Re Australian Institute of Technical Training Pty Ltd and Minister for Education and Training
[2018] AATA 1281
•11 May 2018
AUSTRALIAN INSTITUTE OF TECHNICAL TRAINING PTY LTD and Minister for Education and Training [2018] AATA 1281 (11 May 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0323
Re:AUSTRALIAN INSTITUTE OF TECHNICAL TRAINING PTY LTD
APPLICANT
Minister for Education and TrainingAnd
RESPONDENT
File Number: 2018/0326
Re:AUSTRALIAN INSTITUTE OF TECHNICAL TRAINING PTY LTD
APPLICANT
Australian Skills Quality AuthorityAnd
RESPONDENT
DECISION
Tribunal:R. Cameron, Senior Member
Date:11 May 2018
Place:Melbourne
In accordance with section 41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal stays the operation of the decisions of the Respondent dated 20 December 2017 in relation to both applications upon the conditions contained in paragraph [80] of this decision.
........................................................................
R. Cameron, Senior MemberPRACTICE AND PROCEDURE – stay application – Applicant’s registration cancelled under National Vocational Education and Training Regulator Act 2011 and Education Services for Overseas Students Act 2000 – consideration of factors as to whether stay should be granted – public interest – financial circumstances of Applicant – whether application rendered nugatory if stay not granted – stay granted subject to certain conditions
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Vocational Education and Training Regulator Act 2011
Education Services for Overseas Students Act 2000REASONS FOR DECISION
R. Cameron, Senior Member
11 May 2018
THE APPLICATION
There are two applications before the Tribunal that have been brought by the same applicant, the Australian Institute of Technical Training Pty Ltd, in proceedings numbered 2018/0323 (“the First Proceeding”) and 2018/0326 (“the Second Proceeding”).
In the First Proceeding the Australian Skills Quality Authority (“ASQA”) is the Respondent and in the Second Proceeding the Minister for Education and Training is the Respondent.
THE DECISIONS
Each application before the Tribunal seeks review of the decision made by the respective Respondent. Such applications were filed with the Tribunal by the Applicant on 19 January 2018.
In the First Proceeding the Applicant seeks the review of a decision by ASQA made on 20 December 2017 pursuant to sections 36(2)(f) and 39 of the National Vocational Education and Training Regulator Act 2011 (“the NVR Act”) to cancel its registration as a registered training Organisation (“the First Decision”).
In the Second Proceeding the Applicant seeks the review of the decision by the Minister made on 20 December 2017 pursuant to section 83(3)(c) of the Education Services for Overseas Students Act 2000 (“the ESOS Act”) to cancel the Applicant’s registration as a registered provider for all courses at all locations (“the Second Decision”).
INTERIM STAY ORDERS
On 6 February 2018 the Tribunal granted an interim order staying both the First Decision and the Second Decision until finalisation of the Applicant’s stay application. The orders granting a stay of the operation of each of the First Decision and the Second Decision provided for such stay on certain terms. Such terms included a requirement for the Applicant to maintain and keep certain documents and produce such documents to ASQA on request.
THE EVIDENCE AND MATERIAL BEFORE THE TRIBUNAL
There was evidence before the Tribunal in in the form of affidavits, a witness statement and viva voce evidence in the witness box from a director and Chief Executive Officer of the Applicant Mr. Gurdeep Dhillon[1]. (“Dhillon”)
[1] There was extensive cross-examination of Mr Dhillon the Chief Executive Officer of the Applicant.
Affidavits were filed by the Applicant as follows:
Affidavit of Dhhillon sworn on 5 February 2018 and exhibits thereto;
(a)“GD-1” Copy of report generated from training.gov.au produced on 5 February 2018;
(b)“GD–2” Copy of the Final Evidence Analysis Report reviewed on 3 October 2017;
(c)“GD–3” Copy of the table of employee remuneration as at 4 February 2018;
(d)“GD–4” Copy of the schedule of the Lease of Guarantee and Indemnity; premises Level 2, 335 Flinders Lane, Melbourne;
(e)“GD–5” Copy of the renewal of lease in relation to 475 – 485 Flinders Lane, Melbourne;
(f)“GD–6” Copy of renewal of lease in relation to 8B James Street, Clayton with copy guarantee and indemnity;
Supplementary affidavit of Dhhillon sworn on 16 February 2018 and exhibits thereto;
(g)“GD-7” Copy service agreement between AITT and Shane Lee Consultants made 8 January 2018;
(h)“GD–8” copy document entitled “AITT Rectifications”;
(i)“GD–9” copy proposed letter forming initial part of remediation action plan;
(j)“GD–10” copy table setting out the number of students who are due to commence training with AITT during the course of 2018.
Affidavit Dhillon sworn on 23 February 2018 and exhibits thereto;
(k)“GD–11” Applicants and Respondent’s lawyers dated 15 February 2018 (two letters);
(l)“GD–12” Copy of the relevant PRISMS entry;
(m)“GD-13” Copies of AITT enrolment forms.
Affidavit of Dhillon sworn on 23 March 2018 and exhibits thereto;
(n)“GD-14” Copies of a bundle of attendance records in respect of students who were present at the Applicant’s premises on the days McMahon attended;
(o)“GD-15” Applicant’s notification of the temporary arrangements in relation to Collins Street premises.
The Respondent filed an undated witness statement of Mr Matthew McMahon consisting of five pages (“the McMahon witness statement”).
Additionally, there were the T documents referred to throughout the hearing. The T documents were contained in lever arch folders and also consisted of a USB mini stick which contained various further documents, together with sound recordings and video recordings. Although the sound and video recordings were not played during the course of the hearing they were referred to by Mr Cox on behalf of the Respondents from time to time during the course of his submission and in some cases in portions of his cross-examination of Mr Dhillon.
Further, the Respondent in each of the First and Second proceedings filed and served extensive written submissions with respect to the stay application.
The Applicant in support of the earlier applications for a stay also filed and served separate written submissions which have also been taken into account by the Tribunal.
The hearing was conducted on 26 March 2018 and the Applicant subsequently filed “Supplementary Submissions” in support of the stay on 28 March 2018.
ASQA’S POWER TO CANCEL THE APPLICANT’S REGISTRATION
Section 39 of the NVR Act “Cancellation” relevantly provides:
“(1) The National VET Regulator may, by notice in writing, cancel an NVR registered training organisations registration in any circumstances that the Regulator considers it appropriate to do so, including for failure to pay a National The VET Regulator annual registration charge by the date on which it is payable (see section 232A).”
Section 83 of the ESOS Act “ESOS agency may impose sanctions for non-compliance etc” relevantly provides:
“(1) The ESOS agency for a registered provider may take one or more of the actions mentioned in subsection (3) against the provider if the agency believes on reasonable grounds that the provider or an associate or high managerial agent of the provider, is breaching or has breached:
this act; or
the National code; or..”
Subsection (3) of section 83 provides:
“The actions are:
to cancel a registered provider’s registration for any one or more specified courses for any one or more specified locations.”
STAY APPLICATION
Section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides:
“The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), 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, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
In Re: Scott v Australian Securities and Investments Commission[2], Downes J identified that the following relevant factors should be taken into account for the purposes of a decision made under section 41:
(a)the prospects of success of the applications;
(b)the consequences for the applicant of the refusal of the stay;
(c)the public interest;
(d)the consequences for the Respondent in carrying out its functions depending on 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 relevant such as the length of time the cancellation has already been in place and the time between the application and the hearing of the application[3].
[2] [2009] AATA 798 at [4]. Whilst this decision was in the context of a review of a decision by ASIC exercising its power of disqualification it is nonetheless submitted that the observations made by Tamberlin J are equally apposite to a stay application under the legislation being considered in this case.
[3] Two very helpful recent decisions of Member Parker in this Tribunal concerning stay applications of decisions to cancel the registration of an RTO under the NVR and ESOS Acts are also referred to for their full force and effect, namely Sher-E-Punjab Pty Ltd v Australian Skills Quality Authority [2018] AATA 46 and Australian College of Vocational Studies Pty Ltd v Australian Skills Quality Authority [2018] AATA 1088 provide extremely useful guidance in the application of these relevant factors in the setting of this legislation. They warrant careful reading.
It was noted by Tamberlin J in Bundy v Australian Securities and Investments Commission[4], the need to protect consumers and customers is a matter of particular importance when assessing public interest impacts.
[4] [2013] AATA 199.
Each of the relevant factors referred to in Scott’s case will now be considered.
THE PROSPECTS OF SUCCESS OF THE APPLICATIONS.
As has been observed in several authorities it is not the role of the Tribunal in assessing the merits of a stay application under section 41(2) to conduct a preliminary hearing of the issues to be raised at the trial of the proceeding when making such an assessment of its prospects of success. The task of the Tribunal in such an application is to consider whether there exist facts and circumstances which would provide some basis for success.[5]
[5] See for instance the decisions of Senior Member Redfern (as she then was) noted in Oaklands v Australian Securities and Investments Commission [2011] AATA 199 and Re: Commonwealth v Quirke 9 ALD 92 at [95].
The resumed hearing of the stay application brought by the Applicant occupied a full hearing day. Notwithstanding, that a comparatively extensive examination of the evidence on the merits or the prospects of success was undertaken, particularly by Mr Cox on behalf of the Respondents it is not intended in these reasons to embark upon a detailed excursion through all of the evidence before the Tribunal concerning this question. As noted earlier the evidence is extensive and includes affidavit evidence, witness statements the T documents and the contents of mini USB sticks which include as well as documents in the conventional sense audio and video recordings. This is not to overlook the extensive evidence of Mr. Dhillon in the witness box, during which he was searchingly cross examined by Mr. Cox. However, a consideration will be undertaken in a broad sense of the gravamen of the evidence relied on.
Counsel for the Applicant Mr Kirimof submitted that the Tribunal should not treat a stay application as a “perfect analogy to an injunction in court”. He submitted that in this application an applicant “faces a low bar” in terms of the prospects of success limb of the test. He also made the point with considerable force and effect that there may well be further evidence and almost certainly would be further information that would be adduced at the final hearing of the proceeding.
On the other hand the Respondent asserts that the Applicant has not produced evidence that it has addressed the non-compliances identified by the Respondent and in the circumstances the prospects of its succeeding at the final hearing of this matter are poor.[6]
[6] See paragraphs 45 to 47 of the Respondent's "Statement of Reasons Pursuant to Section is 37 (1) (a), paragraphs 22 to 24 of the witness statement of Matthew McMahon, and Part A “PROSPECTS OF SUCCESS” of the Respondent’s "Submissions on the Stay". Additionally, Mr Cox in his closing submissions forcefully stated that there has been a consistent failure on the part of the Applicant to remedy its non-compliance and contended, amongst other things, that the Applicant had engaged in a sustained pattern of non-compliance and that the Applicant in conducting its operations experienced what he described as systemic problems.
The trigger for each of the decisions cancelling the Applicant’s relevant registration in each instance was a compliance monitoring audit conducted on 23 – 24 March 2017.[7] As a result of such audit the Applicant was found to be non-compliant with Standards for Registered Training Organisations 2015 1.1, 1.3, 1.4, 1.8, 1.13, 2.1 and 3.1 in the following courses:
(a)Certificate III in Hairdressing;
(b)Diploma of Salon Management;
(c)Certificate III in Individual Support;
(d)Certificate IV in Ageing Support;
(e)Unit HLTA1D0003 provide First Aid in relation to Certificate III in Commercial Cookery.
[7] The relevant facts concerning the conduct of the audit can be found in amongst other places, paragraphs 8 to 21 of the affidavit of Mr. Dhillon sworn on 5 February 2018.
More specific particulars of the findings of non-compliance are contained in what is known as an “Evidence Analysis Report” which is exhibit “GD–2” to the affidavit of Mr Dhillon sworn on 5 February 2018.[8]
[8] The document is also document number 53 (page 924) of the T documents.
It is the contention of the Respondent that the Applicant having being given an opportunity to respond to the results of the audit report and having being given the opportunity to provide a written response to the results of such audit, which it did on 20 December 2017, the Respondent proceeded to make the relevant decisions under review. It is further contended by the Respondent that on 3 January 2018 the Applicant was notified of the decisions under review and provided a copy of the Evidence Analysis providing details of each and every failure on the part of the Applicant to comply with the applicable standard. The Respondent’s contention is that the Applicant has not provided sufficient evidence of compliance with each of the standards concerned, which is a violation of a relevant condition of registration under section 22(1) of the NVR Act.[9]
[9] See paragraph 22 of the witness statement of Mathew McMahon and paragraphs 46 to 48, “Part V1 REASONS FOR THE DECISIONS UNDER REVIEW” of the Respondent’s “Submissions on the stay”, amongst other things.
Relevantly, section 22 (1) of the NVR Act provides:
“22 Condition – compliance with the VET Quality Framework
(1)An NVR registered training Organisation must comply with the Standards for capital in VR Registered Training organisations.”
The Applicant in both the affidavit evidence and the viva voce evidence of Mr Dhillon has contended that where there was non-compliance it has engaged in a process of rectification or “remediation” in order to satisfy ASQA’s concerns as soon as possible”.[10]
[10] For instance, see the contents of Mr Dhillon’s affidavit of 5 February 2018 at paragraphs 15 to 21. These paragraphs are referred to in their entirety. Such terms as "a remediation action plan" and that "it has elected to modify its policies and procedures, documents and other practices identified by ASQA’s non-compliance in order to satisfy ASQA’s concerns as soon as possible", are deposed to. Further details of such rectification and remediation are also deposed to by Mr Dhillon in his supplementary affidavit of 16 February 2018
In terms of prospects for success, a pivotal fact relied upon by the Applicant was a consideration of the contents of exhibit “GD-8” to the affidavit of Mr Dhillon sworn on 16 February 2018. This exhibit is described as “AITT RECTIFICATIONS”. The format of the document is to identify those Standards for Registered Training Organisations 2015 in which the Applicant was found to be “Not Compliant” as a result of the compliance monitoring audit conducted on 23 – 24 March 2017[11]. Then the document is broken up into three columns. The first column identifies the relevant “Standard”. The second column “ASQA Reasons for finding non-compliance” then repeats the relevant reason identifying the particular clause of the standard concerned for which there has been non-compliance. This wording has been reproduced from the relevant portions of the “Audit report – VET Quality Framework”.[12] (The lead auditor in preparing this Audit report it should be noted is Mr Matthew McMahon who has also made a witness statement which as observed earlier has been filed in this proceeding). The third column is headed “AITT Rectifications” which describes what steps have been undertaken by the Applicant to address the alleged non-compliance. The document comprises 26 pages and was relied upon by the Applicant and its counsel to be evidence of such non-compliance having been rectified.
[11] This is apparently the audit conducted on 23 and 24 March 2017 which is identified in document 34 of the T documents (Page 542) "Audit report – VET Quality Framework". Mr Dhillon in his affidavit sworn on 5 February 2018 at paragraph 11 deposes to the audit occurring on these dates. This fact is also referred to in paragraph 38 of the Respondent's "Submissions on the stay".
[12] Document 34 of the T documents.
The author of the document is not readily apparent. There is evidence that the Applicant did retain the services of an expert consultant in this field known as Ms Shane Lee to assist[13]. It seemed to be inferred from the material that Ms Lee provided either the drafting for this document or had some input with respect to such drafting. Further, if the evidence and its content is to be understood it appears that the contention of the Applicant is that as a result of the “Rectifications” concerned the Applicant is now compliant.
[13] In paragraph 16 of his affidavit sworn on 5 February 2018 Mr Dhillon deposes to the fact that the Applicant had retained Ms Lee to develop a remediation action plan to endeavour to make the Applicant compliant with the requisite standards concerned. Further, at paragraph 3 of his affidavit sworn on 16 February 2018 at exhibit "GD – 7" a copy of a Service Agreement dated 9 January 2018 with Ms Lee is exhibited. An examination of Clause 1 "Services" of the Service Agreement reveals amongst other things that Ms Lee has been retained to review and rectify the findings of non-compliance identified in the audit report concerned.
An examination of each of the entries or items of the document “AITT Rectifications” asserts that the author (whoever he or she may be) has undertaken various steps on behalf of the Applicant to rectify or address the findings of non-compliance in the relevant audit. For example with respect to the first allegation of non-compliance (being a failure to comply with Standard 1 – Clause 1.1) it is stated that: “Assessment tools have been validated and revised to ensure they meet the requirements of each Training Package.” Language or wording the same as or similar to this is frequently used throughout the document. Further, observations are made in terms of: “The assessment validation took into account, the recent ASQA findings.” There is reference in several places to direct observation of students in order to achieve competency and observation during various tuition sessions, presumably for the purposes of verifying whether or not tuition and levels of student competency have been achieved. Also, in several places it is submitted that documents were provided to demonstrate compliance[14]. Presumably, such documentary evidence is available and could be tendered in evidence at a final hearing of these applications and would have probative value in terms of proving or disproving compliance or non-compliance with the requisite standards as the case may be.
[14] References to the provision of documentary evidence to verify or support rectification and/or compliance are made in pages 3, 5, 14, 17, 19, 21 and 23. Additionally, there is reference to revision of such documents as "Assessment tools” (page 3), assessment validation processes (page 6) and the "revised Field Placement Handbook and Practical Placement Assessments (page 18). There are others that need not be referred to specifically.
Surprisingly, in the course of his cross-examination Mr Dhillon was not seriously challenged as to the contents of the “AITT Rectifications” document[15] in the rectification or remedial measures referred to therein. (It was as noted above overwhelmingly concerned with the question of course attendance.) Nor was he seriously challenged over the contents of his affidavits sworn on 5 February and 23 February 2018 in which he deposes to the rectification or remediation measures allegedly undertaken by the Applicant.[16] Whilst the Tribunal would not draw any adverse inference against the Respondent for the purposes of this hearing of a stay application (particularly given the contents of the witness statement of Mr McMahon which seriously challenges the evidence of Mr Dhillon on the issue of compliance, to which the Tribunal has had regard) under section 41(2) of the AAT Act the fact that this evidence largely remains untested must be a factor to be taken into account in deciding whether or not to grant a stay in favour of the Applicant.
[15] As noted above referred to in exhibit "GD – 8" of Mr Dhillon’s affidavit sworn on 16 February 2018.
[16] However, the Respondent in both its written submissions and oral submissions made during the course of the hearing with full force and effect asserted that the Applicant had failed to adduce sufficient evidence to demonstrate that it had complied with the relevant clauses of the standards concerned which are a condition of registration under the relevant sections of the statutes concerned.
Much of the viva voce evidence of Mr Dhillon involved extensive cross-examination of him concerning whether or not students had been attending classes on various dates that the Respondent’s officers attended at the Applicant’s premises in the course of executing several “Monitoring Warrants”. Monitoring Warrants were executed at various premises occupied by the Applicant as follows:
(a)Monitoring Warrant 8 February 2018 – Level 3, 475 – 485 Flinders Lane Melbourne[17];
(b)Monitoring Warrant 9 February 2018 – Level 2, 335 Flinders Lane, Melbourne[18];
(c)Monitoring Warrant 15 February 2018 – Level 3, 475 – 485 Flinders Lane, Melbourne[19];
(d)Monitoring Warrant 15 February 2018 – Level 2, 335 Flinders Lane, Melbourne[20];
(e)Monitoring Warrant 16 February 2018 – Level 1, 600 Collins Street, Melbourne[21].
[17] Documents 63 to 72 of the T documents.
[18] Documents 73 to 80 of the T documents.
[19] Documents 81 to 86 of the T documents.
[20] Document 87 of the T documents.
[21] Document's 88 to 99 of the T documents.
Mr McMahon in his witness statement recorded that he conducted visits to the Applicant’s premises under the relevant monitoring warrants on each of those days.[22]
[22] See paragraph 26 of the McMahon witness statement.
A spreadsheet (apparently compiled by Mr Cox) which provided a summary of various courses, students enrolled in such courses, the timetable, and relevant rooms in which such courses or classes were conducted and who was or was not present on several days in which the Respondent visited the relevant premises when executing the Monitoring Warrants, was shown to Mr Dhillon in cross-examination and referred to in various ways. (No objection to the authenticity of such document or the use it was put was made. Given the contents of the T documents and other material[23] from which it was apparently derived or was summarising, it was a practical approach to the cross examination.) It was largely used to highlight the fact that at the time of visits by the officers of the Respondent there were very few or no students present at classes. Mr McMahon in his witness statement records that on the dates that he conducted visits to the Applicant’s premises there were very few students present. He expresses concerns that the Applicant is not delivering adequate training and assessment to overseas students. Those concerns are based upon a suspicion or belief that the vast majority of such students are not attending their scheduled classes. He fairly makes the point that the Applicant has 685 overseas students currently enrolled in classes yet during the two unannounced visits to its main delivery site no more than five students were in attendance at any one time. Naturally, these are fair and proper concerns to hold. It was in this setting that the allegations of failure to monitor attendance by students at classes, and whether or not in fact students were attending classes at all occupied the vast bulk of the cross-examination of Mr Dhillon as noted above.
[23] Much of this information it should be noted was derived from the statement of Mathew McMahon specifically at paragraphs 26 to 35 the contents of which such statement are referred to in its entirety for its full force and effect.
Mr Dhillon’s response to these allegations was twofold. Firstly, he relied upon business records of the Applicant being exhibit “GD – 14” to his affidavit sworn on 23 March 2018 in support of the stay application. This exhibit comprises of documents that are headed “AITT Attendance Sheet”. The contents of the documents speak for themselves but identified the student identification number, the student name and a student’s signature for the day of tuition in question. The heading of each document identifies the relevant course code and name together with the applicable unit code name. The trainer and assessor appear to have checked or cross checked the document and signed off accordingly. Mr Dhillon gave evidence that he relied upon these business records as proof of the attendance of the students on the dates in question for the course and unit in question. As noted in the course of the searching cross-examination Mr Cox relied upon the observations made by Mr McMahon[24] and other officers of the Respondent when they attended at the Applicant’s premises identified in the spreadsheet in the course of execution of the Monitoring Warrants as observed previously. Not only did Mr Cox rely upon the contents of the spreadsheet but he also referred to video recordings that were taken by the officers concerned of the training rooms in question on each date that such monitoring Warrants were executed. The Tribunal did not understand Mr Dhillon to in any way challenge what such video and/or audio recordings would reveal were they to be played. He then relied upon the second limb of his consistent response to such questions about whether or not students were attending on the day in question by stating that they were either in the computer room conducting assignments or projects or alternatively, the teacher had taken the students to the kitchen to conduct what might be described as practical exercises or that the trainer or teacher in room 3.6 “Pam” had advised students had gone out to collect menus and materials in regards to their training (bearing in mind that it was a cookery course being undertaken).
[24] Mr McMahon at paragraphs 27 to 34 recounts each of the dates that he visited the Applicant's premises and the trainers or teachers who were present in the various rooms and noted how many students were present or in some cases, that there were no students present. For instance, in paragraph 28 of his witness statement McMahon deposes that on 15 February 2018 he visited Level 3\475 Flinders Lane Melbourne and observed three trainers present in rooms 3.5, 3.6 and 3.10. He noted that room 3.5 had no students present, room 3.6 had three students present and room 3.10 had no students present. When asked where the rest of the students were; the trainers’ response was in terms of, the students having left for the day, were working or were collecting material for projects. A similar response was made to McMahon after having made similar observations for instance, on 8 February 2018 when he also conducted a visit to the same rooms on the same premises at Level 3/475 Flinders Lane, Melbourne. These responses made by the trainers to McMahon on those dates largely accord with the explanation given during the viva voce evidence of Mr Dhillon made in cross-examination at the hearing of the stay application.
The attendance sheets that comprise exhibit “GD-14” to Mr Dhillon’s affidavit sworn on 23 March 2018 given the evidence both in that affidavit and that he gave in the witness box, lays the foundation for these being found to be “business records”, or “books” of the Applicant. It will be recalled that section 1305 of the Corporations Act 2001 (Cth) (Corporations Act) provides:
1305 Admissibility of books in evidence
(1) [Prima facie evidence of contents]
A book kept by a body corporate under a requirement of this Act is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book.
(2) [Documents taken to be books]
A document purporting to be a book kept by a body corporate is, unless the contrary is proved, taken to be a book kept as mentioned in subsection (1).
The effect of this section is that the attendance sheets are admissible as evidence in this proceeding and are prima facie the evidence of any matter stated or recorded in it. The Tribunal can look beyond the face of the document if it is justified to do so in the circumstances. It should be borne in mind that it is always open to a party to adduce evidence to counter the prima facie evidence of those matters stated in the business record or book. A matter of concern to the Tribunal is that if the contention of the Respondent is correct the attendance sheets are in some way false or otherwise fictitious. This is a serious matter and one that the Tribunal cannot resolve in an interim hearing such as a stay application notwithstanding the fact that Mr Dhillon entered the witness box and gave evidence. It needs to be said of course we have not (save for his witness statement) had the benefit of the evidence of Mr McMahon and at the very least any other officers who also attended at least on some of the days when the Monitoring Warrants were executed on the days that the attendance sheets were compiled. Also none of the trainers or teachers present on the days in question when the Monitoring Warrants were executed has given evidence. Evidence from these people would be both relevant and probative in addressing this question.
On the material as it has been produced to the Tribunal included in the T documents, the witness statement of Mr McMahon, the several affidavits sworn and filed by Mr. Dhillon and the viva voce evidence given by Mr Dhillon in the witness box it is apparent that there is a real and live debate on the question of non-compliance (together with any rectification or remediation) and student attendance at the relevant courses.
Therefore, for the reasons outlined above with respect to the allegations of non-compliance with the requisite standards and whether such non-compliance has been rectified together with the live debate as to whether or not attendance requirements have been met at this stage of the review proceedings, it is simply not possible for the Tribunal to make any precise assessment as to the prospects of success but, having regard to the apparent complexity of the matter and as noted above the fact that further documentation must be in existence[25] (not to ignore the significant volume of documentary evidence contained in the T documents) which would prove or disprove the allegations of non-compliance, both with respect to the requisite standards and also the issue of attendance of students it is not possible for the Tribunal to conclude that there are no prospects of success in the review application.
[25] Mr Dhillon at paragraph 19 of his affidavit sworn on 5 February 2018 deposes to there being more evidence on which the Applicant intends to rely the hearing of the matter. He does not identify the precise nature of that evidence however.
THE CONSEQUENCES FOR THE APPLICANT OF THE REFUSAL OF THE STAY
Mr Dhillon in several of his affidavits has outlined the consequences for the Applicant of the refusal of the stay. There are several such consequences that have been identified.
Firstly, there are the Applicant’s fixed costs of running its business which approximate $2,920,130 per annum.[26] In the event that a stay application is not granted it would appear likely that some of these costs will continue to be incurred pending proper notice being given to such suppliers and creditors of a cessation of the Applicant’s business. It is nonetheless difficult to quantify what this potential liability may amount to.
[26] See paragraph 24 of Mr Dhillon's affidavit sworn on 5 February 2018.
Of these fixed costs staff salaries and wages comprise $1,584,000 per annum. Mr Dhillon in paragraph 25 of his affidavit of 5 February 2018 also deposes to the fact that of his staff members 19 are permanent full-time, 16 are permanent part-time and five are casual.[27] Presumably, although it is not expressly stated if the stay order is not granted the employment of all of these people would have to be terminated with appropriate redundancy, termination and accumulated entitlements being paid in full. Whilst there is no evidence as to what these payments would amount to one has to be mindful of the fact that it would cause significant detriment to the Applicant.
[27] Details of the employees by name, role and employment status are contained in exhibit "GD – 3" to that affidavit.
Another consequence for the Applicant is that it is the lessee of three premises situated at Level 2, 335 Flinders Lane, Melbourne, Level 3, 475 – 485 Flinders Lane, Melbourne and 8B James Street, Clayton South. Copies of leases for these premises are exhibited to Mr Dhillon’s affidavit sworn on 5 February 2018.[28]
[28] They are exhibits "GD – 4", "GD – 5" and "GD – 6".
Although it is overall not clear from the material precisely what would occur in the event that a stay order is not granted for the purposes of this application the Tribunal considers that there is sufficient evidence before it to infer that the Applicant would incur some difficulty in being able to continue making payment of rental due to the landlords under the relevant leases concerned if its cash flow derived from trading were to immediately cease. It is not certain what the prospects would be for the Applicant obtaining an assignment of the existing leases to another tenant that could assume the responsibility for such leases. The lease for the premises at Level 2, 335 Flinders Lane Melbourne is for a term of two years commencing on 1 November 2017. There is a security deposit which has been lodged with the landlord of $30,000. Presumably, also there is a risk that this security deposit might be forfeited in the event of a cessation of the Applicant’s business and subsequent default in payment of rent reserved under such lease[29]. The lease for Level 3, 475 – 485 Flinders Lane Melbourne reveals that it is for a term of two years commencing on 1 June 2017 at a rent of $300,000 per annum plus GST.
[29] It is not apparent from the material if the other leases also require the lodgement of a security deposit. However, it seems unlikely that for commercial premises being rented in the central business district of Melbourne that there would not be such a requirement.
Additionally, with respect to the lease on Level 3, 475 – 485 Flinders Lane Melbourne and 8B James Street Clayton Mr Dhillon is a guarantor of the Applicant’s obligations under such lease and in the event of a default in payment of any rent or other obligations due pursuant to such leases the landlord would be able to seek indemnity from him.
The Applicant has given evidence that it projects receiving $693,120 from confirmed enrolments of students due to commence in 2018[30]. Presumably, this revenue is lost to the Applicant if no stay order is granted.
[30] Mr Dhillon deposes to this fact at paragraph 32 of his affidavit sworn on 5 February 2018.
Mr. Dhillon has also deposed to the fact that if a stay order is not granted the Applicant would be forced to immediately close, transfer its students, return fees deemed to be returnable by TPS (the Tuition Protection Scheme) and would have insufficient funds and resources to meet its fixed costs.[31]
[31] See paragraph 33 of Mr Dhillon’s affidavit sworn on 5 February 2018.
THE PUBLIC INTEREST
The need to protect consumers and students is a matter of particular importance when assessing public interest impacts.
The Respondent quite properly referred the Tribunal to the reasons of Member Parker in Sher-E-Punjab Pty Ltd v ASQA[32]. It is useful to reproduce those sections in full as they provide an accurate statement of the task that the Tribunal must undertake in weighing up the public interest considerations in the course of the stay application.
[32] [2018] AATA 46 at [102] to [108].
102. It was contended by the ASQA that the Tribunal should take into account, as a fundamental element, the context set by the regulatory regime underpinning the Relevant Decisions, when forming an opinion about whether it is desirable to revoke the stay or to allow the stay to remain in place.
103. The ASQA relied on the observations of Downes and Jagot JJ in the Full Court of the Federal Court of Australia decision in Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another [2009] FCAFC 185 as follows:
[51] The nature of the decision under review will affect the identification of the “interests of any persons who may be affected by the review”. Accordingly, those interests are to be identified by reference to the statutory scheme under which the decision under review was made. In the case of a banning order […] Given the nature of a banning order, the persons who may be affected by a review of its making include not only the recipient and his or her dependants, associates and employees but also that person’s existing and potential clients, as well as the public at large.
[52] Determining whether the making of an order under s 41(2) of the AAT Act is desirable requires resolving these potentially competing interests. In this process of resolution the scheme embodied by the legislation under which the banning order is made is central. The context set by that scheme is a “fundamental element” in the formation of the opinion according to law (R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329). The scheme discloses that a banning order protects the public. It is intended to protect the public from obtaining financial services from a person who (amongst other things) has not, or ASIC reasonably believes has not, complied with a financial services law or had had their Australian financial service licence suspended or cancelled (s 920A(1)).
[53] The structure of the scheme also indicates Parliament’s assessment of the appropriate resolution of the competing interests of persons who may be affected by a banning order. Other than in limited circumstances a banning order cannot be made without giving the proposed recipient a right to be heard and to make submissions in private to ASIC… A banning order must be accompanied by a statement of reasons […] If, and only if, ASIC makes a banning order is it required to make public that fact[…] For the AAT to form an opinion under s 41(2) of the AAT Act (that it would be desirable and in the “interests of any persons who may be affected by the review” to make an order staying or otherwise affecting the operation or implementation of ASIC’s decision) these elements of the statutory regime, and the balance between the competing interests that they represent, must be treated as a fundamental element in the weighing of the competing interests.
104. It was contended by the ASQA that the protection of students and the reputation of the vocational education and training sector generally, are at the forefront of these legislative schemes comprising the NRV Act and the ESOS Act.
105. The ASQA drew the Tribunal’s attention to s 4A of the ESOS Act which provides as follows:
4A The principal objects of this Act are:
(a) To provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and
(b) To protect and enhance Australia’s reputation for quality education and training services; and
(c) To complement Australia’s migration laws by ensuring providers collect and report information relevant to the administration of the laws relating to student visas.
106. The objectives of the NRV Act are set out in s 2A and provide as follows:
2A The objects of this Act are:
(a)to provide for national consistency in the regulation of vocational education and training (VET); and
(b)to regulate VET using:
i.a standard-based quality framework; and
ii.risk assessments, where appropriate; and
(c)to protect and enhance:
i.quality, flexibility and innovation in VET; and
ii.Australia’s reputation for VET nationally and internationally; and
(d)to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia’s social and economic needs for a highly educated and skilled population; and
(e)to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and
(f)to facilitate access to accurate information relating to the quality of VET.
107. The Tribunal also notes the legislated functions of the ASQA as set out in s 157 of the NVR Act. The ASQA is empowered, as the relevant regulator, to undertake enforcement action and to make decisions intended to promote and protect the students and the general reputation of the Australian vocational education and training sector, both nationally and internationally, and to ensure that registered RTOs and CRICOS providers are operating in compliance with their statutory obligations. The Tribunal also notes one of the specific objectives of the ESOS Act is to facilitate access to accurate information relating to the quality of vocational education and training. Further, s 15 of the ESOS Act specifically imposes a statutory obligation on registered providers not to engage in misleading and deceptive conduct.
108. The Tribunal notes and agrees with the observations of Senior Member McCabe in the Administrative Appeals Tribunal decision of Metro College of Technology Pty Ltd and Australian Skills Quality Authority (unreported) in considering a stay application in relation to the cancellation of an RTO’s registration under the NVR Act:
[10] But there is also the question of the public interest. The regulatory system was devised to protect consumers of these courses, and to protect the good name of Australian educational institutions overseas. Many students travel long distances from overseas […] The regulatory regime assumes there is a public interest in ensuring these programs are properly run according to recognized standards. Failures to adhere to standards – particularly where those failures suggest systemic problems, poor judgment or an unwillingness to comply with the law – must be taken very seriously.
[…]
[16] […] But I am troubled by the important questions of public interest that have been raised. If the decisions are affirmed, the students who are still enrolled, or who may enroll, will rightly feel their qualifications have been undermined. That may undermine the confidence in the regulatory system and the integrity of the Australian vocational education and training sector.
109. The Tribunal is satisfied there is a real risk that a number of the objectives of the legislative regime including the risk of damage to the reputation of the Australian vocational education and training sector and the risk of undermining and de-valuing the qualifications issued by SPI, would not be met if SPI were permitted to continue operating for the time being as an RTO and CRICOS provider. The Tribunal considers that SPI’s prospects of being found, at the final hearing, to have implemented a system of fabricating its student files and providing false information to the ASQA about that when it is audited is high.
…
There can be little doubt based upon the evidence that has been adduced by the Respondent that there is a real risk that a number of the objectives of the NVR and ESOS Acts are not being complied with. Coupled with this is the extensive evidence contained in the material produced by the Respondent in both the T documents and the witness statement of Mr McMahon that point towards non-compliance with the requisite standards. The evidence to date concerning alleged rectification of such non-compliance as noted above is comparatively light and there appears to be in existence documentary and presumably other evidence (such as could be given by Mr Lee) which would assist the Tribunal in determining whether such compliance has in fact occurred.
Further, there is evidence which demonstrates the Applicant has a case to answer with respect to course attendance by students which can only be resolved at a trial of this proceeding.
As has been pointed out in the submissions of the Respondent the questions raised with respect to the conduct of the Applicant poses the question whether the NVR and ESOS Acts are being complied with as well as the standards made thereunder. If there are breaches of those statutes as alleged by the Respondent this has a significant impact on the reputation of Australia in the world marketplace for its capacity to deliver high-quality vocational education and places a question mark on the quality and integrity of training, education and assessment that is being offered. Additionally, lest it needs to be said, if such allegations are correct potential students from all over the world as well is this country run the risk of paying significant sums of money for courses that are not being properly taught. One of the critical objects of this legislation is to ensure that existing and future students are not at risk of paying money and not obtaining the results that they have paid for. Consumer protection in so far as it is applicable under these statutes is of critical importance.
Therefore, this is a factor that is significant to take into account in deciding whether or not to grant a stay.
THE CONSEQUENCES FOR THE RESPONDENT IN CARRYING OUT ITS FUNCTIONS DEPENDING ON WHETHER OR NOT A STAY IS GRANTED
The Respondent in its “Submissions on the stay” at “Part 1X” “STAY CONSIDERATIONS” at subparagraph C, canvassed this limb of the relevant test formulated by Downes J in Re Scott v Australian Securities and Investments Commission referred to earlier. The matters addressed in that portion of the submission at paragraphs 98 to 102 largely centre around the public interest considerations. The principal submission relied upon is that the public and the market are entitled to protection of the decisions of the Respondent as the applicable regulator.
Whilst this contention is well made and does largely involve a similar consideration to the public interest test and obviously must be taken into account, it is not a consideration that weighs particularly heavily in deciding whether or not to grant a stay. A regulatory authority created by statute such as the ones under consideration in this application namely the NVR Act and the ESOS Act have to contend with the legal reality that the Tribunal has the power to grant a stay. This power does not hinder the regulator’s capacity to undertake its activities as prescribed by the relevant statute. Indeed in this matter it will be recalled that notwithstanding the interim stay orders previously granted by the Tribunal the Respondent has exercised its powers of scrutiny over the Applicant with full force and effect. This has included obtaining monitoring warrants and executing them at the Applicant’s premises as is recorded in the witness statement of Mr McMahon and sending searching correspondence to the Applicant’s lawyers concerning various matters.
Additionally, it should not be forgotten that the Tribunal frequently does (and has done in this application on an interim basis) grant stays on conditions which endeavour to balance the interests of the Applicant whilst at the same time enabling the regulator to carry out its functions including if necessary keeping the Applicant under a heightened level of scrutiny pending the hearing and determination of the application in question. In the course of undertaking such scrutiny of an applicant as in this case the interests of the regulator and also the public are taken into account.
For these reasons, it is submitted that this limb of the test does not weigh heavily against granting a stay.
WHETHER THE APPLICATION FOR REVIEW WOULD BE RENDERED NUGATORY IF A STAY WERE NOT GRANTED
Surprisingly little about this limb of the applicable test was referred to by either party during the course of the hearing of the stay application or in their submissions. However, the effects on the Applicant in the event that the stay order is not granted are touched on, albeit briefly, by Mr Dhillon in paragraphs 32 and 33 of his affidavit sworn on 5 February 2018. As noted the net effect of the matters that he deposes to in that affidavit are that if the stay order is not granted the Applicant will be forced to immediately close, transfer its students, return fees deemed to be returnable by TPS and have insufficient funds and resources to meet its fixed costs. As noted previously the largest single item of those fixed costs are “Staff salaries and wages”[33].
[33] They were identified in paragraph 24 of Mr Dhillon's affidavit of 5 February 2018 as being approximately $1,584,000 per annum.
Also one would have to infer that if the Applicant was forced to immediately close it would need to terminate the employment of its staff details of whom are contained in the table which is exhibit “GD – 3” to Mr Dhillon’s affidavit of 5 February 2018.
Whilst the Tribunal is unable to conclusively determine this question there is sufficient evidence to make a finding that were a stay order not to be granted and the Applicant immediately closed with insufficient funds and resources to meet its fixed costs the likelihood is that it would be unable to fund lawyers to prosecute the applications in each of these proceedings. Presumably, if the Applicant has insufficient funds and resources to meet its fixed costs as deposed to by Mr Dhillon it would be required to either be placed into administration or liquidation under the relevant provisions of the Corporations Act. In such circumstances it would seem unlikely that either an administrator or a liquidator would fund these applications.
In these circumstances it is open to the Tribunal to determine that if a stay order was not granted an appeal would be rendered nugatory.
OTHER CONSIDERATIONS
The other considerations that emerge have to some extent been captured by a consideration of the other limbs of the relevant test referred to above. However, there are two matters that although already touched on should be reiterated.
Firstly, there is the issue of the Applicant’s employees. As deposed to in paragraph 25 of Mr Dhillon’s affidavit of 5 February 2018 the Applicant employs 19 permanent full-time staff, 16 permanent part-time staff and five casual staff. If as Mr Dhillon deposes to in paragraph 33 of his affidavit of that date that in the event of a stay order not being granted it will need to immediately close and will have insufficient funds and resources to meet its fixed costs there is as noted above, the likelihood that all these staff will be immediately dismissed. One can only speculate whether in the event of such dismissal (however it occurs) whether their employee entitlements (including applicable redundancy payments) would be immediately paid. Unemployment as we know, if as the result of a sudden redundancy or collapse of a business can have a traumatic effect on the persons concerned. It is a matter for which the Tribunal must place significant weight.
The second consideration which also needs to be reiterated is that of the students. Whilst there is no doubt a very live debate about student attendance and the quality of tuition which has been considered previously in these reasons one must be alive to the disruption to the students that an immediate closure of the Applicant will cause. The evidence with respect to this aspect of the matter is fairly limited, but as limited as it might be it does demonstrate that the students will need to transfer to other institutions on whatever terms they are best able to achieve. Whilst there is an element of speculation concerning this aspect of the matter there would be obvious disruption to the students who have paid significant sums of money for the courses they are undertaking. Additionally, whilst it is also somewhat speculative one cannot lose sight of the fact that a student who has been forced transfer courses in this way or alternatively a student who has even completed such a course will be associated with an institution that has collapsed and the value of such qualifications will be correspondingly devalued or undermined. The Tribunal is mindful of as far as it can attempting to limit the exposure of the Applicant’s students to an outcome such as this. Therefore, this element of the factual matrix must be accorded significant weight in deciding whether or not to grant the stay order as sought.
CONCLUSION
When considering the factors that were identified by Downes J in Re Scott v Australian Securities and Investments Commission there are some that weigh against the granting of the stay order. They are principally the public interest and the need to protect consumers and students. The students concerned have paid significant sums of money for tuition and their interests must at all times be protected. As previously observed the conditions imposed as part of the existing interim stay orders have been imposed for the purposes of providing some reasonable measure of protection for students in these circumstances.
When considering other factors that weigh in favour of granting the stay order they do tend to fall in favour of the making of such an order.
Firstly, for the reasons articulated above the Tribunal cannot conclude that there are no prospects of success on the part of the Applicant in these matters. That is not to say that the evidence to date provided by the Applicant is somewhat limited and the Respondent has justifiably identified considerable weakness in the material that has been adduced before the Tribunal. Nonetheless, they are matters that can only be determined at a fully conducted trial of the proceeding.
Secondly, the consequences for the Applicant if a stay order is not granted are significant and most likely would lead to the company ceasing business activity. Such a cessation of activity would trigger potential default under leases of the relevant premises and any guarantee securing the Applicant’s performance under those leases. There is the likelihood that in such a setting the Applicant would be unable to meet its debts as and when they fall due which would inevitably lead to administration and/or liquidation. Further, without having any evidence on the topic there may well be a default under the covenants contained in any lending documentation which could lead to the appointment of a receiver or controller by a secured lender.
Thirdly, there does seem to be a real possibility that if a stay order is not granted the application for review of each of the decisions would be rendered nugatory. If the Applicant was unable to pay its fixed costs as referred to in the affidavit of Mr Dhillon it can hardly be in a position to prosecute these applications.[34]
[34] It should be noted that in paragraph 31 of his affidavit sworn on 5 February 2018 Mr Dhillon deposes that no provision has been made in the analysis of fixed costs that he provided in paragraph 24 of that affidavit for legal and consultants fees that would be incurred in prosecuting these proceedings he gave an estimate of such costs being in excess of $60,000 which does not seem unrealistic. Once again lest it needs to be stated, it seems unlikely that a liquidator or an administrator would be prepared to invest these sorts of funds in an application if the Applicant has shut its doors and ceased trading.
Fourthly, there is the effect or potential effect on the Applicant’s employees of whom there are a significant number of permanent, part-time and casual staff. As noted previously if the Applicant ceases trading almost certainly their positions will be made redundant with the consequences of unemployment being visited upon them.
Fifthly, as noted also there are the interests of the students and the potential for their qualifications or study to date to be undermined or devalued.
In the circumstances when these considerations are taken into account the balance falls in favour of granting the stay. The question then becomes on what terms.
The Applicant has sought a stay without the attendance requirement condition contained in clause 4(e) of the interim stay orders made by the Tribunal on 6 February 2018. The grounds upon which it relies to contend that clause 4(e) should not be imposed upon it is that for its entire existence prior to the making of the interim stay order the Applicant “monitored students by course progression”. It contends a difficulty it has in complying with the attendance requirement condition arises from “its existing contractual arrangements with those students.[35] Further, it contends that it has the effect of creating an unreasonable burden on the Applicant to comply with a different monitoring method. It is stated that such a condition might be reasonably likely to result in the existing students being entitled to consider the Applicant in breach of their contracts. Whilst it is impossible to express a concluded opinion on the true and proper construction of the contract that exists between the Applicant and its students from an interlocutory hearing nonetheless, a copy of the contractual documents were contained in exhibit “G D – 13” to the affidavit of Mr Dhillon sworn on 23 February 2018. Several matters are apparent on an examination of the documents themselves. In the “International Student Enrolment Application Form” there is reference at clause 1.5 of a student’s requirement: “to meet attendance or academic progress requirements”. Clause 6 of the “Enrolment Acceptance Agreement”, states amongst other things: “I understand and agree that I must meet the following DIBP (Department of Immigration and Border Protection) Student Visa conditions – Maintain full-time enrolment in my registered course.” It seems difficult to accept the contention of the Applicant that a student could legitimately allege that the Applicant is in breach of such a contract if it imposes an obligation to monitor such student’s attendance in the terms of clause 4(e) of the existing stay orders. Surely here the student is agreeing to meet course attendance requirements as set by the teaching institution.
[35] C paragraph 8 of the Applicant's "Supplementary Submissions" filed on 28 March 2018. The Supplementary submissions are referred to in their entirety.
Whilst Mr Dhillon in both his affidavit and viva voce evidence has offered an explanation for the apparent non-attendance of students observed by Mr McMahon and noted in his witness statement, such explanation has been moderately scant to say the least.[36] This is further justification for the imposition of conditions to the proposed stay order.
[36] The only real evidence proffered by Mr Dhillon to contradict Mr McMahon's witness statement concerning the apparent non-attendance of students on the days that he executed the monitoring warrants as mentioned previously is contained in paragraph 8 of Mr Dhillon's witness statement of 23 March 2018. There was no affidavit evidence from any of the trainers or teachers present on the day to corroborate the assertions of Mr Dhillon in that paragraph and his response as noted earlier is very scant indeed. The failure of the Applicant to produce any corroborative evidence from other witnesses or other documents, providing an explanation of why there was an apparent lack of students on the premises concerned on each of the days that Mr McMahon visited during the course of executing the monitoring warrants must count against it. Surely, it could not have been too difficult for the Applicant to have produced an appropriately drafted affidavit from all of the trainers and teachers present on the days in question accurately explaining what the students were doing and where they were. No real explanation was offered to the Tribunal as to why this did not occur.
Accordingly, the Tribunal will make the following orders in both proceedings:
(a)Until the final hearing and determination of this Application the decision under review is stayed on the following conditions, that the Applicant:
(b)Produce a copy of timetables for all classes for each month of tuition by no later than the close of business seven business days from the commencement of each such month;
(c)Provide to the Respondent a copy of its bank statements for the prior month within seven business days of the commencement of each month to [email protected]
(d)On the first day of each month, or the next business day, submit class timetables identifying the precise location, students required to attend an trainer or assessor scheduled to train or assess as well is the date and time of any assessment activity or structured learning for all courses for all classes for all students, for that month to [email protected]
(e)Maintain and produce on request to the Respondent, class rolls for each class, signed by each student required to attend that class and each trainer/assessor training or assessing in that class for all VET courses;
(f)Under section 10B of the ESOS Act the following conditions are imposed:
(i)In accordance with 8.1 and 8.10 of the National Code of Practice for providers of Education and Training to Overseas Students 2018 the registered provider is required to implement and maintain a minimum attendance requirements for overseas students as a condition of its registration;
(ii)Keep, maintain and produce those records on request of the ESOS Agency;
The parties have liberty to apply.
82. I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of R. Cameron, Senior Member
.............................[sgd]...........................................
Associate
Dated: 11 May 2018
Date of stay hearing: 26 March 2018 Counsel for the Applicant: Mr H Kirimof Solicitors for the Applicant: GPZ Legal Advocate for the Respondent:
Mr D Cox, Legal Officer, ASQA
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