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 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; and
iv.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; and
iv.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).
On 30 January 2018, the Respondent gave notice[10] under s 37 of the NVR Act, of audit non-compliance and its intention to cancel the Applicant’s registration, under s 36(2)(f) and s 39 of the NVR Act.
[10] T52.
On 28 February 2018, the Respondent received a written response including rectification evidence from the Applicant.[11]
[11] T55-104.
On 15 and 16 March 2018, a review of this evidence was conducted which identified that the Applicant remained non-compliant with clauses 1.1, 1.2, 1.3, 1.5, 1.7, 1.8, 1.13, 3.2, 4.1, 5.1, 5.2 of the Standards and 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 14.2.37. The findings of the review of the rectification evidence were documented[12] in VET Post Initial, VET Amendment and CRICOS audit reports.
[12] T105, 106 and 107.
On 11 April 2018, the Respondent made the Reviewable Decisions[13] which were notified to the Applicant on 19 April 2018.[14] The Applicant sought a review of the Reviewable Decisions by this Tribunal by application dated 7 May 2018 and received by the Respondent on 14 May 2018.[15]
[13] T108.
[14] T109-112.
[15] T1-3.
Hearing
The Tribunal conducted a hearing of the application on 19 and 20 November 2019. The Applicant was represented by Mr F Badali of counsel. The Respondent was represented by Mr D Cox, a solicitor with the Respondent. Following the hearing the parties were given leave to file written submissions. The Applicant and the Respondent each filed final written submissions and the Applicant’s submission in reply was received by the Tribunal on 1 May 2020.
In the course of the Tribunal hearing[16] and in its written submissions, the Applicant formally withdrew its application for review of the decision to reject its application to change the scope of the Applicant’s registration under the NVR Act to include four additional courses of study. The review proceeded on the basis that the Applicant sought review of the decisions to refuse to register the Applicant under s 10 of the ESOS Act to deliver the four specified courses to overseas students and to cancel the Applicant’s registration under s 36(2)(f) and s 39 of the NVR Act.
[16] Transcript 19 November 2019 p.7.01.
Relevant Legislative Provisions
The relevant legislative provisions for consideration on review are:
Cancellation of Registration – NVR Act
Section 39 of the NVR Act provides that the Respondent, as the 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.
Refusal to Register – ESOS Act
A provider may apply under s 9 (1) of the ESOS Act to be registered to provide a course or courses at a location or locations to overseas students. Under s 10(1) of the ESOS Act, the Respondent, as the responsible ESOS agency, may register the provider to provide a course or courses at a location or locations if the provider meets the registration requirements. Subsection 10(2) requires the ESOS agency to use a risk management approach when considering whether to register the provider.
Section 11 of the ESOS Act sets out the registration requirements, including relevantly, that the provider comply with the ESOS Act and National Code of Practice for Providers of Education and Training to Overseas Students 2017[17] (National Code).
[17] See s.11(b)(ii) of the ESOS Act.
Respondent’s reasons
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; and
l.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.
On 8 July 2020, the Tribunal convened a telephone directions hearing and raised with the parties the potential significance of the expiry of the Applicant’s registration and the possible exercise of the Tribunal’s power under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act) to dismiss the application without further consideration of the substantive issues. The parties were invited to put further written submissions on the matter to the Tribunal and directions were made to that effect. Further written submissions were received by the Tribunal by 13 August 2020.
The Tribunal’s principle concern in inviting further submissions was the apparent lack of utility in making a determination on the application for review. If the Tribunal were to find in favour of the Applicant in relation to each of the matters under review it could:
a.set aside the Respondent’s decision to cancel the Applicant’s registration effective on the date of that decision, being 24 May 2018; and
b.set aside the Respondent’s decision to refuse to register the Applicant under s 10 of the ESOS Act and approve the registration for the courses sought by the Applicant, at the earliest, from the date of the decision on 11 April 2018.
The effect of such a decision would be to restore the Applicant’s registration from 24 May 2018 and permit it to deliver courses to overseas students as specified in its ESOS application from as early as 11 April 2018. It is, of course, impossible for the ESOS decision to have any practical retrospective effect because the time for delivering the courses has now passed. If the Respondent’s decision to cancel the Applicant’s registration was set aside, the Applicant’s registration would be restored as at 24 May 2018, but it would then be subject to s 20(1)(b) of the NVR Act and would expire at the end of its five year term on 12 January 2020. After 12 January 2020, the Applicant would be unregistered and precluded from operating at all. This would have the effect of negating any positive outcome for the Applicant in the review since it would lose the opportunity to deliver any of the courses before or after 12 January 2020.
In these circumstances, the Tribunal is concerned that to proceed with the review and to hand down a decision will be to undertake an artificial exercise. This is illustrated by s 10(2) of the ESOS Act which requires the Tribunal on review to use a risk management approach when considering whether to register the Applicant. Since a favourable decision for the Applicant would not result in it obtaining registered status under the NVR Act, an assessment of risk at this time is entirely hypothetical. In addition, the Respondent’s submissions ask the Tribunal to conclude that Ms Arfish, the chief executive of the Applicant, is not a fit and proper person for the purpose of the NVR Act. The Tribunal is reluctant to make findings of this kind, one way or the other, unless it is necessary to do so.
The Respondent submitted in its final submission that a decision in either of the matters under review would not serve any purpose under the NVR Act. While the Tribunal is mindful that this submission may be seen as self-serving in that it would serve the Respondent’s interest in defending its decision, the Tribunal readily accepts that the submission is made by the Respondent mindful of its responsibility as a model litigant and as a responsible regulator under the NVR Act and ESOS Act.
The Applicant raised in its final submissions that the Tribunal had refused to grant a stay of proceedings in May 2018 because it was not satisfied that a stay was necessary to secure the effectiveness of the hearing and determination of the application for review. The Applicant appears to be saying that the Respondent, by arguing at the stay hearing that the final decision would not be nugatory if the cancellation decision was allowed to remain in effect pending the Tribunal’s decision, was somehow precluded from now asserting that the Tribunal’s decision would be nugatory because of the expiry of the period of registration. This submission ignores the long delay between the stay hearing and the present. It is reasonable to assume that the Respondent would not have anticipated that the final resolution of the application for review would occur after such a long interval. The Respondent was not responsible for the delay. While the Tribunal does not characterise the Applicant’s conduct as lackadaisical, as does the Respondent in its submissions, it does recognise that the finalisation of the application was first delayed at Ms Arfish’s request and later by the time taken to finalise written submissions after the hearing. Much of the delay was the result of the failure of the Applicant to meet timelines set out in the Tribunal’s directions.[19]
[19] The Applicant sought and was granted an extension of time to file its submissions on three occasions.
In addition, the Tribunal observes that even had a stay been granted it would only have suspended the operation of the cancellation decision. It would not have prevented the expiry of the Applicant’s registration on 12 January 2020 by operation of s 20(1) of the NVR Act. This being said, the Applicant makes a sound point that the continued operation of the cancellation decision prevented the Applicant from applying to renew its registration within the prescribed period as it was not at the time an NVR registered training organisation.
In any event, whatever the Respondent’s submissions, it remains true that, absent any other steps being taken, a decision to now set aside the cancellation decision would be nugatory because of the expiry of the Applicant’s registration on 12 January 2020.
The Applicant argues that the assumption underlying the Tribunal’s concern about the issue, that ongoing registration is necessary to give efficacy to a decision to set aside the cancellation decision under review, is a wrong assumption. This is because the Respondent can arrange for the Applicant to be registered. The Applicant further argued that the Respondent, by applying its functions under the Act broadly and exercising appropriate discretion, is able to continue, restore, extend, renew or otherwise ensure that the Applicant is registered in order to give effect to any final decision made by the Tribunal.
The Applicant referred to Chemcert Training Group and Australian Skills Quality Authority.[20] In that case the Tribunal granted a stay of a decision of the Respondent to refuse to grant the Applicant a shorter period of time to lodge its application for renewal of its registration under s 31(1)(b) of the NVR Act, notwithstanding that at the time of the stay hearing the Applicant’s registration had expired by operation of s 20(1). The apparent purpose of the stay in that case was to allow the Tribunal to set aside the decision of the Respondent and substitute its own decision to grant a shorter time to lodge its renewal application, if persuaded to do so by the applicant. Ultimately the matter did not proceed to a hearing on the merits as the Respondent renewed the applicant’s registration after the stay came into effect.
[20] [2019] AATA 313.

However, with due respect to the Senior Member in that case, it is not clear how the stay would have facilitated any practical outcome if the matter had proceeded to hearing. Assuming the Tribunal was persuaded to set aside the Respondent’s decision not to grant a shorter period under s 31(1)(b) of the NVR Act, the Tribunal would have had the opportunity to substitute its own decision and to allow a shorter period within which to lodge the renewal application. But, granting a shorter period for making a renewal application would not have had the effect of altering the expiry date for registration under s 20(1) of the NVR Act. The date of expiry is fixed by legislation and is not amenable to appeal. The discretion available to the Respondent under s 31(1)(b) of the NVR Act is not a discretion to extend the expiry date or the time for lodging a renewal application. Rather it is a discretion to shorten the time before a fixed expiry date within which a renewal application can be lodged.
The Applicant’s argument that a decision to set aside the cancellation of the Applicant’s registration can be made effective by the Respondent applying its functions under the Act broadly and exercising appropriate discretion must be based on the exercise of identified powers. Relevantly they are the Respondent’s powers under s 20 and s 31 of the NVR Act and s 10 of the ESOS Act, which deal with the renewal of registration. Section 10 of the ESOS Act allows applications for registration by providers registered under the NVR Act, and so any application of s 10 of the ESOS Act is dependent on an applicant being registered under the NVR Act.
Section 31 - Renewal
Section 31 of the NVR Act provides:
(1) The National VET Regulator may renew an NVR registered training organisation's registration under section 17 if the organisation makes an application for renewal:
(a) at least 90 days before the day the organisation's registration expires; or
(b) within such shorter period as the Regulator allows.
(2) An application must be accompanied by the application fee determined by the Minister, by legislative instrument, under section 232.
(3) If an NVR registered training organisation's registration would, apart from this subsection, expire before the organisation's application is decided, then the organisation's registration is taken to continue in force until:
(a) if the organisation's application is refused--the refusal takes effect; or
(b) if the organisation's registration is renewed in response to the organisation's application--the start of the day after the application is decided.
The Applicant acknowledged that it has not applied to renew its registration but asserted that the Tribunal should hear further evidence about the renewal of registration process and of its unsuccessful attempts to access the Respondent’s asquanet platform in order to renew its registration. The Applicant argued that even though it has not made an application for renewal, the Respondent is able to renew its registration and the Tribunal, standing in the Respondent’s shoes, can do so in determining the application for review in these proceedings.
The Tribunal is not satisfied that the Respondent, or the Tribunal, can now renew the Applicant’s registration under s 31 of the NVR Act. Sub-section 31(1) sets a pre-condition for renewal on the Applicant making an application for renewal before the registration expires. That pre-condition has not been met in this case. This is a jurisdictional fact and the reasons why an application was not made are irrelevant. The Tribunal would not be assisted by further evidence regarding the renewal process.
Section 20(2) – extension of registration
The Applicant argued in the alternative that, if the cancellation of the Applicant’s registration were set aside, the Respondent, or the Tribunal standing in the shoes of the Respondent, could grant the Applicant an extension of the period of its registration under s 20(2) of the NVR Act to allow it time to apply for the renewal of its registration pursuant to s 31. This would require the period of registration to be extended to a date 150 days after the Tribunal’s decision setting aside the cancellation. This period would enable the Applicant to make an application for renewal no later than 90 days before the expiry date as required by s 31 of the NVR Act.
The decision to grant the Applicant’s registration for five years originally and the expiry of the registration by reason of s 20(1)(b) of the NVR Act are not matters over which the Tribunal has jurisdiction in this case. Clearly, by seeking a determination under s 20(2), the Applicant is not seeking to invoke the Tribunal’s review jurisdiction directly. There is no decision under s 20(2) to review, and in any event a decision to extend registration under s 20(2) is not a reviewable decision under s 199 of the NVR Act. The Applicant’s assertion is that the Tribunal has the power to stand in the shoes of the Respondent under s 20(2) because it is necessary to give effect to a decision to set aside the Respondent’s decision to cancel the Applicant’s registration.
Leaving aside the issue of whether the Tribunal can stand in the shoes of the Respondent in exercising its discretion under s 20(2), the circumstances of this case raise the primary question of whether s 20(2) allows the Respondent to extend registration if it has already expired.
Section 20 of the NVR Act relevantly provides:
(2) The National VET Regulator may, in exceptional circumstances, extend an NVR registered training organisation's registration without the organisation needing to apply to have its registration renewed.
(3) If an NVR registered training organisation's registration is so extended, a reference in this Act to the period of an NVRregistered training organisation's registration is to be read as a reference to that period as so extended.
The Applicant conceded in its final submissions that there is no authority for the proposition that the Tribunal has power to extend the period of registration under s 20(2) of the NVR Act after expiry and acknowledged that a refusal to grant an extension of time for registration will render the proceedings nugatory if the cancellation decisions are set aside.
The Respondent advances three reasons why s 20(2) of the NVR Act only operates in the circumstances of registration that is still on foot. First, the subsection uses the word extend as opposed to or in addition to reinstate. Second, the plain meaning of the word extend is that it is an extension of an existing state. Third, s 20(2) applies only to an NVR registered training organisation’s registration, as opposed to the Applicant who is a former registered training organisation by virtue of its registration period having expired.
The Tribunal accepts that a training organisation’s registration can only be extended by the Respondent under s 20(2) in circumstances where the registration is still on foot. It is not a power to reinstate registration which has expired under s 20(1)(b) of the NVR Act. Accordingly, if the Tribunal were to set aside the decision to cancel the Applicant’s registration, s 20(1)(b) would operate and the registration would be deemed to have expired on 12 January 2020. It could not then be extended by a later decision, whether of the Respondent or the Tribunal.
Section 17 – new application for registration
As a consequence, even if the Applicant is successful in having the cancellation of its registration set aside in these proceedings the Applicant’s previous registration cannot be renewed or extended under s 20 or s 31 of the NVR Act. However, the Applicant can make a new application for registration under s 17 of the NVR Act at any time, whatever the outcome of the review proceedings.
Under s 17 of the NVR Act, in deciding whether to grant a new application for registration, the National VET Regulator must consider whether the applicant complies with the VET Quality Framework; and the applicable conditions of registration set out in Subdivision B of this Division. In assessing an application for registration, the Regulator is required to consider, at the time of the application, whether the Applicant satisfies the requirements of the VET Framework and the conditions in Subdivision B. The NVR Act does not preclude the Applicant from applying for registration by reason that its registration was previously cancelled.[21] As the Respondent acknowledged in its submission, in assessing an application for renewal of the Applicant’s registration, the Regulator is required to consider the application on its merits. An unsuccessful applicant has the right to seek review of a decision to refuse registration under s 199 of the NVR Act. Accordingly, the Applicant should not be advantaged by a favourable finding by the Tribunal in these proceedings or unduly prejudiced by an unfavourable finding, in relation to any application that may be made at some future time for a new registration.
[21] Section39(3) of the NVR Act, which provides that an application cannot be made within two years of cancellation of a registration, no longer applies to the Applicant as the two year period expired on 25 May 2020.
Potential Federal Court proceedings
The Applicant raised a further argument in favour of the Tribunal proceeding to determine the appeal in this matter. It asserted that, if the Tribunal were to set aside the Respondent’s decision to cancel the Applicant’s registration, the Applicant may have legal rights against the Respondent arising out of its failure to act under s 20 or otherwise including an application for relief by way of mandamus in the Federal Court to require the Respondent to take action under s 20 of the NVR Act to register the Applicant. The Applicant’s submission is non-specific on this point and states that the Tribunal need not concern itself with the merits of any application when determining the application for review before it.
For the reasons stated earlier, the Tribunal is not satisfied that the Respondent could now extend the Applicant’s previous registration under s 20(2), even if it were minded to do so. In addition, the Respondent’s power under s 20(2) is discretionary and only exercisable in exceptional circumstances. Given these provisions, it is difficult to see how the Applicant would have a basis to seek relief in the nature of mandamus for a failure of the Respondent to act under s 20. As the Applicant has chosen not to set out any specifics, the Tribunal is not persuaded that the possibility of such proceedings in the Federal Court would warrant the Tribunal proceeding to a final determination of the application for review.
Conclusion
The Respondent asserts that there is no utility in the Tribunal determining the application for review. The Applicant acknowledges that there would be no utility in a decision of the Tribunal in favour of the Applicant unless the Applicant’s previous registration could be extended or renewed under s 20 and/or s 31 of the NVR Act consequent on the Tribunal setting aside the decision to cancel the Applicant’s previous registration. For the reasons discussed, the Tribunal is satisfied that neither the Respondent nor the Tribunal can now reinstate the Applicant’s registration under either section. The Tribunal is also satisfied that the Applicant is able to apply for a new registration under s 17 of the NVR Act and that a continuation of these proceedings is not necessary for the proper consideration of such an application. The Tribunal is also satisfied that the discontinuation of these proceedings would not prejudice the Applicant in relation to any legal action in the Federal Court.
Dismissal
The Tribunal is concerned that to proceed with the review and to hand down a decision will be to undertake an essentially artificial exercise, especially given s 10(2) of the ESOS Act which requires the Tribunal on review to use a risk management approach when considering whether to register the Applicant. In addition, the Tribunal is reluctant to make findings as to whether the chief executive of the Applicant is or is not a fit and proper person for the purpose of the NVR Act when it is not necessary to do so. The AAT Act sets out objectives in s 2A including, to promote public trust and confidence in the decision-making of the Tribunal. It does not promote public confidence for the Tribunal to determine questions which have no practical effect and serve no useful purpose under the enabling statute.
Under s 42B of the AAT Act[22] the Tribunal has power to dismiss an application at any stage of the proceedings, if the Tribunal is satisfied that the application:
a)is frivolous, vexatious, misconceived or lacking in substance; or
b)has no reasonable prospect of success; or
c)is otherwise an abuse of the process of the Tribunal.
[22] An application may also be dismissed by invoking the power to give directions under s 33 of the AAT Act: Re Grimsley and Telstra Corporation Ltd [2010] AATA 106 and Re Ashton and Linfox Armaguard Pty Ltd [2011] AATA 579.
The power of the Tribunal to dismiss proceedings under s 42B of the AAT Act is a power that should be exercised cautiously,[23] and if a legitimate purpose can be achieved by allowing the application to continue, it should not be prevented.[24] A genuine applicant is ordinarily entitled to their day in court.[25] The Tribunal has also recognised that there can be a legitimate purpose in an applicant clearing the record of an adverse decision even though the decision may serve no other purpose, and it has refused to dismiss proceedings on this basis.[26]
[23] Re Filsell and Comcare [2009] AATA 90.
[24] Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing (2004) 82 ALD 514.
[25] Re Williams and Australian Electoral Commission [1995] AATA 160.
[26] Re Fleet Management Ltd and Australian Maritime Safety Authority [2006] AATA 390; Re Vilips and Migration Agents Registration Authority [2007] AATA 1613.
However, a lack of practical benefit to the applicant is a factor which can be taken into account in exercising the discretion under s 42B[27] and the Tribunal has noted that an application that is legitimate when commenced can become vexatious because of changes of circumstances.[28] A matter can be dismissed if the proceedings are futile or being pursued predominantly for a collateral purpose.[29]
[27] Re Irving and Repatriation Commission (1997) 46 ALD 20, Re Williams and Australian Electoral Commission supra and Re Currey and Australian Community Pharmacy Authority [2007] AATA 1963.
[28] Williams, supra.
[29] Williams, supra, see also Re Hinds and Australian National University [2012] AATA 495.
In Re Rundle and Civil Aviation Safety Authority,[30] a change of circumstance meant that the Tribunal could not grant the check pilot licence being sought by the applicant. The Tribunal noted at [22]:
In the context of section 42B of the AAT Act, the term frivolous has been held to mean "obviously unsustainable": see Re Reddish and Civil Aviation Safety Authority [1999] AATA 721. There, the Tribunal referred to Re Gowing and Civil Aviation Safety Authority [1990] AATA 56; (1990) 11 AAR 411, Re Surf Air and Civil Aviation Authority [1991] AATA 50; (1991) 22 ALD 118 and Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366 and said:
The cases of Gowing, Surf Air and Williams are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant.
[30] [2002] AATA 349.
A similar approach was taken in Re Hawkins and Minister for the Arts[31] where the applicant sought review of a decision for the purpose of challenging another decision, in Re Coyne and Comcare,[32] where there was no decision upon which an order of the Tribunal could operate and in Re Nugent and Minister for Urban Services[33] where a decision was rendered futile by a change in the law.
[31] [2013] AATA 835.
[32] [1995] AATA 52, see also Re Farnan and Inspector-General in Bankruptcy (2007) 95 ALD 186.
[33] (2000) 61 ALD 570.
In the Applicant’s case, the delay in progressing the review beyond the expiry of the Applicant’s initial registration, which was largely at the instigation of the Applicant, has produced a situation where there can be no utility in any decision in the Applicant’s favour, save for the removal of the cancellation from the public record. The Tribunal is not satisfied that this factor alone justifies the Tribunal undertaking an essentially artificial exercise to reconsider the decisions under review. The Applicant is now able to re-apply for registration at an appropriate time and have its application considered on its merits with any decision by the Respondent being subject to review by the Tribunal.
In the circumstances the Tribunal is satisfied that the application for review is frivolous and the appropriate course is to dismiss the application at this stage of the proceeding under s 42B(1) of the AAT Act.
DECISION
The Tribunal dismisses the application for review pursuant to s 42 B(1) of the AAT Act.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member Richard West

...............[sgd]...............................
Associate
Dated: 14 October 2020

Date of hearing:

19 and 20 November 2020 and 15 July 2020

Counsel for the Applicant:

Mr Fatmir Badali

Solicitors for the Applicant:

Advocate for the Respondent

GPZ Legal

Mr Damian Cox