Sher-E-Punjab Pty Ltd and Australian Skills Quality Authority - [2018] AATA 46

Sher-E-Punjab Pty Ltd and Australian Skills Quality Authority [2018] AATA 46 (15 January 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5934, 5935, 5937, 5939
Re:Sher-E-Punjab Pty Ltd (ACN 123 195 273)
APPLICANT

Australian Skills Quality AuthorityAnd
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:15 January 2018
Place:Melbourne

The Tribunal revokes the consent orders made by this Tribunal on 11 October 2017 to stay the operation of the Australian Skills Quality Authority’s decisions on 30 August 2017 under review in applications before this Tribunal, numbered 2017/5934, 5935, 5937, and 5939. The revocation of the stay will take effect on 29 January 2018.
.......................[sgd].................................................
Member K. Parker
PRACTICE AND PROCEDURE – request for revocation of stay orders – stay orders made by consent – decisions under review were decisions by the regulator to cancel and not to renew a training organisation’s registration under the National Vocational Education and Training Regulator Act 2011 (Cth) and under the Education Services for Overseas Students Act 2000 (Cth) – section 41 of the Administrative Appeals Tribunal Act 1975 (Cth) – factors to be considered in deciding whether to revoke stay orders under subsection 41(3) – whether it is appropriate to consider prospects of success of the substantive applications
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 41
Administrative Appeals Tribunal Regulations 2015 s 23(1)
Education Services for Overseas Students Act 2000 (Cth) s 4A, s 10E, s 10J, s 15, s 83(3)(c)
Migration Regulations 1994 (Cth) Schedule 8
National Vocational Education and Training Regulator Act 2011 (Cth) s 2A, s 31, s 32,
s 39, s 157
Cases
Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another [2009] FCAFC 185
Levi v Companies Auditors and Liquidators Disciplinary Board [2013] FCA 719
Liu and Australian Securities and Investments Commission [2013] AATA 117
Menzies and Australian Securities and Investments Commission [2016] AATA 699
Metro College of Technology Pty Ltd and Australian Skills Quality Authority (unreported)
Re Scott and Australian Securities and Investments Commission [2009] AATA 798
Re Commonwealth and Quirke [1986] AATA 57; (1986) 9 ALD 92
Re Dart and Director-General of Social Services (1982) 4 ALD 553
Re Griffiths, Grif-Air Helicopters Pty Ltd and Civil Aviation Authority [1993] AATA 274; (1993) 31 ALD 380
Re Snook and Civil Aviation Safety Authority [2008] AATA 861; (2008) 109 ALD 122
Rust-Oleum Australia Pty Ltd and Australian Pesticides & Veterinary Medicines Authority [2017] AATA 298
XQZT v ASIC [2009] AATA 669
REASONS FOR DECISION
Member K. Parker
15 January 2018
INTRODUCTION

On 7 September 2017, the Australian Skills Quality Authority (ASQA) made the following decisions (Relevant Decisions):
(a)to cancel the registration of Sher-E-Punjab Pty Ltd (trading as South Pacific Institute) (SPI) as a registered training organisation (RTO) under s 39 of the National Vocational Education and Training Regulator Act (Cth) (NVR Act);
(b)to cancel SPI’s registration as a CRICOS provider to overseas students under s 83(3)(c) of the Education Services for Overseas Students Act 2000 (ESOS Act);
(c)not to grant the application for renewal of SPI’s registration as an RTO under s 31 of the NVR Act; and
(d)not to grant the application for renewal of SPI’s registration under s 10E of the ESOS Act.
The Relevant Decisions were due to take effect on 12 October 2017. SPI sought review by this Tribunal of the Relevant Decisions by lodging applications numbered 2017/5934, 2017/5939, 2017/5935, and 2017/5937 respectively (Relevant Applications). These four applications were lodged on 3 October 2017.
On 7 September 2017, the ASQA made a decision to reject an application by SPI under s 10J(1) of the ESOS Act to add the following additional three courses to its registration:
(a)Certificate IV in Marketing and Communication – BSB42415;
(b)Diploma of Marketing and Communication – BSB52415;
(c)Advanced Diploma of Marketing and Communication – BSB61315.
On 7 September 2017, the ASQA made a decision to reject an application by SPI to add the additional courses referred to in the above paragraph to its scope of registration under s 32 of the NRV Act.
On 3 October 2017, SPI sought review of the decisions referred to in paragraph 3 by application numbered 2017/5938, and paragraph 4 by application numbered 2017/5936.
Under subsection 23(1) of the Administrative Appeals Tribunal Regulations 2015, the Registrar of the Tribunal linked all six applications referred to in paragraphs 2 and 5, to be heard together.
SPI requested a stay of the operation of the Relevant Applications under s 41 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
The Tribunal listed the Relevant Applications for an interlocutory hearing on 11 October 2017 in relation to SPI’s request for a stay.
On 10 October 2017, the parties jointly submitted to the Tribunal minutes of consent orders, which included proposed directions to stay the Relevant Decisions subject to certain conditions. Upon receipt of the minutes, the Tribunal vacated the interlocutory hearing on 11 October 2017 and made directions in terms as proposed by SPI and the ASQA, as follows:
The Tribunal DIRECTS:
1. The decisions of the Respondent in proceeding numbers 2017/5934, 2017/5935, 2017/5937 and 2017/5939 be stayed pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 pending the hearing and determination of the Applicant’s applications for review.
2. The Applicant must, until the hearing and determination of its applications for review:
(a)monitor and record attendance consistent with clauses 11.1 of Part D of the National Code of Practice for Providers of Education and Training to Overseas Students in force under Part 4 of the Education Services for Overseas Students Act 2000; and
(b)keep, maintain and produce those records on request of the ESOS Agency.
3. The Applicant must, until the hearing and determination of its applications for review:
(a)submit a copy of its bank account statements for the prior month on the first day, or next business day, of each month to [email protected];
(b)on the fifteenth day of each month, or the next business day, submit class timetables identifying the precise location, students required to attend and trainer or assessor scheduled to train or asses as well as the date and time of any assessment activity or structured learning for all courses for all classes for all students, for the following month to [email protected];
(c)maintain and produce on request to ASQA, class rolls for each class, signed by each student required to attend that class and each trainer/assessor training or assessing in that class for all VET courses;
(d)not enrol or commence (including for the purpose of completing Recognised Prior Learning) students for or in any VET course, save for commencing any student who is already enrolled in a training package comprising Certificate III, Certificate IV, Diploma or Advanced Diploma qualifications and who at 10 October 2017 is completing a qualification in that training package.
(e)The parties have liberty to apply.
On 13 November 2017, the ASQA lodged with the Tribunal a set of documents in accordance with its obligations under s 37 of the AAT Act (T-Documents). On 24 November 2017, the ASQA lodged further documents with the Tribunal (Supplementary T-Documents).
On 24 November 2017, the ASQA requested that the Tribunal exercise its powers under s 41(3) of the AAT Act to revoke the stay referred to in paragraph 9 and raised its concerns about SPI in relation the following:
(a)A concerning lack of attendance at scheduled classes;[1]
(d)A lack of reporting of any non-progression historically since 2013;[2]
(e)A refusal to comply with its obligations to report for attendance failure;[3]
(f)Further misleading documents produced (occupancy permits);[4] and
(g)The ASQA considered that SPI’s prospects of success of its applications for review were “hopeless”.[5]
[1] Refer paragraph 3 to 6 of the submissions on revocation of the stay order filed by the ASQA dated 24 November 2017 (ASQA’s Submissions).
[2] Refer paragraph 7 of the ASQA’s Submissions.
[3] Refer paragraphs 8 to 12 of the ASQA’s Submissions.
[4] Refer paragraphs 13 to 19 of the ASQA’s Submissions.
[5] Refer paragraphs 21 to 24 of the ASQA’s Submissions.
In response to this request, the Tribunal listed the Relevant Applications for an interlocutory hearing on 21 December 2017 and made directions that provided an opportunity for the parties to file any further materials.
In relation to the ASQA’s request to revoke the stay, the ASQA sought to rely upon: the ASQA’s Submissions;
(a)the T-Documents lodged on 13 November 2017 which included (among other things) a number of witness statements by former employees and students of SPI;
(b)the Supplementary T-Documents lodged on 27 November 2017 which included (among other things) video surveillance taken when the ASQA visited SPI’s training premises;
(c)class attendance records;
(d)open correspondence between the parties including attached documentation; and
(e)documents and oral submissions made by counsel for the ASQA at the interlocutory hearing on 21 December 2017.
On 15 December 2017, SPI filed submissions opposing the request for revocation of the stay (SPI’s Submissions) and sought to rely upon:
(a)the Affidavit of Mr Gupreet Singh Ahuja (Mr Ahuja) (SPI’s owner[6] and current CEO) affirmed 15 December 2017 (Mr Ahuja’s First Affidavit);
(b)the Affidavit of Mr Ahuja affirmed on 10 October 2017 (Mr Ahuja’s Second Affidavit);
(c)the Affidavit of Ms Eileen Belle Nguyen (of Slater & Gordon) affirmed 15 December 2017. Ms Nguyen is a solicitor employed by SPI’s legal representative;
(d)open correspondence and documents produced at the interlocutory hearing, including an extract from Schedule 8 (Visa Conditions) from the Migration Regulations 1994(Cth) (Migrations Regulations);
(e)oral evidence given by Mr Ahuja at the interlocutory hearing; and
(f)documents produced and oral submissions made by counsel for SPI at the interlocutory hearing.
[6] Ahuja Training Pty Ltd is the sole shareholder and sole director of SPI and Mr Ahuja is the sole shareholder and sole director of Ahuja Training Pty Ltd – refer company searches forming Exhibit “GSA-1” of the Mr Ahuja’s First Affidavit.
It was contended by counsel for SPI that the Tribunal should approach the ASQA’s request for revocation of the stay on the basis that the Tribunal’s original decision to stay the Relevant Decisions was correct and that the Tribunal should only depart from those orders if there was either some change of circumstance or there was new material that justified a departure from the stay.
LEGISLATIVE FRAMEWORK
The effect of s 41 of the AAT Act is that unless the Tribunal orders a stay of the operation of a reviewable decision, which it has the power to do under subsection s 41(2), the mere making of an application for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the reviewable decision.
Upon request by a party to an application, the Tribunal may order a stay of the operation of the reviewable decision under subsection 41(2) of the AAT Act “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”. The Tribunal may make orders “staying the decision or part of it, as appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review”.
President Downes J in Re Scott and Australian Securities and Investments Commission [2009] AATA 798 set out a number of factors to be considered in deciding whether to grant a stay under subsection 41(2) of the AAT Act as follows:[7]
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 had already been in place and the gap between today and the hearing of the application.
[7] Refer paragraph [4] of the reasons for decision in Re Scott.
Under subsection 41(3) of the AAT Act, the Tribunal has the power to revoke or vary any stay order made by the Tribunal under subsection 41(2). This power is not expressly qualified or limited by the wording in subsection 41(3). However, the Tribunal considers the factors that should be taken into consideration in deciding whether to revoke a stay under subsection 41(3) of the AAT Act are the same as the factors that should be taken into account in deciding whether to grant a stay under subsection 41(2), because they have the same practical effect, that is, to either allow or disallow the operation and implementation of the decision under review. Accordingly, the Tribunal does not accept the narrow approach suggested by SPI as outlined in paragraph 15, particularly, in the present context where the existing stay orders were made by consent, and no contested interlocutory hearing preceded those orders.
Accordingly, in deciding whether to revoke a stay under subsection 41(3), the Tribunal considers that it should only do so if it has formed an “opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review”. In this case, the Tribunal considers that the persons potentially affected by the substantive reviews include SPI, its employees (including Mr Ahuja), contractors, students, and the ASQA. The Tribunal considers that its power extends to making orders, “as appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review”.
Applying the approach in Re Scott as relevant in this case, this Tribunal has identified the following factors it will consider in forming an opinion as to whether it is desirable to revoke the stay ordered on 11 October 2017 in relation to the Relevant Decisions:
(a)the prospects of success of the Relevant Applications;
(b)the interests of SPI and the consequences of the revocation of the stay on SPI;
(c)the public interest (incorporating a consideration of the consequences of the revocation of the stay on the ASQA in carrying out its functions);
(d)the interests of SPI’s employees and the consequences of the revocation of the stay on them;
(e)the interests of SPI’s students and the consequences of the revocation of the stay on them;
(f)whether the review application, if successful, would be rendered nugatory or pointless if the stay was not permitted to remain in place; and
(g)the estimated time it will take for the Tribunal to determine the Relevant Applications.
During the interlocutory hearing, counsel for SPI raised concerns about procedural fairness to SPI if the hearing was not confined to the five matters set out in paragraph 11. Mr Ahuja on behalf of SPI said he was not sufficiently prepared to address or respond to the allegations that had been made against it. When those concerns were raised, the Tribunal indicated that it was content to adjourn the interlocutory hearing until early 2018, to provide SPI with more time to be sufficiently prepared. The Tribunal provided a short adjournment to allow counsel for SPI to take instructions from Mr Ahuja on behalf of SPI, after which the Tribunal was informed by counsel that SPI wished to proceed with the interlocutory hearing on the basis that Mr Ahuja was only in a position to provide a “high level” response to the allegations (due to a lack of access to certain information – such as his personal travel information, for instance). The interlocutory hearing proceeded on this basis and it was acknowledged that Mr Ahuja would respond at a “high level”, to the summary of the information provided by various witnesses as set out in the ASQA’s investigation report dated 1 December 2016.[8] This summary is extracted from the investigation report and forms Annexure A to these reasons for decision.
[8] Refer T-Documents commencing at page 7198.
It was also contended by counsel for SPI that it was not open to the Tribunal to consider the prospects of the substantive applications succeeding in deciding whether to revoke the stay.
SPI sought to rely upon on the observations of Deputy President Forgie of Administrative Appeals Tribunal in Rust-Oleum Australia Pty Ltd and Australian Pesticides & Veterinary Medicines Authority [2017] AATA 298. This Tribunal has considered that decision. In particular, the Tribunal notes that Deputy President Forgie observed at paragraph [34] that, “there is a very real question whether the prospects of success are a relevant consideration”. Additionally, at paragraph [36], Deputy President Forgie states that prospects of success have “no place” in the consideration of whether an order is or is not desirable to secure the effectiveness of the hearing and determination of the application for review. However the Tribunal also notes Deputy President Forgie’s acceptance at paragraph [30], that the factors identified by Downes J should be considered: “While regard must be had to the matters of the sort identified by Downes J [in Re Scott] […]” (the first of which included “The prospects of success”).
The Tribunal has also considered the following decisions which provide instances where the Tribunal or the Federal Court of Australia has included in its consideration of whether to order a stay, an assessment of the prospects of success of the substantive application before it.
The Tribunal has considered the observations of the Tribunal constituted by Deputy President Forgie, Member Gibson and Member Julian in Re Griffiths, Grif‑Air Helicopters Pty Ltd and Civil Aviation Authority [1993] AATA 274; (1993) 31 ALD 380 as follows:
[53] Taking into account the interests of the parties, the matters which we should consider are:
·the prospects of success of the applications for review of the decisions;
·the hardship to Mr Griffiths and Grif-Air if the stay orders are not made;
·whether the public safety is likely to be imperiled if the stay orders are not made.
[54] […]
[55] Turning to the evidence in this case, we will consider first the prospects of success of the applications for review lodged by Mr Griffiths and Grif-Air. We can do so only on the material before us and this is not the occasion to try the issues or to make findings of fact. That is the Tribunal's role on the substantive hearing. Mr Griffiths has denied the allegations but, apart from his denial, has not led any evidence. On their own and against the weight of evidence led to date by the CAA, they do not lead us to conclude that he has made out a prima facie case. He has not shown that, if the facts are as he has stated, he would be successful on his application for review and that of Grif-Air. That is not to say that he would not be successful at a substantive hearing for that will depend upon a consideration of all of the evidence led and tested by both parties.
The Tribunal has also considered the observations of Farrell J in the Federal Court of Australia decision in Levi v Companies Auditors and Liquidators Disciplinary Board [2013] FCA 719 as follows, referencing the approach of the Tribunal in a number of other decisions:
[30] The application before the Deputy President was interlocutory. The passage from Re Griffiths Grif-Air at [55] to which the applicant drew attention expresses the standard generally accepted by the AAT for assessment of “prospects of success”:
...we will consider first the prospects of success of the applications for review ... We can do so only on the material before us and this is not the occasion to try the issues or to make findings of fact. That is the tribunal’s role on the substantive hearing. ...
[31] See also Re Snook and Civil Aviation Safety Authority [2008] AATA 861; (2008) 109 ALD 122 at [21]:
It is well understood that in considering an applicant’s prospects of success for the purposes of a stay application, it is not appropriate to conduct a preliminary trial of the issues: see Re Dart and Director-General of Social Services (1982) 4 ALD 553 at 555. Rather, the tribunal must consider whether there are facts and circumstances which, if established at the substantive hearing, would provide a basis for the applicant’s success in the review on application; or whether there are points of law raised which, if sustained, would lead to that conclusion: see Re Commonwealth and Quirke [1986] AATA 57; (1986) 9 ALD 92 at 95.
See also Liu and Australian Securities and Investments Commission [2013] AATA 117 at [31]:
It is generally recognised that it is also necessary to have regard to the Applicant’s prospects of success at the final hearing (see for example XQZT v ASIC [2009] AATA 669), but it is not the role of the Tribunal to conduct a preliminary trial of the issues to be raised during the substantive hearing of the application for review: Re Repatriation Commission and Delkou (1985) 8 ALDA 454 at [32].

More recently, in Menzies and Australian Securities and Investments Commission [2016] AATA 699, Senior Member Fice observed at [27]:
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 be rare where it would be appropriate to grant a stay. That would simply result in a waste of time and money for all concerned.
Arising from those decisions, the Tribunal acknowledges that in considering whether to grant a stay or to revoke a stay, it is not appropriate to undertake a full consideration of the merits of the substantive applications, particularly given that there are a number of factual matters in dispute in this case and the evidence before the Tribunal about those matters is, at present, untested.
However, the Tribunal considers that it is able to (and appropriate to) take into account the information and evidence presently available to it which will enable it to form a general impression as to SPI’s prospects of success. While not solely determinative of whether the Tribunal should revoke the stay or permit it to continue (as the Tribunal also need to consider the other factors identified in paragraph 21), the Tribunal will be more inclined to form an opinion that it is desirable to revoke the stay, if it forms a general impression that SPI’s prospects of success are low, and less inclined to do so if SPI’s prospects of success are high.
CONSIDERATION
The prospects of success of the substantive applications
The ASQA contended that SPI’s prospects of success were “hopeless”. SPI did not accept this contention.
The ASQA’s reasons for making each of the Relevant Decisions, as expressed in the respective notices of decision, are identical and are as follows:[9]
Following an investigation […] ASQA is satisfied that [SPI] has:
·Provided false and misleading documents to the [ASQA] compiling of two completed student files for Mr Syed Shaheryar Hussain and Mr Dadul Dojee Bhutia, a copy of certificate number […] for BSA60507 Advanced Diploma of Marketing in the name of [Mr Hussain], and a copy of certificate number[…] for BSB51207 Diploma of Marketing in the name of Dadul Dorjee Bhutia (in breach of section 137.2 of the Criminal Code Act 1995);
·Failed to demonstrate it meets RTO requirements, being that it has in place systems that ensure it complies with the assessment requirements of the relevant training package or VET accredited course and in accordance with the Principles of Assessment. The RTO has not provided evidence that it has put procedures in place to show it intends to comply with clause 1.8 (Standards for Registered Training Organisations (RTOs) 2015, Standard One, Clause 1.8);
·Failed to demonstrate compliance in its corporation with the VET Regulator, or demonstrate its willingness to cooperate with VET Regulator to provide accurate and truthful responses. The RTO offered no evidence to the allegation that it provided false and misleading documents to the VET Regulator. Additionally, the RTO failed to provide evidence to support its contentions on why the Department of Education and Training in Victoria terminated the 2014 and 2015 Funding Contracts. The RTO has not provided evidence that it has put procedures in place to show that it intends to comply with clause 8.1 in future. (Standards for Registered Training Organisations (RTOs) 2015, Standard One, Clause 8.1).
[9] Refer Exhibit “GSA-4” of Mr Ahuja’s First Affidavit.
Having reviewed the information provided by the ASQA in the T-Documents and Supplementary T-Documents, the ASQA’s allegations about SPI may be summarised as follows:
(a)SPI did not deliver the requisite training and assessment to some of its students and issued qualifications without ensuring the students satisfied the requirements for qualification;
(b)SPI instructed some of its staff to act as students or trainers to complete student assessments or to mark student assessments when they were not students or qualified as trainers;
(c)SPI did this to mislead the ASQA into believing that it was compliant with its training and assessment requirements as an RTO and CRICOS provider, when in many cases it was not;
(d)SPI’s former CEO, Mr Amit Asija (Mr Asija), provided false student records to the ASQA which had been fraudulently prepared by persons who were neither the student nor the assessor. SPI’s current CEO, Mr Ahuja, was involved in providing information to SPI staff to assist them to fabricate the false student records;[10] and
(e)SPI did not report students to the Department of Immigration and Border Protection (now called the Department of Home Affairs) who failed to attend their classes or to make satisfactory progress.
[10] The company search information forming Exhibit “GSA-1” of the Mr Ahuja’s First Affidavit records that Mr Asija was the sole director of SPI from 18 February 2014 until 27 March 2017 and Mr Ahuja was the current sole director of SPI as from 27 March 2017.
More recently, the ASQA was concerned about its discovery that the occupancy permits provided by SPI to the ASQA with respect to the premises used by SPI to provide the training services were forgeries. This was confirmed by the relevant local council. The ASQA was also concerned by what it considered to be a lack of action by the ASQA to subsequently address that issue.
Finally, the ASQA contended that Mr Asija did not meet the fit and proper person requirements of registration, neither under the NVR Act nor the ESOS Act.[11]
[11] Refer paragraphs 21 to 24 of the ASQA’s Submissions.
The ASQA’s investigation of SPI commenced on 12 January 2016.[12] This investigation arose from eight complaints the ASQA had received about SPI between June 2012 and 12 January 2016.[13]
[12] Refer T-Documents page 7198.
[13] Refer T-Documents page 7199.
As part of ASQA’s investigation, one of the complainants, Ms Geetika Bindra (Ms G Bindra), a former employee of SPI, provided a witness statement to the ASQA dated 8 February 2016.[14] Ms G Bindra stated that:
[14] Refer T-Documents pages 1 to 5.
(a)Ms G Bindra was employed at SPI in an administrative role;
(b)as part of her job at SPI, she was provided with student application bundles containing student enrolment forms, language literacy and numeracy forms, a student self-assessment checklist and a training plan;
(c)her job, along with others, was to copy the student signature or handwriting in order to complete the relevant paperwork;
(d)on some days, she was required to complete the assessor’s work on the files;
(e)neither the student nor the SPI assessor completed this paperwork;
(f)as part of completing the student information details, Mr Ahuja would give Ms G Bindra and a small group of other staff, copies of student passports, drivers licences and Medicare cards, which were used to copy the students’ signatures and handwriting onto the student forms;
(g)to Ms G Bindra’s knowledge, no students attended a restaurant placement to complete the required 190 hours of training for the Certificate IV in Commercial Cookery. She knew this because she was required to complete the assessments on behalf of the students;
(h)worksheets for the Certificate III Commercial Cookery were sent out to a network of people hired to complete student work and SPI would send out pens to match the pens used previously. It was her role to check the files when they were returned to ensure they met audit requirements.
Ms G Bindra provided a further witness statement to the ASQA on 29 February 2016.[15] Ms G Bindra stated:
(a)on 4 January 2014, Mr Ahuja sent her an email attaching the identification documents of eight students This email was attached to Ms G Bindra’s statement. Mr Ahuja told her to complete the forms at her home because he said they were for another college, Accredited Education & Training Australia Pty Ltd. She completed the student enrolment forms to match the identification documents, and Mr Ahuja told her he would send additional money to her bank account ($13 per hour). Mr Ahuja also emailed her a question and answer sheet for one of the assessment questions as this was missing from the file given to her at the start – this question and answer sheet was attached to Ms G Bindra’s statement;
(b)Ms G Bindra attached copies of emails and attachments sent to her either by Mr Ahuja or by another SPI staff member (but copied into Mr Ahuja). The attachments contained references which are consistent with the allegation that other people were being employed to do assessment work on behalf of SPI students; and
(c)Mr Ahuja told her to use a spreadsheet he had emailed to her on 14 May 2014 (a copy of this email was attached to Ms G Bindra’s statement); to call the “outsiders” employed by SPI to do the students’ work; and to ask them which ones they had done and to give back the work to SPI quickly, “in case the auditors came”.
[15] Refer T-Documents pages 14 to 30.
Ms Benu Bindra (Ms B Bindra), Ms G Bindra’s sister, provided a witness statement to the ASQA on 7 March 2016.[16] Copies of text messages between Ms B Bindra and Mr Ahuja were attached to Ms B Bindra’s witness statement relating to the completion and collection of assignments and payment to Ms B Bindra. Of note, Mr Ahuja, in a text message to Ms B Bindra on 9 September 2014, appeared to be checking with Ms B Bindra that she used different handwriting, to which she confirmed that she had. In her statement, Ms B Bindra said:
(a)Mr Ahuja worked as the marketing manager of SPI from July or August 2013 onwards; and
(b)Mr Ahuja asked her if she would be prepared to complete assignments on behalf of students, initially at Della International, and from July 2013 onwards, for SPI. She said she was mainly paid by “cash in hand” and sometimes by bank transfer.
[16] Refer T-Documents pages 31 to 35.
Ms B Bindra provided a further witness statement to the ASQA dated 21 March 2016. Ms B Bindra stated:
(a)she was informed by Mr Ahuja that SPI would be audited in mid‑August 2015; and
(b)Mr Ahuja asked Ms B Bindra if she would help out and do some student bundles. She agreed to complete some of the assignments. Mr Ahuja delivered them to her home. She said that Mr Ahuja told her to remove the answer sheets from the back of each unit, copy the answers into the assignments and to get rid of the answer sheets. She said she completed three student bundles.
Mr Syed Shaheryar Hussain (Mr Hussain), a former student of SPI, provided a witness statement to the ASQA dated 1 July 2016.[17] The Tribunal notes that Mr Hussain was employed by another training organisation, ‘King Eeducational Services Pty Ltd’, trading as ‘Kinggdom Institute of Management’.[18] Mr Hussain attended a meeting with investigators from the ASQA and was shown a number of completed assignments from Mr Hussain’s student file from SPI. For the most part, Mr Hussain said that he did not complete the assignments in those student files. For the signature declarations on the files, in many instances, he said the signatures were in his own handwriting but the dates entered were not.
[17] Refer T-Documents commencing at page 4488.
[18] There is no spelling error in these names. This is how they are spelled in the ASIC company search for those entities.
Mr Hussain was shown a qualification certificate issued by SPI but stated he was not provided with this certificate by SPI.
Notably, Mr Hussain stated he obtained an Advanced Diploma of Marketing from SPI simply by attending SPI’s premises in Melbourne over the course of one weekend from 8 to 11 October 2015 at which time he completed some assignments. It seems he was not required by SPI to undertake any other study or assessments to qualify for the Advanced Diploma in Marketing.[19]
[19] Refer paragraphs [14] and [24] of Mr Hussain’s witness statement.
Mr Dadul Dorjee Bhutia (Mr Bhutia), a former student of SPI, provided a witness statement to the ASQA dated 1 July 2016.[20] The Tribunal notes that at the time he was enrolled in a course at SPI, Mr Bhutia was employed by King Eeducational Services Pty Ltd, trading as Kinggdom Institute of Management. Mr Bhutia was shown a number of completed assignments from Mr Bhutia’s student file obtained from SPI. For the most part, Mr Bhutia said that he did not complete the assignments shown to him. He was shown a qualification certificate issued by SPI. He said he was not provided with this certificate by SPI.
[20] Refer T-Documents commencing at page 4852.
Notably, Mr Bhutia stated he obtained a Diploma of Marketing from SPI simply by attending SPI’s premises in Melbourne for one day on 10 October 2015 at which time he completed some written assessments. SPI did not require anything further from him.[21]
[21] Refer paragraphs [26] and [27] of Mr Bhutia’s witness statement.
Mr Varun Choudhary (Mr Choudhary), a former employee of SPI, provided a witness statement to the ASQA dated 5 July 2016.[22] He said he worked at SPI in the administration office until the end of 2014. Mr Choudhary stated that:
[22] Refer T-Documents commencing at page 5269.
(a)his duties included:
(i)printing out blank student assignments and to give them to agents who worked for SPI; and
(ii)working either as a student or assessor to complete student work, signing off on the work with a name of a current assessor at SPI, or sometimes using other names that were given to him;
(b)on the occasions when ASQA announced an audit, Mr Ahuja and Mr Asija would organise people “outside” of the college to “get the work done” on behalf of the students. He said mostly the “agents” would come into the college to pick up the work for the “outsiders”. He said the enrolment forms would be done by staff inside the college; and
(c)at the time of the ASQA audits, he said that Mr Asija and Mr Ahuja would make most staff take leave for a few days because they did not want them around the office.
Mr Mandeep Singh Natt (Mr Natt), a former employee of SPI, provided a witness statement to the ASQA dated 6 July 2016.[23] Mr Natt was employed by SPI from November 2013 to December 2015 in the role of student support officer. He stated that he was required by SPI to tick the assessments provided to him with a red pen. He stated that in about February 2014 he was told to sign off the assessments in the name of “Taj”, another employee at SPI. He said that he was paired with another employee of SPI to complete work as either the student or the assessor. He said that he mainly worked as the assessor. He stated there was always “stress placed on [him]” to complete three bundles a day.
[23] Refer T-Documents commencing at page 5273.
Ms Cheryl Tuariki (Ms Tuariki), a former student of SPI, provided a witness statement to the ASQA dated 6 July 2016.[24] Ms Tuariki stated that she was enrolled in the Certificate III in Hospitality course in around 2014 and that she only ever attended two practical classes. She stated that the signatures and handwriting on a number of student files and the enrolment forms for her, which were shown to her by the ASQA investigators, were not in her handwriting and the signatures were not her signature. In the case of student file SITHCCC308, Ms Tuariki said that she had not met the assessor, Ms Vinmda Sharma, whose name was on file. However, the assessment feedback or comments entered by Ms Sharma (or under Ms Sharma’s name) on Ms Tuariki’s student files included purported observations by Ms Sharma of Ms Tuariki’s cooking skills, including her adherence to safety protocols, communication skills and the quality of the meals prepared by her.
[24] Refer T-Documents commencing at page 5278.
In an ASQA investigation report dated 1 December 2016, an ASQA investigator stated as follows:
[30] On 2 August 2016, enquiries were made with all State education departments to ascertain what, if any, government funding [SPI] was currently or had previously been provided. The following is a summary of information provided:
The Victorian Department of Education & Training (VicDET) advised that the 2014 and 2015 VET Funding contract for this provider had been terminated. That VicDET was satisfied that several Material Breaches of Contracts had occurred, that [SPI] was notified of this in a letter to the CEO Mr Asija dated 25 January 2016. That [SPI] was paid $5,148,791.00 under both contracts, and that it could be argued that half the funding paid to [SPI] was paid in relation to claims made in breach of Contracts.
VicDET conducted a Business Process Audit and a Transactional Compliance Audit (BPA and TCA) on [SPI] on 17 September 2015, which involved conducting student interviews. The findings of these audits were that a number of students stated that they did not enrol and/or participate in the training as claimed by [SPI].
[…]
The Tribunal requested that Mr Ahuja attend the interlocutory hearing to answer a number of questions. Mr Ahuja attended and gave evidence at the interlocutory hearing.
The Tribunal asked Mr Ahuja whether the government subsidised any of the courses delivered by SPI. Mr Ahuja answered in the negative.
At the interlocutory hearing, Mr Ahuja was taken to sections of the ASQA’s summary of the assertions made in various witness statements, as set out in its investigation report dated 1 December 2016 (as reproduced in Annexure A).
Specifically, Mr Ahuja was taken to the summary of information provided by Ms G Bindra and he stated in response to assertions made by Ms G Bindra:[25]
This matter is related to the previous CEO. There was a personal relationship between the CEO and [Ms G Bindra’s] sister, which went bad and due to which, they had some issues among themselves and that is why they have done this.
[25] Refer T-Documents page 7199.
Mr Ahuja was taken to the part of the summary which set out that Mr G Bindra stated that her duties as an administration officer included copying student signatures and handwriting and that staff worked in pairs to complete student assessments, one as the student, and the other as the assessor. Mr Ahuja stated:
Nothing in my… there is nothing of my knowledge which like this has happened or any instruction given by me.
Mr Ahuja was asked why Ms G Bindra and Ms B Bindra may have made the assertions that they did, if they were false and he responded:
…because of the issues of Ms Bindra’s sister and the previous CEO. Both of them were involved in an affair out of both of their [marriages]. Things happened due to which [Ms Bindra’s] sister - when her husband found out, he divorced her - and that’s when these girls had issues with the CEO… [Ms B Bindra] was the one involved with the CEO. The CEO was supposed to marry this girl and when he did not, in the end, and [Ms B Bindra’s] husband got to know about it. [Mr Asija] refused to take her in.
Mr Ahuja was asked whether he had ever attended to his employees’ homes to take them the documents. Mr Ahuja said he had not, except that he had been to Ms B Bindra’s home, as she lived near his house.
Mr Ahuja was asked whether he sent emails to his staff attaching student identification. He stated:
I do not deny sending emails with student identification. We used to get enrolments through agents.
However, Mr Ahuja denied asking his staff to arrange to put the student signatures on the forms.
Mr Ahuja was taken to the summary of information provided by Mr Hussain by his statement dated 1 July 2016, including the assertion that Mr Hussain’s student application form was not completed by him. Mr Ahuja stated:
Related to these students, even when ASQA has asked for further information, I was not the CEO of the company - I was CEO of another school I used to run at that time, so the day to day work was run by the previous CEO.

Mr Ahuja said he commenced partial ownership of SPI on 15 or 16 February 2014. The date of the student application form was 9 February 2014 and as at that date, Mr Ahuja said he was not the owner of the organisation. Mr Ahuja was asked whether he was related to the previous CEO to which he said he was not. Mr Ahuja was asked whether he had been in contact with the previous CEO to which he said that since February 2014, he had not.
Mr Ahuja was taken to the last two paragraphs of the statement of Mr Choudhary dated 5 July 2016 and invited to comment on the assertions made. Mr Ahuja stated that:
July 2016 I was CEO of the other organisation. March 2017 is the time when I took over this organisation fully and I was the sole owner.
Mr Ahuja was asked why he was involved in SPI at all and he stated:
I was the shareholder. I wasn’t involved in the day to day running of the business. I was only involved in accounts and marketing of the business.
Saying this, I do not agree with this.
Mr Ahuja was asked whether he was aware of any reason why Mr Choudhary would make false assertions, to which he responded:
These four people were together - [Ms G Bindra], [Mr Natt], [Mr Choudhary], and sister were together as friends and family. [Mr Choudhary] was a very close friend of [Ms G Bindra]. Even [Mr Natt], both of them.
Mr Ahuja was taken to the complete summary of the statement provided by Mr Natt dated 6 July 2016.[26] Mr Ahuja stated:
The particular incident they are talking about - because all of them have talked about this day - it was an ASQA audit, and I was overseas at that time.
[26] Refer T-Documents page 7204.
Mr Ahuja said he had no knowledge of the incidents referred to in Mr Natt’s statement. He explained that, “Nov 2013 we were not even the owner of the organisation, not even Amit Asija was the owner at that time. We took over in February 2014”. Mr Ahuja said he did not have any knowledge of a system where staff were asked to tick student assessments and completing work in pairs, as was asserted by Mr Natt. When asked why Mr Natt would have made such assertions, Mr Ahuja stated:
They are together … with [Ms G Bindra].
Mr Ahuja was taken to the second paragraph of the summary of Ms Tuariki statement dated 6 July 2016. Mr Ahuja said he denied the assertions made by Ms Tuariki and he explained that Ms Tuariki was shown what was in the files which were kept by Ms G Bindra and Mr Natt.
Mr Ahuja gave evidence at the interlocutory hearing that ASQA attended SPI’s premises about eight to ten times in last couple of months and “there was never an instance when we were short of staff”. Mr Ahuja said he was present for about four of the visits and he stated there were eight trainers or assessors present on the visits. Mr Ahuja explained that when ASQA visited on the Sunday, the students had attended that day but they and the trainers had “left early”. He said there were one trainer and one administration person present.
Mr Ahuja agreed with a summary of his evidence given by counsel for the ASQA that in effect, the account given in the witness statements, particularly by Mr G Bindra, Ms B Bindra, Mr Natt and Mr Choudhary, was “because of acrimony following the breakdown of relationship between [Ms B Bindra] and Mr Asija”.   Mr Ahuja gave evidence that this breakdown took place at the end of 2014 but he could not give an exact date. Mr Ahuja agreed that his lawyer set out an accurate summary of Mr Ahuja’s explanation as to why those accounts were given, as contained in paragraphs [5] to [10] of his lawyer’s letter to the ASQA dated 1 June 2017, as reproduced below:[27]
5.   [Mr Natt] was a friend of [Ms G Bindra] and [Ms B Bindra].
6.   My client’s inquiries have revealed that in April 2014 Mr Amit Asija, then the Chief Executive Office of the RTO, commenced an intimate relationship with [Ms G Bindra’s] sister.
7.   My client’s inquiries have further revealed that in December 2015 Mr Asija ended the relationship with [Ms G Bindra’s] sister on terms that were hostile and unpleasant. There allegedly followed demands and threats from [Ms G Bindra’s] sister, including the threat that she knew how to attract the attention of the Regulator towards Mr Asija and the RTO.
8.   [Ms G Bindra], [Ms B Bindra] and/or [Mr Natt] had access to the student files and the bundle of student assessments prior to the Complaint being made and prior to ASQA commencing its investigation. [Ms G Bindra], [Ms B Bindra] and/or [Mr Natt] had the access, the means and the opportunity to be able to fabricate, amend or remove the student records and bundles of student assessments.
9.   Further, the matters attested to in statements obtained from the other persons above must be examined in the light of any involvement or relationship those persons had with [Ms G Bindra], [Ms B Bindra] and/or [Mr Natt].
10.       In our submission, in the light of the above information, it is open for ASQA to conclude that the Complaint and the matters arising therefrom were made vexatiously and not for a proper purpose. It is therefore incumbent upon ASQA to verify the probative value of the evidence upon which it is intending to rely to make the Decisions.
[27] Refer T-Documents page 7260.
Upon questioning by the ASQA’s counsel, Mr Ahuja accepted that if false documents relating to Mr Hussain and Mr Bhutia were provided to the ASQA in October 2015, that it was a serious matter. Mr Ahuja was asked what steps he had taken to find out who was responsible to which he answered:
I have taken steps to make sure if anything of that sort did happen, it does not happen again. Letter indicating non-compliances of standards. Taken procedures and measures. Make sure clean process of doing things. Main allegation – student assignments provided were not done by the students. We make sure there is a cross-validation policy and the compliance manager.
Mr Ahuja was asked whether he understood that the allegation being made against SPI was one of fraud rather than non‑compliance, to which he responded, “Yes”.
Mr Ahuja was asked what steps he had taken to ensure persons responsible for creating false documents were not engaging in fraudulent behavior. Mr Ahuja stated:
I have made sure the CEO is not part of the organisation after that. CEO no longer working in the organisation because this thing was going on. The whole allegation coming on the CEO.
Mr Ahuja was asked whether he dismissed the former CEO to which he stated:
He resigned. Result of discussions that he resigned.
…
It was alleged on the CEO. So many things happening. I wasn’t present in the country at the time. Due to this process, continued to get more allegations. Decided the CEO would step down. Used to be shareholder. Not part of the company any more.
Mr Ahuja was asked by ASQA’s counsel, whether he asked Mr Asija, “Is this true, did you do this?” Mr Ahuja responded:
There was no clarification done on that. He was the one who told us that it was done by [Ms G Bindra], [Mr Natt] and [Mr Choudhary] because he was the one who communicated with them on a day to day basis. The organisation was getting into trouble because of him. Because of his personal vendetta.
Mr Ahuja was asked whether he had taken steps to ensure that no one else in his organisation was involved in such conduct. He responded that he had held a couple of meetings and that SPI brought in some policies which were provided to the staff to ensure that it would not happen again. He said these policies were about checking the documents.
Mr Ahuja stated in response to a question about whether he had issued any written directives to any of his staff directing them not to engage in such conduct:
According to my knowledge, the staff were never involved in this. All administration staff related to domestic students. Didn’t need to issue directive because it was a fabrication by [Ms G Bindra]. All of that material was created by [Ms G Bindra] and her friends. They had responsibility for archiving all documents and keeping the student files.
It is possible that SPI will be able to establish at the final hearing of the substantive applications that Ms G Bindra, Ms B Bindra, Mr Natt and Mr Choudhary each made false assertions in the witness statements they have provided to the ASQA as part of their involvement in a personal vendetta against Mr Asija. However, having reviewed the available evidence and information, the Tribunal considers this to be unlikely.
The Tribunal considers that the ASQA’s evidence available at this stage in support of the allegations supporting both the stated reasons for the Relevant Decisions and the allegations referred to in subparagraphs 33(a) to 33(d) inclusive above, is detailed and corroborated by a number of witnesses. That evidence is supported by extensive documentation. Contrastingly, there was a noticeable paucity of evidence presented to the Tribunal by SPI in response to the allegations. The Tribunal considers that there was a reasonable opportunity for SPI to do so.
Even if the Tribunal were to accept that Ms G Bindra and Ms B Bindra may have made false assertions due to the alleged personal vendetta against Mr Asija, it is difficult for the Tribunal to accept that the other two key witness, Mr Natt and Mr Choudhary, despite being described by Mr Ahuja as “close friends” of the alleged principal conspirators, would have exposed themselves to the potential serious repercussions of making false declarations to a government regulator (by making their witness statements and by manipulating company records (i.e., the student files), as suggested by Mr Ahuja, for the purpose of assisting Ms G Bindra and Ms B Bindra in their alleged personal vendetta against Mr Asija. There was no evidence before the Tribunal to demonstrate the extent of the close friendship alleged between Mr Natt and Mr Choudhary and Ms G Bindra and Ms B Bindra that would explain why Mr Natt and Mr Choudhary would be prepared to take such extreme action as asserted by Mr Ahuja, with the associated risks of doing so.
The Tribunal notes that the witness statements of Ms G Bindra, Ms B Bindra, Mr Choudhary and Mr Natt have not been subsequently withdrawn or amended since Mr Asija ceased any involvement with SPI (according to Mr Ahuja). Instead the allegations remain as directed toward SPI and Mr Ahuja, even though Mr Ahuja was not involved in the alleged affair with Ms B Bindra.
The Tribunal notes that SPI appears not to have obtained an affidavit by Mr Asija to be filed in response to the serious allegations made against him. At present, there is no evidence before the Tribunal that Mr Asija denies the allegations of his fraudulent conduct during the period that he was acting on behalf of SPI.
It appears SPI has not obtained affidavits by any other current or former staff members to give evidence as to how they were instructed by SPI managers and supervisors to carry out their duties, and to attest to the quality of the education and training provided to SPI students, and in particular, the training and education provided to Mr Hussain, Mr Bhutia and Ms Tuariki.
The Tribunal also notes that some of the assertions of conduct were directed at Mr Ahuja personally, in addition to Mr Asija, seemingly inconsistent with the proposition that the vendetta was personal and against Mr Asija.
The evidence of Mr Bhutia and Mr Hussain as outlined in paragraphs 43 and 45 strongly suggests that there was very little that either of them had to do to obtain diploma-level qualifications from SPI. Further the evidence of Ms Tuariki was that she only ever attended two practical classes to obtain her Certificate III in Hospitality that she undertook at SPI.
The evidence by Mr Bhutia, Mr Hussain and Ms Tuariki about the minimal participation required by SPI from them before they were completed their courses at SPI stood alone. It was not suggested by SPI or Mr Ahuja that Mr Bhutia, Mr Hussain or Ms Tuariki made false assertions and they did so because they were also friends of Ms G Bindra and Ms B Bindra. Those three witnesses appeared to be independent and were approached by the ASQA as part of its investigation. Mr Bhutia and Mr Hussain are based in Perth and it is noted that Ms G Bindra and Ms B Bindra are based in Melbourne.
Counsel for the ASQA contended the timing of the breakdown in the relationship between Ms B Bindra and Mr Asija (said to precede the ASQA audit in October 2015) rendered the conspiracy theory contended for by Mr Ahuja as an “inherently incredible explanation”. Mr Ahuja gave inconsistent evidence about the timing of the breakdown of this relationship. He stated in oral evidence at the interlocutory hearing that it had occurred at the end of 2014. Subsequently, Mr Ahuja gave evidence that his lawyers’ description of events as set out in its letter dated 1 June 2017 was accurate.[28] This letter referred to the breakup having occurred in December 2015. For the reason that the timing of the breakup was not able to be clearly identified, the Tribunal does not accept, for present purposes, this contention by ASQA’s counsel.
[28] As reproduced in paragraph [68] of these reasons for decision.
At the interlocutory hearing, evidence was tendered and submissions were made to the Tribunal about allegations relating to the forged occupancy permits for the SPI training premises. Mr Ahuja asserted that he had no knowledge that the permits were forged and that he had paid fees to obtain them from a business trading as ‘ERA’. Mr Ahuja gave evidence that the representative from ERA he spoke to held himself out as a building surveyor. The Tribunal accepts that it is possible that Mr Ahuja and SPI may have mistakenly believed the occupancy permits to be genuine until he discovered otherwise. In doing so, the Tribunal considers that Mr Ahuja acted negligently in failing to ascertain from the ERA representative, or to make his own independent checks, to obtain ERA’s representative’s building surveyor registration number to satisfy himself that he was a registered building surveyor at the time he obtained those occupancy permits. However, the Tribunal has decided not to take into account this matter as negatively impacting SPI’s prospects of success for the purpose of considering the present request to revoke the stay.
At the interlocutory hearing, evidence was tendered and submissions were made to the Tribunal about the alleged failures by SPI to report student lack of progress to the Department of Immigration and Border Protection (now known as the Department of Home Affairs). Mr Ahuja responded that SPI was not “legally obliged” to report to the Department for lack of attendance, as it had opted to be a progress-monitoring provider, rather than an attendance-monitoring provider. In closing submissions, ASQA’s counsel agreed with this proposition.
The wording in visa condition 8202 in Schedule 8 of the Migration Regulations appears to reflect the two different types of monitoring systems that might apply to a provider and its students. In relation to progress monitoring, SPI contended that it had in place established policies and procedures that it had complied with. Following a preliminary overview of the evidence currently available to it, the Tribunal was unable to identify any evidence that established non-compliance by SPI with those policies and procedures. For the reason, the Tribunal has not taken this into account as negatively impacting the SPI’s prospects of success.
At the interlocutory hearing, evidence was tendered and submissions were made to the Tribunal about the alleged use of SPI as a façade to support the granting of student visas to overseas students or to issue qualifications to students when those students did not satisfy the necessary requirements for the qualification, rather than to provide quality vocational education and training to those students. SPI vigorously denied this allegation.
The ASQA’s evidence demonstrated consistently poor levels of attendance by SPI students and trainers during several announced and unannounced visits at SPI. It appeared to the Tribunal that this evidence certainly justified why the ASQA would be concerned about whether SPI was operating a legitimate training institution, and whether it was in fact providing quality education to its enrolled students through face to face training and scheduled classes. At best, those visits by the ASQA revealed that not more than about one third of enrolled students seemed to be in attendance at SPI training facilities for its scheduled classes. There was also one instance where no students and only one staff member, according to the ASQA’s evidence; or two staff members, according to SPI’s evidence, were present at its premises during an unannounced visit by the ASQA on a day and at a time when classes were scheduled to take place.
The matters set out in paragraph 90, considered together with the evidence of Mr Bhutia, Mr Hussain and Ms Tuariki about the minimal participation required of them by SPI to obtain diploma-level (and in the case of Ms Tuariki, a Certificate III) qualifications, provided significant support for the allegation that SPI was operating as a façade and was not delivering quality vocational education and training to its students as required under its obligations for registration as an RTO and CRICOS provider.
On balance, the Tribunal has formed an impression from the information and evidence presently available to it that SPI’s prospects of success in the substantive applications are low. This consideration weighs in favour of the desirability of revoking the stay.
The interests of SPI and the consequences of the revocation of the stay on SPI
SPI contended that if the stay did not remain in place, it “may” cause the collapse of SPI.[29] It was contended that if the Relevant Decisions were not stayed, it would cause irrecoverable financial losses and SPI would ‘not be able to meet its liabilities in the long-term without receiving monthly tuition fees”.[30] It was contended that SPI “would be forced to shut down its training business immediately” and it is likely that it “run out of cash in around six months”. Mr Ahuja gave evidence that, “In order to avoid trading insolvent, [SPI] would have to be wound up prior to its cash reserved(sic) being exhausted”.[31]
[29] Refer paragraph 59 of SPI’s Submissions.
[30] Refer paragraph 20 of Mr Ahuja’s First Affidavit.
[31] Refer paragraph 21 of Mr Ahuja’s First Affidavit.
The Tribunal notes that SPI did not provide any evidence in the form of financial statements or reports, tax returns or bank statements for SPI, in support of its assertions as to the current financial position of SPI and to support its propositions as to the likely financial consequences to SPI, if the stay did not remain in place.
The Tribunal notes that in Mr Ahuja’s First Affidavit, Mr Ahuja stated that:
(a)as at 10 October 2017, SPI was training approximately 590 students. At the interlocutory hearing on 21 December 2017, Mr Ahuja provided an updated figure of current students enrolled to undertake study commencing in January 2018 of 460 students;
(b)SPI was receiving income generated from training fees. He estimated that SPI would sustain losses of $250,000 per month if it did not receive those fees;[32]
(c)SPI’s operating expenses were approximately $220,000 to $230,000 per month and those expenses included:
(i)approximately $80,000 per month on salaries for 19 full-time staff and 3 part-time staff; and
(ii)$25,000 per month on rent for leases on two premises;
(d)if SPI was required to cease trading it would need to make its employees redundant. The total cost of the redundancy process would be approximately $112,500;
(e)the property leases for SPI’s two premises ran until 31 March 2018 and 31 July 2018 respectively; and
(f)SPI had $330,000 cash at bank as at 10 October 2017.
[32] At the interlocutory hearing, Mr Ahuja gave evidence that on average, the fees for a six-month course was $3,000. He said SPI offered six-month and twelve-month courses.

Based on the information provided, the Tribunal accepts that if the stay did not remain in place, SPI would no longer generate its primary source of revenue, being the monthly student fees from 460 students, pending the conclusion of the review process. The Tribunal notes that SPI had sufficient cash reserves to pay its employees a redundancy package should SPI cease trading. Mr Ahuja acknowledged that if SPI did this, it would remove SPI’s obligation to pay its employees monthly wages which the Tribunal notes are in the order of $80,000. The estimated total redundancy process cost to SPI would reduce SPI’s cash reserves from $330,000 to approximately $217,500.[33]
[33] The Tribunal notes that Mr Ahuja has included his own annual leave entitlements of $16,666 in his calculation of the total cost of a redundancy process to SPI. Not that anything turns on it, but Mr Ahuja would be at liberty to leave those funds within his wholly-owned company.
The Tribunal notes that SPI’s obligation to pay rent for its two training facilities would continue to accrue for three months at one location and for six months at the second location. A breakdown of those respective rental amounts was not provided by SPI. However, the Tribunal can be satisfied that at the very most SPI would be required to pay future rent for the two premises of $150,000 (i.e. $25,000 multiplied by six months). In fact, it is likely to be a figure much less than this as the second lease will cease after only three months. This would leave cash reserves of SPI of at least $67,500. No further evidence of any other continuing liabilities were provided by SPI.
There was insufficient evidence available for the Tribunal to accept SPI’s estimate of loss, if the stay did not remain in place, of $250,000 per month.
The Tribunal accepts that if a stay does not remain in place, SPI will sustain significant financial losses and that those losses would be irrecoverable. However, the Tribunal does not accept that a cessation of its trading as an RTO would necessarily cause SPI to deplete all of its cash reserves to a point that it would be required to be wound up. Based on the calculations above, arising from the available information provided by SPI, the Tribunal considers that the remaining funds should be able to sustain the existence of SPI pending the determination of the Relevant Applications.
It is expected that the lease for the two SPI premises may come to an end in the meantime. However, if SPI is successful in its substantive applications, it may strike a new lease for the same premises (if it remains unleased) or for new premises. Similarly, SPI would be in a position at that time, if it is successful, to hire its previous staff (if they remain unemployed) or to recruit new staff to recommence its operations as an RTO and CRICOS provider. In the meantime, SPI may store its operational documents, comprising its training and assessment materials, processes and systems, awaiting the determination by the Tribunal as to whether it should continue to operate as an RTO and CRICOS provider.
The Tribunal considers that this factor, that SPI will suffer future financial losses, weighs against of the revocation of the stay, but not heavily so, as the substantial cash reserves of SPI and the ability of SPI to be able to greatly contain any ongoing liabilities while it awaits the determination of the substantive applications. Otherwise, the Tribunal does not consider there to be sufficient evidence before it to find that SPI will necessarily collapse after six months (as suggested by Mr Ahuja as a possibility), as a result of ceasing to trade, pending the completion of the review process.
The public interest (incorporating a consideration of the consequences of the revocation of the stay on the ASQA in carrying out its functions)
It was contended by the ASQA that the Tribunal should take into account, as a fundamental element, the context set by the regulatory regime underpinning the Relevant Decisions, when forming an opinion about whether it is desirable to revoke the stay or to allow the stay to remain in place.
The ASQA relied on the observations of Downes and Jagot JJ in the Full Court of the Federal Court of Australia decision in Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another [2009] FCAFC 185 as follows:
[51] The nature of the decision under review will affect the identification of the “interests of any persons who may be affected by the review”. Accordingly, those interests are to be identified by reference to the statutory scheme under which the decision under review was made. In the case of a banning order […] Given the nature of a banning order, the persons who may be affected by a review of its making include not only the recipient and his or her dependants, associates and employees but also that person’s existing and potential clients, as well as the public at large.
[52] Determining whether the making of an order under s 41(2) of the AAT Act is desirable requires resolving these potentially competing interests. In this process of resolution the scheme embodied by the legislation under which the banning order is made is central. The context set by that scheme is a “fundamental element” in the formation of the opinion according to law (R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329). The scheme discloses that a banning order protects the public. It is intended to protect the public from obtaining financial services from a person who (amongst other things) has not, or ASIC reasonably believes has not, complied with a financial services law or had had their Australian financial service licence suspended or cancelled (s 920A(1)).
[53] The structure of the scheme also indicates Parliament’s assessment of the appropriate resolution of the competing interests of persons who may be affected by a banning order. Other than in limited circumstances a banning order cannot be made without giving the proposed recipient a right to be heard and to make submissions in private to ASIC… A banning order must be accompanied by a statement of reasons […] If, and only if, ASIC makes a banning order is it required to make public that fact[…] For the AAT to form an opinion under s 41(2) of the AAT Act (that it would be desirable and in the “interests of any persons who may be affected by the review” to make an order staying or otherwise affecting the operation or implementation of ASIC’s decision) these elements of the statutory regime, and the balance between the competing interests that they represent, must be treated as a fundamental element in the weighing of the competing interests.
It was contended by the ASQA that the protection of students and the reputation of the vocational education and training sector generally, are at the forefront of these legislative schemes comprising the NRV Act and the ESOS Act.
The ASQA drew the Tribunal’s attention to s 4A of the ESOS Act which provides as follows:
4A The principal objects of this Act are:
(a) To provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and
(b) To protect and enhance Australia’s reputation for quality education and training services; and
(c) To complement Australia’s migration laws by ensuring providers collect and report information relevant to the administration of the laws relating to student visas.
The objectives of the NRV Act are set out in s 2A and provide as follows:
2A The objects of this Act are:
(a)to provide for national consistency in the regulation of vocational education and training (VET); and
(b)to regulate VET using:
i.a standard-based quality framework; and
ii.risk assessments, where appropriate; and
(c)to protect and enhance:
i.quality, flexibility and innovation in VET; and
ii.Australia’s reputation for VET nationally and internationally; and
(d)to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia’s social and economic needs for a highly educated and skilled population; and
(e)to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and
(f)to facilitate access to accurate information relating to the quality of VET.
The Tribunal also notes the legislated functions of the ASQA as set out in s 157 of the NVR Act. The ASQA is empowered, as the relevant regulator, to undertake enforcement action and to make decisions intended to promote and protect the students and the general reputation of the Australian vocational education and training sector, both nationally and internationally, and to ensure that registered RTOs and CRICOS providers are operating in compliance with their statutory obligations. The Tribunal also notes one of the specific objectives of the ESOS Act is to facilitate access to accurate information relating to the quality of vocational education and training. Further, s 15 of the ESOS Act specifically imposes a statutory obligation on registered providers not to engage in misleading and deceptive conduct.
The Tribunal notes and agrees with the observations of Senior Member McCabe in the Administrative Appeals Tribunal decision of Metro College of Technology Pty Ltd and Australian Skills Quality Authority (unreported)[34] in considering a stay application in relation to the cancellation of an RTO’s registration under the NVR Act:
[10] But there is also the question of the public interest. The regulatory system was devised to protect consumers of these courses, and to protect the good name of Australian educational institutions overseas. Many students travel long distances from overseas […] The regulatory regime assumes there is a public interest in ensuring these programs are properly run according to recognized standards. Failures to adhere to standards – particularly where those failures suggest systemic problems, poor judgment or an unwillingness to comply with the law – must be taken very seriously.
[…]
[16] […] But I am troubled by the important questions of public interest that have been raised. If the decisions are affirmed, the students who are still enrolled, or who may enroll, will rightly feel their qualifications have been undermined. That may undermine the confidence in the regulatory system and the integrity of the Australian vocational education and training sector.
[34] Application number 2015/6137.
The Tribunal is satisfied there is a real risk that a number of the objectives of the legislative regime including the risk of damage to the reputation of the Australian vocational education and training sector and the risk of undermining and de-valuing the qualifications issued by SPI, would not be met if SPI were permitted to continue operating for the time being as an RTO and CRICOS provider. The Tribunal considers that SPI’s prospects of being found, at the final hearing, to have implemented a system of fabricating its student files and providing false information to the ASQA about that when it is audited is high.
In these circumstances, the Tribunal considers that the public interests identified add considerable weight to the desirability of revoking the stay.
The interests of SPI’s employees and the consequences of the revocation of the stay on them
SPI’s employees in general
The Tribunal has taken into account the evidence in Mr Ahuja’s First Affidavit, that as at October 2017, SPI had 15 permanent full-time employees, four casual full‑time employees and three part-time employees. The Tribunal accepts that those employees would be significantly affected if SPI ceased trading as their employment is likely to come to an end. Those employees will receive a redundancy payment which would support them for a limited period of time. It may be they are successful in finding alternative employment. Although, it may also be that they are unable to do so and consequently, they would be left without a regular source of income potentially impacting the livelihood of those employees and their dependents.
The Tribunal is satisfied that the impact of SPI ceasing to trade may have a significant negative impact on SPI’s current employees. This weighs against the desirability of revoking of the stay.
Impact on Mr Ahuja
In Mr Ahuja’s First Affidavit, Mr Ahuja also gave evidence about the negative impact to himself if the stay was revoked, pending the outcome of the review process. Although it is unclear, Mr Ahuja’s assertions seem to be premised, in part, on an assumption that SPI will not have an opportunity to continue with the review process as a consequence of it ceasing to trade.
The Tribunal does not accept that SPI is likely to collapse as a result of SPI ceasing to trade awaiting the review outcome for the reasons outlined above. The Tribunal is satisfied that SPI is likely to have the opportunity to press on with its applications for review of the Relevant Decisions, even if SPI is prevented from trading as an RTO and CRICOS provider in the interim.
Mr Ahuja’s is concerned about the reputational damage to himself personally if the Relevant Decisions are implemented. This could be said to apply to all applicants for review before this Tribunal in these types of review. Additionally, Tribunal is satisfied that Mr Ahuja is likely to have the opportunity to ‘clear his name’ and protect his reputation as part of the reviews before this Tribunal if SPI is successful.
The Tribunal is not persuaded that any possible impact on Mr Ahuja personally should be a factor weighing against the desirability of the revocation of the stay.
The interests of SPI’s students and the consequences of the revocation of the stay on them
In Mr Ahuja’s First Affidavit, Mr Ahuja asserts that the studies of SPI students would be disrupted if SPI ceased trading. The Tribunal accepts this proposition. Mr Ahuja also asserts that he does not expect some of those students would find suitable and timely alternative training. There was no evidence provided in support of that proposition and the Tribunal does not accept that there would obstacles in the way of all of SPI students finding alternative training in a timely fashion.
Mr Ahuja asserted that the students studying for hospitality qualifications were required to complete work placements to achieve full competency in a number of units and that if they transitioned to an alternative RTO they would not be entitled to be credited for those placements. There was insufficient evidence before the Tribunal for it to find that those requirements as alleged by Mr Ahuja to gain a credit for work placement for their hospitality qualifications applied. However, the Tribunal has already accepted, as mentioned above, that the cessation of SPI ceasing to trade as an RTO is likely to cause a temporary disruption to SPI students.
One possible outcome of the review process is that SPI is unsuccessful and the decision to cancel (or not to renew) SPI’s registrations is affirmed.
If this transpires, an obvious consequence is that it will undermine and de-value the existing qualifications that have been issued to students by SPI.
The Tribunal considers that limiting the potential exposure of SPI’s current students by minimising the total number of student qualifications issued by SPI (by permitting a path where they will transition to an alternative provider and have their qualifications issued by an alternative RTO), overshadows any temporary disruption likely to be caused to those students arising from that transition.
For this reason, the Tribunal considers that, on balance, the interests of SPI’s students weigh in favour of the revocation of the stay.
Whether the review application, if successful, would be rendered nugatory or pointless if the stay was not permitted to remain in place
For the reasons set out above, the Tribunal is not satisfied that SPI is likely to collapse pending the review of Relevant Decisions due to its substantial reserves and its ability to substantially reduce its continuing outgoings, during the course of the review period. The Tribunal considers that SPI is likely to be in a position to re-commence trading as an RTO and CRICOS provider should SPI succeed in relation to the Relevant Applications.
Based on the present evidence available to the Tribunal it does not consider that the Relevant Applications would be rendered nugatory or pointless of the stay was not permitted to remain in place.
The likely time it will take for the Tribunal to hear the substantive applications to review the Relevant Decisions
It is expected that it may take another 12 months before the outcome of the review process before the Tribunal. The Tribunal accepts that this is not an insignificant period of time. The Tribunal considers that this factor weighs in favour of the desirability of revoking the stay but not considerably so. As outlined above, the Tribunal is not satisfied that SPI is likely to collapse as an entity pending the review. The Tribunal is satisfied that SPI is likely to be able to survive, albeit in a dormant state, and essentially as a shell, but this would allow it to resurrect itself by recruiting staff and entering into new leases, if it is ultimately successful.
CONCLUSION
The Tribunal is satisfied that there are some considerations weighing against the revocation of the stay including the personal impact on SPI’s current employees in general, the irrecoverable financial losses that are likely to be sustained by SPI as a consequence of it ceasing to trade pending the review outcome and to a lesser extent, the likely time it will take to complete the review being an estimated 12 months.
However, the Tribunal is satisfied that those consideration are outweighed by other considerations which weigh in favour of the desirability of revoking the stay, including:
(a)the impression formed by the Tribunal that SPI’s prospects of success in the substantive application are low;
(b)the public interest in minimising the potential exposure of SPI’s 460 current students being issued with a qualification by SPI when that qualification may become de-valued if SPI is unsuccessful in setting aside the Relevant Decisions; and
(c)the public interest in minimising the risk of damage to the reputation of the vocational education and training sector generally both nationally and internationally by permitting SPI to continue to operate as an RTO and registered CRICOS provider pending the review.
For these reasons, the Tribunal considers that it is desirable to revoke the stay.
FURTHER REQUEST BY SPI TO POSTPONE THE EFFECTIVE DATE OF REVOCATION OF THE STAY
At the conclusion of the interlocutory stay hearing, counsel for SPI requested that if the Tribunal decided to revoke the stay that it should defer the date upon which the revocation will take effect and a period of 14 days was suggested.
The Tribunal has considered this request. I am mindful that when the ASQA makes a cancellation decision that, typically it provides the relevant training organisation with notice before the cancellation takes effect.
I consider it appropriate in the circumstances to grant SPI’s request and I will order that the revocation of the stay take effect on 29 January 2018, meaning that the cancellation of SPI’s registration (and decisions not to renew SPI’s registration) under the NVR Act and the ESOS Act will take effect on that date.

I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

[sgd]......................................................................
Associate
Dated: 15 January 2018

Date of hearing:

21 December 2017

Advocate for the Applicant:

Solicitors for the Applicant:

Mr Jason Pizer QC, with Mr Nick Wood of Counsel

Slater & Gordon

Advocate for the Respondent: Mr Stephen Rebikoff of Counsel

Solicitors for the Respondent: Mr Damian Cox, Legal Officer, ASQA

ANNEXURE A

The ASQA’s summary of information extracted from its investigation report dated 1 December 2016
[6]. ASQA obtained statements from ten persons, Geetika Bindra, Benu Bindra, Dadul Bhutia, Syed Hussain, Varun Choudhary, Mandeep Natt, Cheryl Tuariki, Sandra Thompson, Charisse Bogaars and Elzalou Maru-Hauka.
Geetika Bindra Statement – 8 February 2016 – (Complainant 1010817)
[7]. On 8 February 2016, ASQA obtained a statement from Ms Geetika Bindra. The following is a summary of information contained within this statement:
In August 2013, Ms G Bindra commenced employment with the Provider as an administrative officer. Ms G Bindra’s duties included being responsible for student enrolments for domestic students. She worked at the Providers La Trobe Street Melbourne address, and the current location level 7, 140 Queen Street Melbourne.
Ms G Bindra stated that her duties as an administration officer included copying student signatures and handwriting and that staff worked in pairs to complete student assessments, one as the student, and the other as the assessor.
Ms G Bindra stated that the CEO Mr Amit Asija had a staff meeting every morning to discuss how many files staff needed to complete for the day. Mr Asija would demonstrate to staff how to make documents look old to match the age and condition of the student files. For example he instructed staff to rub documents on the floor, scrunch documents up and rub them along the walls.
Ms G Bindra stated that Mr Asija had a network of people hired to complete student work for SIT40407 Certificate III Commercial Cookery, referred to as ‘the outsiders’. Worksheets and answer sheets were sent out to the outsiders with matching pens for them to complete answers in student worksheets. That instead of the outsiders writing the answers in the worksheets, they would write “see attached at the back”. She would then have to alter the documents by scratching out “see attached at the back”, and writing in the correct answers.
Geetika Bindra Statement – 29 February 2016
[9].On 29 February 2016, ASQA obtained a statement from Ms Geetika Bindra. The following is a summary of information contained within this statement:
Ms G Bindra stated, towards the end of 2013 she had a conversation with the Managerial Agent for the Provider, Mr Gurpreet Singh Ahuja about increasing her wages. Several days after this conversation Mr Ahuja gave her several blank student bundles, photo copies of passports and drivers licences for her to match student signatures and hand writing.
Ms G Bindra stated that these files belonged to another college Accredited Education & Training Australia Pty Ltd (21639); that she completed the student bundles, matching the handwriting and returned the documents to Mr Ahuja; that she was paid $13 per hour by Mr Ahuja to complete the files. She also stated that she completed student bundles for Sunshine Management, Della International College and Caboolture College of Education and Training.
Ms G Bindra stated that her extra duties also included following up with the outsiders on outstanding student work, ensuring documents were returned on time in case of an audit; that she designed a spreadsheet listing the names of each student, and in a separate column the name of the staff member who completed the work for the student.
(emails and spreadsheets exhibited in statement)

Benu Bindra Statement – 7 March 2016 – (Witness A)
[13].On 7 March 2016, ASQA obtained a statement from Ms Benu Bindra. The following is a summary of information contained within this statement:
Ms B Bindra stated that she personally knew both Mr Asija and Mr Ahuja, through family friends; that around May 2013, she was asked by Mr Asija’s wife Ms Daman Jeet Kaur if she would like to start doing some assignments for Della International College. That Ms Kaur and Ms Shivali Mehta, Mr Ahuja’s girlfriend, were already doing assignments for Della International College.
Ms B Bindra stated before having a chance to think over the proposal, Mr Ahuja arrived at her home with boxes of student bundles for her to complete. That there were three student bundles for three different students. That Mr Ahuja instructed her to use different pens and different hand writing for each student, that she was given a three day deadline and paid around $60 to $70 per student bundle.
Ms B Bindra stated that from July 2013, she also started receiving student bundles for the Provider and was paid $100 per student file for larger bundles and that most of her instructions came from Mr Ahuja via text message.
(text messages exhibited in statement)

Benu Bindra Statement – 21 March 2016
[14].On 21 March 2016, ASQA obtained a statement from Ms Benu Bindra. The following is a summary of information contained within this statement:
Ms B Bindra stated that since June 2013, she has completed student bundles for this Provider, Della International, Sunshine College of Management, and Caboolture College of Education and Training.
Ms B Bindra stated Mr Ahuja and Mr Asija mentioned buying Chambers Institute and that this college would mostly deal with international students. They told her, international students were not interested in studying or doing assignments and that she would have a lot more assignments to do on behalf of the international students once they bought Chambers Institute.
Ms B Bindra stated that around August 2015, Mr Asija and Mr Ahuja were becoming increasingly anxious due to an audit that was scheduled for mid-August 2015; that they had staff working back very late each night to ensure student bundles were complete for the audit; that Mr Ahuja put a lot of pressure on her to help out with completing student bundles. One night he came to her house carrying two heavy boxes containing student bundles. Mr Ahuja instructed her to remove the answer sheets attached to the student bundles, and copy the answers onto the assignment sheets. At the front of each student bundle was an A4 sheet of paper with the student name and ID written on it. Mr Ahuja instructed her to copy this handwriting throughout the student bundles. That she remembered the name of one of the student bundles she completed, ‘Cassandra Fretton’. Ms B Bindra stated that she was paid $130 for each bundle she completed.

Geetika Bindra Statement – 8 June 2016
[19].On 8 June 2016, ASQA obtained a statement from Ms Geetika Bindra. The following is a summary of information contained within this statement:
Ms G Bindra was shown a number of student bundles seized during the search warrants and identified one student bundle in the name of ‘Chee’ as being in her handwriting.

Benu Bindra Statement – 8 June 2016
[20].On 10 June 2016, ASQA obtained a statement from Ms Benu Bindra. The following is a summary of information contained within this statement:
Ms B Bindra was shown a number of student bundles seized during the search warrants and identified one student bundle in the name of ‘Fretton’ as being in her handwriting.

Geetika Bindra Statement – 14 June 2016
[21].On 14 June 2016, ASQA obtained a statement from Ms Geetika Bindra. Ms G Bindra was shown two student bundles in the name of Mr Syed Hussan and Mr Dadul Bhutia. These student files were given to ASQA Investigators on an unannounced audit on 21 October 2015. The following is a summary of information contained within this statement:
Ms G Bindra stated that she recognised both of the student bundles; that the files were given to her by Mr Asija on 21 October 2015 and that she clearly remembered this day as it was the day of the unannounced ASQA audit.
Ms G Bindra stated that on this day, she was working on student files in the domestic room; that Mr Gulsher Singh Ahuja, who is the CEO of RISE Education & Training Pty Ltd came into the room looking very stressed and agitated; that he ordered everyone to leave the building immediately and to use the fire exit; that the Provider was having a surprise audit; and that herself, Mr Asija, and fellow employees Shonali Kumar, Mandeep Singh and Rajvir Parha walked down to the Della International College campus in A’Beckett Street Melbourne.
Ms G Bindra stated that when she arrived at the Della International College campus Mr Asija gave her some incomplete student bundles, some student names, and student IDs; that she did not have copies of the student signatures; Mr G Ahuja scanned and emailed to Mr Asija copies of the student signatures to put on the files; and that the names were Syed Hussan and Dadul Bhutia.
Ms G Bindra stated that she was told by Mr Asija that the student bundles needed to be completed urgently as the auditors were waiting for the documents at the Queen Street building; that Mr Amanjot Singh Bedi was at the Della International College campus and he checked the documents making sure the handwriting matched; that she worked on files with a staff member from Della International called Ms Kanika Bhardwaj who completed the files as the assessor; that she remembered Ms Bhardwaj say that the two students never attended the college as they both lived in Perth WA.
Ms G Bindra stated the student bundle in the name of Dadul Bhutia, when the file was given to her by Mr Asija it was partially completed and that it already had the answers written in it; that in this file she completed the student name, student ID, dates and student signatures; that she recognised the assessor handwriting as belonging to Ms Bhardwaj; and that she saw Ms Bhardwaj complete the assessor parts within the bundle as they worked on this file together.
Ms G Bindra stated that with the student bundle in the name of Syed Hussain, that she recognised the student hand writing as being her own handwriting; that she completed this student bundle at some other time at the Queen Street Melbourne address; and that the student ID, and student dates were also in her handwriting.

Dadul Dorjee Bhutia Statement – 1 July 2016
[24].On 1 July 2016, ASQA obtained a statement from Mr Dadul Dorjee Bhutia regarding the Diploma of Marketing issued to him by the Provider. On 15 June 2016, Mr Bhutia emailed E & I advising, ‘I haven’t received the qualification to my knowledge, also I am not working in Kinngdom (sic) since last year and didn’t want this qualification anyway’. The following is a summary of information contained within this statement:
Mr Bhutia stated that throughout most of the student bundles the student hand writing in the name fields was his handwriting; the handwriting in the student ID and date fields was not his handwriting, the student signatures are in his handwriting, the assessments are in his handwriting; that the assignments attached to the back of each unit throughout the bundle have not been completed by him that he has never seen the assignments before; and that he was never asked to complete assignments for the Diploma.
Mr Bhutia stated that he flew from Perth to Melbourne on the morning of Saturday 10 October 2015, completing all the assessments for the Diploma on the one day, flying out of Melbourne that same night.
Mr Bhutia advised that he had never seen the certificate issued to him by the Provider for the Diploma of Marketing, dated 1 May 2015.

Syed Shaheryar Hussain Statement – 1 July 2016
[25].On 1 July 2016, ASQA obtained a statement from Mr Syed Shaheryar Hussain. The following is a summary of information contained within this statement:
Mr Hussain stated that he has never received a copy of his certificate for the Advanced Diploma of Marketing issued to him by the Provider, dated 1 May 2015. That he was not in Melbourne on the date the certificate was issued; that he flew to Melbourne on 8 October 2015, completed the Advanced Diploma of Marketing assessments over the weekend, departing for Perth on 11 October 2015.
Mr Hussain stated that the International Student Application form shown to him was completed in his own handwriting, the date 9 February 2014 was not in his handwriting, and that he was not in Melbourne on 9 February 2014.
Mr Hussain stated that throughout most of the student bundle the student hand writing in the name fields is his handwriting; the handwriting in the student ID and date fields was not his handwriting; the student signatures are his handwriting, and the assessments are in his handwriting; that the assignments attached to the back of each unit throughout the bundle have not been completed by him; and that he has never seen the assignments before being shown them by ASQA Investigators.
Varun Choudhary Statement – 5 July 2016 – (Witness B)
[26].On 5 July 2016, ASQA obtained a statement from Mr Varun Choudhary. The following is a summary of information contained within this statement:
Mr Choudhary stated that he was employed by the Provider as an administration officer from February 2013 until the end of 2014; that part of his duties were to work either as the student or the assessor to complete student work. When signing student work as the assessor he used the names of current assessors working at the college, other times Mr Asija would give him an assessor name to use; that he remembers using the assessor name John Weir to sign student bundles, and that Mr Asija gave him instructions on how to do the signing and what names to use.
Mr Choudhary stated that part of his duties involved printing out blank student assessments; that he would give the blank assessments to the agents; and that the agents would then deliver the bundles to ‘the outsiders’.
Mr Choudhary stated that when ASQA notified the Provider of an up and coming audit that Mr Asija and Mr Ahuja would organise work to be completed by ‘the outsiders’, ensuring everything was ready for the auditors; and that when an audit was being conducted Mr Asija and Mr Ahuja would make most of the staff take days off because management did not want them around the office during the audits.
Mandeep Singh Natt Statement – 6 July 2016 – (Witness C)
[27].On 6 July 2016, ASQA obtained a statement from Mr Mandeep Singh Natt. The following is a summary of information contained within this statement:
Mr Natt stated that he was employed by the Provider as a student support officer from November 2013 until December 2015; that he was told part of his duties were to tick student assessments, that he was given a red pen and told to just tick the answers; that other staff working for the Provider also did the same, marking student files. Staff worked in pairs, one working as the student, the other as the assessor; that he signed student files with the assessor name Taj, that Taj was an assessor working at the college; that he was showed by Taj, how to correctly sign student bundles using the signature” Taj”; and that there was a lot of pressure put on the staff by management to complete at least three student bundles per day.
Mr Natt stated that around July 2014, there was an audit on the college and he started using the assessor name Abbie; that management were panicked about having all the files ready for the audit, staff had to work back very late at night to complete the files, and that during this time he was paired with Geetika Bindra.
Mr Natt stated that that he remembers one time when working at the Queen Street location, he, along with other staff were told to leave the building by the fire exit by Mr Gulsher Singh Ahuja. That he along with other staff left the building and went to the Della International College campus, where he, along with Geetika Bindra and Kanika Bhardwaj started preparing some student files in Marketing. That he recalls Ms G Bindra working as the student and Ms Bhardwaj as the assessor.
Cheryl Tuariki Statement – 6 July 2016
[28].On 6 July 2016, ASQA obtained a statement from Ms Cheryl Tuariki. Ms Tuariki was shown a student bundle in the name of Cheryl Tuariki seized as evidence during the search warrants on the Provider. The following is a summary of information contained within this statement:
Ms Tuariki stated that in around 2014 she enrolled with the Provider for a Certificate III in Hospitality and that she only ever attended two practical classes in the commercial cookery premises located in the city.
Ms Tuariki stated that none of the hand writing throughout the student bundle was her own handwriting and that the signatures throughout the student bundle were not in her handwriting, and she did not sign any documents.
Ms Tuariki stated that the dates on one of the units BSBSUS201A was dated 22 August 2014, which was a Friday, that she never attended the college on a Friday, that she only ever went to the commercial cookery premises a few times and always on a Monday.
Ms Tuariki stated that the student ‘Enrolment Form’ is not in her handwriting and the Language Literacy and Numeracy assessment scale was not in her handwriting.
Ms Tuariki stated that she has no knowledge of, nor has she ever met the assessor in the name of Vinmda Sharma, whose details appear throughout the student bundle. That she has never met nor spoken with the assessor Tajinder Singh whose details appear on the training plan in her name.
Sandra Thompson Statement – 8 July 2016
[29].On 8 July 2016, ASQA obtained a statement from Ms Sandra Thompson. The following is a summary of information contained within this statement:
On 21 October 2015, she attended the Queen Street Melbourne premises of the Provider. Mr Gulsher Singh handed her copies of two certificates, one for the Advanced Diploma of Marketing (BSB60507) in the name of Syed Shaheryar Hussain and the other a Diploma of Marketing (BSB51207) in the name of Dadul Dorjee Bhutia.
That Mr Asija handed to her two student assessment files, one in the name of Syed Shaheryar Hussain and the other for Dadul Dorjee Bhutia.
Charisse BOGAARS Statement – 4 August 2016
[32].On 4 August 2016, ASQA obtained a statement from Ms Charisse Bogaars The following is a summary of information contained within this statement:
Ms Bogaars stated that she completed her Certificate III in Commercial Cookery with the Provider, starting in January 2014 and finishing towards the end of 2014; that the Provider lost all the units she completed; that she had to redo all her placement and practical work; and that she had never received a copy of her certificate from the Provider.
Ms Bogaars stated that in January 2014, she also started working as the crèche coordinator for the Provider, prior to this she worked for Sunshine College of Management as an agent. In May 2014, her role changed to an administration officer; that her duties included designing marketing pamphlets and brochures to recruit students for the college; and that she would check prospective students against the eligibility requirements for State funding.
Ms Bogaars stated that in January 2016, she met with Mr Ahuja to enquire about getting her job back; that Mr Ahuja advised her that the college had lost its government funding and that there was no point recruiting students.
Ms Bogaars stated she remembers working at the La Trobe Street Melbourne office once, in around the second half of 2014, when there was an unannounced audit; that she saw staff running around everywhere grabbing everything they could and making their way down the fire exit; that she witnessed Mr Asija exit the building via the fire exit, and that he looked freaked out, like he had seen a ghost; that prior to this she had witnessed him working calmly in his office; that the two auditors asked her to contact Mr Asija to advise him of the audit; and that she tried a number of times to call him on his mobile phone but he did not answer.

Elizalou Maru-Hauka Statement – 8 August 2016
[33]. On 8 August 2016, ASQA obtained a statement from Ms Elizalou Maru-Hauka. Ms Maru-Hauka was shown a student bundle in the name of Elizalou Maru-Hauka seized as evidence during the search warrants on the Provider. The following is a summary of information contained within this statement:

Ms Maru-Hauka stated that she did not recall the dates that she attended the college, nor the name of the cooking course she signed up for; that she did not complete the course and could not recall why she didn’t complete it.
Ms Maru-Hauka stated that most of the hand writing in the student bundle was in her handwriting. However, for unit SITXFSA101, that unit was not in her handwriting, that the staff at the college would sometimes help her out because she was very slow with her handwriting.

Date of hearing:	21 December 2017
Advocate for the Applicant: Solicitors for the Applicant:	Mr Jason Pizer QC, with Mr Nick Wood of Counsel Slater & Gordon
Advocate for the Respondent:	Mr Stephen Rebikoff of Counsel
Solicitors for the Respondent:	Mr Damian Cox, Legal Officer, ASQA