Re Gurkhas Institute of Technology Pty Ltd trading as Royal Gurkhas Institute of Technology and Australian Skills Quality Authority

This decision concerns an application for a stay of decisions made by the Australian Skills Quality Authority (ASQA) to cancel the registration of Re Gurkhas Institute of Technology Pty Ltd, trading as Royal Gurkhas Institute of Technology (RGIT), under the National Vocational Education and Training Regulator Act 2011 (NVR Act) and the Education Services for Overseas Students Act 2000 (ESOS Act). The application was heard by Senior Member Egon Fice of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether to grant a stay of ASQA's cancellation decisions pending the final determination of RGIT's substantive application for review. This involved assessing the potential prejudice to RGIT and its enrolled students if the stay were refused, as well as considering any adverse public interest considerations or prejudice to ASQA if the stay were granted. The Tribunal was required to determine if RGIT had prospects of success in its substantive application and whether the refusal of a stay would render any potential success nugatory.

The Tribunal reasoned that granting a stay was the preferable course of action. It found that RGIT had prospects of success, particularly concerning its available facilities, which, if substantiated, could lead to a favourable outcome. The Tribunal was concerned about the serious detrimental consequences for RGIT and its enrolled students if a stay were refused, including potential time delays, additional expenses for students, and significant financial repercussions for RGIT, potentially rendering its business non-viable. Conversely, the Tribunal found no adverse consequences for ASQA and no public interest considerations that would be affected by granting the stay. The Tribunal concluded that refusing the stay could render any success RGIT might achieve on the merits nugatory, thereby undermining the purpose of merits review.

Accordingly, the Tribunal made an order staying the operation and implementation of ASQA’s decisions to cancel the registration of RGIT under the NVR Act and the ESOS Act until the final determination of the substantive application. The Tribunal also set out a timetable for the parties to lodge and serve further evidence and submissions, with a view to a substantive hearing in October of that year.