Pacific International College Pty Ltd and Secretary, Department of Education and Training

[2015] AATA 742

Pacific International College Pty Ltd and Secretary, Department of Education and Training [2015] AATA 742 (24 September 2015)

Division	GENERAL DIVISION
File Number(s)	2014/5797
Re	Pacific International College Pty Ltd
APPLICANT
And	Secretary, Department of Education and Training
RESPONDENT

File Number(s)	2014/5799
Re	Pacific International College Pty Ltd
APPLICANT
And	Minister for Education and Training
RESPONDENT

File Number(s)	2014/5800, 5802
Re	Pacific International College Pty Ltd
APPLICANT
And	Australian Skills Quality Authority
RESPONDENT

DECISION

Tribunal	The Hon. Brian Tamberlin QC, Deputy President
Date	24 September 2015
Place	Sydney

The Tribunal has jurisdiction to hear and determine whether the applicant satisfies the fit and proper person requirements and have regard to any additional evidence sought to be relied on in relation to this issue.

.......................[sgd].............................................

The Hon. Brian Tamberlin QC, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – Administrative Appeals Tribunal – jurisdiction – new allegation relied upon – natural justice requirements – the Tribunal has jurisdiction to hear and determine whether the applicant satisfies the fit and proper person requirements and have regard to any additional evidence sought to be relied on in relation to this issue

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 25, 39, 43

Education Services for Overseas Student Act 2000 (Cth)

National Vocational Education and Training Regulator Act 2011 (Cth) ss 23, 36, 37, 199, 203

CASES

Re Echelon National Security Agency Pty Ltd and Australian Skills Quality Authority (2014) 63 AAR 190; [2014] AATA 151

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

REASONS FOR DECISION

The Hon. Brian Tamberlin QC, Deputy President

24 September 2015

1. This is an interlocutory matter to determine a preliminary issue raised by the applicant as to the evidence and grounds on which the Tribunal’s review should proceed.

2. There are four applications before this Tribunal for review of decisions made by the Australian Skills Quality Authority (ASQA) on 16 October 2014, two of which concern cancellations of the applicant’s registration and two of which reject applications for changes to the scope of the applicant’s registration. The decisions were made pursuant to the National Vocational Education and Training Regulator Act 2011 and the Education Services for Overseas Student Act 2000. In the case of the decisions made pursuant to the Education Services for Overseas Student Act 2000, ASQA was making the decisions as a delegate of the Minister and Secretary.

3. The applications were listed for hearing on 24 August 2015 for three days. A successful application for adjournment was made by the applicant and my reasons for decision were given on that date.

4. In the course of submissions on the adjournment application the applicant foreshadowed a preliminary question for determination as to the extent of this Tribunal’s power and jurisdiction to hear the application involving a question as to whether new circumstances and evidence which had come into existence after the decision under review had been made could be taken into account and relied on by ASQA as grounds for rejecting the applications for review. Submissions on this question were made on 25 August 2015 and these reasons relate to the determination of this question.

5. ASQA is the National Regulator for Vocational Education and Training (the regulator) and has formed the view that the applicant was non-compliant with applicable standards. On the basis of that non-compliance ASQA made the decisions under review on the basis of evidence as it stood as at October 2014.

6. On 1 June 2015, after the decisions were made and after the applicant applied for review to this Tribunal for review of those decisions, ASQA raised for the first time the issue of whether the applicant satisfied the “Fit and Proper Requirements” pursuant to s 23 of the National Vocational Education and Training Regulator Act 2011 (the Act) and seeks to rely on further evidence not available at the time of the decision under review.

7. The applicant contends that ASQA has never made a decision or determination that the applicant is not a fit and proper person and says that it is a new allegation that ASQA now seeks to raise in support of its decisions to cancel and refuse to extend the scope of the applicant’s registration. ASQA has indicated that it seeks to call evidence in relation to the new ground and the applicant says that in the current proceedings before the Tribunal consideration of the ground and supporting evidence are outside the scope of the review.

8. The applicant says that the nature of the decisions under review and the statutory powers available to this Tribunal on review do not permit this Tribunal to affirm the decision or to make a fresh decision to impose a sanction or refuse to extend the scope of registration on the basis of this ground. This is said to be because ASQA did not have the power to do so at the time of the decision by reason of its non-compliance with the natural justice requirements of the Act, nor has the power accrued to ASQA or this Tribunal. ASQA has never made a decision to cancel registration by reason of this new ground. If the Tribunal takes the view that the new allegation is a matter to which it can have regard then it is said that the proper course is to remit the matter to ASQA for investigation and determination. It is contended that the materials filed in relation to the fit and proper person allegation by ASQA should not be received into evidence because it is said to be irrelevant to any issue within the scope of the review applications.

   LEGAL FRAMEWORK

9. Under s 25 of the Administrative Appeals Tribunal Act1975 (the AAT Act) an enactment may provide that an application may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. The Tribunal is required to pursue the objective of providing a mechanism of review that is fair, just, economical and quick: s 2A of the AAT Act.

10. The principal application, relating to the cancellation of the applicant’s registration pursuant to the Act, is brought under s 203 of the Act. Under section 199 of the Act the decision before this Tribunal is a “reviewable decision”.

11. Section 36 of the Act provides that if after natural justice requirements have been satisfied in accordance with the requirements of section 37 of the Act, the regulator is satisfied that it is appropriate to impose a sanction, it may proceed to impose a sanction. In the present case the sanction imposed was cancellation of the applicant’s registration. Section 36 also provides that the natural justice requirements may be dispensed with in exceptional circumstances. In the present case the natural justice requirements under section 37 have not been satisfied in relation to the ground that the applicant did not comply with the fit and proper person requirements now relied on by ASQA and there is no suggestion that there are any special circumstances in relation to the decision under review.

12. The natural justice requirements in s 37 require a procedure to be followed involving written notice giving notice of intention to act and the reasons for doing so and inviting submissions within a specified period. The regulator is required to consider the responses and may then make a decision as to an appropriate sanction including cancellation of registration or amend or suspend the scope of registration or give a written direction it considers appropriate after taking into account the organisations conduct or circumstances.

    APPLICANT'S CASE

13. The applicant points to section 43 of the AAT Act which provides that in reviewing a decision this Tribunal may exercise all the powers and discretions conferred on the person or body who made the decision and may make a decision in substitution for any decision set aside by it. Such a decision will for all purposes be deemed to be a decision of the decision-maker whose decision is under review and shall come into operation from the day on which the decision under review had effect unless the Tribunal otherwise decides.

14. The applicant accepts that as a general principal this Tribunal is entitled have regard to new, fresh, additional or different evidence arising or available after the original decision was made and can make its decision on the basis of current facts and circumstances such that it can use all powers given to the decision-maker at the time it makes its decision including powers and material grounds that may have accrued to the decision-maker in the interval of time since the original decision was made.

15. The applicant says, however, that in this case no decision has been made which can be capable of being reviewed based on the ground that the fit and proper person requirements were not met because insofar as reliance is sought to be placed on that ground there has been no compliance with the natural justice requirements of section 37 of the Act and consequently there has been no decision which can be reviewed in relation to those matters because the of power to review is limited in the present circumstances to decisions based on grounds on which the original decision was made. ASQA has never made any decision to take action on the grounds now sought by ASQA to be relied on. Therefore this Tribunal standing in its place cannot do so.

16. Therefore, so it is said, because only the ground relied on below, namely the non-compliance with the Standards for NVR Registered Training Organisations has been subject to the natural justice requirements of section 37 reliance cannot now be placed on a new ground and evidence based on findings sought to be made for the first time as to “fit and proper person”. The decision under review did not consider this ground and this Tribunal is restricted to a consideration of decisions in respect of which the natural justice procedural requirements of s 37 have been satisfied.

    CONSIDERATION

17. The issue raised by the applicant on this interlocutory proceeding was considered by Deputy President Groom AO in Re Echelon National Security Agency Pty Ltd and Australian Skills Quality Authority (2014) 63 AAR 190; [2014] AATA 151. In that case the Tribunal decided that in circumstances where, after the application for review had been lodged, the respondent sought to raise an entirely new issue, namely whether the applicant satisfied the “fit and proper person” requirements, the Tribunal had jurisdiction to make a decision on the additional ground. In that case there had been no decision that the applicant was not a “fit and proper person” to carry out the functions of a registered training organisation. This was seen to be an entirely new and distinct ground alleged as a further basis for rejection of the registration application at issue in that case. The Deputy President after referring to relevant authorities said:

    [22] The essential question here is should this Tribunal, while standing in the shoes of the original decision-maker, now consider this new ground which has arisen since the review application was lodged with the Tribunal.

    [23] In considering this question the Tribunal has found two decisions of the Federal Court to be most helpful.

    The first decision is Department of Social Security v Hodgson (1992) 37 FCR 32; 15 AAR 563. I refer particularly to page 316 where Hill J said:

    The language of section 43 is quite clear and unambiguous. It empowers the tribunal to exercise all the powers and discretions conferred upon the original decision maker provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited.

    The other decision is Secretary, Department of Employment, Education, Training & Youth Affairs v McKay (1998) 29 AAR 95 in which Kenny J expressed the following view:

    It should be borne in mind that neither tribunal is confined to the decision making power upon which the decision maker relied, but is armed with all the powers and discretions of the original decision maker that are relevant to the review.

    [24] In both those decisions the Federal Court held that the Tribunal did have jurisdiction to consider a new ground provided it was relevant to the decision under review. Different grounds were then considered which were not the basis of the original decision but which were relevant to that decision.

    [25] As a prospective registered training organisation cannot be registered if it is not a “fit and proper person” it seems to me that it is essential that issue also be determined when considering whether the decision rejecting Echelon’s application for registration was the correct or preferable decision. To decide otherwise is likely to lead to another decision by the Authority and perhaps a further application to this Tribunal with all the associated delay and costs involved.

    [26] The sensible administrative decision, and one which I believe accords with the law, is to hear and determine the question of whether the applicant is a “fit and proper person” as well as considering whether the applicant satisfies conditions for registration, in particular SNR 4.2, 4.3, 4.4 and 4.5.

    Decision

    [27] The Tribunal has jurisdiction to consider and determine whether the applicant satisfies the Fit and Proper Person Requirements made pursuant to the National Vocational Education and Training Regular Act 2011.

18. I consider this decision and the reasoning to be directly on point and correct in relation to the present applications. The applicant sought to distinguish this decision on the basis that it did not involve the sanction of a cancellation but rather was concerned with the question whether the applicant should be approved for registration as a registered training organisation. This did not involve the taking away of any rights or privileges and is therefore different from a situation where registration is cancelled by the regulator. In my opinion this is not a sufficient ground to distinguish the Echelon case because the essential question both in that case and in the present one is whether there is jurisdiction to entertain a new issue and supporting evidence. It is most important to identify the precise terms of the “decision” under review because it is that decision which determines the jurisdiction of the Tribunal. See the observations of the High Court on the need to identify the specific decision which is under review in Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at [43], [133]-[134], [141]-[145], [148]-[151], [157].

19. The decision of ASQA in relation to the cancellation is not whether the registration should be cancelled on the grounds relied on in the notice of cancellation, but rather the broader and more far reaching decision whether the registration should be cancelled. It is the latter decision which is the subject of the review.

20. As noted, section 203 of the Act provides for applications to this Tribunal for review of a reviewable decision. The reviewable decision in the present case is defined by section 199 as being a decision to cancel an NVR registered training organisation’s registration. The review to this Tribunal is in respect of the cancellation. That being so, the Tribunal has jurisdiction to consider and decide the present matter on the basis of all the circumstances and provisions applicable at the time of its decision in the absence of any specific prohibition to the contrary.

21. In the present case, there is ample provision in the requirements of the AAT Act and the procedures provided for under the Act in relation to the management of review applications to comply with the requirements of procedural fairness and natural justice. See for example section 39 of the AAT Act. It is also well settled that the Tribunal has jurisdiction to conduct reviews of decisions which may have been void or invalid by reason of failures to comply with the provisions of applicable legislation or legal principles.

    DECISION

22. For the above reasons I do not accept the submissions of the applicant in relation to the limitations which it seeks to place on the Tribunal’s jurisdiction in this matter. I am satisfied that the Tribunal has jurisdiction to hear and determine whether the applicant satisfies the fit and proper person requirements and have regard to any additional evidence sought to be relied on in relation to this issue.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President

........................[sgd].............................................

Associate

Dated 24 September 2015

Date of hearing	25 August 2015
Counsel for the Applicant	Ms C Currie
Solicitors for the Applicant	Denison Toyer
Solicitor for the Respondents	Mr T Lloyd, Australian Skills Quality Authority