Ramakrishnan and Australian Sills Quality Authority (Practice and procedure) - [2025] ARTA 612

Ramakrishnan and Australian Skills Quality Authority (Practice and procedure) [2025] ARTA 612 (27 May 2025)
Administrative Review Tribunal
Applicant/s: Ramakrishnan
Respondent: Australian Skills Quality Authority

Tribunal Number: 2024/10815
Tribunal:General Member M Darian-Smith
Place:Sydney
Date:27 May 2025

Corrigendum
Date of Corrigendum: 30 May 2025

Pursuant to section 114 of the Administrative Review Tribunal Act 2024, the following alteration is made to the decision:

The Respondent’s name on the title page is changed to ‘Australian Skills Quality Authority’.

.................[SGD].................
General Member M Darian-Smith
Applicant:Premsarin Ramakrishnan
Respondent:  Australian Sills Quality Authority
Tribunal Number:                2024/10815
Tribunal:General Member M. Darian-Smith
Place:Sydney
Date:27 May 2025

Decision:

1. The Tribunal refuses the Applicant’s application for an order under s.32(2) of the Administrative Review Tribunal Act 2024 (Cth) staying the operation or implementation of the decision of the Respondent dated 23 December 2024.

2. The interim stay order made on 24 December 2024 is discharged.

.......................[SGD].......................................
General Member M. Darian-Smith
Catchwords
PRACTICE AND PROCEDURE – application for stay of decision to cancel a VET provider’s qualifications obtained from a deregistered RTO – recognition of a prior learning qualification - factors relevant to the grant of a stay – prospects of success – consequences for applicant of refusal of a stay – the public interest – application for stay order refused.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s.41
Administrative Review Tribunal Act 2024 (Cth) s. 32
Education Services of Overseas Students Act 2000 (Cth) s.83
National Vocational Education and Training Regulator Act 2011 (Cth) ss. 36, 39, 56, 58, 199
Cases
Australian International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097
Bayahow and Australian Skills Quality Authority [2025] ARTA 176
Beezley v Repatriation Commission (2015) 68 AAR 23
Birdseye and Tax Practitioners Board [2020] AATA 1250
Bringans and Australian Securities and Investments Commission [2022] AATA 3403
Ekeh and Australian Skills Quality Authority [2025] ARTA 264
Greenfield Education Pty Ltd and Australian Skills Quality Authority [2018] AATA 4210
McNamara; Secretary, Department of Social Services [2016] AATA 189
Rozario and Australian Skills Quality Authority [2025] ARTA 241
Scott and Australian Securities and Investments Commission [2009] AATA 798
Site Skills Group and Australian Skills Quality Authority [2019] AATA 1870
Statement of Reasons

The Applicant (Mr Ramakrishnan) is a former student of Gills College Australia Pty Ltd (Gills College), which during the time he was a student was a registered vocational education and training (VET) provider under the National Vocational Education and Training Regulator Act2011 (Cth) (NVR Act).
Mr Ramakrishnan obtained the qualification CHC43115 Certificate IIV in Disability (Qualification) from Gills College, issued in February 2023.
On 20 November 2024, the Chief Executive Officer (CEO) of the Respondent (ASQA), acting in her role as the National VET Regulator, made the decision to cancel Gills College’s registration as a VET provider, under ss. 36(2)(f) and 39 of the NVR Act, and as an overseas provider under section 83(3)(c) of the Education Services of Overseas Students Act 2000 (Cth),[1] effective from 21 November 2024.
[1] Supplementary T-documents, ST1 – ST3, pages 1-46.
On 16 December 2024, the CEO of ASQA, acting in her role as the National VET Regulator, made the decision to cancel the Qualification, under s.58(1) of the NVR Act, effective on 23 December 2024 (Reviewable Decision).[2]
[2] T2, T-documents, pages 31 - 40.
The Reviewable Decision was based on findings, and evidence, that Gills College had not provided the training and assessment necessary to ensure that students at Gills College, including Mr Ramakrishnan, had the skills and knowledge necessary to be awarded a VET qualification. The findings, and evidence, in question were:
(a) Gills College did not implement a training and assessment strategy to enable each student to meet the requirements for each unit of competency in which they were enrolled.
(b) Gills College did not have sufficient facilities, whether physical or virtual, and equipment to accommodate and support the number of learners undertaking the training and assessment at each delivery location.
(c) Gills College did not demonstrate it had a system in place to ensure all trainers and assessors were suitable qualified or experienced.
(d) Gills College did not implement an assessment system that ensured assessment complied with the requirements of the relevant training package and is conducted in accordance with the principles of assessment and rules of evidence.
(e) Gills College did not conduct adequate assessment or ensure that only students who have fully demonstrated competence against all training package requirements have been issued with certification and captured consistent and accurate information about students and training outcomes.
In addition:
(f) Students had been issued certification via recognition of prior learning (RPL) although the provider denied having conducted any RPL assessment during the period of issuance.
(g) Students denied they had studied with the provider at all, although the provider’s student management system said it had issued certification to the students.
(h) Students completed qualifications via RPL and said they had not attended classes or undertaken a work placement and were told by the provider it was not necessary to attend classes.[3]
[3] T2, T-documents, pages 32 - 33 and 38 - 40.
The findings and evidence in sub-paragraphs (f), (g) and (h) above were generic to the body of Gills College students who had been awarded VET qualifications. The Tribunal noted Mr Ramakrishnan’s evidence under cross examination was that he was a student who had completed the Qualification via RPL.
In essence, the Qualification was cancelled because ASQA was not satisfied that Gills College had provided Mr Ramakrishnan with the training or assessment necessary to achieve the outcomes and competencies necessary to support the Qualification.[4]
[4] T3, T-documents, page 38 - 39, [3], [7].
ASQA discovered that Gills College operated a student management system (WeWorkBook system), on which Mr Ramakrishnan was recorded as a student. ASQA considered that Mr Ramakrishnan, in common with other students recorded on the WeWorkBook as having completed the Certificate IV in Disability, had not been provided with adequate assessment to support the Qualification.[5]
[5] Respondent’s Submissions, [3.6] – [3.7]; ST3, page 37, [110].
On 22 December 2024, Mr Ramakrishnan applied for review of the Reviewable Decision.[6] He also applied for a stay of the Reviewable Decision under s.32(2) of the Administrative ReviewTribunal Act 2024 (Cth) (ART Act).
[6] T1, T-documents, pages 1 - 30. The Reviewable Decision is a reviewable decision under s.199 of the NVR Act.
On 24 December 2024, the Tribunal ordered that the Reviewable Decision be stayed on an interim basis until 17 January 2025 (interim stay order).
The interim stay order was extended on 17 January 2025 until 30 January 2025. It was further extended on 30 January 2025 until 7 May 2025, and on 7 May 2025 until the date of the publication of Reasons for Decision on the stay application, or until further order.
On 1 May 2025, ASQA filed an Outline of Respondent’s Submissions on Applicant’s Request for a Stay (Respondent’s Submissions).
On 1 May 2025, ASQA filed and served an affidavit of Rhonda Ying Tak Lee dated 1 May 2025 with Annexure “RL-1” (Lee Affidavit). Annexure “RL-1” is a file note recording a telephone discussion between Ms Lee and Briahna Perkins (Ms Perkins), Director of My Village Carers (MVC) which provides disability care services from its premises in Queen Street, Bendigo, where Mr Ramakrishnan has been, and currently is, employed.
CANCELLATION OF THE QUALIFICATION
The cancellation of the Qualification was made under ss. 56(1)(a) and 56(1)(d) of the NVRAct which relevantly read:
56 National VET Regulator may cancel VET qualifications and VET statements of attainment
(1) The National VET Regulator may cancel a VET qualification or VET statement of attainment issued to a person by an NVR registered training organisation or former registered training organisation if the Regulator is satisfied on reasonable grounds that:
(a) the organisation did not provide, or arrange for another person to provide, all or part of the assessment necessary for the person to achieve the learning outcomes or competencies required for:
(i) the qualification: or
(ii) the units of competency or modules specified in the statement; or…
(d) it is appropriate, in all the circumstances, because of action the Regulator has taken, or is taking, in relation to: …
(ii) the organisation, in respect of the VET course, or part of the VET course, to which the qualification relates; …
The principal issue for determination at the substantive hearing of the application for review will be about whether it was appropriate for the Qualification to have been cancelled under s.56 of the NVR Act. Consideration of that issue, other than at a high level in forming a view about likely prospects of success, does not need to be undertaken by the Tribunal in determining this application.
TRIBUNAL’S POWER TO GRANT A STAY
The Tribunal’s power to grant a stay has been considered in some detail by me in Bayahow and Australian Skills Quality Authority [2025] ARTA 176 (Bayahow) at paragraphs [14] – [23], and subsequently in Ekeh and Australian Skills Quality Authority (Ekeh).[7] Both Bayahow and Ekeh are matters in which the applicant is a former student of Gills College whose qualifications had been cancelled by ASQA. The relevant principles are not reproduced in full here.
[7] [2025] ARTA 264 at paragraphs [15] – [16].
The Tribunal notes the following points for present purposes:
(a) Although the wording in s.32(2) of the ART Act differs from the wording of its predecessor s. 41 of the AdministrativeAppeals Tribunal Act 1975 (Cth) (AAT Act), its operation and effect are similar, and the authorities determined under s.41 of the AAT Act remain relevant.
(b) A stay order operates as an exception to the General rule stated in s.32(1) of the ART Act (which general rule is to the effect that an application for review does not affect the implementation and operation of the decision under review), and may be granted by the Tribunal under s. 32(2) if it “considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.” and
(c) The range of factors to be considered by the Tribunal in the consideration of a stay are well established by the decision in Re Scottand Australian Securities and Investments Commission,[8] (Scott) and the cases such as Birdseye and Tax Practitioners Board,[9] which have followed Scott.
[8] [2009] AATA 798.
[9] [2020] AATA 1250.
The 6 factors listed by Downes J. in Scott are as follows:
(a) The prospects of success.
(b) The consequence for the applicant of the refusal of a stay.
(c) The public interest.
(d) The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.
(e) Whether the application for review would be rendered nugatory if a stay were not granted; and
(f) Other matters that are relevant.[10]
[10] [2009] AATA 798, [4].
EVIDENCE AND SUBMISSIONS AT HEARING
The making of an order under s.32(2) of the ART Act requires the Tribunal to be satisfied that a stay is desirable to assure the effectiveness of the review. As the granting of a stay will prevent the operation and implementation of the Reviewable Decision until the final hearing, there must be a proper evidentiary basis for the Tribunal to form the requisite state of mind that a stay order is “desirable”.
While Mr Ramakrishnan does not bear a formal legal burden of proof to adduce the evidence necessary to support his application, the authorities make it clear that this a practical burden usually borne by the applicant. The Tribunal in McNamara; Secretary, Department of Social Services,[11] stated:
‘Although no party bears a burden of proof to establish facts or make out a case, it will usually be the applicant who will need to provide the Tribunal with sufficient evidentiary material to enable it to exercise its discretion in accordance with law.’[12]
This statement has been adopted in subsequent Tribunal decisions,[13] and was endorsed by me in Bayahow.[14]
[11] [2016] AATA 189.
[12] [2016] AATA 189, [12].
[13] For example, Bringans and Australian Securities and Investments Commission [2022] AATA 3403, [47].
[14] [2025] ARTA 176, [17].
The explanation for this requirement is to be found in Beezley v Repatriation Commission,[15] where the Full Court of the Federal Court stated:
In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute.[16]
[15] (2015) 68 AAR 23.
[16] (2015) 68 AAR 23, [68].
Mr Ramakrishnan did not file written submissions or a witness statement for the purposes of his stay application. In his oral submissions, Mr Ramakrishnan gave evidence that he had arrived in Australia in January 2023, obtained the Qualification in February 2023 and then commenced employment on a probationary basis at MVC in 2023. To the extent that ASQA was not happy with his Qualification, Mr Ramakrishnan told the Tribunal that he felt he was a “victim” of the provider and had himself done nothing wrong. I explained to Mr Ramakrishnan that these matters went to the question of the appropriateness of the Reviewable Decision and that he would have an opportunity to be heard on these matters at the substantive hearing of his application for review.
In Mr Ramakrishnan’s undated Request for Stay Order,[17] filed with the Application for Review, he states the grounds for his request for a stay in the following terms:
“The decision was made erroneously and I was not given an adequate opportunity to respond to the initial intention notice. I will prove this on review.
I completed the required training, assessment, and work placement to attain my qualification.
If the decision comes into effect on 20 December 2024 and my qualification is revoked, I risk losing my job and livelihood at a time of year where finding a new job is impossible. Additionally, the timing of the decision and the date of effect is unfair given the time of year and the impact the decision will have on me.[18]
[17] T1, T-documents, pages 27 – 30.
[18] T1, T-documents, page 28.
As events have transpired, Mr Ramakrishnan’s concerns that he might lose his job, and his livelihood have not transpired. He has filed no evidence himself as to his current employment situation other than a letter from his employer, MVC, dated 1 February 2025,[19] which confirmed his starting date of 2 March 2023 and went on to state:
‘Premsarin has been a valued member of our team and has consistently demonstrated professionalism, compassion, and dedication in their role.’
[19] Emailed to the Tribunal and the Respondent’s solicitors on 22 April 2025.
In the absence of evidence as to the position of MVC regarding Mr Ramakrishnan’s employment, Ms Lee (a solicitor with Clayton Utz who are representing ASQA) telephoned Ms Perkins at MVC on 23 February 2025. A summary of that discussion was reduced to an email by Ms Lee and shown to Ms Perkins, who approved the email summary. A copy of the email recording the discussion between Ms Lee and Ms Perkins is annexed to Lee Affidavit as Annexure “RL-1”.
The Respondent’s Submissions contain an overview of the main points confirmed by Ms Perkins in her discussion with Ms Lee, which states:
Ms Perkins confirmed that:
(a) she is Mr Ramakrishnan’s supervisor, and the Director of MVC.
(b) Mr Ramakrishnan does not require the…Qualification for his present role.
(c) Mr Ramakrishnan will be able to continue to work even if a stay is not granted. and
[20] Respondent’s Submissions, [3.16].
(d) Mr Ramakrishnan’s rate of pay will not be affected if a stay is not granted.[20]
ASQA relied primarily on their written submissions, outlining in the Respondent’s Submissions its position on the various Scott factors. These are considered further below.
In oral submissions, Ms Roberts, appearing for ASQA, made the principal submission for ASQA is there is really very little reason to issue a stay in this case because there is no evidence that a stay order is required to prevent materially adverse outcomes for Mr Ramakrishnan resulting from the cancellation of the Qualification.
STAY FACTOR (A) PROSPECTS OF SUCCESS
The Tribunal’s decision in Bayahow contains a statement of the relevant principles in respect of this Scott factor at paragraphs [32] – [36]. The key point for present purposes is that the Tribunal is not required to conduct a full consideration of the merits when determining a stay application, but it does need to be satisfied that the Applicant has “some prospects of success” before a stay can be granted.[21]
[21] Greenfield Education Pty Ltd and Australian Skills Quality Authority [2018] AATA 4210, [7].
Ms Roberts submitted that on the material currently before the Tribunal, Mr Ramakrishnan’s “prospects of success are very low.”[22] In making that submission, ASQA accepts that an exhaustive assessment of the merits of the application for review is not necessary and nor is it a “mandatory” factor which must be considered for the purposes of the stay application.[23]
[22] Respondent’s Submissions, [3.2], [3.10].
[23] Australian International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097, [30].
ASQA says that the Qualification was cancelled because it was satisfied that Gills College had not provided Mr Ramakrishnan with the training or assessment necessary for him to achieve the learning outcomes which would support the Qualification. This was very much the case, where it emerged from the evidence that Mr Ramakrishnan had not completed any courses but was granted the Qualification based on RPL.
The Tribunal is not prepared to make a finding on the evidence currently before it that Mr Ramakrishnan has no prospects of success on his application for review. Nevertheless, this is not a case in which prospects of success can be said to weigh in favour of the granting of a stay.
STAY FACTOR (B) CONSEQUENCES FOR THE APPLICANT OF THE REFUSAL OF A STAY
In practical terms, the most important consideration in determining the consequences for Mr Ramakrishnan of the Reviewable Decision, is the impact (if any) that the cancellation of the Qualification is likely to have on his current employment at MVC.
ASQA submits that in circumstances where:
(a) Mr Ramakrishnan has declined to provide any evidence in support of the alleged risk to his job and livelihood identified by him in his Request for Stay Order, and
(b) the Lee Affidavit has provided evidence that his employment at MVC is not in jeopardy, the Tribunal would not be satisfied that the refusal of a stay would adversely affect his employment.

The Tribunal agrees with ASQA’s submission and finds, on the evidence before the Tribunal, that the refusal of a stay would not affect Mr Ramakrishnan’s employment situation in the period between determining his stay application and the hearing of the application for review. It follows that this factor does not weigh in favour of the granting of a stay.
STAY FACTOR (C) THE PUBLIC INTEREST
ASQA submits that the public interest considerations in this case “tends toward refusal of a stay in this case.” [24]
[24] Respondent’s Submissions, [3.30].
The Respondent’s Submissions refer to the public interest, identified in the Tribunal’s decision in Site Skills Group Pty Ltd and Australian Skills Quality Authority,[25] in ensuring that people who hold a qualification issued by a Registered Training Authority “have been properly trained to a high standard.”[26]
[25] [2019] AATA 1870.
[26] [2019] AATA 1870, [87].
The Qualification in issue relates to the provision of care and support in the aged care and disability sector, in which there is a very significant public interest in ensuring the safety and well-being of particularly vulnerable members of the community. ASQA notes that the published findings of recent Royal Commissions into Aged Care Disability and Safety and, separately, into Violence, Abuse, Neglect and Exploitation of People with Disability, have thrown light onto the serious issues around the widespread provision of sub-standard care.
The Tribunal recognises, and accepts, that the potential risk to the safety of care recipients in having their care entrusted to people who may not be suitably qualified is critical to the consideration of the public interest in the context of the protective nature of the NVR Act. SM Harrowell in Rozario and Australian Skills Quality Authority recently stated:[27] ‘As to the NVR Act, when considering the question of public interest … this legislation is protective. As such, depending on the nature of the qualification, permitting a person not properly qualified to maintain use of certificates and qualifications inappropriately awarded may pose a substantial risk to those who might rely on the person in question being suitably qualified.”[28] I respectfully agree.
[27] [2025] ARTA 241.
[28] [2025] ARTA 241, [19].
ASQA contends that the cancellation of the Qualification is appropriate as part of its obligation as the National VET Regulator in upholding the purposes of the NVR Act. ASQA submits that “… it is in the public interest to ensure that:
(a) any disability related work conducted by the applicant is not conducted on the basis of the Gills College Qualification, and
(b) minimum standards for RTOs and the VET sector are maintained.”[29]
[29] Respondent’s Submissions, [3.27].
The Tribunal accepts the force in the submission that the public must have confidence that those who are providing one-on-one care to the most vulnerable people in the community are suitably trained and qualified to provide that care. That is particularly so in circumstances where the Qualification has been completed via RPL
The Tribunal agrees with ASQA’s submission that the public interest factor tends towards the refusal of a stay in this matter.
STAY FACTOR (D) CONSEQUENCES FOR THE RESPONDENT IN CARRYING OUT ITS REGULATORY FUNCTION
The Tribunal accepts that if a stay was to be granted, Mr Ramakrishnan would continue to hold a qualification issued by a VET provider which has had its registration cancelled by ASQA. The Tribunal also accepts that it is important that the public can have confidence that a person holding a Certificate IV in Disability has completed the training and assessment required to hold that qualification. Given that the Qualification in this case appears to have been awarded on assessment by RPL, the public confidence issue is heightened.
However, until the proceedings between Gills College and ASQA are completed, the Tribunal must exercise some caution in weighing this factor. With that caveat, the Tribunal finds that this factor weighs against the granting of a stay.
STAY FACTOR (E) WHETHER THE APPLICATION FOR REVIEW WOULD BE RENDERED NUGATORY IF A STAY WERE NOT GRANTED
Mr Ramakrishnan has not made a submission to the Tribunal that the substantive hearing in this matter would be rendered pointless if his application for a stay was to be refused. He has indicated that he wishes the Tribunal to determine his stay application and then to progress his application for review to a substantive hearing. The Tribunal finds that the application for review would not be rendered nugatory if the stay is not granted.
CONCLUSION AND DECISION
I am not persuaded that it is desirable to grant a stay for the purpose of ensuring the effectiveness of the review.
On the material before the Tribunal, it does not appear that Mr Ramakrishnan will suffer any material detriment in the period between the publishing of these Reasons and the substantive hearing as the result of the Reviewable Decision. Further, the refusal of a stay will not affect his prospects of success on his application for review. The parties have both indicated a preparedness to proceed to a final determination of this matter later in the year, which should assist Mr Ramakrishnan to mitigate any ongoing detriment to him which might arise in the period until the substantive hearing.
Accordingly, the application for a stay is refused and the interim stay order made on 24 December 2024 is to be discharged.
Date of Hearing:  7 May 2025
Date of Decision:  27 May 2025
Advocate for the Applicant:      Mr P Ramakrishnan, Self-represented
Counsel for the Respondent:    Ms C Roberts
Solicitors for the Respondent:   Ms R Lee, Clayton Utz