Skilled Education Australia Pty Limited and Australian Skills Quality Authority

[2019] AATA 317

Skilled Education Australia Pty Limited and Australian Skills Quality Authority [2019] AATA 317 (4 March 2019)

Division:GENERAL DIVISION

File Number(s):      2019/0902

Re:Skilled Education Australia Pty Limited

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:4 March 2019

Place:Sydney

The application for a stay of the decision of the Respondent to cancel the registration of the Applicant as a Registered Training Organisation pursuant to sections 36(2)(f) and 39 of the National Vocational Education and Training Regulator Act 2011 (Cth), is refused.

..........................[sgd]..........................................

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – application to stay decision of Australian Skills Quality Authority – registered training organisation – decision to cancel registration – factors relevant to the granting of a stay – prospects of success – reputational damage – cancellation decision already in effect – insufficient evidence of financial impact – stay application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 41

National Vocational Education and Training Regulator Act 2011 (Cth) ss 3, 22

CASES

Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065

SECONDARY MATERIALS

Standards for Registered Training Organisations (RTOs) 2015

REASONS FOR DECISION

Senior Member A Poljak

4 March 2019

1. Skilled Education Australia Pty Limited (“the applicant”) was granted registration as a Registered Training Organisation (“RTO”) by the Australian Skills Quality Authority (the “respondent” or “ASQA”) on 23 October 2015. The scope of the applicant’s registration under the National Vocational Education and Training Regulator Act 2011 (Cth) (“the NVR Act”) consisted of the following units of competency and a VET accredited course:

   (a)HLTAID001 Provide Cardiopulmonary Resuscitation;

   (b)HLTAUD003 Provide first aid;

   (c)HLTAID004 Provide an emergency first aid response in an education and care setting; and

   (d)22282VIC Course in the Management of Asthma Risks and Emergencies in the Workplace.

2. On 10 September 2018, the applicant requested the removal of the VET accredited course 22282VIC Course in the Management of Asthma Risks and Emergencies in the Workplace from its scope of registration.

3. ASQA is the national vocational education and training regulator as that term is defined in section 3 of the NVR Act. Section 22(1) of the NVR Act states:

   “An NVR registered training organisation must comply with the Standards for NVR Registered Training Organisations”. [Emphasis added]

4. The Standards for Registered Training Organisations are contained in the legislative instrument Standards for Registered Training Organisations (RTOs) 2015, which came into effect at various times between 1 January and 1 April 2015 (“RTO Standards”).

5. On 9 January 2019, ASQA made the decision to cancel the applicant’s registration as an RTO effective from 21 February 2019, under sections 36(2)(f) and 39 of the NVR Act. The cancellation decision was made because ASQA identified that the applicant was non-compliant with clauses 4.1, 5.2, 1.7, 1.1, 1.2, 1.8, 1.3, 1.13, 1.16, 2.3, 2.4, 8.2 and 8.1 of the RTO Standards. On 17 January 2019, the applicant was notified of ASQA’s decision to cancel its registration. The applicant has applied to the Tribunal for review of the decision (“the substantive application”).

6. These proceedings concern an application for a stay of the operation and effect of the cancellation decision until final determination of the substantive application (“stay application”). At the time of the hearing of the stay application, the cancellation decision had already come into effect.

7. From the outset of the hearing and in written submissions the applicant contended that an interim conditional stay order was urgently required while the substantive stay application was being determined. It was submitted that the urgency arose from the fact that the decision had already come into effect, albeit for only a couple of business days, and was required to ensure that no reputational damage was caused to the applicant in the interim; should they ultimately be successful on the substantive stay application. After hearing submissions from the parties and reviewing the available evidence, I was not minded to grant an interim conditional stay at hearing and advised that my reasons would follow.

8. The reasons for refusing the interim conditional stay are contained in this decision and are for the same reasons that I refuse the applicant’s substantive stay application. They are as follows.

   CONSIDERATION

9. A decision that is subject to review has full effect and operation unless and until the Tribunal makes an order under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to stay the operation and effect of the decision. Such an order may be made if the Tribunal is “of the opinion that it is desirable to do so after taking into account the interests of any person who may be affected by the review”. It is not intended to simply protect an applicant from the consequences of a decision.

10. There are numerous authorities which set out a non-exhaustive set of factors to be taken into account when determining an application for a stay order. In Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065 at [6]-[7], the Tribunal summarised the well-established relevant factors and principles which may be considered when determining a stay application:

    [6] The decision whether to grant a Stay is entirely discretionary. It follows that an applicant does not have an automatic right to a Stay. Given the effect of s 41(1) of the AAT Act, it must necessarily be inferred that the reviewable decision, the decision of the SSAT in this case, is correct until proven otherwise. Further, the general principle applied by the courts that, prima facie, the successful party has the right to the fruits of a judgement should also apply in the case of Tribunal decisions. In the courts, an applicant for a Stay is required to show that there are special circumstances which would justify the stay of execution of the judgement.

    [7] The matters which are considered by the courts to constitute special circumstances are similar to those enunciated by the Tribunal when dealing with Stay applications.  Deputy President G.D. Walker in Re Secretary, Department of Workplace Relations and Nicholas [2006] AATA 497 at [21] and Senior Member B.J. McCabe in Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485 at [5] set out the following factors which may need to be considered in determining whether a Stay should be granted.

    (a) The prospects of success or the merits of the applicant’s case on review.

    (b) Whether there will be prejudice to the parties or anyone else if a Stay were not granted.

    (c) Whether it is in the public interest to grant a Stay.

    (d) That the review application, if successful, would be rendered nugatory or pointless if the Stay was not granted.

11. These factors are generally the touchstone against which consideration of stay applications are to be approached.

12. While it is neither necessary nor appropriate for me to determine the substantive matter on an interlocutory application, I must be satisfied that the applicant has some prospects of success. This can be a difficult task given that all of the evidence intended to be relied upon at the hearing of the substantive application may not be before me. However, I do note that the applicant has provided a letter from Newbery Consulting dated 26 February 2019, which details steps that the RTO intends to undertake to ensure full compliance with the RTO Standards. It is anticipated that the rectification work will be carried out over approximately 3 months. Ghaith Krayem, the chief operating officer of the VETEA Group (“VETEA”), also provided an unsworn statement in these proceedings. He states that in addition to engaging Newbery consulting as an independent compliance expert, he also intends to do a further review of the rectification work submitted to ASQA against all findings and identify any possible gaps that may still exist and develop a plan of work to ensure that all issues are addressed. For these reasons, it cannot be said that the applicant’s prospects of success in the substantive application are hopeless.

13. As to the consequences for the applicant should the stay application be refused, I accept that some reputational damage may be suffered. However, the degree of damage is unable to be established from the available evidence. The applicant contends that it operates in a sensitive industry, namely the healthcare industry and that the cancellation decision may affect existing arrangements with stakeholders, student education agents and trainers who provide their services to the applicant. In an unsworn statement of Erika Lang, the director of the applicant, she states that deregistration could also cause reputational damage to the applicant’s associated entity, VETEA and other associated RTOs. In this regard I do note that the cancellation decision had already come into effect at the date of the hearing of the stay application and accordingly, any anticipated reputational damage would already have occurred at that time. Particularly in light of the number of important legal obligations that require immediate attention following cancellation, such as ceasing to operate or advertise.

14. In regards to any financial losses, I have no evidence before me to substantiate a claim of a tangible financial impact. In written submissions, the applicant contends that “the detrimental reputational impact of deregistration will likely create a cycle of financial detriment”.  However there is no evidence before me to demonstrate a tangible financial loss or any evidence to substantiate a predicted impact. The concerns raised by the applicant at this stage are merely hypothetical. At hearing, the applicant conceded that having regard to the applicant’s present and ongoing liabilities, the financial impact to the applicant would be the same whether or not the stay is granted or refused. The applicant currently has no students enrolled, has not traded since June 2016 and is liable for rental/lease fees on its premises irrespective of the outcome of these stay proceedings.  

15. Finally, there is insufficient evidence before me to support the contention that the review application would be rendered nugatory if the stay order was not urgently granted.

    DECISION

16. Having taken into account the factors advanced by both the applicant and respondent, I have reached the view that on balance, it is not desirable to order a stay under section 41(2) of the AAT Act. I accept that the applicant may suffer some reputational damage as a result of the cancellation decision, even if it is ultimately successful in the substantive application and I acknowledge that the applicant’s case is not without merit, however, based on the available evidence I am not satisfied that the circumstances in this case are sufficient to justify the granting of a stay.

17. The application for a stay is refused.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.........................[sgd]...........................................

Associate

Dated: 4 March 2019

Date(s) of hearing:	26 February 2019
Solicitors for the Applicant:	P Doukas, Denison Toyer
Solicitors for the Respondent:	J Pellow, Australian Skills Quality Authority