconsideration of that decision.    

3. The Applicant applied to the Tribunal for review of the remove from scope decision and for a stay which was refused on 30 November 2018 (proceedings 2018/6047).  This is the second application for a stay of the remove from scope decision.

4. The second decision ASQA made was to cancel the Applicant’s registration as a registered training organisation under the National Vocational Education and Training Regulator Act 2011 (Cth) (the NVR Act) (the cancellation decision). It is the subject of proceedings 2019/1304. ASQA conducted a Post-initial and Change to Scope audit on 13 September 2018. The Change to Scope audit was done because the Applicant had applied to add two qualifications to its scope of registration. It no longer seeks to do so.

5. The audit report was created on 2 November 2018. On 8 November 2018, ASQA issued a notice of intention to cancel registration under section 39 of the NVR Act which invited the Applicant to provide a written response no later than 6 December 2018. The Applicant requested an extension of time on 28 November 2018 and was granted until 7 January 2019, when it provided its written response. The audit report was updated on 7 February 2019. The cancellation decision was made and notified to the Applicant on 20 February 2019.

   BACKGROUND

6. The Applicant was registered as a training organisation (RTO) on 2 May 2016 under the NVR Act. Its registration is due for renewal on 1 May 2023. Hereafter, Vocational Education and Training will be referred to as VET.

7. RTOs may only issue qualifications listed on the National Register of Vocational Education and Training (the National Register). The qualifications are nationally recognised qualifications (NRQs). RTOs may only issue NRQs if they are registered under the NVR Act and comply with Standards for Registered Training Organisations 2015 (the Standards) and the Australian Qualifications Framework (AQF).

8. The learning/training requirements for each NRQ and the units of competency (UOCs) that make up each NRQ are set out in Training Packages listed on the National Register.

9. Training Packages are developed by Service Skills Organisations to meet the training needs of an industry or group of industries.

10. RTOs are authorised to deliver NRQs and UOCs approved by ASQA, the regulator under the NVR Act, and listed in the RTO’s Scope of Registration.

11. Before the reviewable decisions were made, the Applicant’s Scope of Registration (Scope) included the following NRQs and UOCs:

    I.CHC30113 Certificate III in Early Childhood Education and Care.

    II.CHC50113 Diploma in Early Childhood Education and Care (the Diploma).

    III.HLTAID001 Provide Cardiopulmonary Resuscitation.

    IV.HLTAID003 Provide First Aid.

    V.HLTAID004 Provide an Emergency Frist Aid Response in an Education and Care Setting.

12. The Applicant delivered the courses face-to-face with some Recognition of Prior Learning (RPL) for the qualification CHC30113 Certificate III in Early Childhood Education and Care.

13. Mr Kahtan Al Hassan is a director and secretary of the Applicant.  He is a trainer/assessor of the Applicant.  His son is a director and the CEO of the Applicant (the CEO).

    PROCEDURAL MATTERS

14. Correspondence from the CEO shows that counsel had been instructed since 27 February 2019.  Both stay applications were listed for hearing on 25 March 2019, two days before the cancellation decision was to come into effect.  At the beginning of the hearing, the Applicant provided to the Respondent and sought to tender, an eight page report from a consultant, Mr Harpreet Dhillon, which addressed some of the issues raised in the 7 February 2019 audit report which related to the cancellation decision.

15. Consequently, the proceedings were adjourned until 27 March 2019 at 11:30 am and the Respondent was granted leave to file evidence in reply by close of business on 26 March 2019.   

16. On 27 March 2019 the Applicant’s counsel appeared by telephone because he said that he was ill.  The hearing proceeded. At the end of the hearing, the Applicant’s counsel requested additional time to consider evidence filed by the Respondent.  The proceedings were listed for a Telephone Directions Hearing on 28 March 2019, when the Tribunal set the matter down for oral submissions on 1 April 2019 at 1:00 pm, taking into account a court commitment the Applicant’s counsel said he had on that day. 

17. The Tribunal attempted to telephone the Applicant’s counsel at 12:14 pm on 1 April 2019.  There was no answer.  At that time, the Applicant’s counsel sent an email to the CEO stating that he had lost his voice and requesting the CEO to file and serve the attached submissions and inform “them that we require further time”. 

18. The Applicant’s counsel notified the Tribunal and the CEO by email at 12:31 pm that he could not appear at the resumed interlocutory hearing due to illness and having lost his voice. He advised that he had attempted to reduce his oral submissions to writing “and that document is almost complete, save the passages concerned with the findings of the audit and remedial actions”.

19. At 12:44 pm the Tribunal sent him an email asking how much additional time he would require to complete the submissions.  He replied at 3:55 pm stating that he needed a week. The Tribunal was the only identified recipient of the email.  That reply was not brought to the Tribunal’s attention until after the hearing had ended.

20. During the hearing, at 1:14 pm the Tribunal received by email from the CEO the incomplete submissions prepared by the Applicant’s counsel comprising 54 paragraphs and dated 8 March 2019.  The CEO also made submissions in the email.  

21. The CEO appeared by telephone and made submissions, which in effect, included giving additional evidence and elaborating upon the submissions he had made in the 1:14 pm email. In particular, he addressed the rectification and remedial action in relation to the 7 February 2019 audit report. The hearing ended at 4:40 pm. The Tribunal reserved its decision.

22. After the hearing, the CEO sent the Tribunal and the Respondent copies of material referred to in his affidavit but not previously tendered.  On 3 April 2019 the CEO sent service agreements with day care centres, and an unsigned agreement with a new trainer/assessor.   

23. In response to an email from the Applicant’s counsel to the Tribunal, on 5 April 2019, the Tribunal advised the parties and counsel for the Applicant that it would consider the balance of the Applicant’s counsel’s submissions concerning the findings of the audit and remedial actions if filed and served before 5:00 pm on Monday 8 April 2019.  However, it became apparent from a telephone call from the CEO and an email that included screenshots of SMS communications between the CEO and counsel, that the request had not been made on instructions and that there had been no communication between the CEO and counsel from before the hearing on 1 April 2019 until after the Tribunal sent the email on 5 April 2019.  Further, the screenshots showed that the information to be included in the submission relating to the rectification and remedial action was to be drafted by the CEO and was “everything [the CEO] said on Monday”.  The Tribunal did not accept the CEO’s claim in the email that “there had been a misunderstanding”.

24. The Tribunal advised both parties that it would not consider any further submissions.  They were provided. They have not been considered.

    THE APPLICANT’S EVIDENCE

25. The Applicant’s evidence in support of the stay applications included:

    ·affidavits from:

    othe CEO

    otwo representatives of the Iraqi and Afghani communities

    oMr Kahtan Al Hassan, as an assessor employed by the Applicant

    ·Report of Mr Harpreet Dhillon, dated 24 March 2019, which included a chronology,  his curriculum vitae, and two awards for academic excellence

    ·Curriculum vitae of the CEO and evidence of his current university enrolment in legal subjects and results for four subjects

    ·an email dated 19 February 2019 at 5:31 pm from the CEO to the Tribunal

    ·documents filed on 6 February 2019 which addressed the remove from scope decision

    ·documents the Applicant provided to ASQA in response to the 13 September 2018 audit, emailed to the Tribunal during the hearing on 1 April 2019;

    ·copies of 14 agreements with family day care and/or child care centres provided to the Tribunal by the CEO on 2 April 2019, 12 of which had been referred to in the CEO’s affidavit but had not been tendered.

26. On Wednesday 3 April 2019, the CEO provided an unsigned employment agreement dated 3 April 2019 with another “trainer and Assessor” and copies of her qualifications.  The Tribunal had not agreed to that material being provided.  The CEO had mentioned during the resumed interlocutory hearing on 1 April 2019 that he had been in touch with another trainer and the Applicant was ready to employ her.

    THE RESPONDENT’S EVIDENCE

27. The Respondent’s evidence comprised affidavits of Ms James and Mr Petersen.  Each deponent provided affidavits dated 22 March 2019 and 26 March 2019. 

    THE LAW IN RELATION TO A STAY APPLICATION

28. In Re Scott and Australian Securities and Investments Commission [2009] AATA 798 President Downes J set out at paragraph 4, a non-exhaustive set of factors to be taken into account when determining an application for a stay order pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth). Those factors were:

    (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.

    (f)Other matters that are relevant, which would include the length of time that the ban has already been in place and the gap between the hearing of the stay application and the hearing of the substantive application.

    CONSIDERATION

29. The Tribunal has considered the factors listed in Scott in respect of the two stay applications separately.  The Applicant did not clearly do the same.  The Tribunal has taken into account the Applicant’s evidence and arguments and included them where they were relevant.  It is convenient to address the application for the stay of the cancellation decision first.

    THE CANCELLATION STAY APPLICATION

    (a)  Prospects of success

30. The Tribunal expressed a preliminary view during the hearing that the evidence did not allow it to form a view about the prospects of success in relation to both reviewable decisions.  However, that was before all the evidence on which the Applicant relied had been provided to the Tribunal and clearly identified.

31. The CEO’s evidence was that the Applicant had good prospects of success in relation to the application for the stay of the cancellation decision because: 

    ·It had commenced rectification the moment the auditors left on 13 September 2018, based on notes taken during the audit which is reflected in email correspondence.

    ·Since its inception, the Applicant has volunteered to comply with ASQA’s requirements and at all times has been willing to listen, address and rectify any concerns raised in order to meet the requirements of the NVR Act and to maintain registration.

    ·The audit report dated 2 November 2018 did not “precisely request remedial actions to be part of the rectification evidence at the level of each clause”.

    ·The final audit report affirmed and agreed that the Applicant had identified all issues of non-compliance but had failed to undertake remedial action.

    ·Despite accepting that the Applicant had nil enrolments at the time of audit, ASQA ignored the fact that it is literally impossible to implement remedial action for students who are not enrolled or who do not exist. No past students were impacted.

    ·The Applicant did conduct remedial action. Students were called back.  There was no issue.  Sufficient remedial action is subjective.  ASQA did not specify students or a time frame for remediation. Past students may want their money back. It cannot provide remedial action if its registration is cancelled.

    ·The Applicant’s staff went out to buy equipment and training products during the audit, which indicates nothing but action and willingness to be compliant.

    ·Remedial action and willingness to be compliant is reflected in email correspondence with Angela McGregor, the consultant the Applicant engaged as part of the post-initial audit response.

    ·The email correspondence is a broad spectrum of the immense amount of evidence the Applicant is able to put forward which affirms that it has seized every opportunity possible to rectify any non-compliances and remain compliant at all times.

32. The Applicant relied on Mr Dhillon’s report dated 24 March 2019 which was eight pages long.  The CEO said that it dealt with the critical clauses.  That report addresses only five of the 16 clauses with which the ASQA audit of 7 February 2019 had found the Applicant to be non-compliant.  Mr Dhillon addressed the clauses where the 7 February 2019 audit found the Applicant had addressed the non-compliance but had not carried out remedial action for students. The Standards related to Marketing/Recruitment Practices (cl. 4.1), Enrolment Practices (cll. 5.1, 5.3 and 7.3), and Completion Practices (cl. 3.2).  In respect of four of those five Standards, Mr Dhillon stated that his organisation:

    can assist the RTO to identify and prepare remedial action plan.  However, the implementation of the remedial action plan is to be undertaken by the RTO.

33. That is, he did not identify or prepare a remedial action plan.  That evidence is inconsistent with the CEO’s evidence that remedial action had been conducted.  Mr Dhillon provided some suggestions for improving Marketing/Recruitment practices (cl. 4.1 of the Standards).  The report is problematic because it refers to student enrolment numbers which raise questions about the correctness of information provided by the Applicant that it had no students at the time of the audit in September 2018 or at the time of the hearing.

34. Further, the report refers to all the clauses with which the 7 February 2019 Audit Report had found the Applicant was non-compliant and states that:

    The clauses which the current report did not cover, the RTO will be relying on its high management staff to correct non-compliance.

35. The Tribunal accepts ASQA’s submission that the Standards Mr Dhillon addresses affect administrative issues which have a significantly lesser impact on students and are easier to rectify than the other Standards with which the Applicant was found not to be compliant, clauses 1.1, 1.2, 1.3, 1.7, 1.8, and 1.13 to 1.16, 3.1 and 5.2, which affect operational processes and procedures such as Training and Assessment Strategies, Resource Availability, Assessment Tool Design and Implementation, Validation Procedures, and Competency of Trainers and Assessors. 

36. The Tribunal concludes that the CEO did not understand the 7 February 2019 Audit report.  His understanding that the Applicant complied with all Standards was incorrect. He claimed that the information the Applicant had provided had not been taken into account but has not demonstrated that was so.

37. The 7 February 2019 Audit report found that the Applicant was non-compliant with the other 11 Standards that Mr Dhillon did not address. That is, the material the Applicant provided to ASQA did not establish that the non-compliances had been rectified.  The Applicant’s evidence did not adequately address those standards.  The evidence of Ms James and Ms Petersen for ASQA is compelling, that the Applicant was non-compliant in relation to the 11 Standards. 

38. The belated attempt to provide evidence that the Applicant was going to employ another trainer/assessor highlights the Applicant’s failure to understand or appreciate the seriousness of the non-compliances identified in the 7 February 2019 Audit Report.   It had detailed non-compliant practices in relation to four training and assessment staff, including most importantly, Mr Kahtan Al Hassan.

39. Clause 2.1 of the Standards requires an RTO to comply with the standards at all times, not just when ASQA carries out an audit.

40. On the evidence before it, the Tribunal concludes that the Applicant’s prospects of success in the substantive proceedings in relation to the cancellation decision are poor.

    (b) The consequence for the applicant of the refusal of a stay

41. The Applicant asserted that it had no students at the time of audit on 13 September 2018 or when the applications were heard at the end of March 2019.  Mr Dhillon’s 24 March 2019 report suggested that it had had students in the intervening period.  The evidence does not clearly address any financial loss the Applicant will suffer if the stay is not granted.

42. The Applicant has service agreements with 14 family day care/child care providers, which are discussed below under the heading “(c) The Public Interest”.  In the context of the consequence for the Applicant, the Tribunal accepts that it may suffer some damage to its reputation with those providers if they become aware that the stay is not granted.  That damage would be minimal if the review application is successful.  As there is no evidence that any students have enrolled pursuant to the agreements, there is no evidence of financial loss arising.

1. The Applicant relied on two affidavits from representatives of groups within the Iraqi and Afghani communities. 

2. The representative of the Iraqi community group stated the following.  He had reached agreement with the Applicant in June 2018.  It would offer his community members training and assessment in childcare and once they were ready, in aged-care.  That agreement had commenced but was in jeopardy because of the cancellation decision.  A large number of students had enrolled and some were able to be assessed and issued certificates prior to the “present situation”. Further, he knew of approximately 300 women who expressed an interest in returning to work.  He hoped to maintain the relationship with the Applicant.  One reason for preferring to enrol students with the Applicant was its leader, Khatan Al Hassan, a qualified assessor and well-respected member of the community, who has a background in teaching English as a second language and consequently community members know him well and trust him and his son (the CEO). The cancellation decision will have a significant impact on his community.  He had conducted inquiries with alternative service providers.  None met the community’s requirements within the next six to 12 months.

3. The representative of the Afghani community stated the following.  The community he represents consists of 1500 people. In December 2018 he reached agreement with the Applicant whereby it would offer his community training and assessment in child care and aged care.  The community would place more than 200 students into the courses and assessment.  The agreement was to commence in early 2019. The cancellation decision will set back the community in establishing child and aged care services.  Finding alternative training for the numbers of students may take considerable time and expense.

4. Neither agreement was before the Tribunal. The Tribunal accepts that the Applicant may suffer reputational damage with the representatives of those two communities and possibly members of the communities who are aware of the agreements if they learn that a stay has not been issued.  However, if the Applicant’s review application is successful, that damage will be minimal.

5. The Applicant had no students on 13 September 2018 or at the time of the hearing at the end of March 2019.  There is a lack of detailed information that would enable the Tribunal to conclude with any degree of confidence that the Applicant will suffer financial damage if the stay is not granted.  The Applicant can take steps to have the matter prepared and listed for hearing as soon as possible which would minimise any adverse financial impact that may occur.

6. The CEO was concerned that cancellation would adversely impact on his future as a lawyer.  He is currently enrolled in legal studies. If the Applicant is ultimately successful, his reputation will suffer little damage.  This consideration is given little weight.

7. The Tribunal gives little weight to the consideration the consequences for the Applicant.

   (c) The public interest

8. In his affidavit, the CEO referred to 12 family day care centres with which the Applicant has service agreements.  After the hearing, he provided 14 service agreements.  He undertook calculations based on his belief that each centre was eligible to employ 60 qualified educators. Using various assumptions, he calculated that the cancellation decision is likely to affect:

   ·in excess of 5,040 or 2,500 children;

   ·in excess of 2,500 or 1,250 parents;

   ·the ability of parents to obtain placements in day care centres which would affect the employers of the parents;

   ·the cultural and religious community groups the Applicant serves which will impact the community at large. 

9. Each of the signed service agreements is in the same terms.  It sets out the qualifications and training and assessment the Applicant can provide, including the Diploma of Early Childhood Education and Care which has been removed from its scope of registration since 30 November 2018 when the first stay application was refused.  One of the service agreements is dated 21 March 2019. 

10. The last paragraph of the service agreement states:

    Given that our organisation is able to deliver training and assessment that aligns with your interests as a Family Day Care or Child Care Provider National College of Trade invites your organisation to sign this service agreement in order to initiate the delivery of any training and assessment requested with respect to the courses and units of competency available on our scope of registration.

11. The earliest service agreement is dated 1 April 2017.  Seven are dated 2017 and four are dated from 1 January to 30 June 2018.  The Applicant did not point to evidence that any of the Family Day Care or Child Care Providers which had signed a service agreement had “requested” any training or assessment.  The evidence does not support the CEO’s claim  set out on a page attached to the 14 agreements filed on 2 April 2019 that “Our agreement with these 14 organisations has resulted in the care for 5,880 (children)”.

12. The Tribunal gives the service agreements no weight.

13. The Tribunal gives little weight to the agreements with the two representatives of Iraqi and Afghani community groups. 

14. Subsection 22(1) of the NVR Act requires an RTO to comply with the Standards for an NVR RTO. To be registered and maintain registration, an RTO must at all times demonstrate compliance with the conditions described in ss 22-28 of the NVR Act, and the Standards. Clause 2.1 of the Standards requires compliance at all times. The Applicant did not appear to appreciate that obligation. It appeared to consider that it was good enough to respond when ASQA pointed out non-compliances, although its response has been inadequate in any event.

15. Relevantly, the objects of the Act set out in s 2A of the NVR Act reflect the public interest in this case of not granting a stay. They include to protect and enhance the quality of VET and Australia’s reputation for VET nationally and internationally, to provide a regulatory framework that encourages and promotes VET for a highly educated and skilled population, and to protect students undertaking or proposing to undertake Australian VET by ensuring the provision of quality VET.

16. The Tribunal takes into account the public interest in protecting employers of students of the Applicant and those being cared for by students to whom qualifications are issued that are non-compliant with the relevant Standards.

17. Compliant RTOs would be disadvantaged if the Applicant were permitted to continue operating without complying with standards or providing remedial action for students.

18. The public interest strongly supports not granting a stay in this case.

    (d) The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.

19. In this case, given the seriousness of the non-compliances identified, the Tribunal accepts that ASQA’s reputation and the efficacy of the regulatory framework would be adversely affected if a stay was granted.

    (e) Whether the application for review would be rendered nugatory if a stay were not granted.

20. As the Applicant has asserted it had no students at the time of the audit in September 2018 or when the hearing took place, the Tribunal does not consider that the application for review would be rendered nugatory if a stay was refused.

    (f)  Other matters that are relevant, which would include the length of time that the ban has already been in place and the gap between the hearing of the stay application and the hearing of the substantive application.

21. A temporary stay was granted pending this decision.  The cancellation decision has not taken effect. 

    Conclusion

22. For the reasons set out above, the considerations against granting a stay in this case strongly outweigh those that favour the granting of a stay.  The application for a stay of the cancellation decision is refused.

    THE REMOVE FROM SCOPE STAY APPLICATION

23. In light of the Tribunal’s decision not to grant a stay of the cancellation decision, there is no utility in granting a stay of the remove from scope decision.  The Tribunal did not accept the CEO’s argument to the contrary.

24. It is unnecessary to consider the matter further, however, given the effort the Applicant made to argue for the granting of a stay of the remove from scope decision, the Tribunal sets out its reasons for not accepting that argument.

    (a)  Prospects of success

25. The Applicant argued that its prospects of success were good in relation to the remove from scope stay application for the following reasons.

26. The remove from scope decision arose from two anonymous complaints about a student being awarded the Diploma without the Applicant conducting any training and assessment and that the student did not speak English. In his affidavit, the CEO referred to a Complaint Evidence Analysis document prepared by an officer of the Respondent about those complaints (the first document).  That document was emailed and received by the Tribunal during submissions on 1 April 2019.  The CEO stated that after conducting inquiries, which he set out, he was satisfied that the complaints were vexatious and have no merit. 

27. The CEO stated in his affidavit that a statutory declaration from the student the subject of the complaint had been provided.  It was not provided to the Tribunal.

28. On its face, the second paragraph of the CEO’s affidavit identified as the document relied upon by the Respondent for the cancellation decision, a document titled Evidence Analysis (the second document) which makes “critical findings of non-compliance” as at 12 June 2018, apparently prepared by the officer who prepared the first document.  However, it is clear from the next 13 paragraphs of the affidavit and the content of the second document that the CEO was not referring to the second document in relation to the cancellation decision.  It related to the reconsideration of the remove from scope decision.

29. In his affidavit, the CEO stated that he had made reasonable enquiries about the issues identified in the second document and that the findings of the officer had been addressed and rectified so as to meet the identified compliance issues.   He stated that he provided a report from the independent assessor who addressed the alleged non-compliance issues, Mr Harpreet Dhillon of Australian Education Hotline Pty Limited. 

30. Two reports from Mr Dhillon were provided which addressed non-compliances relating to the remove from scope decision.  They were a two page report dated 27 July 2018, which considered the reasons for the decision made on 13 July 2018 and the prospects of seeking a successful reconsideration of that decision, and a half page report dated 6 February 2019 which was apparently prepared to support the second stay application and review application in relation to the remove from scope decision.

31. The report dated 27 July 2018 shows that Mr Dhillon charged the Applicant for two hours’ consultation.  His findings included that:

    ·He had not looked at the Applicant’s RPL (Recognition of Prior Learning) Kit and Marketing Flyer.

    ·In his opinion, the Applicant “can rectify all the remaining non-compliances”.

32. He identified the following outstanding non-compliances:

    ·In relation to CHC50113 (Diploma of early Childhood Education and Care), the Applicant did not provide an ASSESSMENT strategy in any of the rectification.  That can be fixed.

    ·The Applicant did not provide a Remedial action plan outlining the effects of non-compliances on current and future students. 

    ·The action plan MUST include how training and assessment strategies and assessment tools (RPL kit) will be modified in future to meet principles of assessment and rules of evidence. The action plan generally has Tasks, dates, responsibilities and outcome.

    ·Revised RPL kit with reassessment is required in relation to CHCECE016 (Establish and maintain a safe and healthy environment for children).  All names have to be corrected.  This does not have to be back-dated; the Applicant can modify its forms. This is a major non-compliance as information during RPL Assessment was not recorded with sufficient details.  Fees collected did not reflect the correct amount and revised course brochure must have the correct fees.  The Applicant must have systems of retaining fees related information.

33. Mr Dhillon’s recommendations were to rectify the outstanding non-compliance and the Applicant may apply for ASQA reconsideration. He concluded:

    I believe that the extent of non-compliance is not critical and can be fixed if the RTO channels its resources in the right direction.

34. Mr Dhillon’s brief 6 February 2019 report states under the heading “Compliance Review” that he has engaged with the Applicant since 27 July 2018 when he prepared his initial review.  He continued:

    After that the RTO has corrected its systems and documents.  ASQA too accepted most of the rectification.  However, only two rectifications were identified that the College has now corrected.  I have witnessed the RTO grow and implement the required system and process.  Now, the RTO is in a state where it has a lot to offer to the community and can provide Qualify services.  Hence, I think that the RTO deserves a chance to show its capacities. 

35. The Tribunal gives little weight to that report.  Mr Dhillon does not identify the two rectifications that have now been corrected, or what the corrections were.  While Mr Dhillon states that he has witnessed the RTO grow and implement the required system and process, he provides no detail about what the required system and process were.  He does not refer to the document “AAT Reconsideration 2019” or the documentation that the Applicant provided to support its case in relation to the remove from scope decision, including the documentation sent to the Tribunal on 6 February 2019 and later relied upon during the hearing. 

36. In his reports dated 27 July 2018 and 24 March 2019 (which addresses some of the matters arising from the cancellation decision), Mr Dillon provided details of the time he spent and the fee he charged.  He did not provide that information in the 6 February 2019 report.  It is not apparent what information Mr Dhillon considered or what he did to form the views he expressed in the 6 February 2019 report.

37. While the Applicant did not refer explicitly to its record of willingness and action to meet ASQA’s requirements in relation to the removal of scope stay application, the Tribunal takes that general evidence into account.

38. The Tribunal does not accept that the evidence supports a finding that the Applicant has good prospects of success in respect of the remove from scope decision.  Again, the evidence of Ms Peterson for ASQA is compelling that the Applicant has not addressed outstanding non-compliances against the Standards  1.8, 1.13 – 1.16  and 3.1 in relation to the remove from scope decision.   The Tribunal does not accept the opinions of the CEO or Mr Dhillon to the extent they address the non-compliances.

    (b) The consequence for the applicant of the refusal of a stay.

39. The Tribunal infers that the Applicant relied on its agreements with the family day care and/or child care centres and the two community representatives to suggest that it would be adversely impacted because it is unable to offer the Diploma course to those centres unless a stay is granted. For the reasons given above, the Tribunal gives the weight to those agreements set out there.  The Applicant has not been able to offer that course since 30 November 2018, a period of five months.  The Applicant can take steps to ensure that the substantive proceedings are heard as soon as possible.

    (c) The public interest

40. The Tribunal infers that the Applicant relied on the service agreements and the agreements with the two community representatives to claim that the public interest would be served by not issuing the stay so that it could offer the Diploma course to the signatories to the agreements.  For the reasons given above, the Tribunal gives those agreements no weight.

41. The Tribunal gives significant weight to the public interest considerations that strongly support the refusal of the stay as discussed in relation to the stay of the cancellation decision.

    (d) The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.

42. In this case, given the seriousness of the non-compliances identified, the Tribunal accepts that ASQA’s reputation and the efficacy of the regulatory framework would be adversely affected if a stay of the remove from scope decision was granted.

    (e) Whether the application for review would be rendered nugatory if a stay were not granted.

43. The Tribunal does not accept that the application for review of the remove from scope decision would be rendered nugatory if a stay were granted.  It was only one of NRQs and UOCs it offered.

    (f) Other matters that are relevant, which would include the length of time that the ban has already been in place and the gap between the hearing of the stay application and the hearing of the substantive application.

44. As set out above, the Applicant has not been able to offer the Diploma course since 30 November 2018 a period of five months.  It can take steps to ensure that the substantive application is heard as soon as possible. 

    Conclusion

45. For the above reasons, considering the application for a stay of the remove from scope decision alone or together with the stay of the cancellation decision, the Tribunal refuses the application.

I certify that the preceding 87 (eighty - seven) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

..................................[SGD]......................................

Associate

Dated: 3 May 2019

Date(s) of hearing:	25, 27 March, 1 April 2019.
Counsel for the Applicant:	Mr P Lott
Solicitors for the Respondent:	Mr T Lloyd, Australian Skills Quality Authority