Oztech Trade Training College Pty Ltd and Australian Skills Quality Authority

[2020] AATA 3982

Oztech Trade Training College Pty Ltd and Australian Skills Quality Authority [2020] AATA 3982 (9 October 2020)

Division:General Division

File Number(s):      2020/3391

Re:Oztech Trade Training College Pty Ltd

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:9 October 2020

Place:Sydney

The application for an extension of time, lodged by the Applicant on 4 June 2020, is refused.

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Deputy President J W Constance

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time ­– refusal to renew registration as a registered training organisation – principles to be applied – whether reasonable in all the circumstances to grant the extension of time – reason for the delay – where Applicant relied on advice of Counsel that appeal was unnecessary – where Applicant failed to take steps to file an application – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29
National Vocational Education and Training Regulator Act 2011 (Cth) s 211

CASES

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Deputy President J W Constance

9 October 2020

INTRODUCTION

1. From 8 August 2014 until 19 November 2019 the Applicant was registered as a training organisation under the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act).

2. On 15 October 2019 the Respondent notified the Applicant that it had decided to refuse the Applicant’s request that its registration be renewed.  The registration was due to expire on 19 November 2019.  The Respondent also notified the Applicant that it could seek a review of the Respondent’s decision by applying to this Tribunal within 28 days of being notified of its decision.  The Applicant did not make an application to the Tribunal within the 28-day period.

3. On 4 June 2020 the Applicant applied to the Tribunal to extend the time in which it could lodge an application to review the Respondent’s decision to refuse to renew the Applicant’s registration.

4. For the reasons which follow the application to extend time will be refused.

   BACKGROUND

5. By letter of 25 July 2018 the Respondent notified the Applicant that it had decided to cancel the Applicant’s registration under the NVR Act. On 15 August 2018 the Applicant applied to the Tribunal to review this decision. This application is still before the Tribunal. The decision to cancel was stayed pending the Tribunal’s final decision in the application.

6. When the Respondent wrote to the Applicant on 25 July 2018 it advised the Applicant of its obligation under section 211 of the NVR Act to provide student records to the Respondent within 30 days of the cancellation decision taking effect.

7. On 6 May 2019 the Applicant applied to the Respondent to renew its registration which was due to expire on 7 August 2019.  Subsequently the Respondent extended the period of the Applicant’s registration until 19 November 2019.

8. On 23 August 2019 the Respondent notified the Applicant that it intended to refuse the renewal application and invited the Applicant to make further submissions on this issue. [1]

   [1] Exhibit R2 at 509.

9. On 28 August 2019 an email was sent to the Respondent seeking an extension of time to respond to the letter of 23 August 2019.  This email purported to be from Mr Khan, a Director and the Chief Executive Officer of the Applicant, and was sent from his email address.[2]  It acknowledged receipt of the notice of an intention to cancel the Applicant’s registration.

   [2] Exhibit R2 at 511.

10. When he gave evidence in this application, Mr Khan said that he was overseas when the email of 28 August 2019 was sent.  It was sent by someone on his behalf to whom he had given access to his email account.  He said that he did not become aware of this correspondence until he returned to Australia on 6 September 2019. The Applicant did not make any further submissions in response. Mr Khan said that he relied on the advice of Counsel that it was unnecessary to do so.

11. On 13 September 2019 the Respondent notified the Applicant that it had decided to suspend the Applicant’s registration.  The Applicant applied to the Tribunal to review this decision on 16 September 2019.  This application is still before the Tribunal.

12. On 15 October 2019 the Respondent notified the Applicant that its application for renewal was refused and that it could apply to the Tribunal to review this decision within 28 days.  The Applicant did not make an application to the Tribunal in respect of this decision until 4 June 2020.

13. The Applicant’s registration under the NVR Act expired on 19 November 2019.

14. In response to a request from the Applicant, on 16 December 2019 the Tribunal advised the Applicant that the stay of proceedings made in a previous application did not apply in any subsequent application to the Tribunal and that, if necessary, a further application for a stay may be made.

15. By email of 14 January 2020,[3] the Solicitor for the Respondent advised the Applicant’s Counsel, in part:

    We note that Oztech’s registration expired on 19 November 2019 following the decision of 15 October 2019 to reject its renewal of registration application. The decision to reject the renewal application is not currently subject to any application for review to the AAT.

    In accordance with s 211 of the National Vocational Education and Training Regulator Act 2011 (NVR Act), Oztech is required to provide our client with copies of its ‘VET student records’ within 30 days of either its registration being cancelled or it effectively ceasing to operate. A copy of s 211 is enclosed with this letter.

    ……….

    Our client’s view is that Oztech effectively ceased to operate from the date its registration expired i.e. on 19 November 2019. The period for complying with s 211 therefore expired on 19 December 2019.

    We are instructed that Oztech has not provided VET student records to our client, and our client is receiving enquiries from Oztech students about their student records.

    [3] Exhibit R1 at 12.

16. The Applicant provided some student details to the Respondent on 17 February 2020. The Respondent did not accept that the details supplied complied with the requirements of the NVR Act.

17. By email of 13 March 2020 addressed to Counsel for the Applicant,[4] the Respondent again requested that the Applicant comply with section 211 of the NVR Act by producing all VET student records or confirm that it was not in possession of any other documents falling within the meaning of ‘VET student records’.

    [4] Exhibit R1 at 29.

18. On 15 April 2020 the Solicitors for the Applicant advised the Solicitor for the Respondent that they were now acting for the Applicant.

19. On 28 April 2020 the Solicitor for the Respondent provided copies of correspondence to the Solicitors for the Applicant and advised that “our position is that your client has never made an application for review of ASQA’s decision to reject its application to renew the RTO registration.”[5]

    [5] Exhibit R1 at 26.

20. On 12 May 2020 the Respondent filed and served a consolidated Statement of Issues in the matters before the Tribunal.  This document included a statement that the Applicant had not filed an application for review of the Respondent’s decision not to renew the Applicant’s RTO registration.

21. On 4 June 2020 the Applicant lodged with the Tribunal an application to extend the time for filing an application for review of the Respondent’s decision not to renew its RTO registration.  It lodged also a copy of the Application for Review which it intended to rely upon if the request for an extension of time was granted.

    LEGISLATION

22. Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) sets out the manner of applying for review of a reviewable decision in the Tribunal.  So far as is relevant to this application, the time for making such an application was 28 days from 15 October 2019, being the day on which the Respondent notified the Applicant of its decision.

23. Section 29 further provides:

    (7)  The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

    (8)  The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.

    EVIDENCE OF MR KHAN, DIRECTOR AND CHIEF EXECUTIVE OFFICER

24. Mr Khan is a Director and the Chief Executive Officer of the Applicant.  He provided affidavits affirmed 3 June 2020[6] and 22 June 2020.[7]  He gave evidence at the hearing.

    [6] Exhibit A1.

    [7] Exhibit A2.

25. Documents tendered by the Respondent[8] in this application include a copy of an affidavit sworn by Mr Khan on 5 March 2020 in proceedings 2018/4620 which relate to the decision to cancel the Applicant’s registration.

    [8] Exhibit R2.

26. When the other proceedings were commenced in the Tribunal, the Applicant instructed Solicitors who briefed Counsel to advise and appear for the Applicant.  A short time later Counsel continued to act for the Applicant “by way of direct brief” from the Applicant.

27. After the stay was granted in respect of the Respondent’s decision to cancel the Applicant’s RTO registration the Applicant continued to operate its business in accordance with the conditions of the stay.

28. Mr Khan was overseas from 29 June 2019 until 6 September 2019.  He does not believe he was made aware of the Respondent’s notice of its intention to refuse to renew the Applicant’s registration which was communicated to the Applicant on 23 August 2019.

29. In his affidavit of 22 June 2020, Mr Khan stated, in part:

    On or about 15 October 2019, the Applicant received notice of the Respondent’s decision to not renew the Applicant’s registration. Upon receiving this, I recall having a conversation with [Counsel] as follows:

    [Counsel]: “We don’t need to do anything with this. We’ve already appealed the suspension decision. This decision is just a formality.

    Me:             Ok.

    I was never advised by [Counsel] that our Application to review the Suspension Decision was not a reviewable decision or that it was deficient or incorrect. At all material times, I was led to believe that the Applicant was disputing the suspension decision AND the respondent’s decision to not renew. The Applicant was never made aware, at the time, that the decisions were separate.

30. As a result of conversations with Counsel, Mr Khan believed that the Applicant was contesting both the cancellation decision and the decision not to renew the Applicant’s registration in proceedings instituted on its behalf in the Tribunal.

31. On 14 January 2020 Mr Khan received from Counsel a copy of the letter from the Respondent’s Solicitor which included the statement that the decision to refuse the application was not the subject of an application to the Tribunal.  At the hearing Mr Khan agreed with Counsel for the Respondent that at that time he knew that there was no application before the Tribunal in respect of the refusal to renew the Applicant’s RTO registration.

32. On 15 April 2020 the Applicant withdrew its instructions to Counsel and instructed the Solicitors now on the record in these proceedings.  The delay in the Solicitors applying to the Tribunal to extend the time for the filing of an application to review the decision not to renew the Applicant’s registration was caused by delays in the Applicant obtaining all of the relevant documents requested by the Solicitors.

33. In his affidavit sworn 3 June 2020, Mr Khan stated, in part:

    Employees

    The Applicant employs approximately twelve staff to provide training and assessments. The employees are a hybrid of full-time employees and subcontractors.

    All of the employees have families and either rental or mortgage obligations and are dependent upon being employed by the Applicant to support their families. In the event that the Applicant is unable to obtain their registration, the Applicant will be forced to terminate the employment of all twelve staff.

    Lease

    The Applicant occupies premises at … Liverpool NSW 2170 which consists of a number of classrooms, offices and training facilities. The Applicant pays monthly rent for these premises. The Applicant is currently under a ten-year commercial lease of which six years remain. If the Applicant is unable to obtain registration, the Applicant would remain bound and committed to the remaining 5 years of the commercial lease terms in circumstances where they are no longer able to operate. A copy of the lease can be furnished on request.

34. When he gave evidence, Mr Khan agreed that statements he made concerning the Applicant’s obligations under the lease of its business premises and obligations to its staff and contractors were incorrect.  On 30 September 2019 arrangements with staff (other than Mr Khan who is also an employee) and contractors were terminated.  Mr Khan was, and still is, the only full-time employee of the Applicant.  The present lease of the business premises expires in June 2021.

35. In his affidavit affirmed on 5 March 2020 Mr Khan said that the Applicant paid a fee of approximately $6,975.00 when it applied for renewal of its registration and $12,237.50 for the cancellation audit.  The Applicant and himself have contributed to substantial legal fees incurred by the Applicant in relation to the proceedings before the Tribunal.

36. Mr Khan also said that in late 2019 he understood that the Applicant was required to take certain actions but that, at the time, he was suffering from depression.  For family reasons he travelled outside Australia in January/February 2020 which also affected his ability to respond on behalf of the Applicant to requests for information.

    CONSIDERATION

37. It was put on behalf of the Respondent that some guidance as to the factors for consideration is provided in the judgement of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen.[9]

    [9] (1984) 3 FCR 344 at [348-9].

38. His Honour’s judgement provides a useful summary of factors which may be relevant and is frequently referred to by the Tribunal in applications for extensions of time. However, it is important to start with the wording of subsection 29(7) of the AAT Act which requires that I must be satisfied that “it is reasonable in all the circumstances to do so” before extending the time for making an application to the Tribunal.

39. I have reached the conclusion that, in the circumstances outlined, it is not reasonable to grant the Applicant an extension of time in which to apply to review the decision not to renew its registration under the NVR Act. In the following five paragraphs I refer to the circumstances which have caused me to reach this conclusion.

40. On 23 August 2019 the Respondent notified the Applicant of its intention not to renew the Applicant’s registration and gave the Applicant the opportunity to provide further submissions.  Although Mr Khan made arrangements for others to send emails on his behalf, he did not take steps to monitor those emails or to inform himself of the situation until he returned to Australia.  Acting on legal advice, the Applicant chose not to make further representations prior to its registration expiring.  Such representations, if made, may have avoided entirely the need for an application to the Tribunal.

41. While Mr Khan claims that he relied on Counsel for advice as to the conduct of the various proceedings before the Tribunal, he was aware no later than 14 January 2020 that the Applicant had not applied to the Tribunal to review the non-renewal decision.  Despite this awareness he continued to instruct Counsel for the next three months without ensuring that steps were taken to make such an application.

42. For at least two months, and possibly still continuing, the Applicant failed to meet its obligation to provide to the Respondent all of the student records required by the NVR Act. The Respondent reminded the Applicant of this obligation on several occasions. This information would be relevant to the application it now wishes to have determined by the Tribunal. The Applicant has not offered a satisfactory explanation for this delay.

43. The Applicant instructed the Solicitors now acting for it on 15 April 2020.  Even so, the application for an extension of time was not made until 4 June 2020, seven weeks later.  Although Mr Khan says the delay was caused by the need to obtain copies of documents, there is no evidence of the documents required by the Solicitors which were not in the possession of the Applicant or able to be readily obtained from the Tribunal on request.

44. The extension of time sought is significant – a period of over seven months.

45. Finally, the refusal of this application does not prevent the Applicant again applying to the Respondent for registration as a provider under the NVR Act. If such an application was made, many of the issues which would arise would be the same as the issues which would arise on an application to set aside the non-renewal decision. It would be more economical for both parties to endeavour to resolve these issues before again engaging in an application to the Tribunal.

    CONCLUSION

46. The application for an extension of time, lodged by the Applicant on 4 June 2020, will be refused.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate

Dated: 9 October 2020

Date(s) of hearing:	23 June 2020
Counsel for the Applicant:	Thomas Bagley
Solicitors for the Applicant:	Cordoba Legal
Counsel for the Respondent:	Sarah Wright
Solicitors for the Respondent:	Australian Government Solicitor