Re Trades College Australia Pty Ltd and Australian Skills Quality Authority
[2018] AATA 1360
•24 May 2018
Trades College Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 1360 (24 May 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1994
Re:Trades College Australia Pty Ltd
APPLICANT
AndAustralian Skills Quality Authority
RESPONDENT
DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:24 May 2018
Place:Melbourne
The Tribunal refuses to stay the decision to cancel the Applicant’s registration as a registered training organisation and the decision to refuse to renew the registration of the Applicant as an RTO pursuant to ss 31 and 39 of the National Vocational Training Regulator Act 2011.
[sgd]........................................................................
Mr A. Maryniak QC, Member
PRACTICE AND PROCEDURE – stay application – Applicant’s registration cancelled under National Vocational Education and Training Regulator Act 2011 and renewal of registration as an RTO refused– consideration of factors as to whether stay should be granted – public interest – financial circumstances of Applicant – whether application rendered nugatory if stay not granted – stay applications refused
Legislation
Administrative Appeals Tribunal Act 1975
National Vocational Training Regulator Act 2011
Cases
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
Re Anthony Scott and Australian Securities and investment Commission (2009) 51 AAR 114
Re Australian Institute of Technical Training Pty Ltd and Minister for Education and Training [2018] AATA 1281
Re Gurkhas Institute of Technology v Australian Skills Quality Authority [2017] AATA 1018
Re Sher-E. Punjab Pty Ltd v Australian Skill Quality Authority [2018] AATA 46
Secondary Materials
Standards for Registered Training Organisations (RTOs) 2015
REASONS FOR DECISION
Mr. A. Maryniak QC, Member
24 May 2018
Trades College Australia Pty Ltd (the Applicant) is a registered training organisation (RTO) under the National Vocational Training Regulator Act 2011 (NVR Act). It has been registered since 30 October 2012. Its focus is upon the training and assessment of 24 trade qualifications, including electrical and plumbing qualifications.
Subsequent to an audit by the Australian Skills Quality Authority (the Respondent), the Respondent cancelled the Applicant’s registration as a registered training organisation pursuant to s 39 of the NVR Act and refused to renew the registration of the Applicant as an RTO pursuant to s 31 of the NVR Act.
Pending the Tribunal’s determination of the Application to review each decision, the Applicant seeks a stay of both decisions.
The Tribunal refuses to stay both decisions for the reasons set out below.
The evidence considered by the Tribunal comprised of:
·the affidavit of the Applicant’s Chief Executive Officer, Mr Rabih Chamma sworn 18 May 2018;
·the affidavit of Ms Jane Ellen Connors affirmed 16 May 2018; and
·the Respondent’s Bundle (save that the Tribunal did not take into account the following evidence because the Applicant submitted it was not in a position to properly respond to it- the witness statement of Tom van der Werff dated 17 June 2017 and the witness statement of Peter Ellevsen dated 20 June 2017).
In 2016 the Applicant was previously found to be non-compliant with the Standards for Registered Training Organisations (RTOs) 2015 (“Standards”), which are enabled under s 185 of the NVR Act; see also s 22(1). At that time the Applicant undertook to implement changes and remediation to ensure compliance.[1]
[1] Affidavit of Jane Ellen Connors dated16 May 2018, paragraph 21.
For present purposes, the Applicant has failed to comply with Clauses 1.8, 3.1, 3.3, 3.4 and 8.1 of the Standards. The Applicant currently appears to have difficulties in demonstrating it has the capacity to achieve sufficient remedial action to address the non compliance.[2]
[2] Connors, paragraph 26.
The Applicant’s CEO has some history indicating a disregard for the law,[3] has apparently recently threatened a student with violence[4] and provided false or misleading information to the Respondent.[5]
[3] NSW Criminal record of Mr Chamma, part of Respondent’s Bundle.
[4] Respondent’s bundle, electronic file lodged with the Tribunal on 17 May 2018
[5] Connors, paragraphs 26.2 and 31.
There is also current evidence of the Applicant’s poor practice in supporting its students and providing quality education in the most recent complaint of 9 March 2018:[6]
“I have approached this RTO provider to complete my Cert 3 in painting and decorating through RPL after endless stuff ups by them telling me my cert was in the mail after the online assessment then asking to do one more module costing $300 more. Then the assessor rings me personal (sic) to apologise and tells me to send a few picks of me painting after already providing evidence and references including a stat dec. There is no customer service or any service towards there student that are interstate and off campus. I have talk to several customer that have had the same problem with this organisation including many bad reviews online.”
[6] Respondent’s Bundle, pp 54-57.
Hence, the applicant appears to be in breach of clause 7.1 of the Standards too.
The Applicant bears the onus of self-regulation under the Standards, it being under legislative obligations to have systems and processes in place to ensure that it complies with the Standards at all times, as required by the NVR Act.
THE TRIBUNAL’S STAY POWER
Section 41(2) of the Administrative Appeals Tribunal Act 1975 (The AAT Act) provides:
“The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
As the Federal Court in Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130 (Moore, Downes and Jagot JJ) said at 143, when dealing with the decision to ban a person from providing financial services:
“The nature of the decision under review will affect the identification of the “interests of any person who may be affected by the review”. Accordingly, those interests are to be identified by reference to the statutory scheme under which the decision under review was made.”
Division 3 of Part 2 of the NVR Act deals with ensuring compliance with the VET Quality Framework and Subdivision A is particularly concerned with audits. Section 35 of the NVR Act provides that ASQA may, at any time, conduct a compliance audit of a NVR registered training organisation’s operations to assess whether the organisation continues to comply with the NVR Act or the VET Quality Framework. It also provides that ASQA may review or examine any aspect of an NVR registered training organisation’s operations to determine any systemic issues relating to the quality of vocational education and training.
The often cited decision of Downes J (President of the Tribunal as he then was) in Re Anthony Scott and Australian Securities and Investment Commission (2009) 51 AAR 114 sets out a range of matters to be considered which assist the Tribunal in exercising its s 41(2) discretion. Such considerations are not finite nor a compulsory checklist limiting the exercise of the discretion.
PROSPECTS OF SUCCESS
There was some tension between the parties as to the weight the Tribunal should place upon the Applicant’s prospects of success. The Tribunal made it clear to the parties that it was not necessary to conduct a ‘mini trial’ of the Application for the purposes of considering a Stay Application.
The Tribunal finds that prospects of success is a very real and necessary consideration in applying the Stay discretion. In Re Gurkhas Institute of Technology v Australian Skills Quality Authority [2017] AATA 1018 Senior Member Fice made observations which are apposite here:
“[28]In my opinion, determining the prospects of success is an important element when considering whether a stay should be granted. If there are no prospects of success or very limited prospects of success, it would rarely be appropriate to grant a stay. To do so in those circumstances would result in a waste of time and money for all concerned.
[29]I am acutely aware that it is not my role in this type of preliminary hearing to undertake a full consideration of the merits of RGIT’s application. I am required to consider whether there are facts and circumstances which, if established at the substantial hearing, would provide a basis for success on the substantive application, or whether there are point of law raised which, if sustained, would lead to that conclusion.”
Any inquiry into prospects of success has limitations because the relevant date to finally assess such evidence as to compliance or otherwise is in the future. The facts are ‘fluid’ at present, and the Tribunal must make an assessment based upon the evidence before it.
In the circumstances of a Stay Application one would expect a party to put their ‘best foot forward’ by way of evidence to show that they were well on the way to substantial compliance with the Standards.
The evidence of the Applicant does not show that the non-compliances have now been addressed despite the Applicant having been on notice of the majority of them since 11 April 2016. The Applicant’s evidence is of a general nature and simply lacks specific detail as to any significant meaningful attempts at rectifying the non-compliances.
On the basis of the current state of the evidence the Tribunal finds that the Applicant’s prospects of success at final hearing are not good. After considering all the evidence the Tribunal finds that, despite having a clear opportunity to do so, the Applicant has failed to adequately explain how to date its internal systems to ensure compliance have failed, nor has it successfully managed to explain how it will ensure any future repeat non-compliance,[7] against a background of admitted non-compliance.
[7] Connors, paragraphs 27-30; Chamma affidavit.
CONSEQUENCES IF STAY IS REFUSED
The Applicant contends and the Tribunal accepts that it will be financially harmed if the stay is not granted. The Applicant further contends that the review proceedings may be rendered nugatory if no stay is granted, that it has or will address all the non-compliances by final hearing and that the matter can be brought on quickly by August 2018. However, the Applicant also accepts that ‘some weighty counterbalancing factor’[8] can exist, so far as s 41 is concerned and the Tribunal finds that such a factor exists here, that factor being the public interest.
[8] Applicant’s submissions, paragraph 11.
Any financial harm to the Applicant will be limited if the matter is listed within the coming months. In any event, on a worst case scenario, the Applicant could re-commence its operations if it is successful at hearing.
PUBLIC INTEREST
Against the Applicant’s interests the Tribunal must take “into account the interests of any persons who may be affected by the review”. Mr Mitchell, Counsel for the Applicant, properly accepted that the public interest is a consideration.
The Tribunal notes the discussion of Member Parker in Re Sher-E. Punjab Pty Ltd v Australian Skill Quality Authority [2018] AATA 46 at [109] to [104] and [106] to [108] and adopts the principles set out.
After considering the Evidence Analysis audit report, the documents comprising the Respondent’s bundle (save for the excluded material) and the Connors affidavit, the Tribunal finds that the Applicant poses a real and continuing risk to its students and future students, clients of the ‘qualified’ students who may be affected by defects in the qualifications of the students (for example, electrician and plumber graduates) and the reputation of a major export industry in Australia, being the VET education sector. It is important that the students be protected and that the integrity of accredited training and assessment in Australia be guarded.
The Tribunal finds that the Australian public and the students are entitled to the protection of the Respondent’s decision, pending review by this Tribunal.
In the recent decision on a stay application of Re Australian Institute of Technical Training Pty Ltd and Minister for Education and Training [2018] AATA 1281, Senior Member Cameron set out at [57]:
“…
One of the critical objects of this legislation is to ensure that existing and future students are not at risk of paying money and not obtaining the results that they have paid for. Consumer protection I so far as it is applicable under these statutes is of critical importance.”
The Tribunal finds that the public interest in the circumstances of the matter outweigh the interests of the Applicant and its employees. There is a long history of non-compliances which the public should be protected from, pending hearing of the substantive Application for review.
30. I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member
[sgd].................................................................
Associate
Dated: 24 May 2018
Date of stay hearing: 18 May 2018 Counsel for the Applicant: Mr Travis Mitchell Solicitors for the Respondent: Mr Peter Doukas, Denison Toyer Advocate for the Respondent: Mr Damian Cox
6
4
0