ProGalor Hub Pty Ltd and Australian Skills Quality Authority

[2023] AATA 4012

ProGalor Hub Pty Ltd and Australian Skills Quality Authority [2023] AATA 4012 (1 December 2023)

Division:GENERAL DIVISION

File Number(s):      2019/2161 & 2021/6998

Re:ProGalor Hub Pty Ltd

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:1 December 2023

Place:Sydney

The reviewable decision of 7 September 2021 is varied so that the applicant’s registration is cancelled under ss 36(2)(f) and 39 of the National Vocational Education and Training Regulator Act 2011 (Cth) and the reviewable decision of 27 March 2019 to not register the applicant under s 10 of the Education Services for Overseas Students Act 2000 (Cth) is affirmed.

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

Deputy President B W Rayment OAM KC

CATCHWORDS

VOCATIONAL EDUCATION AND TRAINING – decision not to register applicant under the Education Services for Overseas Students Act 2000 (Cth) – decision affirmed – decision to suspend all of the applicant’s scope of registration under the National Vocational Education and Training Regulator Act 2011 (Cth) – decision varied to cancel registration

LEGISLATION

Education Services for Overseas Students Act 2000 (Cth)

National Vocational Education and Training Regulator Act 2011 (Cth)

SECONDARY MATERIALS

Standards for Registered Training Organisations (RTOs) 2015

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

1 December 2023

1. There are two reviewable decisions of the respondent which the applicant has brought before the Tribunal for review. The first is dated 27 March 2019, a decision to not register the applicant under s 10 of the Education Services for Overseas Students Act 2000 (the ESOS Act) to provide the following courses to overseas students: English for General Purpose and English for Specific/Academic Purposes.

2. The second reviewable decision was dated 7 September 2021 to suspend all of the applicant’s scope of registration, under s 36(2)(e) and s 38 of the National Vocational Education and Training Regulator Act 2011 (the NVR Act). In February 2023 the respondent notified the applicant that it would submit to the Tribunal that instead of the order of suspension, the Tribunal should vary or substitute the respondent’s orders so as to cancel the applicant’s registration under s 36(2)(f) and s 39 of the NVR Act, and the review has proceeded on that basis.

3. The respondent as regulator began in the review and called oral evidence from Ms Madison Holdsworth, an Assistant Director of the respondent in its Internal Review and Appeals team. Ms Holdsworth started her employment with the respondent in about May 2021. She was cross-examined by Mr Jitendra Verma, the CEO of the applicant.

4. I will discuss the matters arising on the review of the decision of September 2021 and the question of cancellation first, and discuss later in these reasons the 2019 decision.

   NVR Act Decision

5. It is convenient next to set out the objects of the NVR Act in s 2A of that Act, and the legislative provisions mentioned in [2] above:

   2A  Objects

   The objects of this Act are:

   (a)to provide for national consistency in the regulation of vocational education and training (VET); and

   (b)to regulate VET using:

   (i)     a standards‑based quality framework; and

   (ii)    risk assessments, where appropriate; and

   (c)to protect and enhance:

   (i)     quality, flexibility and innovation in VET; and

   (ii)    Australia’s reputation for VET nationally and internationally; and

   (d)to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia’s social and economic needs for a highly educated and skilled population; and

   (e)to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and

   (f)to facilitate access to accurate information relating to the quality of VET.

   Note 1:The standards‑based quality framework mentioned in paragraph (b) consists of instruments made by the Ministerial Council, the Minister or the National VET Regulator.

   Note 2:These objects are subject to the constitutional basis for this Act (see Division 3).

   […]

   36  Sanctions

   […]

   2The National VET Regulator may do one or more of the following:

   (b)give a written direction to an NVR registered training organisation requiring the organisation to notify its VET students, in writing, of a matter set out in the direction;

   (c)shorten the period of an NVR registered training organisation’s registration;

   (d)amend an NVR registered training organisation’s scope of registration;

   (e)suspend all or part of an NVR registered training organisation’s scope of registration under section 38;

   (f)cancel an NVR registered training organisation’s registration under section 39.

   […]

   38  Suspension

   1The National VET Regulator may, by notice in writing, suspend all or part of an NVR registered training organisation’s scope of registration for a period specified in, or ascertained in accordance with, the notice.

   Note:Details relating to an NVR registered training organisation whose scope of registration is suspended are included on the National Register, see section 216.

   2During the period of suspension, the National VET Regulator may require the NVR registered training organisation to do something, not to do something, or both. This may include restrictions on:

   (a)enrolling a student in a VET course or part of a VET course; or

   (b)allowing a VET student to begin a VET course or part of a VET course; or

   (c)publishing or broadcasting an advertisement relating to a VET course or any part of a VET course; or

   (d)causing to be published or broadcast an advertisement relating to a VET course or any part of a VET course.

   Note:Failure to comply with the National VET Regulator’s requirements is an offence and a contravention of a civil penalty provision, see sections 101 and 102 respectively.

   39  Cancellation

   1The National VET Regulator may, by notice in writing, cancel an NVR registered training organisation’s registration in any circumstances that the Regulator considers it appropriate to do so, including for failure to pay a National VET Regulator annual registration charge by the date on which it is payable (see section 232A).

   Note:Details relating to an NVR registered training organisation whose registration is cancelled are included on the National Register, see section 216.

   2An organisation whose registration is cancelled under this Act must return its certificate of registration to the National VET Regulator within 10 days of the day the cancellation takes effect.

   Note:Failure to return a certificate of registration is a contravention of a civil penalty provision, see section 112.

   3An organisation whose registration is cancelled under this Act may not apply for registration as an NVR registered training organisation for 2 years, or such shorter period as the National VET Regulator considers appropriate, after the day the cancellation takes effect.

   4If an NVR registered training organisation’s registration is cancelled under subsection (1), the cancellation takes effect:

   (a)at the start of the day after the day on which the notice of cancellation is given to the organisation; or

   (b)at the start of such later day as is specified in the notice.

6. Section 185 of the NVR Act empowers the Minister, by legislative instrument, to make standards for NVR registered training organisations (RTO Standards) (including the applicant). The Minister did so in 2015 and those RTO Standards remain in place.

7. Ms Holdsworth is a graduate in Arts and Law and practised as a Lawyer and then a Senior Lawyer with the Civil Claims Team of the Australian Government Solicitor in Sydney and Melbourne. She conducted evidence reviews of the applicant in February 2022, December 2022 and February 2023, and the evidence reviews for December 2022 and February 2023 are in evidence. The earlier review of February 2022 is not presently directly relevant because of a change in the courses which the applicant desires to offer students.

8. Ms Holdsworth concluded in her February 2023 evidence review that the materials put forward by the applicant demonstrated that the applicant had failed to comply with clauses 1.1, 1.2, 1.3, 1.8, 1.9, 1.13, 1.14 and 2.1 of the RTO Standards. Those clauses are as follows:

   1.1The RTO’s training and assessment strategies and practices, including the amount of training they provide, are consistent with the requirements of training packages and VET accredited courses and enable each learner to meet the requirements for each unit of competency or module in which they are enrolled.

   1.2For the purposes of Clause 1.1, the RTO determines the amount of training they provide to each learner with regard to:

   (a)the existing skills, knowledge and the experience of the learner;

   (b)the mode of delivery; and

   (c)where a full qualification is not being delivered, the number of units and/or modules being delivered as a proportion of the full qualification.

   1.3 The RTO has, for all of its scope of registration, and consistent with its training and assessment strategies, sufficient:

   (a)trainers and assessors to deliver the training and assessment;

   (b)educational and support services to meet the needs of the learner cohort/s undertaking the training and assessment;

   (c)learning resources to enable learners to meet the requirements for each unit of competency, and which are accessible to the learner regardless of location or mode of delivery; and

   (d)facilities, whether physical or virtual, and equipment to accommodate and support the number of learners undertaking the training and assessment.

   […]

   1.8 The RTO implements an assessment system that ensures that assessment (including recognition of prior learning):

   (a)complies with the assessment requirements of the relevant training package or VET accredited course; and

   (b)is conducted in accordance with the Principles of Assessment contained in Table 1.8‑1 and the Rules of Evidence contained in Table 1.8‑2.

   […]

   1.9.The RTO implements a plan for ongoing systematic validation of assessment practices and judgements that includes for each training product on the RTO’s scope of registration:

   (a)when assessment validation will occur;

   (b)which training products will be the focus of the validation;

   (c)who will lead and participate in validation activities; and

   (d)how the outcomes of these activities will be documented and acted upon.

   […]

   1.13 In addition to the requirements specified in Clause 1.14 and Clause 1.15, the RTO’s training and assessment is delivered only by persons who have:

   (a)vocational competencies at least to the level being delivered and assessed;

   (b)current industry skills directly relevant to the training and assessment being provided; and

   (c)current knowledge and skills in vocational training and learning that informs their training and assessment.

   Industry experts may also be involved in the assessment judgement, working alongside the trainer and/or assessor to conduct the assessment.

   1.14 The RTO’s training and assessment is delivered only by persons who have the training and assessment credential specified in Item 2 or Item 3 of Schedule 1.

   […]

   2.1. The RTO ensures it complies with these Standards at all times, including where services are being delivered on its behalf. This applies to all operations of an RTO within its scope of registration.

9. Clause 1.14 of the RTO Standards refers to Item 2 or Item 3 of Schedule 1, which are as follows:

   Schedule 1

Item	Standard	Training and assessment credentials
[…]
2	1.11 1.14 1.15 1.24	One of the following credentials: Credential: TAE40116 Certificate IV in Training and Assessment or its successor […]
3	1.14 1.15	The following credential: A diploma or higher level qualification in adult education.

1. Ms Holdsworth’s evidence review explains the basis for her conclusions as to non-compliance and exhibits the material she examined. The courses for which ASQA requested the applicant submit evidence and submissions for were Certificate IV in Ageing Support, Certificate IV in Project Management Practice, and Diploma of Project Management. In addition, the applicant said that it wished to offer Certificate IV in Leadership and Management, and ASQA decided not to request evidence and submissions for that course. The importance of the February 2023 evidence review is that it takes account of the current proposals of the applicant for three of the four courses it wishes to offer.

2. Ms Holdsworth also referred in her evidence review to systemic non-compliance with the RTO Standards previously found by ASQA.

3. Ms Holdsworth recommendation for cancellation of the applicant’s registration was put based on the findings she made and those previously made by ASQA over a number of years. For example at paragraph 7(c) and 7(d) of page 6 in her evidence review she said:

   The applicant’s training and assessment documentation is generally poor quality and demonstrates numerous errors and deficiencies. This points to serious failings in its self-assurance systems and processes. As such, even if the applicant returns to basic compliance, there is low confidence that its self-assurance measures would sufficiently identify and respond to risk and systemic issues within the organisation. As such, the applicant would be unlikely to remain compliant in the longer term.

   The impact of the issues identified is a potentially significant risk, noting that the community service qualification the applicant is offering is high risk to students and the community. Students may not complete the courses equipped with the knowledge required to effectively perform the necessary skills. This is likely to lead to poor vocational outcomes for the students and increased risk to vulnerable members of the community.

4. During her cross-examination by Mr Verma she made limited concessions in his favour. See for example page 96 of the transcript. Because of the conditions of the stay of the reviewable decision, she agreed that in the light of the severe reduction in current students, there was no problem at the present time with their accommodation by the applicant. She did not however resile from her opinion that overall the systemic failures identified in her report and previously identified by the respondent, were such that the applicant’s registration ought to be cancelled.

5. The applicant’s case was one to disagree with the findings of ASQA. In his cross-examination of Ms Holdsworth, Mr Verma took the Tribunal to a submission filed by the applicant on 14 April 2023 which set out the applicant’s response to the evidence review. Mr Verma called no current expert evidence supporting the applicant’s case. In any future application by the applicant, such evidence may well assist the applicant, especially if the expert reviews all documents filed by the applicant to ensure that all standards are complied with.

6. Ms Holdsworth gave evidence that the applicant substantially failed to rectify its non-compliance in response to her evidence reviews and stated that its failure to do so was very unusual in circumstances where the applicant had been given multiple opportunities over a significant period of time to do so.

7. I see no reason not to accept Ms Holdsworth’s evidence on the review and I accept it. A caveat to this is that it appears that the applicant is compliant with clause 1.14 of the RTO Standards with regards to Mr Verma and Mr David Maramba. The respondent noted at [35] of its closing submissions that Mr Verma attained the credentials TAE40116 Certificate IV in Training and Assessment and ICT60115 Advanced Diploma of Information Technology, and it appears that Mr Maramba also attained the former credential as per page 88 of the attachments to the applicant’s closing submissions. It may also be worth noting that page 94 of those attachments shows Mr Maramba attained a CHC43015 Certificate IV in Ageing Support with the applicant in February 2020 which indicates the applicant is compliant with clause 1.13 with respect to Mr Maramba. However, the other deficiencies regarding clause 1.13 set out in the respondent’s evidence review have not been adequately addressed.

8. The applicant’s non-compliance established by the respondent has been serious, systemic and likely to persist. In light of the objects of the NVR Act, the appropriate sanction in this case is a cancellation of registration.

9. For those reasons I am satisfied that the correct and preferable decision is to vary the reviewable decision of 7 September 2021 by cancelling the applicant’s registration under ss 36(2)(f) and 39 of the NVR Act.

   ESOS Act Decision

10. The objects of the ESOS Act and relevant provisions are as follows:

    4A  Objects

    The principal objects of this Act are:

    (a)to provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and

    (b)to protect and enhance Australia’s reputation for quality education and training services; and

    (c)to complement Australia’s migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas.

    […]

    10  ESOS agency for provider may register provider

    1If a provider makes an application under section 9, the ESOS agency for the provider may register the provider to provide a course or courses at a location or locations if the provider meets the registration requirements.

    2The ESOS agency for the provider must use a risk management approach when considering whether to register the provider.

    […]

    11  When a provider or registered provider meets the registration requirements

    A provider or registered provider meets the registration requirements if:

    […]

    (b)the ESOS agency for the provider is satisfied that the provider is complying, or will comply, with:

    (i)     this Act; and

    (ii)    the national code; and

    (iii) if the ELICOS Standards or Foundation Program Standards apply in relation to the provider—those Standards; and

    […]

    (e)the ESOS agency for the provider has no reason to believe that:

    (i)     the provider does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or

    (ii)    the provider has not been providing, or will not provide, education of a satisfactory standard; […]

11. The applicant’s non-compliance as discussed above leads me to conclude that the applicant should not be registered as a provider under the ESOS Act, noting in particular the terms of s 11(e). As such, the reviewable decision of 27 March 2019 is affirmed.

    Conclusion

12. The reviewable decision of 7 September 2021 is varied so that the applicant’s registration is cancelled under ss 36(2)(f) and 39 of the NVR Act and the reviewable decision of 27 March 2019 to not register the applicant under s 10 of the ESOS Act is affirmed.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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Associate

Dated: 1 December 2023

Date(s) of hearing:

16 & 17 August 2023

Date final submissions received:

21 September 2023

Advocate for the Applicant:

Mr J Verma

Counsel for the Respondent:

Solicitor for the Respondent:

Mr A Dillon, Australian Government Solicitor

Ms M Schauer, Australian Skills Quality Authority