Quality Training & Development Pty Ltd and Australian Skills Quality Authority - [2020] AATA 4149

Quality Training & Development Pty Ltd and Australian Skills Quality Authority [2020] AATA 4149 (14 October 2020)
Division:GENERAL DIVISION
File Numbers:2018/2505, 2018/2506, 2018/3601
Re:Quality Training & Development Pty Ltd
APPLICANT

AndAustralian Skills Quality Authority
RESPONDENT

DECISION
Tribunal:Member R West
Date:14 October 2020
Place:Melbourne

The Tribunal dismisses the application for review pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975.
..........................[sgd].............................................
Member
Catchwords
REGISTERED TRAINING ORGANISATION – review of decision to cancel registration under NVR Act and refuse registration under ESOS Act – effect of expiry of period of initial registration prior to decision – lack of utility in Tribunal decision – exercise of discretion under s.42B of the AAT Act – application dismissed.
Legislation
National Vocational Educational and Training Regulator Act 2011
Education Services for Overseas Students Act 2000
Administrative Appeals Tribunal Act 1975
Cases
Chemcert Training Group and Australian Skills Quality Authority [2019] AATA 313
Coyne and Comcare (1995) 37 ALD 553
Currey and Australian Community Pharmacy Authority [2007] AATA 1963
Farnan and Inspector-General in Bankruptcy (2007) 95 ALD 186
Filsell and Comcare [2009] AATA 90
Fleet Management Ltd and Australian Maritime Safety Authority [2006] AATA 390
Hawkins and Minister for the Arts [2013] AATA 835
Hinds and Australian National University [2012] AATA 495
Irving and Repatriation Commission (1997) 46 ALD 20
Marnotta Pty Ltd and Secretary, Department of Health and Ageing (2004) 82 ALD 514
Nugent and Minister for Urban Services (2000) 61 ALD 570
Rundle and Civil Aviation Safety Authority [2002] AATA 349; (2002) 68 ALD 234
Vilips and Migration Agents Registration Authority [2007] AATA 1613; (2007) 96 ALD 249
Williams and Australian Electoral Commission (1995) 38 ALD 366
Secondary Materials
Standards for Registered Training Organisations (RTOs) 2015
National Code of Practice for Providers of Education and Training to Overseas Students 2017
REASONS FOR DECISION
Member R West
14 October 2020

This matter concerns an application for review of the decisions of the Respondent dated 11 April 2018 (Reviewable Decisions) to:
a.reject an application to change the scope of the Applicant’s registration under the National Vocational Educational and Training Regulator Act 2011 (NVR Act) to include four additional courses of study, namely:
i.CHC33015 Certificate III in Individual Support;
ii.CHC43015 Certificate IV in Ageing Support;
iii.CHC5201 Diploma of Community Services; and
iv.CPCCWHS1001 Prepare to Work Safely in the Construction Industry; and
b.Refuse to register the Applicant under s 10 of the Education Services for Overseas Students Act 2000 (ESOS Act) to deliver the following courses to overseas students:
i.CHC30113 Certificate III in Early Childhood Education and Care;
ii.CHC50113 Diploma of Early Childhood Education and Care; and
iii.BSB61015 Advanced Diploma of Leadership and Management; and
c.cancel the Applicant’s registration under s 36(2)(f) and s 39 of the NVR Act.
Each of these decisions is a “reviewable decision” for the purposes of review by the Tribunal.[1]
[1] See Items 7 and 13 of ss.199 and 203 of the NVR Act and Item 1 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 4149
Decision Date: 14 October 2020

CaseChat Overview and Summary

This matter concerned an application by Quality Training & Development Pty Ltd (the Applicant) for review of decisions made by the Australian Skills Quality Authority (the Respondent). The Respondent had rejected the Applicant's application to add four courses to its registration under the National Vocational Educational and Training Regulator Act 2011 (NVR Act), refused to register the Applicant to deliver three courses to overseas students under the Education Services for Overseas Students Act 2000 (ESOS Act), and cancelled the Applicant's registration under the NVR Act. The Administrative Appeals Tribunal (the Tribunal) was required to consider these decisions.

The primary legal issues before the Tribunal were whether the Applicant had demonstrated compliance with the relevant Standards for Registered Training Organisations (RTOs) and the National Code, and whether the Respondent's decisions to reject course scope amendments, refuse ESOS registration, and cancel the Applicant's RTO registration were justified. A preliminary issue arose due to the expiry of the Applicant's initial RTO registration period on 12 January 2020, which occurred after the application for review had been lodged and the Tribunal was considering the matter.

The Tribunal noted that the Applicant's initial RTO registration, granted on 13 January 2015, was for a five-year period, due to expire on 12 January 2020. The Respondent had raised this fact in its closing submissions, highlighting that the Tribunal was now required to consider the reviewable decisions after the Applicant's registration had expired. The Tribunal considered the exercise of its discretion under section 42B of the Administrative Appeals Tribunal Act 1975, which allows the Tribunal to dismiss an application if it is satisfied that the decision is unlikely to be of any real utility.

Given that the Applicant's registration had expired, the Tribunal concluded that any decision it made regarding the reviewable decisions would be of no real utility. Consequently, the Tribunal dismissed the application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Each of these decisions is a “reviewable decision” for the purposes of review by the Tribunal.[1] [1] See Items 7 and 13 of ss.199 and 203 of the NVR Act and Item 1 of ss. 169AB and 169AG of the ESOS Act.Background The Respondent is established under s 155 of the NVR Act as the national Vocational Education and Training (VET) regulator. In order to ensure nationally approved quality standards are met, the NVR Act empowers the Respondent to regulate “VET courses” and NVR registered training organisations (RTOs) under the “VET Quality Framework”, as defined in s 3 of the NVR Act. The current VET Quality Framework[2] is contained in Attachment A to the Standards for Registered Training Organisations (RTOs) 2015 (Standards).[2] From 1 April 2015. The Applicant was registered as a RTO on 13 January 2015. On 15 June 2017, the Applicant applied under the NVR Act to add the courses listed at paragraph 1(a) above to the scope of its existing RTO registration.[3] [3] T7. On 7 August 2017, the Applicant applied for initial registration under the ESOS Act to provide the courses listed at paragraph 1(b) above to overseas students.[4] [4] T8. On 18 July 2017, the Respondent notified the Applicant that an audit was to be conducted shortly and requested pre-audit evidence to be supplied.[5] On 28 August 2017, the Respondent confirmed that there would be three audits, a Post Initial Compliance audit, a VET Amendment audit and a CRICOS Initial audit, from 5 to 7 September 2017, and that specified pre-audit evidence was to be provided by 31 August 2017.[6] On 1 September 2017, pre-audit evidence was provided by the Applicant.[7][5] T9.[6] T10.[7] T12 – T50. Between 5 and 7 September 2017, the three audits were conducted by the Respondent at the Applicant’s premises[8] to assess the Applicant’s compliance with the Standards and National Code. [8] 25 Devonshire Road, SUNSHINE VIC. The Post Initial audit identified that the Applicant was non-compliant with clauses 1.1, 1.2, 1.3, 1.8, 1.13, 3.2, 4.1, 5.1 and 5.2 of the Standards. These findings were documented in an Audit Report – VET Post Initial. The VET Amendment audit sampled the qualifications and unit of competency for:i.CHC33015 Certificate III in Individual Support;ii.CHC43015 Certificate IV in Ageing Support;iii.CHC5201 Diploma of Community Services; andiv.CPCCWHS1001 Prepare to work safely in the construction industry.As a result of the VET Amendment audit, the Applicant was identified as being non-compliant with clauses 1.1, 1.2, 1.3, 1.5, 1.7, 1.8, 1.13, 4.1 and 5.2 of the Standards. The findings of the audit were documented in an Audit Report – VET Amendment. The CRICOS Initial audit sampled the following qualifications:i.BSB61015 Advanced Diploma of Leadership and Management;ii.CHC30113 Certificate III in Early Childhood Education and Care;iii.CHC50113 Diploma of Early Childhood Education and Care; andiv.22251VIC Certificate II in EAL (Access).[9]As a result of the CRICOS Initial audit, the Applicant was identified as being [9] On 8 December 2017, the Applicant was notified that due to changes in CRICOS regulations from 1 January 2018, 22251VIC Certificate II in EAL (Access) was unable to be approved for CRICOS registration – see T51.non-compliant with Part C Registration Requirements C7.3 and C8.1 and Part D Standards of the National Code 2017 D1.1, D1.2, 2.1, 14.1 and 14.2. The findings of the audit were documented in an Audit Report – (CRICOS).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This matter concerns an application for review of the decisions of the Respondent dated 11 April 2018 (Reviewable Decisions) to:a.reject an application to change the scope of the Applicant’s registration under the National Vocational Educational and Training Regulator Act 2011 (NVR Act) to include four additional courses of study, namely:i.CHC33015 Certificate III in Individual Support;ii.CHC43015 Certificate IV in Ageing Support;iii.CHC5201 Diploma of Community Services; andiv.CPCCWHS1001 Prepare to Work Safely in the Construction Industry; andb.Refuse to register the Applicant under s 10 of the Education Services for Overseas Students Act 2000 (ESOS Act) to deliver the following courses to overseas students:i.CHC30113 Certificate III in Early Childhood Education and Care;ii.CHC50113 Diploma of Early Childhood Education and Care; andiii.BSB61015 Advanced Diploma of Leadership and Management; andc.cancel the Applicant’s registration under s 36(2)(f) and s 39 of the NVR Act. Each of these decisions is a “reviewable decision” for the purposes of review by the Tribunal.[1] [1] See Items 7 and 13 of ss.199 and 203 of the NVR Act and Item 1 of ss. 169AB and 169AG of the ESOS Act.Background The Respondent is established under s 155 of the NVR Act as the national Vocational Education and Training (VET) regulator. In order to ensure nationally approved quality standards are met, the NVR Act empowers the Respondent to regulate “VET courses” and NVR registered training organisations (RTOs) under the “VET Quality Framework”, as defined in s 3 of the NVR Act. The current VET Quality Framework[2] is contained in Attachment A to the Standards for Registered Training Organisations (RTOs) 2015 (Standards).[2] From 1 April 2015. The Applicant was registered as a RTO on 13 January 2015. On 15 June 2017, the Applicant applied under the NVR Act to add the courses listed at paragraph 1(a) above to the scope of its existing RTO registration.[3] [3] T7. On 7 August 2017, the Applicant applied for initial registration under the ESOS Act to provide the courses listed at paragraph 1(b) above to overseas students.[4] [4] T8. On 18 July 2017, the Respondent notified the Applicant that an audit was to be conducted shortly and requested pre-audit evidence to be supplied.[5] On 28 August 2017, the Respondent confirmed that there would be three audits, a Post Initial Compliance audit, a VET Amendment audit and a CRICOS Initial audit, from 5 to 7 September 2017, and that specified pre-audit evidence was to be provided by 31 August 2017.[6] On 1 September 2017, pre-audit evidence was provided by the Applicant.[7][5] T9.[6] T10.[7] T12 – T50. Between 5 and 7 September 2017, the three audits were conducted by the Respondent at the Applicant’s premises[8] to assess the Applicant’s compliance with the Standards and National Code. [8] 25 Devonshire Road, SUNSHINE VIC. The Post Initial audit identified that the Applicant was non-compliant with clauses 1.1, 1.2, 1.3, 1.8, 1.13, 3.2, 4.1, 5.1 and 5.2 of the Standards. These findings were documented in an Audit Report – VET Post Initial.

Ratio Decidendi

Legal Principle Established

The Respondent set out in broad terms in its closing written submissions that the grounds for the Reviewable Decisions were that the Applicant had not demonstrated compliance with the Standards and the National Code. In particular, it:a.had not taken into account the proposed structure of its courses when determining the appropriate duration for registration on CRICOS;b.did not have appropriate arrangements for the supervision and assessment of overseas students in place;c.did not provide accurate and factual information about its services to prospective learners and ensure its marketing is undertaken in a professional manner and maintains the integrity and reputation of the industry;d.did not provide advice to learners about the training product appropriate to meeting the learner’s needs, taking into account their existing skills and competencies;e.did not provide current and accurate information to enable the learner to make an informed decision about undertaking training with the RTO/registered provider;f.did not provide access to the educational and support services necessary for the learner to meet the requirements of the training product;g.did not have training and assessment strategies and practices including the amount of training provided, are consistent with the requirements of training packages and enable each learner to meet the requirements for each unit of competency in which they are enrolled;h.did not have sufficient trainers, educational and support services and learning resources;i.did not have training and assessment practices that are relevant to the needs of industry and informed by industry engagement;j.did not implement an assessment system that ensures assessment complies with the assessment requirements of the relevant training package and is conducted in accordance with the Principles of Assessment and Rules of Evidence;k.did not have trainers and assessors who meet the training package requirements; andl.did not ensure that all AQF certification documentation meets the requirements of Schedule 5.Preliminary Consideration Before turning to consider the merits of the respective parties’ submissions and the evidence, the Tribunal was drawn to a preliminary issue. In its final submissions, the Respondent drew to the attention of the Tribunal the fact that the Applicant’s registration on 13 January 2015 was for a period of five years, and that under s 20(1)(b) of the NVR Act the registration was to expire on 12 January 2020. This fact had not been raised previously. As a result of the delay in progressing the Applicant’s application for review,[18] the Tribunal is now required to consider the issues on review after the expiry of the period of registration.[18] The application for review was made on 7 May 2018, a stay application was refused on 23 May 2018, hearings were listed for 30 July-1 August 2019 but were adjourned. The hearings were relisted on 19 and 20 December 2019 and written submissions finalised by 1 May 2020.