ProGalor Hub Pty Ltd and Australian Skills Quality Authority
[2021] AATA 4058
•5 November 2021
ProGalor Hub Pty Ltd and Australian Skills Quality Authority [2021] AATA 4058 (5 November 2021)
Division:GENERAL DIVISION
File Numbers:2021/6998
2021/6999
Re:ProGalor Hub Pty Ltd
APPLICANT
AndAustralian Skills Quality Authority
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:5 November 2021
Place:Sydney
Pursuant to subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth):
1. the operation of the internal review decision made by the Respondent on 7 September 2021, and the original decision made on 31 March 2021, to suspend the applicant’s scope of registration under the National Vocational Education and Training Regulator Act 2011 (Cth) (2021/6998) is stayed until the Tribunal decides otherwise or until further order of the Tribunal;
2. During the period in which the stay is in force, the applicant shall not enrol any new students in any of the courses which are the subject of these proceedings.
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Senior Member A Poljak
CATCHWORDS
PRACTICE AND PROCEDURE – application for a stay of decision of Australian Skills Quality Authority – registered training organisation – decision to suspend the applicant’s scope of registration – factors relevant to considering application for a stay – prospects of success – reputational damage – public interest – stay application granted in the same terms as current interim stay orders
LEGISLATION
Administrative Appeals Tribunal Act 1975(Cth) s 41
National Vocational Education and Training Regulator Act 2011(Cth) ss 33, 36, 38
CASES
Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065
SECONDARY MATERIALS
Standards for Registered Training Organisations (RTOs) 2015
REASONS FOR DECISION
Senior Member A Poljak
5 November 2021
ProGalor Hub Pty Ltd, the applicant, received initial registration by the Australian Skills Quality Authority (“the respondent” or “ASQA”) as a Registered Training Organisation (RTO) on 10 December 2015 and is registered until 9 December 2022.
On 19 April 2019, the applicant lodged an application with the Administrative Appeals Tribunal (Tribunal) for a review of ASQA’s decision to reject its application to become a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) provider. This proceeding remains on foot at the Tribunal under matter number 2019/2161.
On 26 June 2019, after a post initial registration audit, ASQA made a decision to cancel the applicant’s registration. The decision was appealed at the Tribunal under matter number 2019/4017. On 14 May 2020, the Tribunal decided, through terms of agreement between the parties, to set aside ASQA’s cancellation decision of 26 June 2019. Extensive conditions were imposed on the applicant’s registration.
On 31 March 2021, after a compliance monitoring audit, ASQA determined that the applicant remained non-compliant with clauses 1.1, 1.2, 1.3, 1.8, 1.13 and 2.1 of the Standards for Registered Training Organisations (RTOs) 2015 (Standards) and decided to:
(a)suspend, under the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) s 36(2)(e) and s 38, all of the RTO’s scope of registration and during the period of suspension, require, under the NVR Act s 38(2), the RTO (not) to:
(i)enrol a student in a suspended VET course or part of a suspended VET course
(ii)allow a VET student to begin a suspended VET course or part of a suspended VET course
(iii)publish or broadcast an advertisement relating to a suspended VET course or any part of a suspended VET course, or
(iv)cause to be published or broadcast an advertisement relating to a suspended VET course or any part of a suspended VET course; and
(b)reject, under the NVR Act s 33, the RTO’s application to change the scope of its registration to include:
(i)BSB30120 Certificate III in Business
(ii)BSB40820 Certificate IV in Marketing and Communication
(iii)BSB50230 Diploma of Human Resource Management
On 9 June 2021, after an extension of time was granted, the applicant applied for internal review of the decision and on 26 August 2021, the applicant provided further submissions and evidence in support of its application.
On 7 September 2021, ASQA made the decision to affirm the decisions under review. The decision was made based on the Internal Review Statement of Reasons which found the Applicant non-compliant with clauses 1.1, 1.2, 1.3, 1.8, 1.13 and 2.1 of the Standards (suspension decision). The applicant seeks review of this decision (substantive proceedings).
These proceedings concern an application for a stay of the operation and effect of the suspension decision until final determination of the substantive application (“stay application”). The respondent opposes the stay application.
At the time of interlocutory hearing, an interim stay was already in place, having effect from 7 October 2021. During the period in which the interim stay is in force, the applicant is not to enrol any new students in any of the courses which are the subject of these proceedings.
CONSIDERATION
A decision that is subject to review has full effect and operation unless and until the Tribunal makes an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to stay the operation and effect of the decision. Such an order may be made if the Tribunal is “of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review”. It is not intended to simply protect an applicant from the consequences of a decision.
There are numerous authorities setting out a non-exhaustive set of factors to be taken into account when determining an application for a stay order. In Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065 at [6]-[7], the Tribunal summarised the well-established relevant factors and principles which may be considered when determining a stay application:
[6] The decision whether to grant a Stay is entirely discretionary. It follows that an applicant does not have an automatic right to a Stay. Given the effect of s 41(1) of the AAT Act, it must necessarily be inferred that the reviewable decision, the decision of the SSAT in this case, is correct until proven otherwise. Further, the general principle applied by the courts that, prima facie, the successful party has the right to the fruits of a judgement should also apply in the case of Tribunal decisions. In the courts, an applicant for a Stay is required to show that there are special circumstances which would justify the stay of execution of the judgement. (emphasis added)
[7] The matters which are considered by the courts to constitute special circumstances are similar to those enunciated by the Tribunal when dealing with Stay applications. Deputy President G.D. Walker in Re Secretary, Department of Workplace Relations and Nicholas [2006] AATA 497 at [21] and Senior Member B.J. McCabe in Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485 at [5] set out the following factors which may need to be considered in determining whether a Stay should be granted.
(a) The prospects of success or the merits of the applicant’s case on review.
(b) Whether there will be prejudice to the parties or anyone else if a Stay were not granted.
(c) Whether it is in the public interest to grant a Stay.
(d) That the review application, if successful, would be rendered nugatory or pointless if the Stay was not granted.
These factors are generally the touchstone against which consideration of stay applications are to be approached.
While it is neither necessary nor appropriate for me to determine the substantive matter on an interlocutory application, I must be satisfied that the applicant has some prospects of success. This can be a difficult task given that all the evidence intended to be relied upon at hearing of the substantive matter may not be before me. It is significant, however, that the applicant availed itself of the opportunity to provide ASQA with evidence to demonstrate its compliance on 10 different occasions during the three and a half years preceding the final internal review decision to suspend its registration. These 10 occasions form the basis for the original decision, which was made on 31 March 2021, and include:
(a)During the September 2018 post-initial site audit;
(b)On 30 April 2019, in response to ASQA’s notice of intention to cancel RTO registration;
(c)On 29 July 2019 and 9 August 2019, when applying for an AAT review of ASQA’s cancellation decision;
(d)On 30 September 2019, when submitting a second round of evidence in the AAT;
(e)On 12 December 2019, when submitting a third round of evidence in the AAT in response to an ASQA AAT Evidence analysis report;
(f)On 14 January 2020, when submitting a fourth round of evidence in the AAT in response to a request by ASQA;
(g)On 13 March 2020, when submitting a response to ASQA’s Statement of Facts, Issues and Contentions in the AAT;
(h)On 27 March 2020, when submitting a fifth round of evidence in the AAT in response to a second ASQA AAT report;
(i)On 16 December 2020, during ASQA’s compliance monitoring desk audit; and
(j)On 15 and 26 February 2021, in response to ASQA’s notice of intent to suspend RTO registration.
This longstanding inability of the applicant to demonstrate a commitment to compliance gives the applicant poor prospects of success at final hearing. I do note however, that the applicant has previously retained an independent compliance consultant and has attempted to address compliance issues. The applicant has expressed serious concerns about the respondent’s conduct and its dealings with the applicant, particularly regarding the internal review process and providing the applicant with adequate time to provide evidence and rectify issues.
There are currently 28 students enrolled with the applicant, five of which are “active” and the remaining 23 students are waiting for work placements and on their “last leg” of assessments. This is a very small number of active students. At hearing, the applicant advised that only one qualification was currently running, and two trainers were currently engaged. However, the applicant continued to be liable for lease payments on two premises. I have no evidence before me to substantiate a claim of a tangible financial impact should the stay application be refused. The applicant described their financial position as stressful and very difficult. Despite the small number of enrolled students, the applicant has been able to cover their liabilities to date.
As to the consequences for the applicant should the stay application be refused, the applicant contends that should the suspension decision come into effect, they would not be able to retain already contracted staff and teachers and/or find suitable teachers in the future because of reputational damage. The applicant has already been severely impacted by COVID-19 restrictions, and the applicant’s inability to enrol new students since May 2020. The applicant claims that any further reputational damage to the applicant would be hard to overcome and would have a significant impact on the applicant’s future.
I accept that some reputational damage may be suffered by the applicant should a stay be refused. Any reputational damage suffered by the applicant could significantly impact on the applicant’s future operations. Should the applicant be successful in the substantive proceedings, it may take some time for new student enrolments to increase, particularly as the applicant is currently unable to market future courses/qualifications. Any reputational damage could delay the applicant’s recovery financially, reduce new student enrolments and limit the applicant’s ability to retain or attract appropriate teaching staff. This factor weighs in favour of granting a stay.
Consistent with the objectives of the NVR Act, there is a public interest in refusing to grant a stay to protect prospective students and the general public from inadequate training and assessment. Particularly since the applicant delivers courses in areas that affect vulnerable members of the public such as the CHC43015 Certificate IV in Ageing Support and the CHC33015 Certificate III in Individual Support.
ASQA has also determined that the applicant has a ‘severe’ risk rating in relation to ‘causing actual or potential harm to students’ due to:
(a)consistently not ascertaining the appropriate volume of training or having consistency in its training (under clauses 1.1 and 1.2 of the Standards);
(b)not demonstrating it has sufficient resources and simulated environment to provide adequate training and assessment (clause 1.3 of the Standards);
(c)not having demonstrated it has determined the current industry skills of its trainers (clause 1.13 of the Standards); and
(d)not ensuring its assessment systems comply with the Principles of Assessment, Validity and Reliability (clause 1.8 of the Standards).
Finally, there is insufficient evidence before me to support the contention that the review application would be rendered nugatory if the stay order was not granted.
DECISION
Given the very small number of enrolled “active” students and the specific circumstances of this matter, I find it is appropriate for the stay application to be granted in the same terms as the current interim stay orders. This would alleviate the potential reputational damage the applicant could suffer should the suspension decision come into effect, while also protecting the public interest.
The orders are as follows:
Pursuant to subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth):
1. the operation of the internal review decision made by the respondent on 7 September 2021, and the original decision made on 31 March 2021, to suspend the applicant’s scope of registration under the National Vocational Education and Training Regulator Act 2011 (Cth) (2021/6998) is stayed until the Tribunal decides otherwise or until further order of the Tribunal (stay);
2. during the period in which the stay is in force, the applicant shall not enrol any new students in any of the courses which are the subject of these proceedings.
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 5 November 2021
Date of interlocutory hearing: 22 October 2021 Applicant: Mr J Verma Solicitors for the Respondent: Ms M Schauer, Australian Skills Quality Authority
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