Re Austwide Institute of Training Pty Ltd and Secretary, Department of Education and Training
[2016] AATA 266
•28 April 2016
Austwide Institute of Training Pty Ltd and Secretary, Department of Education and Training [2016] AATA 266 (28 April 2016)
Division
GENERAL DIVISION
File Numbers
2014/1925, 4654, 4656-8, 4672
Re
Austwide Institute of Training Pty Ltd
APPLICANT
And
Australian Skills Quality Authority;
Minister for Education;
and
Secretary Department of Education and Training
RESPONDENTS
DECISION
Tribunal F D O'Loughlin, Senior Member
Date 28 April 2016 Place Melbourne The Tribunal affirms the decision under review.
.........[sgd]..............................................
F D O'Loughlin, Senior Member
VOCATIONAL EDUCATION – Application for renewal of registration as NVR registered training organisation – non-compliance with standards – Application for registration for new courses – non-compliance with Education Services for Overseas Students Act 2000 (Cth) – Decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Education Services for Overseas Students Act 2000 (Cth)
National Vocational Education and Training Regulator Act 2011 (Cth)National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (Cth)
Education Services for Overseas Students (Notifying provider default – requirements for a notice) Determination 2012 (No. 1) (Cth)Cases
Re G Plus G Global Trading Pty Ltd and Australian Skills Quality Authority [2013] AATA 698
Re Australian Academy of Management & Science Pty Ltd and Australian Skills Quality Authority [2013] AATA 530Raffles College Pty Ltd v Tertiary Education Quality Standards Agency (2015) 233 FCR 162
REASONS FOR DECISIONF D O'Loughlin, Senior Member
28 April 2016
The Applicant is:
(a)an NVR registered training organisation within the meaning of s 3 of the NVR Act;[1] and
(b)a registered provider within the meaning of s 5 of the ESOS Act,[2]
who has been the subject of an audit conducted by the Respondent following which the Respondent made decisions:
(c)pursuant to s 36(2)(f) and s 39 of the NVR Act to cancel the Applicant’s registration as a NVR registered training organisation under the NVR Act;
(d)not to renew the Applicant’s registration under s 9AB of the ESOS Act for all courses at all locations;
(e)under s 83(3)(c) of the ESOS Act to cancel the Applicant’s registration as a registered provider for all courses at all locations;
(f)not to change the scope of the Applicant’s registration under s 33 of the NVR Act to include 10 additional certificate or diploma courses (not including the course CPP20212 Certificate II in Security Operations); and
(g)not to register the Applicant under s 9AB of the ESOS Act for 10 courses (including the course CPP20212 Certificate II in Security Operations) for overseas students courses.
[1] National Vocational Education and Training Regulator Act 2011 (Cth).
[2] Education Services for Overseas Students Act 2000 (Cth).
By the time of the hearing, the Applicant had abandoned its challenges to the decisions noted in paragraphs (d), (e) and (f) entirely and the decisions concerning 9 of the 10 courses covered by the decision noted at paragraph (g) above. The Applicant reduced its challenges to the decisions:
(a)pursuant to s 36(2)(f) and s 39 of the NVR Act to cancel the Applicant’s registration as a NVR registered training organisation; and
(b)declining to add course CPP20212 Certificate II in Security Operations to the Applicant’s scope of registration under s 9AB of the ESOS Act.
PROCEDURAL CHRONOLOGY
A summary of the critical events leading to the present application can be conveniently adopted from the Respondent’s Statement of Facts Issues and Contentions[3] as set out below, which is not challenged by the Applicant.
[3] Omitting defined terms, references to supporting documents and to Judicial Review proceedings that were commenced and concluded, the summary is taken from paragraphs 36 to 52 of the Respondent’s Statement of Facts Issues and Contentions.
(a)[The Applicant] was registered on 26 July 2006 to provide vocational education courses under the then applicable Victorian regulatory regime. On and after 1 July 2011 the applicant became registered under the NVR Act as an RTO. Its current registration as an RTO [Registered Training Organisation] is due to expire on 31 December 2016.
(b)On 3 March 2008 [the Applicant] was first registered as an approved provider under the ESOS Act for a nominal period of five years expiring on 14 February 2013. It was then listed on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). It is accepted that [the Applicant’s] registration has continued after 14 February 2013 and remains current.
(c)On 23 November 2012 [the Applicant] lodged an application with [the Respondent] to renew its registration as an approved provider under the ESOS Act.
(d)On 23 January 2013 [the Respondent] decided to use [the Applicant’s] ESOS Act renewal application as an opportunity to also assess its compliance with the NVR Act and the VET Quality Framework. In May 2013, [the Respondent’s] representatives contacted the then Chief Executive Officer of [the Applicant] to schedule a site audit for three days from 19 to 21 June 2013.
(e)On 19 June 2013, [the Respondent’s] auditors attended at serviced offices specifically hired by [the Applicant] for that purpose to inspect information and documents relating to [the Applicant’s] activities. The following day, they attended at [the Applicant’s] teaching premises but were not permitted to view [the Applicant’s] student management system or hard copy filing system. Towards the end of that day, [the Applicant’s] (then) CEO advised the auditors that he and his staff would be unavailable on 21 June 2013 and the audit was left incomplete.
(f)On 30 June 2013, [the Applicant] lodged an application to add a number of VET qualifications to its scope of registration under the NVR Act. Further applications in relation to other VET qualifications were lodged on 4 November 2013 and 15 February 2014. Similar applications to change the scope of the Applicant’s CRICOS registration under the ESOS Act were lodged on 4 July 2013, 2 September 2013, 16 January 2014, 13 February 2014 and 26 February 2014.
(g)Between 18 July 2013 and 24 July 2013, [the Respondent’s] auditors made a number of attempts to contact [the Applicant’s] representatives to notify them that the site audit had been rescheduled for 29 July 2013. On 29 July 2013, [the Respondent’s] auditors attended at [the Applicant’s] teaching premises to conclude the audit but found the premises closed and unattended. Ultimately, no further site inspections were conducted.
(h)On 17 December 2013 [the Respondent] wrote to [the Applicant] advising that critical non-compliances with the 2012 SNRs had been detected at the time of the audit. Attached to that letter was an audit report outlining the audit findings and detailing each area of non-compliance against the 2012 SNRs... [The Applicant] was invited to provide any evidence addressing the non-compliances no later than 30 working days from the date of service of the notice.
(i)On 18 December 2013, [the Respondent] gave [the Applicant] a notice under s 93 of the ESOS Act of its intention to cancel [the Applicant’s] registration for all courses for all locations. The notice invited [the Applicant] to address the identified areas of non-compliance and other matters outlined in the Section 93 Notice no later than 30 working days from the date of service of the notice.
(j)Following a number of extensions of time, on 24 February 2014 [the Applicant] provided its response to the Initial Audit Report and Section 93 Notice. The response comprised a table which set out each of the identified areas of non-compliance and identified “rectification made/to be made” and “evidence provided to support claim of rectification”. [The Respondent’s] auditors reviewed that response and found that [the Applicant] continued to have outstanding areas of non-compliance against the 2012 SNRs. The outstanding non-compliance was summarised in a final audit report.
(k)On 1 April 2014, [the Respondent] decided to:
(i)give [the Applicant] notice under section 37 of the NVR Act of [the Respondent’s] intention to cancel [the Applicant’s] registration as an NVR registered training organisation under section 39 of the NVR Act; and
(ii)defer making a decision under section 33 of the NVR Act and section 9AB of the ESOS Act in relation to [the Applicant’s] applications to change the scope of its registrations under the NVR Act and ESOS Act.
(l)On 8 April 2014, [the Respondent] wrote to [the Applicant] giving notice of these decisions and attaching a copy of the Final Audit Report. The letter invited [the Applicant] to respond to the notice by 12 May 2014.
(m)Following an extension of time, the Applicant provided its response to the Final Audit Report on 19, 20 and 24 May 2014. The response was again in the form of a table, together with course materials, student files and other documentation. [The Respondent’s] auditors reviewed that response and found that [the Applicant] continued to be non-compliant in critical respects with the SNRs and the VET Quality Framework. The outstanding non-compliance was summarised in an evidence analysis dated 2 July 2014.
(n)On 6 August 2014, [the Respondent] made the decisions under review. On 13 August 2014, [the Applicant] was provided with notice of each of [the Respondent’s] decisions, together with the Evidence Analysis conducted under the NVR Act and a statement of reasons in relation to the decision to cancel [the Applicant’s] registration under section 83 of the ESOS Act.
(o)On 8 September 2014, [the Applicant] filed applications for review of each of the decisions under review with the Tribunal.
THE LEGISLATIVE REGIMES
The NVR Act
The objectives of the NVR Act are set out in s 2A of that Act in the following terms:
S 2A Objects
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 standards-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.
Note 1: The standards-based quality framework mentioned in paragraph (b) consists of instruments made by the Ministerial Council, the Minister or the National VET Regulator.
Note 2: These objects are subject to the constitutional basis for this Act (see Division 3).
Section 36(1)(a) of the NVR Act enlivens s 36(2)(f). Section 36(3) details matters to which regard may be had in making a s 36(2) decision. These provisions are in the following terms:
Section 36 Sanctions
(1) This Subdivision applies if:
(a) after natural justice requirements have been satisfied, the National VET Regulator is satisfied that it is appropriate to impose one or more sanctions on an NVR registered training organisation; …
…..
(2) The National VET Regulator may do one or more of the following:
….
(f)cancel an NVR registered training organisation's registration under section 39.
(3) In determining what action to take in relation to an NVR registered training organisation, the National VET Regulator may have regard to:
(a) the organisation's conduct, or circumstances existing, before the Regulator had cause to consider imposing a sanction on the organisation (including before the commencement of this section); and
(b) if section 37 applies--the organisation's conduct, or circumstances existing, since the Regulator gave the organisation a written notice as mentioned in that section.
There are lesser sanctions available in s 36(2)(a)-(e). No argument is made that the natural justice requirements set out in s 37 of the NVR Act have not been observed.
Section 39 of the NVR Act is in the following terms:
Section 39 Cancellation
(1) 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, including for failure to pay a registration fee.
Note: Details relating to an NVR registered training organisation whose registration is cancelled are included on the National Register, see section 216.
(2) An organisation whose registration is cancelled under this Act must return its certificate of registration to the National VET Regulator within 10 days of the day the cancellation takes effect.
Note: Failure to return a certificate of registration is a contravention of a civil penalty provision, see section 112.
(3) An organisation whose registration is cancelled under this Act may not apply for registration as an NVR registered training organisation for 2 years, or such shorter period as the National VET Regulator considers appropriate, after the day the cancellation takes effect.
The ESOS Act
The objectives of the ESOS Act are set out in s 4A of that Act in the following terms:
Section 4A Objects
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 law relating to student visas.
Section 9AG of the ESOS Act is in the following terms:
Section 9AG Changing the scope of a provider's registration
(1) The Secretary must add a course at a specified location to a provider's registration if:
(a) a designated authority makes a recommendation under section 9AA that the provider be registered to provide that course at that location; and
(b) if the provider is not currently registered to provide any courses at the location being added--the designated authority has given the Secretary a certificate in accordance with section 9AH.
(2) The Secretary must not add one or more courses at one or more locations to a provider's registration in any other circumstances.
(3) Nothing in subsection (1) creates a duty for the Secretary to seek any information about the matters mentioned.
Section 9AA of the ESOS Act, which is the foundation for the exercise of s 9AG powers, is in the following terms:
Section 9AA Recommendation by designated authority that approved provider be registered to provide a course at a location
(1) A designated authority may recommend that an approved provider for a course for a location be registered under this Act to provide that course at that location to overseas students.
Risk management approach
(2) A designated authority must use a risk management approach when considering whether to make such a recommendation.
Recommendation may relate to new or existing registration
(3) A designated authority may make such a recommendation:
(a) for the purposes of the Secretary registering an approved provider under section 9AB; or
(b) for the purposes of the Secretary adding one or more courses at one or more locations to a provider's registration under section 9AG.
THE RESPONDENTS’ EVIDENCE
The Respondent filed the s 37 Documents,[4] provided further documents obtained during and after its audit of the Applicant’s affairs and led evidence from:
(a)Ms EB, one of the Respondent’s Principal Compliance Audit employees;
(b)Ms KO, another of its senior investigations employees;
(c)Mr SS, an investigator for the Investigations Section of the Department of Immigration and Border Protection, who gave evidence of the Department’s computer records of the movement of eight individuals;
(d)Ms RRG, a registered Nurse who applied for a job as a trainer/assessor with the Applicant;
(e)Ms SB, a trainer/assessor in the Certificate III course in Early Childhood Education and Care with another registered training organisation and a former employee of the Applicant; and
(f)four of the Applicant’s former students – Messrs BH, SB, SD and AS.
[4] The documents required to be filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
Ms EB’s evidence
Ms EB’s evidence included: three reports of her analysis of documentation and submissions provided by the Applicant to the Respondent during the Respondent’s audit process, the s 37 Documents, the Respondent’s Statement of Reasons for the decisions under review, and further documents provided by the Applicant to the Respondent during the process of review of that decision. The three reports have been referred to as the First, Second and Third Non-Compliance Reports.[5] These reports focussed significantly on the 2012 Standards[6] and their successors the 2015 Standards[7] made under the NVR Act with which the Applicant was obliged to comply, and the Applicant’s compliance with them.
[5] The First Non-Compliance Report being the report dated 18 November 2014, the Second Non-Compliance Report being the report dated 31 July 2015 and the Third Non-Compliance Report being the report dated 12 August 2015.
[6] Standards for NVR Registered Training Organisations 2012 (Cth).
[7] Standards for Registered Training Organisations (RTOs) 2015 (Cth).
The First Non-Compliance Report addressed all courses conducted by the Applicant and concluded that the Applicant’s operations did not meet the requirements of the 2012 Standards in relation to the courses conducted, as summarised in Table 1 below.
Table 1
First Non-Compliance Report findings
[8] In the 2012 Standards, each standard is given an SNR number.
Standard No
Course
SNR 15.2[8]
CPP30411 Certificate III in Security Operations.
AUR30612 Certificate III in Light Vehicle Mechanical Technology
AUR40212 Certificate IV in Automotive Mechanical Diagnosis
AUR50112 Diploma of Automotive Management
BSB20112 Certificate II in Business
BSB40212 Certificate IV in Business
SNR 15.3
BSB60207 Advanced Diploma of Business
CHC40108 Certificate IV in Aged Care
CPP20212 Certificate II in Security Operations
CPP30411 Certificate III in Security Operations
AUR30612 Certificate III in Light Vehicle Mechanical Technology
AUR40212 Certificate IV in Automotive Mechanical Diagnosis
AUR50112 Diploma of Automotive Management
BSB20112 Certificate II in Business
BSB40212 Certificate IV in Business
CHC30113 Certificate III in Early Childhood Education and Care
CHC50113 Diploma of Early Childhood Education and Care
22251VIC Certificate II in EAL (Access)
22255VIC Certificate III in EAL (Access)
22258VIC Certificate IV in EAL (Further Study)
SNR 15.4
CHC40108 Certificate IV in Aged Care
CPP20212 Certificate II in Security Operations
AUR30612 Certificate III in Light Vehicle Mechanical Technology
AUR40212 Certificate IV in Automotive Mechanical Diagnosis
AUR50112 Diploma of Automotive Management
BSB20112 Certificate II in Business
BSB40212 Certificate IV in Business
CHC30113 Certificate III in Early Childhood Education and Care
CHC50113 Diploma of Early Childhood Education and Care
22251VIC Certificate II in EAL (Access)
22255VIC Certificate III in EAL (Access)
22258VIC Certificate IV in EAL (Further Study)
CPP20212 Certificate II in Security Operations
CPP30411 Certificate III in Security Operations
SNR 15.5
BSB60207 Advanced Diploma of Business
CPP20212 Certificate II in Security Operations
CPP30411 Certificate III in Security Operations
AUR30405 Certificate III in Automotive Mechanical Technology
AUR30612 Certificate III in Light Vehicle Mechanical Technology
AUR40212 Certificate IV in Automotive Mechanical Diagnosis
AUR50112 Diploma of Automotive Management
BSB20112 Certificate II in Business
BSB40212 Certificate IV in Business
CHC30113 Certificate III in Early Childhood Education and Care
CHC50113 Diploma of Early Childhood Education and Care
22251VIC Certificate II in EAL (Access)
22255VIC Certificate III in EAL (Access)
22258VIC Certificate IV in EAL (Further Study)
SNR 16.1
CPP20212 Certificate II in Security Operations
SNR 16.3
CPP20212 Certificate II in Security Operations
SNR 16.6
AUR30405 Certificate III in Automotive Mechanical Technology
SNR 17.4
CPP20212 Certificate II in Security Operations
CPP30411 Certificate III in Security Operations
BSB60207 Advanced Diploma of Business
SNR 18.1
General operations and not course specific.
SNR 19.1
General operations and not course specific.
SNR 20.1
General operations and not course specific.
SNR 23.1
CPP20212 Certificate II in Security Operations
CPP30411 Certificate III in Security Operations
SNR 24.1
CPP20212 Certificate II in Security Operations
This tabulation does not reflect the extent of the findings. In various instances the conclusion reached was that the Applicant had breached a Standard for a course for multiple reasons and in multiple instances.
The Second Non-Compliance Report again addressed all courses conducted by the Applicant and concluded that the Applicant’s operations did not meet the requirements of the 2012 Standards in relation to the courses conducted as summarised in Table 2 below.
Table 2
Second Non-Compliance Report findings
Standard No
Course
SNR 15.2
CPP30411 Certificate III in Security Operations.
BSB20112 Certificate II in Business
BSB40212 Certificate IV in Business
SNR 15.3
CHC40108 Certificate IV in Aged Care
CPP20212 Certificate II in Security Operations
CPP30411 Certificate III in Security Operations
AUR30612 Certificate III in Light Vehicle Mechanical Technology
AUR40212 Certificate IV in Automotive Mechanical Diagnosis
AUR50112 Diploma of Automotive Management
BSB20112 Certificate II in Business
BSB40212 Certificate IV in Business
CHC30113 Certificate III in Early Childhood Education and Care
CHC50113 Diploma of Early Childhood Education and Care
22251VIC Certificate II in EAL (Access)
22255VIC Certificate III in EAL (Access)
22258VIC Certificate IV in EAL (Further Study)
SNR 15.4
AUR30612 Certificate III in Light Vehicle Mechanical Technology
AUR40212 Certificate IV in Automotive Mechanical Diagnosis
AUR50112 Diploma of Automotive Management
BSB20112 Certificate II in Business
BSB40212 Certificate IV in Business
CHC30113 Certificate III in Early Childhood Education and Care
CHC50113 Diploma of Early Childhood Education and Care
CHC40108 Certificate IV in Aged Care
CPP20212 Certificate II in Security Operations
CPP30411 Certificate III in Security Operations
SNR 15.5
AUR30405 Certificate III in Automotive Mechanical Technology
AUR30612 Certificate III in Light Vehicle Mechanical Technology
AUR40212 Certificate IV in Automotive Mechanical Diagnosis
AUR50112 Diploma of Automotive Management
BSB20112 Certificate II in Business
BSB40212 Certificate IV in Business
BSB60207 Advance Diploma in Business
CHC30113 Certificate III in Early Childhood Education and Care
CPP20212 Certificate II in Security Operations
CPP30411 Certificate III in Security Operations
22251VIC Certificate II in EAL (Access)
22255VIC Certificate III in EAL (Access)
SNR 16.6
AUR30405 Certificate III in Automotive Mechanical Technology
SNR 17.4
CPP20212 Certificate II in Security Operations
CPP30411 Certificate III in Security Operations
BSB60207 Advanced Diploma of Business
SNR 18.1
General operations and not course specific.
SNR 19.1
General operations and not course specific.
SNR 20.1
General operations and not course specific.
SNR 23.1
CPP20212 Certificate II in Security Operations
CPP30411 Certificate III in Security Operations
Again, this tabulation does not reflect the extent of the findings. In various instances the conclusion reached was that the Applicant had breached a Standard for a course for multiple reasons and in multiple instances.
The Third Non-Compliance Report addressed additional materials provided that related to the CPP20212 Certificate II in Security Operations and CPP30411 Certificate III in Security Operations courses conducted by the Applicant and concluded that the Applicant’s operations did not meet the requirements of the 2012 Standards: SNRs 15.3, 15.4, 15.5, 16.6, 17.4, 18.1, 19.1, 20.1, and 23.1 and their counterparts in the 2015 Standards[9] in respect of its operations in relation to those courses. In particular, in the Third Non-Compliance Report Ms EB noted that:
[9] The Annexure tabulates the terms of SNRs 15.3, 15.4, 15.5, 16.6, 17.4, 18.1, 19.1, 20.1, and 23.1 and their counterparts in the 2015 Standards.
(a)for SNR 15.3 which requires staff, facilities, equipment and training and assessment materials used by the NVR registered training organisation to be consistent with the requirements of the Training Package or VET[10] accredited course and the NVR registered training organisation’s own training and assessment strategies and to be developed through effective consultation with industry, and SNR 15.5 which requires assessment to meet the requirement of the relevant training package or accredited course and be conducted in accordance with the principles of assessment and rules of evidence etc., Ms EB noted that:
[10] Vocational Education and Training.
(i)on 13 May 2014, 26 September 2014 and 29 June 2015 the Applicant had submitted different and new versions of the assessment tools it portrayed were used for four of the units of study in the Security Operations courses however the review of student files showed that the Applicant was not using the latest version of the assessment tools packages that it had provided to the Respondent; and
(ii)this was, in her view, a severe non-compliance with requirements because the assessment tools in use do not meet the requirements of the training package with respect to evidence and required skills requirements and the assessment is not conducted in accordance with the principles of assessment and rules of evidence;
(b)for SNR 15.5, the requirements for which are noted above, and SNRs 16.6 and 17.4 which require management of accurate records, Ms EB noted that:
(i)there were numerous examples of identical or near identical responses to the same assessment questions among a group of students taught and assessed by one of the Applicant’s trainer/assessors, and different near identical responses among a group of students taught and assessed by another of the Applicant’s trainer/assessors of the same unit of study. Some of the questions in respect of which these observations were made called for students to describe something in their own words. This observation was a repeat of earlier observations of materials reviewed for the purposes of the earlier two reports concerning a wider range of courses. Ms EB’s conclusion was that the evidence used to make decisions about students’ competence was not valid, sufficient, authentic and current;
(ii)there was little, if any, evidence of the criteria used by assessors of role play assessment tasks, and the performance observed by the assessors. This too was a repeat of her observations of earlier materials examined for the purposes of the earlier reports;
(iii)as per her earlier reports the record keeping requirements follow the event, in that if the assessment process is flawed, then records of it that suggest otherwise are flawed; and
(iv)this was, in her view, a severe non-compliance with requirements because the assessment is not conducted in accordance with the principles of assessment and rules of evidence;
(c)for SNR 20.1, which requires an NVR registered training organisation to comply with relevant Commonwealth, State or Territory legislation and regulatory requirements relevant to its operations and its scope of registration, Ms EB noted that:
(i)student files were consistent with those examined in her earlier reports in that the Applicant was issuing VET qualifications without providing adequate assessment, namely the kind of assessment necessary for a VET student to satisfy the requirements of the qualification, within the terms of s 103 and s 107 of the NVR Act;
(ii)the Applicant continued to provide courses to overseas students for which it is not registered within the terms of s 8 of the ESOS Act; and
(iii)this was, in her view, a major non-compliance with requirements because the Applicant appears to be committing an offence;
(d)for SNR 19.1, which requires an NVR registered training organisation to co-operate with the National VET Regulator in relation to a range of matters concerning its operations, performance and audits thereof, changes in its operations and ownership and in relation to its records, Ms EB noted that:
(i)no further evidence had been provided and nothing had changed from her earlier reports which raised the issues apparent in paragraphs 3(d) to 3(m) above; and
(ii)this was, in her view, a major non-compliance with requirements because the Respondent needs co-operation of RTOs to discharge its functions under the NVR Act;
(e)for SNR 15.3 and 15.4, which require trainer/assessors to have the requisite competencies etc. Ms EB noted that, consistent with her earlier conclusions:
(i)she had not seen evidence of Mr Iqbal’s current industry skills;
(ii)the Applicant appeared to have another trainer/assessor in respect of whom she had no information; and
(iii)this was, in her view, a moderate non-compliance with requirements because the Respondent needs co-operation of RTOs to discharge its functions under the NVR Act;
(f)for SNR 23.1, which requires an NVR registered training organisation to issue eligible students a VET qualification or VET statement of attainment (as appropriate) that meets the Australian Qualifications Framework (AQF) and other prescribed requirements including use of logo Ms EB noted that:
(i)the template qualification provided to the Respondent was not used;
(ii)the NRT Logo is not used only in accordance with its conditions of use; and
(iii)these, in her view, were minor non-compliances with requirements;
(g)for SNR 18.1, which requires an NVR registered training organisation to have governance arrangements in place to ensure that the NVR registered training organisation complies with the VET Quality Framework for all of the NVR registered training organisation’s operations within the scope of its registration, as listed on the National Register, Ms EB noted that the preceding non-compliances indicated that it did not have such arrangements in place and that this was a minor non-compliance.
Ms EB describes her classification of non-compliance in the following terms:
(a)Minor the non-compliance does not directly relate to the provision of quality training and assessment and should be easy to rectify;
(b)Moderate the non-compliance may not impact adversely on the provision of quality training and assessment and should be easy to rectify;
(c)Major the non-compliance impacts adversely on the provision of quality training and assessment and may be difficult to rectify; and
(d)Severe the non-compliance demonstrates a failure to provide quality training and assessment, impacts adversely on the provision of quality and reputation of the VET sector and is difficult to rectify.
Apart from a general attack on the technical nature of Ms EB’s analysis, the Applicant does not challenge her findings in respect of courses other than CPP20212 Certificate II in Security Operations for which it continues the present application.
Ms KO’s evidence
Ms KO’s evidence included two affidavits (with annexed reports), principally directed to the extent of the Applicant’s performance of its obligations to update the PRISMS database[11] and its obligations under the ESOS Act.
[11] Provider Registration and International Student Management System.
PRISMS is an internet-based database managed by the Department of Education, and integrated with DIBP[12] systems. Among other things PRISMS receives and stores information provided under s 19 of the ESOS Act about accepted students, enables overseas students to obtain visas in order to study in Australia, and monitors overseas student performance against visa conditions. It is an important system for providers registered on the CRICOS[13] to comply with legislative requirements by:
(a)issuing bona fide [CoEs[14]] as ”evidence of enrolment” in a registered full time course as required for the issue of a student visa by DIBP; and
(b)reporting changes in course enrolment, particularly where study ceases (non-compliance), or the duration of study changes. The system also facilitates the monitoring of student compliance with visa conditions and provided compliance with the ESOS Act.
[12] Department of Immigration and Border Protection.
[13] The Commonwealth Register of Courses and Institutions for Overseas Students.
[14] Confirmations of Enrolment.
Ms KO’s conclusions are supported by detailed analysis of PRISMS data and other materials associated with the Applicant’s operations. Her conclusions are that:
ESOS Act – s 8 – Offering the unregistered course CPP20212 Certificate II in Security Operations to overseas students
(a)The Applicant provides the course CPP20212 Certificate II in Security Operations when it is registered for the course CPP20211, a superseded course.
ESOS Act – s 8 – Offering and providing the unregistered course CPP30407 Certificate III in Security Operations to overseas students
(b)The Applicant’s website and promotional documents in June 2013 indicated that overseas students could study the course CPP30407 Certificate III in Security Operations when that course had been cancelled since February 2013. The Applicant explained that the documents were provided by mistake.
(c)Student files provided by the Applicant to the Respondent and PRISMS data revealed that the Applicant was providing the CPP30407 Certificate III in Security Operations to overseas students in 2014 when it was not registered for that course.
ESOS Act – s 46B and s 46F – PRISMS reporting requirements
(d)In purported compliance with s 46B of the ESOS Act, on 19 September 2014 the Applicant disclosed student discontinuation of courses before completion and that 171 overseas students enrolled in automotive courses were affected. This notification should have been accompanied by a notification in PRISMS for each student.[15] Section 46D of the ESOS Act sets out further obligations of defaulting providers to students and s 46F details reporting obligations associated with those obligations which require updating PRISMS records for each affected overseas student.[16]
[15] Education Services for Overseas Students (Notifying provider default – requirements for a notice) Determination 2012 (No. 1) made pursuant to pursuant to s 46B(6) of the ESOS Act, [4].
[16] Education Services for Overseas Students (Notifying provider default – requirements for a notice) Determination 2012 (No. 1) made pursuant to pursuant to s 46F(5) of the ESOS Act, [4].
(e)As at 29 October 2014 PRISMS had not been updated as required under s 46B and s 46F. As at 24 February 2015, after receiving Ms KO’s affidavit in which these failures had been reported, the Applicant still had not complied with its PRISMS reporting obligations for the 171 affected overseas students.
ESOS Act – potential breach of s 108 – s 19 reports
(f)On 24 September 2014 the Applicant updated PRISMS in respect of 71 overseas students; changing the duration of their courses and cancelling the enrolments for the reason, in each case, that the course had been completed early with the last days of study being between 5 and 15 September 2014. The students were all automotive course students. Each of these 71 students were listed as the subject of the provider default on 19 September 2014.
ESOS Act – s 108 – False CoEs for the Certificate IV in Accounting course.
(g)Also on 24 September 2014 the Applicant updated PRISMS in respect of 64 students who had previously been enrolled in automotive courses and were the subject of the provider default notice of 19 September 2014, indicating they had been enrolled in the Certificate IV in Accounting course.
(h)Ms KO spoke to a sample of the students involved and the Tribunal has evidence from four of them. Ms KO's investigations revealed that the students involved were not aware of the CoE changes reported on PRISMS and did not approve of them. The evidence of the students before the Tribunal is detailed below.
ESOS Act – s 19(1)(c)
(i)In the s 83 Notice,[17] the Respondent identified material questions of fact that it had considered in deciding that there were reasonable grounds to conclude that the Applicant had breached s 19(1)(c) of the ESOS Act, requiring the Applicant to report through PRISMS where students did not commence a course when expected, 28 times over a 12 month period to 3 October 2013. The Applicant’s 15 October 2014 response was No action required. Noted. It is implicit that the Applicant accepts this conclusion. More recent sampling of the Applicant’s student records indicates that this failure continued through to November 2014.
[17] The Respondent’s 6 August 2014 notice to the Applicant issued pursuant to s 83 of the ESOS Act which includes by reference, where applicable, information referred to in the Respondent’s 17 December 2013 Notice to the Applicant issued pursuant to s 93 of the ESOS Act.
ESOS Act – s 19(1)(d)
(j)In the s 83 Notice, the Respondent identified material questions of fact that it had considered in deciding that there were reasonable grounds to conclude that the Applicant had breached s 19(1)(d) of the ESOS Act, requiring the Applicant to report through PRISMS where students terminate studies before a course is completed, 28 times over a 12 month period to 3 October 2013. The Applicant’s 15 October 2014 response was No action required. Noted. It is implicit that the Applicant accepts this conclusion. More recent sampling of the Applicant’s student records indicates that this failure continued through to August 2014.
ESOS Act – s 19(1)(e)
(k)In the s 83 Notice, the Respondent identified material questions of fact that it had considered in deciding that there were reasonable grounds to conclude that the Applicant had breached s 19(1)(e) of the ESOS Act, requiring the Applicant to report through PRISMS any changes in the identity or duration of an accepted student’s course, 34 times over a 12 month period to 3 October 2013. The Applicant’s 15 October 2014 response was No action required. Noted. It is implicit that the Applicant accepts this conclusion. More recent investigation of the PRISMS records indicates that this failure continued through to November 2014. Among other information sought, on 25 November 2014 the Applicant provided the five most recent student assessment files for the automotive courses it conducted. Those records revealed that the Applicant continued to fail to update PRISMS with accurate information concerning dates of completion of courses.
ESOS Act – s 19(1)(f)
(l)In the s 83 Notice, the Respondent identified material questions of fact that it had considered in deciding that there were reasonable grounds to conclude that the Applicant had breached s 19(1)(f) of the ESOS Act, requiring the Applicant to report through PRISMS prescribed matters, including deferments and suspensions of studies, 39 times over a 12 month period to 3 October 2013. The Applicant’s 15 October 2014 response was No action required. Noted. It is implicit that the Applicant accepts this conclusion. More recent investigation of the PRISMS records indicates that this failure continued through to October 2014.
ESOS Act – s 19(2)
(m)Ms KO identified two instances where the Applicant’s students had not maintained satisfactory progress in course studies and the Applicant had not reported those cases to the Respondent. Section 19(2) of the ESOS Act requires the Applicant to report breaches of visa conditions; two such conditions being to maintain satisfactory attendance in and progress for each study period as required by the education provider.
ESOS Act – s 27
(n)In the s 83 Notice, the Respondent identified material questions of fact that it had considered in deciding that there were reasonable grounds to conclude that the Applicant had breached s 27(1) of the ESOS Act, prohibiting receipt of more than 50% of tuition fees for courses of more than one study period before the student begins the course, five times over a 12 month period to 3 October 2013. The Applicant’s 15 October 2014 response was No action required. Noted. It is implicit that the Applicant accepts this conclusion. More recent investigation of the PRISMS records indicates that this failure continued through to September 2014 in 10 cases.
ESOS Act – s 47C(1)
(o)In the s 83 Notice, the Respondent identified material questions of fact that it had considered in deciding that there were reasonable grounds to conclude that the Applicant had breached s 47C(1) of the ESOS Act, requiring the Applicant to notify the Respondent of student defaults, which include a student not starting a course on time, a student withdrawing from a course and a student breaching a visa condition, 179 times over a 12 month period to 7 October 2013. The Applicant’s 15 October 2014 response was No action required. Noted. It is implicit that the Applicant accepts this conclusion. More recent investigation of the PRISMS records indicates that this failure continued through to September 2014.
National Code – Standard 7.1
(p)In the s 83 Notice, the Respondent identified material questions of fact that it had considered in deciding that there were reasonable grounds to conclude that the Applicant had breached Standard 7.1 of the National Code[18] prohibiting the Applicant from enrolling certain students before they have completed six months of their principal course of study other than in prescribed circumstances, in respect of the enrolments of 39 students. The Applicant’s 15 October 2014 response was No action required. Noted. It is implicit that the Applicant accepts this conclusion. More recent investigation of the PRISMS records indicates that this failure continued through to September 2014.
[18] National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (Cth).
National Code – Standard 8.2
(q)The Applicant’s student handbook indicates that students dissatisfied with internal appeal outcomes may request the Applicant to assist the student in an appeal to the Australian Council of Private Education and Training. That body is a membership organisation that provides services to members and does not have a general service of hearing or mediating complaints for non-members. The Applicant is not a member of that body, and has not been since 2012.
(r)Standard 8.2 requires a registered provider to have in place arrangements for an independent person or body to hear complaints or appeals arising from the registered provider’s internal complaints and appeals process or refer students to an existing body where that body is appropriate for the complaint or appeal.
(s)The Applicant does not have such a facility.
National Code – Standard 15.1(b)
(t)On 13 January 2015, with effect from that date, the Applicant informed the ASIC[19] of changes in ownership of its issued shares, 561 shares paid up to a total of $500,061.00, and of its director. On 19 February 2015 the Applicant advised the respondent that it had had a material change event ostensibly as required by Standard 15.1(b) of the National Code[20] advising it had a NEW CEO and that its former Director and CEO Mr MSQ was no longer in either role.
(u)On 16 February 2015 staff at the Applicant’s premises informed Ms KO that the former director and CEO Mr MSQ had ceased working for the Applicant about three to four weeks earlier. This disclosure is entirely consistent with ASIC records. The Applicant’s staff also informed Ms KO that the replacement CEO was Mr ZUS. ASIC records reveal that Mr ZUS was a former director of the Applicant from 23 January 2006 to 1 August 2014 when he was replaced by Mr MSQ.
[19] Australian Securities and Investments Commission.
[20] National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 made made under subsection 33(1)of the ESOS Act.
Ms RRG’s evidence
Ms RRG’s evidence was that she applied for a job as a trainer/assessor with the Applicant, was interviewed and subsequently received a trainer matrix document (explained to Ms RRG as a document needed by the Applicant for all trainer/assessors that she was told she would need to complete) that had been completed by someone else. This was the only contact she had had with the Applicant after the interview and she did not give the Applicant permission to disclose any information about her to anybody else.
None of this evidence was challenged. Accordingly, the necessary finding is that the Applicant maintained and/or falsified records concerning the identity of its trainer/assessors and it can be inferred that it did so so as to be able to present itself as having a trainer/assessor it did not have.
Ms SB’s evidence
Ms SB’s evidence was that:
(a)she had been employed by the Applicant between October 2012 and November 2013 as a trainer/assessor in the Diploma of Children’s services and occasionally for another registered training organisation AVDI[21] which had links to the Applicant;
(b)she had never worked for Western Family day care centre as a Manager/Supervisor or for World Wide Education as a Child Care Educator;
(c)while employed by the Applicant, she was given the Applicant’s Trainer Matrix – Vocational Competencies and Industry Skills document for herself by the person she understood to be the Applicant’s Compliance Manager. She was asked to make some entries in the last column headed Vocational Competence and Industry Experience, to which she responded that she had no industry experience. Ms SB subsequently received the Matrix document from the compliance manager with Vocational Competence and Industry Experience column completed indicating she had had experience at Western Family day care centre as a Manager/Supervisor and at World Wide Education as a Child Care Educator. She was also asked by the compliance manager to include these entries in her CV. Ms SB did not include the entries in the CV and did not see the trainer matrix document again (which must be taken to mean she did not see it again before she left the Applicant’s employ given she annexed it to her witness statement). A CV [obtained from the Applicant] subsequently shown to Ms SB after she left the Applicant’s employ revealed industry experience at Western Family Day care centre as a Manager/Supervisor and with World Wide Education as a Child Care Educator. She did not make these entries in her CV;
(d)she had never attended a PD workshop on Trainer Requirements or any other workshop, nor received any training from Pacific International College. Before 4 November 2014 (nearly a year after she left the Applicant’s employ), she had not seen a document under the heading Pacific International College [obtained from the Applicant] that suggested that she had attended such a workshop. Ms SB did not give that document to the Applicant; and
(e)contrary to the content of a Austwide Institute of Training Pty Ltd – Validation and Moderation Report, she did not know a Mr Bisharo or an organisation known as Bisharo Family Day Care and she had never attended a Validation workshop conducted by either of them.
[21] Australian Vocational Driving Institute.
None of this evidence was challenged. Accordingly, the necessary finding is that the Applicant maintained and/or falsified records concerning its trainer/assessors indicating that at least one of its trainer/assessors had experience and credentials she did not have. It can be inferred that the Applicant did so so as to be able to present itself as having a trainer/assessor with better credentials and experience than she had.
Mr BH’s evidence
Mr BH’s evidence was that:
(a)he was an overseas student from Pakistan and held an overseas student visa;
(b)he was studying a Diploma of Automotive Management with the Applicant and in October 2014, before a temporary return to Pakistan, was given a CoE[22] by the Applicant for a course in Accounting in which and for which he had never enrolled; and
(c)the explanation for the certificate was that he may not have been allowed to re-enter Australia if he was given a CoE for the Diploma course in which he had enrolled because there were difficulties with the Applicant’s entitlement to conduct that course.
[22] Confirmation of Enrolment.
This evidence was unchallenged and the necessary finding is that the Applicant was prepared to create false documents to bypass Australia’s immigration control systems.
Mr SB’s evidence
Mr SB’s evidence was that:
(a)he was an overseas student from India and held an overseas student visa;
(b)while enrolled to study a Diploma of Automotive Management with the Applicant in late 2014 the Applicant had enrolled him in an Accounting course and entered that enrolment on a system (possibly PRISMS) that prevented Mr SB from enrolling in a Diploma of Automotive Management course at another registered training provider without a release from the Applicant in relation to the Accounting course; and
(c)he had a number of friends in the same position.
This evidence was unchallenged and the necessary finding is that the Applicant was prepared to create false records that presented a degree of inconvenience to its students.
Mr SD’s evidence
Mr SD’s evidence was that:
(a)he was an overseas student from India and held an overseas student visa;
(b)while enrolled to study a Diploma of Automotive Management with the Applicant in late 2014 the Applicant had enrolled him in an Accounting course and told him it was to protect his visa.
This evidence was unchallenged and the necessary finding is that the Applicant was prepared to create false documents to bypass Australia’s immigration control systems.
Mr AS’s evidence
Mr AS’s evidence was that:
(a)he was an overseas student from India and held an overseas student visa;
(b)while enrolled to study a Diploma of Automotive Management with the Applicant in late 2014 the Applicant had enrolled him in an Accounting course and told him it was to protect his visa; and
(c)the dates of completion of the units comprising the Certificate III in Automotive Mechanical Technology at the Applicant’s operation were falsified and brought forward to dates no later than 26 July 2014 when the units were completed as late as mid-September 2014.
This evidence was unchallenged and the necessary finding is that the Applicant was prepared to create false documents to bypass Australia’s immigration control systems and to issue qualification certificates with dates before the Applicant’s registration was cancelled.
THE APPLICANT’S EVIDENCE
The Applicant led evidence from:
(a)Mr Rizwan Hassan, who was one of the Applicant’s trainer/assessors, as well as the father of the Applicant’s compliance manager since January 2014, Hammad Hassan, and who is associated with the former CEO of the Applicant, Mr ZUS, through his security company, Elite Security Services;
(b)Ms Sana Zia, who had been hired in February 2015 to perform the role of the Applicant’s international students Admissions Officer;
(c)Mr Aamir Iqbal, who was a security trainer/assessor;
(d)Abdul Majid, who was a security trainer/assessor,
and provided documents it claimed supported its case.
Mr Hassan’s evidence
Mr Hassan’s evidence was that following a review on 30 November 2014 by a Security Consultant, he arranged a purchase and delivery of the additional security equipment recommended.
Ms Zia’s evidence
Ms Zia’s evidence was that she was a PhD candidate in Communication Studies at Monash University and held Masters Degrees from the Punjab University in Communication Studies and Education, a Certificate III and Diploma in Early Childhood Education and Care and a Certificate IV in Training and Assessment. Ms Zia is employed on a part-time basis by the Applicant as its international students Admissions Officer.
Ms Zia’s responsibilities at the Applicant’s operations include:
(a)answering queries and responding to applications for enrolment from overseas but not local students;
(b)receiving and processing application forms from intending overseas students;
(c)creating CoEs on PRISMS; and
(d)recording cancellations and deferments on PRISMS.
Ms Zia’s evidence was that since commencing employment with the Applicant in February 2015 she had not created any CoEs on PRISMS at the Applicant’s operation because of the conditions imposed on the Applicant’s operations by the Tribunal. The Tribunal had limited the Applicant’s operations in its stay order and direction. Ms Zia explained that in August 2015 there were 18 overseas students recorded on PRISMS studying at the Applicant’s operation and that she believed there were many overseas students enrolled in the Certificate II course in Security Operations and that as a consequence of legal advice she had received she believed that such students are not required to be registered on PRISMS and Accordingly, I have not registered any overseas students on PRISMS when they have enrolled at [the Applicant].
Mr Iqbal’s evidence
Mr Iqbal’s evidence was that he had been retained by the Applicant to provide training and assessment in the CPP20212 Certificate II in Security Operations and that he was employed by Reliable Security Services and that from 2006 he had attained a number of qualifications. Those qualifications begin with two 2006 Certificate II qualifications in Security Operations and were followed by a 2009 Bachelor of Commerce from the University of Ballarat, a 2010 Master of Professional Accounting from the University of Ballarat, a 2010 Certificate II in Security Operations (Refresher) from the Applicant, a 2011 Diploma of Business from the Imperial College of Technology and Management, a 2013 Certificate II in Security Operations from the Applicant, a 2013 Certificate IV in Training and Assessment from AVDI, and a 2014 qualification in applying advanced (emergency) first aid.
Under cross examination Mr Iqbal’s processes of assessment of students was scrutinised and it was apparent that:
(a)some examinations were open book examinations and some were closed book;
(b)he considered transcribing text from reference materials taken into open book examinations was sufficient to demonstrate a student’s understanding of the topic examined even when students were asked to explain concepts in their own words;
(c)he did not believe there was plagiarism or copying other student’s work in closed book examinations and that very similar answers to questions are explained by the proposition that students must have memorised the explanations given on slides; and
(d)where the assessment task was satisfactory performance in a role play, the assessment process required the student to keep performing the role play until it was satisfactorily performed and he ticked a box that indicated satisfactory completion without annotating what was observed or any comments on those observations.
Mr Majid’s evidence
Mr Majid’s evidence was that he had been retained by the Applicant to provide training and assessment in CPP20212 Certificate II in Security Operations and CP30411 Certificate III in Security Operations, that he is employed by Well Watch Security Services Pty Ltd and that from 2005 he had attained a number of qualifications. Those qualifications begin with a 2005 Diploma of Business from the Melbourne Institute of Technology followed by a 2005 basic first aid qualification, a 2005 Certificate II in Security (Guarding), a 2006 Certificate III in Security Operations, a 2007 Bachelor of Commerce (Accounting) from the University of Ballarat, a 2012 qualification in applying first aid, a 2013 certificate IV in training and assessment, a 2014 certificate III in Security Operations, a 2014 Certificate II in Security Operations and a 2014 qualification in applying advanced first aid.
This evidence can be accepted.
Mr Majid also indicated that the Applicant had a compliance manager from at least as early as January 2014 named Mr Hammad Hassan who, documents filed by the Respondent reveal, was the was the CEO of AVDI at the time its registration under the NVR Act was cancelled.
Under cross examination Mr Majid’s processes of assessment of students was scrutinised and it was apparent that:
(a)some examinations were open book examinations and some were closed book;
(b)he considered transcribing text from reference materials taken into open book examinations was sufficient to demonstrate a student’s understanding of the topic examined even when students were asked to explain concepts in their own words;
(c)he did not believe there was plagiarism or copying other student’s work in closed book examinations and that very similar answers to questions are explained by the proposition that students must have rote learned particular materials;
(d)where the assessment task was satisfactory performance in a role play, the assessment process required the student to keep performing the role play until it was satisfactorily performed; and
(e)he sees his students satisfactorily working in the security industry which means they are well trained.
Changes in personnel at the Applicant
An organisation chart for the Applicant provided to the Respondent showed that there had been a change in personnel at the Applicant’s operation in recent times. One of the Applicant’s former staff has passed away.
The reasons for the shortcomings in the Applicant’s operations and compliance with statutory requirements and standards, the circumstances in which those asserted to be responsible for them left the employ of the Applicant and the involvement of those in positions to direct the Applicant’s affairs in its shortcomings are all unexplained.
THE APPLICANT’S SUBMISSIONS
The Applicant’s submissions commenced with the proposition that it is first necessary for the Tribunal to make findings, and then the Applicant be given the opportunity to make submissions on the sanction, having regard to the findings made against it. In a setting where it is the Respondent’s decisions:
(a)pursuant to s 36(2)(f) and 39 of the NVR Act to cancel the Applicant’s registration as a NVR registered training organisation under the NVR Act; and
(b)declining to add course CPP20212 Certificate II in Security Operations to the Applicant’s scope of registration under s 9AB of the ESOS Act
that are the subject of the present merits review application, the Applicant’s proposition seems odd. Nevertheless, the Applicant was informed at the hearing that the hearing was the time to make the relevant submissions as to sanction, which it did, and its written submissions proceeded to do what its opening submission contended was to be done at a later time.
The Applicant’s ESOS Act Submissions
The Applicant contends that s 9AB(1)(f)(i) of the ESOS Act contains two temporal elements – the present time and the future, and that the ESOS Act does not direct consideration of past non-compliance. While it accepts that, when unaffected by evidence of change, the past can be a useful guide to the future, the Applicant points to the decision in ReG Plus G Global Trading Pty Ltd and Australian Skills Quality Authority,[23] in contending that the proper construction of s 9AB(1)(f) is that:
‘so long as the Secretary (or in this case, the Tribunal) has some evidence leading to an inclination that [the provider] will comply with the ESOS Act or the National Code in the future, that should be sufficient to satisfy approval of an application to renew registration.’
[23] [2013] AATA 698 at [90]-[91] per SM Fice.
The context in which general statements like these are made is important. The expanded context is:
90I should also briefly say something about the expressions used in s. 9AB of the ESOS Act. The Secretary must not register an AP in any circumstances other than where the applicant satisfies the requirements set out in subsection (1) (s. 9AB (2)). The requirements set out in subsection (1)(f) are preceded by the words: the Secretary has no reason to believe that the provider.... The expression reason to believe is not a reference to the civil standard of proof. The High Court of Australia (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in George v Rockett [1990] HCA 26; (1990) 170 CLR 104, when dealing with the grounds for issuing a search warrant, said at 116:
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances leave something to surmise or conjecture.
91.In this case, although the expression is couched in the negative, the same reasoning should be applied. In other words, so long as the Secretary (or in this case, the Tribunal) has some evidence leading to an inclination that VICAT will comply with the ESOS Act or the National Code in the future, that should be sufficient to satisfy approval of an application to renew registration. Given the significant work which VICAT has undertaken in an attempt to satisfy all of the issues raised by the non-compliance report, I find there is reason to believe that it will comply with the ESOS Act and the National Code in the future.
The Applicant contends that only compliance with the ESOS Act and the National Code are relevant and compliance with NVR legislation or standards are not to be considered in the ESOS Act context.
For ESOS Act purposes, the Applicant focussed on two topics of particular relevance to the CPP20212 Certificate II in Security Operations courses it offered, namely:
(a)whether it had breached the ESOS Act Reporting Obligations[24] contending that an overseas student is not the same as an accepted student, that none of the Applicant’s students were accepted students, as a consequence reporting obligations did not arise leading to the result that there could be no failure to comply with these rules; and
(b)whether it had breached s 8 of the ESOS Act by offering a course in respect of which it was not registered contending that a course is identified by its name not its number,
and addressed what must be accepted as its other failures concerning any of its course offerings in a more general way.
ESOS Act Reporting Obligations – overseas student v accepted student – CPP20212 Certificate II in Security Operations
[24] ESOS Act, s 19 - 22.
The Applicant’s contentions[25] concerning its compliance with the ESOS Act Reporting Obligations are as follows.
(a)The ESOS Act distinguishes between ‘overseas students’ and ‘accepted students’. While a provider must be registered to provide any course to overseas students (s. 8), other obligations directed particularly to migration records, are only imposed in respect of accepted students (e.g. ss. 19, 20, 21) …
(b)The principal difference between an ‘overseas student’ and an ‘accepted student’ is that an accepted student must, in relation to a course, be required to hold a student visa (as prescribed in the regulations) to undertake or continue that course.
(c)Regulation 1.03 of the ESOS Regulations defines student visa as all visa subclasses listed in reg. 1.03 of the Migration Regulations 1994 (Cth), with certain defined (but presently irrelevant) exclusions.
(d)‘Student visa’ is defined in regulation 1.03 of the Migration Regulations to exhaustively include subclass 570 – 576 visas.
(e)Study is also permitted for non-residents without a student visa. Visitor visas including subclass 600 (Visitor), subclass 601 (Electronic Travel Authority) and subclass 651 (eVisitor) all impose visa condition 8201, which limits the visa holder to a three month period of study or training.
(f)Thus, a student embarking on a course of study or training with a duration of less than three months – such as the Certificate II in Security Operations – does not require a student visa, and is therefore not an ‘accepted student’ under the ESOS Act.
(g)While it may be an intricate path through the legislation to arrive at that outcome, it is supported by common sense. The ESOS Act is intended to ‘complement Australia’s migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas. It is logical to assume that reporting requirements would not be imposed on short course students whose studies have no relevance to their visa conditions.
[25] Without adopting its paragraph numbering.
On these foundations the Applicant advances the following propositions.[26]
(a)If a non-citizen holding a tourist visa can undertake the course, how can it ever be said that any student requires a student visa to undertake the course?
(b)An ‘accepted student’ is a person who has no lawful way to undertake or continue the course other than by holding a student visa. (Emphasis added)
(c)A student seeking to enrol in … [the Applicant’s] Certificate II course at the end of a prior course … or as a transfer from an existing course … is entitled to, for example, fly to New Zealand to obtain an eVisitor, Working Holiday, Visitor or other visa and return to undertake the Certificate II course without a student visa.
(d)It cannot be said that any student is required to hold a student visa to undertake the course, and accordingly, any RTO (Registered Training Organisation)[[27]] is entitled to freely enrol students such a course without regard to ss. 19, 20 or 21 of the ESOS Act.
[26] Again, without adopting its paragraph numbering.
[27] An apparent reference to a Registered Training Organisation.
ESOS Act – s 8 – CPP20212 Certificate II in Security Operations
The Applicant contends that it did not breach s 8 of the ESOS Act because it was registered in respect of the course Certificate II in Security Operations (code CPP20211), the predecessor course to Certificate II in Security Operations (code CPP20212), in respect of which it was not registered on CRICOS. The Applicant’s contentions[28] are as follows.
(a)[the Respondent] proceeded on the basis the Certificate II in Security Operations (coded CPP20212) was a different ‘course’ to Certificate II in Security Operations (coded CPP20211), requiring separate registration. Neither the definition of ‘course’, nor any other part of the Act supports [the Respondent’s] position that a course should be defined by reference to its code and not its title. Exhibits A3 and R28 show that for the purposes of the Department of Education who administers the CRICOS system, the ‘course’ is identified as Certificate II in Security Operations.
(b)Statutory provisions creating offences are to be construed according to ordinary principles, but, as Gibbs J said in Beckwith v R if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences. (Citations omitted)
(c)On its face the meaning of ‘course’ in s. 8 of the ESOS Act is not ambiguous. The course being delivered is Certificate II in Security Operations. But if there is latent ambiguity inherent, such that providing a different version of the same course could be considered providing a different course, that ambiguity must be resolved in favour in the applicant.
[28] Without adopting its paragraph numbering and omitting citations.
Other Compliance Failures
The Applicant does not challenge the significant series of other failures to comply with its ESOS Act obligations and deals with them by either playing down their significance or contending that they are features of the past.
For example the Applicant deals with what must be taken as an acceptance that it breached s 108 of the ESOS Act (which creates an offence for providing false or misleading information in complying or purporting to comply with s 19 obligations) by entering false CoEs to the PRISMS database and fabricating enrolments in in Certificate IV in Accounting courses, by attempting to play down its significance with the submission:
These historical contraventions were caused by an officer of [the Applicant] who is no longer employed by it. The Tribunal should not infer that the contraventions were any broader than was demonstrated by the evidence. Of the 12 students interviewed, [the Applicant] called only 4 as witnesses. 8 gave no evidence, and at least 7 expressed no concerns about their enrolment in the Accounting course.
The Respondent’s contentions that the Applicant had breached statutory obligations are met with responses to the effect as follows.
(a)[The Applicant] cannot excuse or explain this past conduct. The responsible personnel are no longer working for [the Applicant]. It should not be sanctioned – and its future prospects of compliance should not be judged – against the performance of employees long since departed.
(b)[The] current records management policies and personnel can ensure future administrative compliance.
(c)[The] majority of issues raised are no longer applicable if, as accepted, the only qualification on [the Applicant’s] ESOS registration is Certificate II in Security Operations.
(d)Section 27(1) ESOS Act - Cert II in Security Operations is only for one study period (i.e. less than 6 months) and so is exempt from the operation of s. 27(1). This provision does not apply. Historical breaches should give no basis of a reason to expect future non-compliance where future compliance with this aspect of the Act is not required.
(e)Sections 46B(5) and 46F(2) ESOS Act - It [the default] cannot be rectified, but is unlikely to occur again with the employment of new staff taking on the role of administrative communication with [the Respondent]. [The Respondent] did not identify a single breach of reporting requirements by Sana Zia in the multiple training organisations in which she was employed. [The Respondent] could have led such evidence if it existed.
(f)Section 47C(1) ESOS Act - The time-critical non-compliance can never be made good. All that [the Applicant] can do is to ensure compliance in future, and Ms Zia will do so. Ms Zia’s blemish-free record can give the Tribunal confidence that she will ensure all necessary reporting requirements are met.
(g)Section 109 ESOS Act - Under its revised scope of registration, [the Applicant] will no longer have these reporting requirements, and Ms Zia can be expected to meet necessary reporting requirements.
(h)Section 19 ESOS Act - [The Applicant] will no longer have these reporting requirements, and Ms Zia can be expected to meet necessary reporting requirements. The Tribunal can be satisfied that no like breach will occur in the future.
(i)Section 46B(4) ESOS Act - It [the default] cannot be rectified, but is unlikely to occur again with the employment of new staff taking on the role of administrative communication with [the Respondent].
(j)Sections 46B(4), 46B(5), 46F(2) and 46D(3) ESOS Act - It [the default] cannot be rectified, but is unlikely to occur again with the employment of Ms Zia to take on the role of administrative communication with [the Respondent].
(k)Section 47C(1) ESOS Act - [The Applicant] will no longer have these reporting requirements, and as the administrative personnel responsible have been replaced, the Tribunal can be satisfied that no like breach will occur in the future.
(l)Standard 15 National Code - The allegation is unfounded. Appointment of company directors is governed by governed by Part 2D.3 of the Corporations Act 2001. Appointment as a director is not an indicator of executive responsibility. There is no necessary correlation between directorship and being an executive officer or high managerial agent under the NVR Act or ESOS Act, and the ASIC extract does not – as wrongly asserted by Ms Owen – identify the chief executive officer of Austwide at any time.
(m)The Applicant is the only provider in Australia who is ESOS registered to deliver the CPP20212 Certificate II in Security Operations course. While unnecessary under the Applicant’s primary argument that its registration under the code CPP20211 Certificate II in Security Operations, if it were necessary and were refused:
over a thousand students would have no opportunity to transfer to another institution because there is no alternative. It could hardly be said to ‘promote and enhance Australia’s reputation for quality education and training services’ by expelling over a thousand overseas students from their course without any alternative provider.
The Applicant’s NVR Act Submissions
Significant criticism is levelled at Ms EB to the effect that she has taken a highly technical approach.
In relation to SNR 15.5, the Applicant contends that rote learning is permissible and can be accepted, similar answers in open book exams can be expected and that Ms EB does not understand the field. Further, proposed assessment tools have been approved and it can be safely assumed they will be used once the Tribunal process is complete.
In relation to SNR 20.1 the Applicant identifies areas where there could be debate about whether assessment standards have been met contending that the offences provided for in s 103 and s 107 of the NVR Act have not been established. The Applicant does not address the breaches of the ESOS Act in the context of this standard. It is a Commonwealth law with which it is obliged to comply and with which it accepts it has not.
In relation to SNR 19.1 the Applicant accepts the past conduct cannot be excused. It contends that it cannot be explained and that future performance should not be judged by reference to the performance of employees long since departed.
In relation to SNR 15.4 the Applicant contends that Mr Iqbal’s qualifications and experience have been established and the references to missing qualifications of another person have never been an issue in the proceeding.
In relation to SNR 23.1 the Applicant observes that Ms EB accepts they are minor and can be addressed. In these circumstances the Applicant contends that a condition of registration is appropriate.
That is the extent of the Applicant’s defence of the NVR Act complaints.
Conclusions the Applicant seeks
Generally, [the Applicant] accepts that its employees were responsible for contraventions in the past. There is no evidence that the conduct of employees deposed to in [Ms SB], [Ms RRG] and the automotive students’ evidence was approved by senior management at [the Applicant], or that it has continued since the departure of the individuals responsible. The employees directly responsible are no longer employed by [the Applicant].
As to rectifiable concerns the Applicant contends – Major rectifiable concerns raised by Emma Betts in her NVR Act audit reports have been remedied. Properly qualified and experienced trainers have created a set of assessment tools that Ms Betts agrees is compliant with Training Package requirements and will be implemented when the Tribunal approves [the Applicant’s] continued registration.
The Applicant contends that sanctions have already been imposed, it has reduced its scope to what it is good at and can be expected to comply in the future under the no doubt watchful eye of the Respondent.
THE RESPONDENT’S CONTENTIONS
The Respondent contends that the failures to comply with the NVR Act and its standards and the ESOS Act as detailed in Ms EB’s evidence and Ms KO’s evidence is supported by documentary evidence and other witness evidence before the Tribunal and ought be found by the Tribunal. Further, the Respondent contends that there has been past non-compliance with both Acts, as well as the regulations and instruments made pursuant to them, there is current non-compliance, and the prospect of future non-compliance. The Respondent submits that the Applicant’s failures are such as to warrant the decisions under review being affirmed.
The Respondent’s ESOS Act Submissions
The Respondent disputes the two matters the Applicant advances in defence of claims of current non-compliance with the ESOS Act in the context of the CPP20212 Certificate II in Security Operations course.
ESOS Act Reporting Obligations – overseas student v accepted student – CPP20212 Certificate II in Security Operations
The Respondent contends:[29]
(a)… there is a specific type of student visa which applies to students carrying on a Certificate II course at a provider of vocational education and training in Australia: the subclass 572 (Vocational Education and Training Sector) visa. The criteria for the grant of this visa subclass are set out in clause 572.22 of Schedule 2 to the Migration Regulations 1994 (Cth)….
(b)Accordingly, a student undertaking a Certificate II course who meets the various other requirements of clause 572.22 is eligible for a subclass 572 (Vocational Education and Training Sector) visa. Further, the terms of IMMI 14/015 make it clear that no other student visa subclass would apply to a Certificate I, II, III or IV course offered by a provider of vocational education and training in Australia.
(c)While it is a reasonable inference that many of [the Applicant’s] students come to Australia to study courses other than the Certificate II in Security Operations, there are nevertheless many situations in which such students will still be “required to hold a student visa to undertake or continue” that course. For example, if such students arrive in Australia on a student visa to undertake a course of study elsewhere and decide at the conclusion of their studies to enrol in [the Applicant’s] security course in order to extend their stay in Australia, then those students would ordinarily be expected to apply for a new subclass 572 visa in order to undertake that course.
(d)Similarly, it is a condition of all student visa subclasses (including subclass 572) that while the visa is current the holder must remain enrolled in a registered course and maintain satisfactory course attendance and progress: see Schedule 8 to the Migration Regulations, Condition 8202…. This means that if a student who is undertaking a course of study elsewhere wishes to change courses before their course is finished, or is unable to complete their course because of unsatisfactory course attendance or course progress, then they may enrol in the Certificate II in Security Operations at [the Applicant] in order to continue to satisfy the requirements of Condition 8202.
(e)Accordingly, there are many situations in which [the Applicant] may have reporting obligations in relation to overseas students under ss 19-21 of the ESOS Act. As a practical matter, whether it has those obligations is likely to vary from student to student, depending on that particular student’s visa status and whether their circumstances are such that they are “required to hold a student visa to undertake or continue the course”. It is for this reason that most providers simply create a certificate [Sic] of enrolment (or CoE) for all overseas students enrolled to undertake a course of study at their institution. This also enables them to ensure they comply with their notification obligations in relation to the Tuition Protection Service under Part 5 of the ESOS Act.
(f)By choosing not to adopt such an approach, and instead adopting a policy of not creating certificates of enrolment for any student enrolled in its Certificate II course in Security Operations, regardless of their visa status, [the Applicant] has once again shown itself to be indifferent to its legislative obligations under the ESOS Act and the central role of registered providers in collecting and reporting information relevant to the administration of the law relating to student visas (as set out in the objects of the Act). It is for this reason that [the Respondent] contends that there remains a significant risk that [the Applicant] will continue to be unwilling or unable to comply with its obligations under the ESOS Act in future. (References omitted)
[29] Without adopting its paragraph numbering.
ESOS Act – s 8 – CPP20212 Certificate II in Security Operations.
The Respondent submitted:
[The Applicant] did not enrol students in, or issue qualifications for, the superseded course. It enrolled students in, and issued qualifications for, the current course. The units of competency it taught students were the units of competency specified in the training package for the current course (including the additional first aid unit), not the superseded course. Indeed, that is the very reason it sought registration under the ESOS Act for the current course.
CONSIDERATION
NVR Act registration
Whether it is appropriate to cancel the Applicant’s NVR Act registration under s 39 of that Act calls for consideration of:
(a)the Applicant’s conduct before and after being put on notice by the Respondent that there are compliance concerns with NVR Act obligations, and the extent and likely effect of any rectification;[30]
(b)the seriousness of non-compliance with NVR Act obligations in the context of the objects of the regime, particularly the importance of quality training and assessment and the prospect of effective remedial action and recurrence of the non-compliance;[31] and
(c)other relevant matters, which must have regard to the objects of the Act and scheme which it provides for and include the effect of the decision on the Applicant’s students and Australia’s reputation, both nationally and internationally, as a provider of high quality VET and the related public interests associated with those matters.[32]
[30] NVR Act, s 36(3). See also ReAustralian Academy of Management & Science Pty Ltd and ASQA [2013] AATA 530 at [133].
[31] ReAustralian Academy of Management & Science Pty Ltd and ASQA [2013] AATA 530 at [11] and Re Ivy Education Group Pty Ltd and ASQA [2013] AATA 138 at [100]-[101].
[32] ReAustralian Academy of Management & Science Pty Ltd and ASQA [2013] AATA 530 at [11] and Re Ivy Education Group Pty Ltd and ASQA [2013] AATA 138 at [102]-[103].
ESOS Act questions
Whether it is appropriate to add the course CPP20212 Certificate II in Security Operations to the Applicant’s scope of ESOS Act registration under s 9AG of the ESOS Act requires a risk management approach,[33] a concept related to but not the same as a risk assessment, with its focus on inability to comply with obligations under the ESOS Act.[34] For these purposes, an otherwise able person who is unwilling to comply with obligations, or who refuses to comply with obligations, should be seen as relevantly unable. It would be incongruous for an applicant for registration of a course at a location to be denied registration under s 9AB on grounds that it was unlikely to comply with its obligations under the ESOS Act, as opposed to being unable to comply, while an applicant for an expanded scope of registration who was perfectly able to comply with its obligations but who persistently refused to do so, and who was unlikely to comply, would be entitled to registration of its expanded scope.
[33] ESOS Act, s 9AA(2).
[34] Raffles College Pty Ltd v Tertiary Education Quality Standards Agency (2015) 233 FCR 162, 171 – 172.
Criticism of Ms EB’s evidence
The criticism is unfair in at least three fundamental respects.
The first respect in which the criticism of Ms EB’s work is unfair concerns the approach to regulation of registered providers prescribed under the NVR Act. Section 2A requires the Respondent as regulator under the NVR Act to conduct risk assessments and s 9AA of the ESOS Act requires the Respondent to use a risk management approach when considering whether to make recommendations concerning registration under that Act. It is obvious that a regulator in the position of the Respondent cannot be sitting in the class room for each class and each examination conducted by registered providers. In discharge of its regulatory function, such a regulator needs to look at objectively observable indicators of performance of an organisation against benchmarks, which in this setting include providing evidence based quality training and assessment. In this setting it is appropriate for the Respondent to scrutinise completed examination and assessment tasks, and the documentation associated with them, to form a view as to whether there is risk that the standard of assessment is lacking. Adopting a risk management and assessment approach, the view may be formed that assessors are not performing their tasks properly when students transcribe material from books (admittedly in an open book exam) when asked a question to describe a concept on their own words. Clearly, a defensible, if not correct, conclusion can be reached that the assessors are not examining students’ understanding of the concept in question. Equally, an assessment form that merely ticks that a task has been demonstrated satisfactorily without any notes of what was observed, may lead to a defensible conclusion that there is insufficient evidence of a satisfactory assessment process. The structure of the NVR Act calls for more than a trust me, I’m ok approach. It calls for evidence of compliance with standards that allows an objective observer to come in and relatively quickly form a view as to whether the requisite quality of training and assessment based on that evidence exists in a particular case. Ms EB, and the Respondent, take the view that there was insufficient evidence which, together with other matters, led to the present application. In this case the trust me, I’m ok approach is quite inappropriate for an additional reason: the Applicant’s performance as illustrated by the proposed assessment tools it has formulated shows that that approach cannot be relied on. In its submissions the Applicant has admitted that Ms EB has approved the form of the proposed assessment tools to be used. They have not yet been implemented. It can be safely assumed that having gone to the trouble of improving their assessment tools, they will be used once the Tribunal process is complete. Two matters arise: first the Applicant has accepted that change was necessary and second, the Applicant has demonstrated an unwillingness to correct its ways. An applicant serious about showing it can be expected to comply with the standards required of it would implement the revised arrangements at the earliest opportunity. This Applicant failed to do so.
Refusal of registration and cancellation of existing registrations are sanctions at the higher end of the spectrum and ought be reserved for the more serious cases. In this case such a sanction is appropriate. The unexplained failures of the past go to the heart of the systems sought to be regulated by the legislative packages of which the NVR Act and the ESOS Act are a part. The shortcomings involved latent dishonesty in a deliberate attempt to frustrate Australia’s immigration control systems, and were at least in part to protect self-interest. The Applicant’s actions compromised immigration regulatory systems, and they compromised the integrity of Australian VET systems through inadequate assessment practices, falsifying its trainer/assessor credentials and falsifying trainer/assessor existence. It is difficult to see how such a person could be allowed to continue its registrations without fulsome explanations of why these things happened, who was responsible, who was in control of the organisation at the time, and where those people are now and the steps taken to ensure that there will not be repeat occurrences.
Rather than lead evidence that would explain the shortcomings, or lead credible evidence of the inability to do so and credible evidence of intentions for the future, the Tribunal received assurances that rose little, if at all, higher than urgings from the bar table that the dead limbs have been cut away and the rest of the tree is good, and that the Applicant is are now sticking to the one thing it is good at. Neither the Respondent not the Tribunal knows whether those responsible for very serious breaches of the NVR Act and ESOA Act requirements are not still in control of the company.
The Applicant’s failings in its record management and compliance with immigration systems, with which its operations are integrated, are organisational failings. They are not course specific failings as might be the case had the insufficiency of equipment for the Security Operations course been the only issue raised by the Respondent. The failures in relation to fabricating both student and teaching staff records are at the core of the Applicant’s training operations and are not explained.
There is continuing non-compliance with both the NVR and ESOS Acts which the Applicant refuses to acknowledge. The Applicant's assessment procedures fail to meet adequacy and quality standards required and the Applicant refuses to acknowledge or accept this. It is apparent that the Applicant is prepared to mislead the Respondent submitting assessment materials to the Respondent as part of its review processes, with the implication that they are currently in use, when they are not. It is apparent that the Applicant is happy to lead misleading evidence of a basis for not updating PRISMS that it relied on for not doing so when that basis was advice it had received during the course of preparation for the hearing and was not relied on at the time of its actions that are under review. The Applicant also continues to offer a course for which it is not registered and does not acknowledge that it is not entitled to do so.
When coupled with past non-compliance, which is unexplained beyond the proposition that the people involved are no longer employed, on a risk management or risk assessment basis, there is more than adequate evidence to conclude that the Applicant will not comply, or will be unable to comply, with its obligations under the ESOS and NVR Acts.
This matter is not a parallel with Re G Plus G Global Trading Pty Ltd and Australian Skills Quality Authority. Even if the test articulated there is accepted, a most generous position to take for the Applicant in the present case, and one with which it cannot complain, there is not sufficient to create an inclination to accept there will be compliance with relevant obligations in the future and there is every reason to believe there will not be. Here there has not been the significant work … undertaken in an attempt to satisfy all of the issues raised by the non-compliance report.
Part of the Applicant's case is that it is the only provider in the course CPP Certificate II in Security Operations and if it loses its registration, affected interests, presumably potential students, the VET sector and consumers of services of certificate holders, will suffer and that should weigh in the Applicant's favour.
In a marginal case the fact that the Applicant is the only provider in the course CPP20212 Certificate II in Security Operations might be more powerful in shaping the outcome. This is not such a case. The inconvenience to current students in a short course can be ameliorated by a short stay of effect of a cancellation and if there is a demand for the course and for its graduates in the longer term, space will be available for a registered provider willing and able to comply with relevant laws to service the demand.
DECISION
The decisions under review are affirmed.
The Applicant and Respondent are directed to make submissions as to when this decision ought take effect.
I certify that the preceding 128 (one hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of
F D O'Loughlin, Senior Member...............[sgd]....................................
Associate
Dated 28 April 2016
Dates of hearing 10, 13, 14, 17, 18 August 2015 Date final submissions received 28 August 2015 Counsel for the Applicant Travis Mitchell Solicitor for the Applicant Philip Mansour Counsel for the Respondent Stephen Rebikoff Solicitor for the Respondent John Pritchard Annexure
National Vocational Education and Training Regulator Act 2011
Standards for NVR Registered Training Organisations 2012 and Standards for Registered Training Organisations 2015 counterparts
Standards for NVR Registered Training Organisations 2012
Standards for Registered Training Organisations (RTOs) 2015
SNR 15.3
SNR 15 The NVR registered training organisation provides quality training and assessment across all of its operations, as follows:
15.3 Staff, facilities, equipment and training and assessment materials used by the NVR registered training organisation are consistent with the requirements of the Training Package or VET accredited course and the NVR registered training organisation’s own training and assessment strategies and are developed through effective consultation with industry.
Standard 1 in conjunction with para’s 1.3 and 1.4
Standard 1 The RTO’s training and assessment strategies and practices are responsive to industry and learner needs and meet the requirements of training packages and VET accredited courses
To be compliant with Standard 1 the RTO must meet the following:
1.3. The RTO has, for all of its scope of registration, and consistent with its training and assessment strategies, sufficient:
a) trainers and assessors to deliver the training and assessment;
b) educational and support services to meet the needs of the learner cohort/s undertaking the training and assessment;
c) learning resources to enable learners to meet the requirements for each unit of competency, and which are accessible to the learner regardless of location or mode of delivery; and
d) facilities, whether physical or virtual, and equipment to accommodate and support the number of learners undertaking the training and assessment.
1.4. The RTO meets all requirements specified in the relevant training package or VET accredited course.
SNR 15.4
SNR 15 The NVR registered training organisation provides quality training and assessment across all of its operations, as follows:
15.4 Training and assessment is delivered by trainers and assessors who:
(a) have the necessary training and assessment competencies as determined by the National Skills Standards Council or its successors; and
(b) have the relevant vocational competencies at least to the level being delivered or assessed; and
(c) can demonstrate current industry skills directly relevant to the training/assessment being undertaken; and
(d) continue to develop their vocational education and training (VET) knowledge and skills as well as their industry currency and trainer/assessor competence.
Standard 1 in conjunction with para’s 1.13 and 1.16
Standard 1. The RTO’s training and assessment strategies and practices are responsive to industry and learner needs and meet the requirements of training packages and VET accredited courses
To be compliant with Standard 1 the RTO must meet the following:
Trainers and assessors
1.13. In addition to the requirements specified in Clause 1.14 and Clause 1.15, the RTO’s training and assessment is delivered only by persons who have:
a) vocational competencies at least to the level being delivered and assessed;
b) current industry skills directly relevant to the training and assessment being provided; and
c) current knowledge and skills in vocational training and learning that informs their training and assessment.
Industry experts may also be involved in the assessment judgement, working alongside the trainer and/or assessor to conduct the assessment.
1.16. The RTO ensures that all trainers and assessors undertake professional development in the fields of the knowledge and practice of vocational training, learning and assessment including competency based training and assessment.
SNR 15.5
SNR 15 The NVR registered training organisation provides quality training and assessment across all of its operations, as follows:
15.5 Assessment including Recognition of Prior Learning (RPL):
(a) meets the requirements of the relevant Training Package or VET accredited course; and
(b) is conducted in accordance with the principles of assessment and the rules of evidence; and
(c) meets workplace and, where relevant, regulatory requirements; and
(d) is systematically validated.
Standard 1 in conjunction with para 1.8
Standard 1. The RTO’s training and assessment strategies and practices are responsive to industry and learner needs and meet the requirements of training packages and VET accredited courses
To be compliant with Standard 1 the RTO must meet the following:
Assessment
1.8. The RTO implements an assessment system that ensures that assessment (including recognition of prior learning):
a) complies with the assessment requirements of the relevant training package or VET accredited course; and
b) is conducted in accordance with the Principles of Assessment contained in Table 1.8-1 and the Rules of Evidence contained in Table 1.8-2.
Table 1.8-1: Principles of Assessment
Fairness
The individual learner’s needs are considered in the assessment process.
Where appropriate, reasonable adjustments are applied by the RTO to take into account the individual learner’s needs.
The RTO informs the learner about the assessment process, and provides the learner with the opportunity to challenge the result of the assessment and be reassessed if necessary.
Flexibility
Assessment is flexible to the individual learner by:
· reflecting the learner’s needs;
· assessing competencies held by the learner no matter how or where they have been acquired; and
· drawing from a range of assessment methods and using those that are appropriate to the context, the unit of competency and associated assessment requirements, and the individual.
Validity
Any assessment decision of the RTO is justified, based on the evidence of performance of the individual learner.
Validity requires:
· assessment against the unit/s of competency and the associated assessment requirements covers the broad range of skills and knowledge that are essential to competent performance;
· assessment of knowledge and skills is integrated with their practical application;
· assessment to be based on evidence that demonstrates that a learner could demonstrate these skills and knowledge in other similar situations; and
· judgement of competence is based on evidence of learner performance that is aligned to the unit/s of competency and associated assessment requirements.
Reliability
Evidence presented for assessment is consistently interpreted and assessment results are comparable irrespective of the assessor conducting the assessment.
Table 1.8-2: Rules of Evidence
Validity
The assessor is assured that the learner has the skills, knowledge and attributes as described in the module or unit of competency and associated assessment requirements.
Sufficiency
The assessor is assured that the quality, quantity and relevance of the assessment evidence enables a judgement to be made of a learner’s competency.
Authenticity
The assessor is assured that the evidence presented for assessment is the learner’s own work.
Currency
The assessor is assured that the assessment evidence demonstrates current competency. This requires the assessment evidence to be from the present or the very recent past.
SNR 16.6
SNR 16 The NVR registered training organisation adheres to principles of access and equity and maximises outcome for its clients, as follows:
16.6 Learners have timely access to current and accurate records of their participation and progress.
Standard 3 in conjunction with para 3.1
Standard 3. The RTO issues, maintains and accepts AQF certification documentation in accordance with these Standards and provides access to learner records.
To be compliant with Standard 3 the RTO must meet the following:
3.1. The RTO issues AQF certification documentation only to a learner whom it has assessed as meeting the requirements of the training product as specified in the relevant training package or VET accredited course.
SNR 17.4
SNR 17 Management systems are responsive to the needs of clients, staff and stakeholders, and the environment in which the NVR registered training organisation operates, as follows:
17.4 The NVR registered training organisation manages records to ensure their accuracy and integrity.
Standard 2 in conjunction with para 2.2(a)
and
Standard 3 in conjunction with para 3.1
Standard 2. The operations of the RTO are quality assured.
To be compliant with Standard 2 the RTO must meet the following:
2.2. The RTO:
a) systematically monitors the RTO’s training and assessment strategies and practices to ensure ongoing compliance with Standard 1; and
Standard 3 in conjunction with para 3.1 is extracted for SNR 16.6 above
SNR 18.1
SNR 18 The NVR registered training organisation has governance arrangements in place as follows:
18.1 The NVR registered training organisation’s Chief Executive must ensure that the NVR registered training organisation complies with the VET Quality Framework. This applies to all of the operations within the NVR registered training organisation’s scope of registration, as listed on the National Register.
Standard 2 in conjunction with para 2.1
Standard 2. The operations of the RTO are quality assured.
To be compliant with Standard 2 the RTO must meet the following:
2.1. The RTO ensures it complies with these Standards at all times, including where services are being delivered on its behalf. This applies to all operations of an RTO within its scope of registration.
SNR 19.1
SNR 19 Interactions with the National VET Regulator
19.1 The NVR registered training organisation must co-operate with the National VET Regulator:
(a) in the conduct of audits and the monitoring of its operations;
(b) by providing accurate and timely data relevant to measures of its performance;
(c) by providing information about significant changes to its operations;
(d) by providing information about significant changes to its ownership; and
(e) in the retention, archiving, retrieval and transfer of records consistent with the National VET Regulator's requirements.
Standard 8 in conjunction with para 8.1
Standard 8. The RTO cooperates with the VET Regulator and is legally compliant at all times
To be compliant with Standard 8 the RTO must meet the following:
8.1. The RTO cooperates with the VET Regulator:
a) by providing accurate and truthful responses to information requests from the VET Regulator relevant to the RTO’s registration;
b) in the conduct of audits and the monitoring of its operations;
c) by providing quality/performance indicator data;
d) by providing information about substantial changes to its operations or any event that would significantly affect the RTO’s ability to comply with these standards within 90 calendar days of the change occurring;
e) by providing information about significant changes to its ownership within 90 calendar days of the change occurring; and
f) in the retention, archiving, retrieval and transfer of records.
SNR 20.1
SNR 20 Compliance with legislation
20.1 The NVR registered training organisation must comply with relevant Commonwealth, State or Territory legislation and regulatory requirements relevant to its operations and its scope of registration.
Standard 8 in conjunction with para 8.5
Standard 8. The RTO cooperates with the VET Regulator and is legally compliant at all times
To be compliant with Standard 8 the RTO must meet the following:
8.5. The RTO complies with Commonwealth, State and Territory legislation and regulatory requirements relevant to its operations.
SNR 23.1
SNR 23 Certification, issuing and recognition of qualifications & statements of attainment
23.1 The NVR registered training organisation must issue to persons whom it has assessed as competent in accordance with the requirements of the Training Package or VET accredited course, a VET qualification or VET statement of attainment (as appropriate) that:
(a) meets the Australian Qualifications Framework (AQF) requirements;
(b) identifies the NVR registered training organisation by its national provider number from the National Register and
(c) includes the NRT logo in accordance with current conditions of use.
Standard 3 in conjunction with para 3.2
and
Standard 4 in conjunction with para 4.1
Standard 3. The RTO issues, maintains and accepts AQF certification documentation in accordance with these Standards and provides access to learner records.
To be compliant with Standard 3 the RTO must meet the following:
3.2. All AQF certification documentation issued by an RTO meets the requirements of Schedule 5.
Standard 4. Accurate and accessible information about an RTO, its services and performance is available to inform prospective and current learners and clients.
To be compliant with Standard 4 the RTO must meet the following:
4.1. Information, whether disseminated directly by the RTO or on its behalf, is both accurate and factual, and:
a) accurately represents the services it provides and the training products on its scope of registration;
b) includes its RTO Code;
c) refers to another person or organisation in its marketing material only if the consent of that person or organisation has been obtained;
d) uses the NRT Logo only in accordance with the conditions of use specified in Schedule 4;
e) makes clear where a third party is recruiting prospective learners for the RTO on its behalf;
f) distinguishes where it is delivering training and assessment on behalf of another RTO or where training and assessment is being delivered on its behalf by a third party;
g) distinguishes between nationally recognised training and assessment leading to the issuance of AQF certification documentation from any other training or assessment delivered by the RTO;
h) includes the code and title of any training product, as published on the National Register, referred to in that information;
i) only advertises or markets a non-current training product while it remains on the RTO’s scope of registration;
j) only advertises or markets that a training product it delivers will enable learners to obtain a licensed or regulated outcome where this has been confirmed by the industry regulator in the jurisdiction in which it is being advertised;
k) includes details about any VET FEE-HELP, government funded subsidy or other financial support arrangements associated with the RTO’s provision of training and assessment; and
l) does not guarantee that:
i) a learner will successfully complete a training product on its scope of registration; or
ii) a training product can be completed in a manner which does not meet the requirements of Clause 1.1 and 1.2; or
iii) a learner will obtain a particular employment outcome where this is outside the control of the RTO.
Schedule 5
Application of the AQF Qualifications Issuance Policy within the VET Sector
RTOs must meet the requirements of the AQF for issuing AQF qualifications and statements of attainment, in addition to the following requirements.
Issuing AQF Qualifications
1. RTOs must include the following information on the testamur, in addition to the requirements of the AQF Qualifications Issuance Policy:
a) the name, RTO code and logo of the issuing organisation;
b) the code and title of the awarded AQF qualification; and
c) the NRT Logo in accordance with the current conditions of use contained in Schedule 4.
2. The following elements are to be included on the testamur as applicable:
a) the State / Territory Training Authority logo (only where use of the logo is directed by State / Territory Training Authorities, e.g. within User Choice contracts);
b) the industry descriptor, e.g. Engineering;
c) the occupational or functional stream, in brackets, e.g. (Fabrication);
d) where relevant, the words, ‘achieved through Australian Apprenticeship arrangements’; and
e) where relevant, the words, ‘these units/modules have been delivered and assessed in <insert language> followed by a listing of the relevant units/modules.
3. RTOs must not include the learner’s Student Identifier on the testamur consistent with the Student Identifiers Act 2014.
4. RTOs will:
f) retain registers of AQF qualifications they are authorised to issue and of all AQF qualifications issued;
g) retain records of AQF certification documentation issued for a period of 30 years; and
h) provide reports of Records of qualifications issued to its VET Regulator on a regular basis as determined by the VET Regulator.
Issuing Statements of Attainment
5. RTOs must include the following information on a statement of attainment:
a) the name, RTO Code and logo of the issuing organisation;
b) a list of units of competency (or modules where no units of competency exist) showing their full title and the national code for each unit of competency;
c) the authorised signatory;
d) the NRT Logo;
e) the issuing organisation’s seal, corporate identifier or unique watermark;
f) the words ‘A statement of attainment is issued by a Registered Training Organisation when an individual has completed one or more accredited units’;
6. The following elements are to be included on the statement of attainment as applicable:
a) the State/Territory Training Authority logo (only where use of the logo is directed by State/ Territory Training Authorities);
b) the words ‘These competencies form part of [code and title of qualification(s)/course(s)]’;
c) the words, ‘These competencies were attained in completion of [code] course in [full title]’; and
d) where relevant, the words, ‘these units / modules have been delivered and assessed in <insert language>’ followed by a listing of the relevant units/modules.
7. RTOs must not include the learner’s Student Identifier on the statement of attainment consistent with the Student Identifiers Act 2014.
8. RTOs will:
a) maintain registers of all statements of attainments issued;
b) retain records of statements of attainment issued for a period of 30 years; and
c) provide reports of its records of statements of attainment issued to its VET Regulator on a regular basis, as determined by the VET Regulator.
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