Sunrise Institute of Australia Pty Ltd and Australian Skills Quality Authority - [2018] AATA 3935

Sunrise Institute of Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3935 (15 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4941
Re:Sunrise Institute of Australia Pty Ltd
APPLICANT

AndAustralian Skills Quality Authority
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member

Date:15 October 2018
Date of written reasons: 19 October 2018
Place:Sydney

Pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975, Sunrise Institute of Australia Pty Ltd’s application for a stay of the Australian Skills Quality Authority decision dated 1 August 2018, is refused.
.............................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application to stay decision of Australian Skills Quality Authority – decision to reject registration of training organisation – decision to cancel Applicant’s registration – prospects of success- consequences for Applicant – public interest- consequences for Respondent – whether review would be nugatory – other matters – stay application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Education Services for Overseas Students Act 2000
National Vocational Education and Training Regulator Act 2011
CASES
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307
Re Metro College of Technology Pty Ltd and Australian Skills Quality Authority (unreported, Administrative Appeals Tribunal, Senior Member McCabe, 24 December 2015)
Rust-Oleum Australia P/L v Australian Pesticides and Veterinary Medicines Authority [2017] AATA 298
Scottv Australian Securities and Investment Commission [2009] 51 AAR 114
Somba and Minister for Immigration and Border Protection (Migration) [2018] AATA 1626
Somba v Minister for Home Affairs [2018] FCA 1537
Windshuttle v Commissioner of Taxation [1993] 46 FCR 235
SECONDARY MATERIALS
National Code of Practice for Providers of Education and Training to Overseas Students 2018
Standards for Registered Training Organisations 2015
REASONS FOR DECISION
Chris Puplick AM, Senior Member
19 October 2018
APPLICATION FOR STAY OF DECISION

The Sunrise Institute of Australia Pty Ltd (the Applicant) appeals to the Tribunal for a stay in giving effect to a decision of the Australian Skills Quality Authority (ASQA) made on 1 August 2018[1] to:
(a)Not register, under section 10 of the Education Services for Overseas Students Act 2000 (the ESOS Act), the application to provide certain courses for overseas students, specifically
(i)Certificate IV in Business Administration (BSB40515)
(ii)Diploma of Business (BSB50215), and
(b)Cancel, under the National Vocational Education and Training Regulator Act 2011 (the NVR Act) its registration as a Registered Training Organisation (RTO).
[1] Affirming a decision of 21 May 2018 and notified to the Applicant on 7 August 2018.
The latter decision, that of de-registration was made under section 39 of the NVR Act by the Commissioner Regulatory Operations.
CHRONOLOGY
It is useful to outline, briefly, the history of the Applicant’s dealings with ASQA.
·18 August 2015 Sunrise Institute of Australia P/L registered as a propriety company limited by shares with Mr Hari Prasad Pokharel as sole Director and shareholder.
·16 October 2015 the Applicant applied to be registered as an RTO under the NVR Act.
·25 February 2016 an audit conducted by ASQA and the Applicant found to be “critically non-compliant”[2] with registration requirements.
[2] Affidavit of Ms Jane Holt, dated 17 September 2018 at paragraph [12].
·13 April 2016 the Applicant, after being given an opportunity to rectify matters identified by the Audit assessed as remaining non-compliant.
·11 May 2016 ASQA refuses the registration application as non-compliant under the VET Quality Framework.
·8 July 2016 the Applicant seeks a review of the non-registration decision by ASQA.
·25 August 2016 the Applicant awarded RTO registration together with ASQA direction to rectify some minor non-compliance issues. This registration allowed the Applicant to offer one qualification: Certificate IV in Business Administration (BSB40215), for delivery in New South Wales.
·The Applicant advised its intention to provide the course to domestic students and declined to apply for Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registration[3]. Subsequently the Applicant sought to offer courses to be both on-shore and off-shore to a variety of international students.
[3] Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) made under Division 4 of the ESOS Act
·27 April 2017, ASQA approves the Applicant offering a further course (Diploma of Business) in NSW. This meant that the Applicant was limited to offering only the two approved courses for domestic students from premises in Hurstville, NSW.
·During the year 2017 the Applicant reported nil student enrolments.[4]
[4] Information required under the Data Provision Requirements 2012
·26 March 2017 the Applicant applied for CRICOS registration to allow it to offer its two authorised training courses to overseas students, with a maximum number of 60 such places.
·23 October 2017 a site audit conducted by ASQA at the registered premises in Hurstville finds the Applicant to be “seriously non-compliant”[5] with numerous requirements of the Standards and the National Code.[6]
[5] Affidavit of Ms Jane Holt, dated 17 September 2018 at paragraph [27].
[6] Standards for Registered Training Organisations 2015 made under s.186(1) of the NVR Act. National Code of Practice for Providers of Education and Training to Overseas Students 2018 under the ESOS Act. Revised and operational from 1 January 2018.
·2 November 2017 ASQA notified the Applicant of its non-compliance findings based on the Audit of 23 October 2017, and invited its response by 30 November 2017.
·8 December 2017 the Applicant responded to the ASQA notification. ASQA considered the information and rectification activities outlined by the Applicant and determined that it was still significantly non-compliant.
·16 December 2017 ASQA issued its final version of the Audit Report of October 2017.
·16 March 2018 ASQA notified the Applicant of its intention to cancel its RTO registration and invited it to provide further evidence to demonstrate its ability to meet the required standards.
·16 April 2018 the Applicant replied to the notice of intention to cancel its registration.
·11 May 2018, following reconsideration of the Applicant’s submission of 16 April 2018 ASQA determined to cancel the Applicant’s registration on the basis of its continuing non-compliance and on the basis of any evidence of its ability to satisfactorily rectify identified deficiencies thus failing to meet the standards required under the Vocational Education and Training Quality Framework.
·21 May 2018 ASQA notified the Applicant of its decision.
·20 June 2018 the Applicant applied to ASQA for a reconsideration of the 21 May 2018 decision.
·25 June 2018 the Applicant applied for a stay of the ASQA decision and this was granted with conditions attached, namely that the Applicant not enrol, market or recruit students during the reconsideration period.
·20 June 2018 to 18 July 2018 the Applicant provided further information and evidence to ASQA re its rectification activities.
·18 July 2018 ASQA issues “Evidence Analysis” as final review of all submissions made by the Applicant.
·1 August 2018 a decision on the review was made by the ASQA Commissioners to the effect that the original decision of 21 May 2018 was affirmed and this was notified to the Applicant on 7 August 2018.
·30 August 2018 the Applicant lodged an application with this Tribunal for a stay of the ASQA decision of 1 August (confirming the decision originally made on 21 May 2018)
o31 August 2018 ASQA notified of receipt of stay application and asked for its position regarding the application.
o7 September 2018 ASQA notifies the Tribunal of its opposition to the stay application.
o11 September 2018 the Applicant’s formal registration ceased and this decision published as Regulatory Decision 41581 by ASQA.
o12 October 2018 ASQA provides formal submission in opposition to stay application.
oAfter several postponements of the stay hearing at the request of both parties the matter was heard by the Tribunal on 15 October 2018.
EVIDENCE PUT TO THE TRIBUNAL
ASQA submitted a detailed Affidavit from Ms Jane Holt, the Manager of Regulatory Operations with ASQA which both set out the narrative of ASQA’s dealings with the Applicant and the details of ASQA’s considerations of the Respondent’s representations both in relation to the various audits and to its own notification of intention to cancel the registration in question.
In oral evidence to the Tribunal, Ms McDermott, on its behalf distilled the ASQA position into four basic propositions:
1)ASQA’s assessment that the Respondent had still not met all the compliance requirements identified in various audit reports and rectification directions;
2)The consequences for the respondent in not granting a stay would be minimal in that
(i)The Respondent’s registration had already been cancelled since 11 September 2018[7]
(ii)The Respondent, despite being registered since August 2016 had never actually delivered training and had effectively never operated as a VET provider[8]
(iii)Documents submitted by the Respondent indicated that 60 students were enrolled in two classes[9] “knowing that its compliance obligations had not been met, and its continuing operation as an RTO and registration as a CRICOS provider to overseas students was not guaranteed, thereby placing these enrolled students in an unnecessary state of uncertainty.”[10]
3)There is a public interest in cancelling the Applicant’s registration in order to protect both enrolled students and the reputation of Australia’s overseas student education industry.[11]
4)Denial of a stay order does not preclude the hearing of the substantive merits of the appeal against the original cancellation decision.
[7] ASQA Regulatory Decision 41581.
[8] ASQA Submission in Relation to Stay dated 12 October 2018 at paragraph [44].
[9] Affidavit of Ms Jane Holt, dated 17 September 2018 at Attachment [JH9].
[10] Affidavit of Ms Jane Holt, dated 17 September 2018 at paragraph [45].
[11] Re Metro College of Technology Pty Ltd and Australian Skills Quality Authority (unreported, Administrative Appeals Tribunal, Senior Member McCabe, 24 December 2015).
Ms McDermott also put to the Tribunal some concerns about what she characterised as a “continuing denial of the level of non-compliance” by the Applicant.
In support of the application, Ms Ciscar made a detailed submission in relation to each of the non-compliance findings made by ASQA and drew attention to what she characterised as “negligence” on ASQA’s part in failing to take various matters into consideration; their reliance upon no longer relevant data and the steps taken by the Applicant to make itself compliant with the last four issues which appeared to be outstanding between the parties.
Apart from material already supplied to ASQA in response to both audit and non-compliance reports, she also drew the Tribunal’s attention to a detailed submission from the Respondent headed “Request for Reconsideration” which is dated 30 August 2018.
The Tribunal is bound to observe that while ASQA’s submission went directly to the question of the grant of a stay application, the Applicant focused primarily upon matters which are properly for determination, on the merits, by a full Tribunal hearing, and not at a hearing for a stay. There may well be merit in the Applicant’s submission but that is not for this Tribunal to decide in these proceedings.
When pressed by the Tribunal to respond to this point, the Applicant claimed that its existing staff and management would suffer financial loss were they not allowed to proceed with the enrolment of students and delivery of training. While the Applicant’s documentation (see above) refers to some 60 enrolled students, the Applicant was not in a position to confirm the number of current enrolees and in fact conceded the point made by ASQA that the Applicant had never effectively operated as a VET provider.
In the meantime, in line with previous ASQA directions, the Applicant is not enrolling or teaching students and its website has been taken down.
STAY APPLICATIONS
There are a number of authorities which have set out the range of considerations which the Tribunal should take into account when determining applications for stays.
The Tribunal of course, has no role, in a stay application, in seeking to determine in any detail the merits of any case which might be argued at a later stage in appeal proceedings.[12]
[12] Windshuttle v Commissioner of Taxation [1993] 46 FCR 235.
In Scottv Australian Securities and Investment Commission[13] then AAT President Downes set out the range of matters which the AAT should however assess in considering stay applications. These were (in summary):
(a)Prospects of success
(b)Consequences for the Applicant of refusal
(c)Pubic interest
(d)Consequences for the Respondent in carrying out its functions depending on whether the stay was issued or not
(e)Whether the review would be nugatory if the stay not granted
(f)Other matters considered relevant.
[13] Scottv Australian Securities and Investment Commission [2009] 51 AAR 114 at [4].
Section 41(2) of the Administrative Appeals Tribunal Act 1975 also enjoins the Tribunal to consider “the interest of any persons who may be affected by the review” which clearly involves the staff and students of this Applicant.
The Tribunal notes that there is a more recent decision by Deputy President Forgie (Rust-Oleum Australia Pty Ltd v Australian Pesticides and Veterinary Medicines Authority[14]) in which, on the basis of recent Federal Court authority, the question of whether or not (or to what extent) the Tribunal should consider “prospects of success”, is called into question. Deputy President Forgie’s most recent decision suggests that “Prospects of success have no place” in the considerations of the Tribunal.[15] However the Deputy President does note that if there is absolutely no prospect of success, this is a matter which should influence the considerations of the Tribunal.[16]
[14] Rust-Oleum Australia P/L v Australian Pesticides and Veterinary Medicines Authority [2017] AATA 298.
[15] Ibid at [36].
[16] Ibid at [fn 30].
The Tribunal makes no attempt to reconcile the differing opinions expressed in Scott and Rust-Oleum as that is not necessary for the purposes of this determination given the relevant basis upon which it has reached its decision.
Even so, with reference to the Scott list of considerations, the Tribunal has borne each of them in mind. It will discuss the impact on the Applicant and the public interest questions below but observes that while there would be no immediate impact on the Respondent, stays of its decisions do contribute to making the management of its responsibilities more onerous and this should be avoided unless absolutely necessary.
As already noted in the ASQA submission, denial of a stay would not have any effect upon the ability of the Applicant to have the substantive matter heard by the Tribunal, hence its application in this regard would not be rendered nugatory.
The Tribunal has acknowledged the potential impact on the staff and management of the Applicant but this has resulted from the cancellation in place since September 2017 and is not likely to be, in any way, impacted by the granting of a stay at this stage.
Questions of the public interest are important and it is vital that it be protected both in terms of the protection of the rights and future of students and the integrity of the VET system as a whole. The fact that the Applicant has been registered since August 2016 but has not, within a two year period, actually delivered training or operated as a VET provider is of sufficient concern for the Tribunal to conclude that the public interest is best served by advancing this matter to a full Tribunal hearing on the merits rather than dealing with such issues in a stay application.
However, it is important to note that the Administrative Appeals Tribunal, apart from exercising jurisdiction under the relevant provisions of specific statutes, and not having a general jurisdiction across all Commonwealth administrative decisions, is part of an administrative law system which should be conducted by reference to the “standards of good government”.[17] It is an
“instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government.”[18]
[17] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307 at [334] per Smithers J.
[18] Ibid at [335].
One of the aspects of good government is, in the opinion of the Tribunal, that decisions are not made which are meaningless or of no practical effect.[19]
[19] See comments of Deputy President Constance regarding it being inappropriate for the Tribunal to make orders which are “futile” even if made, Somba and Minister for Immigration and Border Protection (Migration) [2018] AATA 1626 at [11]. The reasoning in this decision affirmed by the Federal Court in Somba v Minister for Home Affairs [2018] FCA 1537 at [49].
To grant a stay at this stage would have no practical effect on the operations of the Applicant. The Applicant conceded that were a stay to be granted, it should be granted on the same basis as the stay agreed to by ASQA on 25 June 2017: namely that no new students be enrolled and no marketing or recruitment take place.
The only change in material operations for the Applicant that could take place would be in the event that the Tribunal granted a stay with no restraining conditions attached, which the Tribunal was neither asked, nor minded, to do.
DECISION
Because the grant of a stay would be completely otiose in these circumstances and would, in the opinion of the Tribunal, offend against its responsibilities to promote administrative “good government”, the application for a Stay Order is refused.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of

..............................[sgd]..........................................
Associate
Dated: 19 October 2018

Date(s) of hearing: 15 October 2018

Representative for the Applicant: Ms A Ciscar (by phone)

Solicitors for the Respondent: Ms L McDermott (by phone)

Date(s) of hearing:	15 October 2018
Representative for the Applicant:	Ms A Ciscar (by phone)
Solicitors for the Respondent:	Ms L McDermott (by phone)