Real Training Outcomes and Australian Skills Quality Authority

[2018] AATA 4611

Real Training Outcomes and Australian Skills Quality Authority [2018] AATA 4611 (18 December 2018)

Division:GENERAL DIVISION

File Number(s):      2018/6645

Re:Real Training Outcomes

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:18 December 2018

Place:Sydney

The Tribunal orders that:

(1)pursuant to subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the decision of the respondent made on 24 October 2018 not to determine a shorter period for making an application for renewal of registration as an NVR registered training organisation is stayed until further order of the Tribunal or conclusion of the substantive proceedings; and

(2)pursuant to subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), order (1) is subject to the condition that the applicant shall not enrol any new students.

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Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – application to stay decision of Australian Skills Quality Authority – registered training organisation – decision not to determine shorter period for making an application for renewal of registration – effect of granting a stay –consequences for applicant if stay refused – public interest – lack of evidence about compliance issues – stay application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 41

National Vocational Education and Training Regulator Act 2011 (Cth) ss 31, 199, 203

CASES

Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114

SECONDARY MATERIALS

Standards for Registered Training Organisations (RTOs) 2015

REASONS FOR DECISION

Senior Member A Poljak

18 December 2018

1. Real Training Outcomes, the applicant, is a registered training organisation with the Australian Skills Quality Authority (ASQA). The applicant was first registered with ASQA on 22 December 2013 for a period of five years and the applicant’s registration expires on 21 December 2018.

2. Pursuant to section 31 of the National Vocational Education and Training Regulator Act 2011 (Cth) (the NVR Act), the applicant was required, but failed, to apply for renewal of its registration with ASQA by 22 September 2018; being 90 days before the applicant’s registration expires. On 4 October 2018, the applicant requested ASQA to determine a shorter period for making an application for renewal of registration as an NVR registered training organisation. This request was refused on 24 October 2018 under section 31(1)(b) of the NVR Act (the decision under review) and is the subject of a review application in this Tribunal (substantive proceedings). ASQA’s decision to not allow a shorter period for making an application for renewal of registration as an NVR registered training organisation is a reviewable decision by virtue of item 6 of section 199 and section 203 of the NVR Act.

3. In these proceedings, the applicant seeks a stay of the decision under review. Section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides:

   “The Tribunal may, on request being made by a party to the proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review”.

4. I accept that the matters outlined by a former President of the Tribunal, Downes J, in Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114 are relevant matters that will usually arise when considering an application under section 41(2). They include:

   “… In considering the application, it is appropriate for me to consider a range of matters, including:

   1.  The prospects of success.

   2.  The consequence for the applicant of the refusal of a stay.

   3.  The public interest.

   4. The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.

   5. Whether the application for review would be rendered nugatory if a stay were not granted.

   6. Other matters that are relevant, amongst which I would include the length of time that the ban has already been in place and the gap between today and the hearing of the application”.

5. The authorities establish that a consideration of the prospects of success of an application and so the merits of the substantive application must not involve the Tribunal undertaking a full consideration of those merits. 

   Consideration

6. ASQA contends that having regard to the evidence, and the need to balance interests of the applicant against the interests of students, the public, and other participants in the vocational education and training industry, it is appropriate to oppose the applicant’s application for a stay of the decision under review. In this regard, ASQA principally relies on the applicant’s prospects of success, the public interest and the consequences on the respondent in carrying out its functions.

7. At the commencement of the hearing, there was much discussion about the effect of granting a stay in these proceedings. It was confirmed by both parties that the applicant was unable to file an application for review on the ‘online portal’ because when the applicant came to file its application, it was less than 90 days before the applicant’s registration expired. The applicant was effectively ‘locked out’ of filing a renewal application and was only able to request a shorter period of time for making an application for renewal. ASQA advised at hearing that the effect of granting a stay in the circumstances of this case would enable the applicant to file an application for renewal. ASQA advised that they would make the necessary adjustments to the ‘online portal’ to allow this to occur. As a result, pursuant to section 31(3) of the NVR Act, the applicant’s registration would then continue until the applicant’s application for renewal is decided. This would ensure that the substantive proceedings could proceed in the usual course. Based on the final outcome; ASQA will then decide whether or not to accept the applicant’s renewal application. In other words, if a stay is granted, the applicant will be able to file an application for renewal and preserve its registration with ASQA until the conclusion of the substantive proceedings. On the other hand, if a stay is refused, the applicant’s registration will expire on 21 December 2018. In this regard, I note that if the stay is not granted, the substantive application for review would be rendered nugatory.

8. The applicant contends that the effect of refusing the stay would have significant and detrimental consequences for the applicant. It would be unable to file an application for renewal and accordingly, its registration would expire on 21 December 2018. The applicant has not provided any evidence of the direct financial impact this could have on the applicant but I can assume that if the applicant lost its registration and had to cease its operations entirely, this would likely have some financial implications for the applicant.  

9. The respondent contends that the applicant’s inability to comply with the most fundamental of administrative and legislative requirements incumbent on an NVR registered training organisation, does not bode well for its future ability to comply with ongoing obligations for compliance with the national Standards for Registered Training Organisations (RTOs) 2015, under clause 2.1 of those standards. I reject this submission. At hearing and in written submissions, some questions are raised about the applicant’s compliance with administrative and legislative requirements. However, I note that other than the post initial audit carried out on the applicant on 15 November 2016, no further investigation into the applicant’s conduct has been undertaken. I also note that the questions about the applicant’s previous compliance in regards to the notification of student enrolments occurred when the applicant was under different ownership. On 5 July 2017, ownership of the applicant changed when the original owner sold his shares to the current owner. Other than the applicant’s failure to file an application for renewal on time, there is no evidence before me to substantiate findings about the applicant’s current compliance with legislative requirements.

10. In regards to the public interest, ASQA contends that the imposition of a stay could create a situation where students enrol with the applicant when there is a real possibility they may have to cease part way through a course if the applicant is ultimately unsuccessful in the substantive proceedings. ASQA also contends that this may have some reputational effect and weaken the regulatory system. These are real concerns however they can be ameliorated by the addition of conditions on the stay order.

11. At hearing, the applicant rightly conceded that it was tardy in filing its renewal application on time. I note that the applicant has provided a medical certificate to cover a period of time as an explanation for the delay; however it does not explain the entirety of the delay. This does weigh against the granting of the stay, however I find that it is outweighed by the significant consequences for the applicant if a stay is not granted, and the paucity of evidence about any compliance issues and the addition of appropriate conditions on the stay order to ameliorate any concerns raised by ASQA.

    Decision

12. For all of the above reasons, the stay application is granted with a condition that the applicant does not enrol any new students until further order of the Tribunal or conclusion of the substantive proceedings.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 18 December 2018

Date(s) of hearing:	13 December 2018
Solicitors for the Applicant:	P Doukas, Denison Toyer
Solicitors for the Respondent:	L McDermott, Australian Skills Quality Authority