Technical Education Australia Pty Ltd and Australian Skills Quality Authority - [2018] AATA 3047

Technical Education Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3047 (23 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2656, 2018/2657, 2018/2658, 2018/2659
Re:Technical Education Australia Pty Ltd
APPLICANT

AndAustralian Skills Quality Authority
RESPONDENT

DECISION
Tribunal:Senior Member R Cameron

Date:23 August 2018
Place:Melbourne

The Tribunal revokes the stay order granted on 6 June 2018.
........................[sgd]................................................
Senior Member R Cameron
Catchwords
PRACTICE AND PROCEDURE – stay application – interim stay order revoked - Applicant’s registration cancelled under National Vocational Education and Training Regulator Act 2011 - renewal of registration as an RTO refused – consideration of factors as to whether stay should be granted – public interest – financial circumstances of Applicant – whether application rendered nugatory if stay not granted
Legislation
Acts Interpretation Act 1901 (Cth), s 25A
Administrative Appeals Tribunal Act 1975 (Cth)
Corporations Act 2001 (Cth), ss 1305 and 1306
Education Services for Overseas Students Act 2000 (Cth)
Evidence Act 1995 (Cth), s 69
National Vocational Education and Training Regulator Act 2011 (Cth)
Cases
Jones v Dunkel (1959) 101 CLR 298
O’Donnell v Reichard [1975] VR 916
Re Australian College of Vocational Studies Pty Ltd and Australian Skills Quality Authority [2018] AATA 1088
Re Bundy and Anor and Australian Securities and Investments Commission [2013] AATA 59
Re Commonwealth of Australia and Quirke (1986) 2 ALD 92 at [95]
Re Gurkhas Institute of Technology Pty Ltd trading as Royal Gurkhas Institute of Technology and Australian Skills Quality Authority [2017] AATA 1018
Re Kirby and Collector of Customs (1989) 20 ALD 369
Re Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178
Re Oaklands and Australian Securities and Investments Commission [2011] AATA 199
Re Scott and Australian Securities and Investments Commission [2009] AATA 798
Re Sher-E-Punjab Pty Ltd and Australian Skills Quality Authority [2018] AATA 46
Re Trades College Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 1360
Ward v Apprice (1704) 6 Mod Rep 264
Secondary Materials
J.D. Heydon, “Cross on Evidence”, 9^th edition, LexisNexis Butterworths, 2013
National Code of Practice for Providers of Education and Training to Overseas Students 2017 (National Code 2017)
National Standards for ELICOS Providers and Courses 2011 (ELICOS Standards)
Standards for Registered Training Organisations (RTOs) 2015
REASONS FOR DECISION
Senior Member R Cameron
23 August 2018
INTRODUCTION

Technical Education Australia Pty Ltd (“TEA”) is the Applicant in four proceedings before the Tribunal.[1] TEA seeks to stay the operation and/or implementation of the Respondent’s[2] decisions made on 4 May 2018.
[1] Those applications are numbered 2018/2656, 2018/2657, 2018/2658 and 2018/2659. A separate application has been made for each of the reviewable decisions identified in these reasons.
[2] Throughout these reasons the Respondent will be referred to as "ASQA."
The First decision of the Respondent made on 4 May 2018 under section 33 of the NationalVocational Education and Training Regulator Act 2011 (“NVR Act”) (“the First decision”) rejected an application by the Applicant to change the scope of its registration to include the course “CPP20212 Certificate II in Security Operations.”
The Second decision of the Respondent made on 4 May 2018 under section 10J of the Education Services for Overseas Students Act 2000 (“the ESOS Act”) (“the Second decision”) was not to add the following courses to the Applicant’s registration at Suite 40 Metro West Plaza, 27 Albert Street, Footscray:
a)CPP20212 Certificate II in Security Operations;
b)FNS40615 Certificate IV in Accounting; and
c)FNS50215 Diploma of Accounting;
The Third decision of the Respondent made on 4 May 2018 was to reject, under section 17 of the NVR Act (“the Third decision”) an application for renewal of the Applicant’s registration as a Registered Training Organisation (“RTO”) so as to include the following courses:
a)AUR30616 Certificate III in Light Vehicle Mechanical Technology;
b)AUR40216 Certificate IV in Automotive Mechanical Diagnosis;
c)AUR50116 Diploma of Automotive Management;
d)BSB40215 Certificate IV in Business;
e)BSB50215 Diploma of Business;
f)BSB60215 Advanced Diploma of Business;
g)CHC30113 Certificate III in Early Childhood Education and Care;
h)CHC50113 Diploma of Early Childhood Education and Care;
i)FNS40615 Certificate IV in Accounting;
j)FNS50215 Diploma of Accounting;
k)SIT50416 Diploma of Hospitality Management;
l)SIT60316 Advanced Diploma of Hospitality Management;
m)22251VIC Certificate II in EAL (Access);
n)22255 VIC Certificate III in EAL (Further Study); and
o)22258 VIC Certificate IV in EAL (Further Study).
The Fourth decision of the Respondent made on 4 May 2018 was to not renew, under section 10E of the ESOS Act (“the Fourth decision”) the Applicant’s registration to provide the following courses to overseas students at Suite 40 Metro West Plaza, 27 Albert Street, Footscray:
a)AUR30616 Certificate III in Light Vehicle Mechanical Technology;
b)AUR40216 Certificate IV in Automotive Mechanical Diagnosis;
c)AUR50116 Diploma of Automotive Management;
d)B5B50215 Diploma of Business;
e)BSB60215 Advanced Diploma of Business;
f)CHC30113 Certificate III in Early Childhood Education and Care;
g)CHC50113 Diploma of Early Childhood Education and Care;
h)SIT50416 Diploma of Hospitality Management;
i)SIT60316 Advanced Diploma of Hospitality Management;
j)22251VIC Certificate II in EAL (Access);
k)22255VIC Certificate III in EAL (Further Study); and
l)22258VIC Certificate IV in EAL (Further Study).
The First, Second, Third and Fourth decisions will be collectively referred to throughout these reasons as the “reviewable decisions”.[3]
[3] The four decisions concerned are contained in letters dated 4 May 2018 signed by Benn Gramola - Manager Regulatory Operations, Adelaide on behalf of the Respondent. They are documents T 61, 62, 63 and 64 of the T documents. They are also attached to each of the separate Applications for Review filed with the Tribunal and are documents numbered T 1, 2, 3, and 4.
THE INTERIM STAY ORDER GRANTED BY THE TRIBUNAL
The Tribunal granted an interim stay order on 6 June 2018. Such interim order is effective until the determination of the stay application. Additionally, the Tribunal imposed five conditions on the Applicant which included a prohibition on the enrolment or commencement of any new students for VET courses. There were additional conditions imposed by the stay order which cast upon the Applicant various reporting and record-keeping obligations.[4]
[4] The terms of the Stay Order of 6 June 2018 are referred to for their full force and effect.
The interim stay order was also accompanied by directions from the Tribunal adjourning the further hearing of the stay application to a date to be fixed by the Registry and requiring that the Applicant file and serve any further evidence upon which it intended to rely by way of affidavit, not less than seven days prior to the date of the resumed hearing of the stay application.
The Applicant was well-warned in the course of the hearing on 6 June 2018, when the interim stay order was made, of the necessity to provide evidence to a requisite standard at any subsequent hearing. In addition to the observations of the Tribunal at that hearing, Mr Cox on behalf of the Respondent made strenuous representations to the Tribunal and alerted the Applicant that it had a strong case to answer in the light of the audit conducted and significant findings of non-compliance on the part of the Applicant. It is regrettable that these warnings and representations as to the standard of evidence required of the Applicant at the resumed hearing of the stay application have not been heeded.
THE EVIDENCE AND MATERIAL BEFORE THE TRIBUNAL
The following evidence was before the Tribunal, filed on behalf of the Applicant:
a)A bundle of documents attached to what appears to be some form of submission headed “Stay Order Concerns by ASQA” was filed with the Tribunal on 5 June 2018. Included in that bundle of documents were documents described as “Contract Agreement”; a copy of a Lease of Real Estate between the Applicant and Maliku Holdings Pty Ltd, the landlord of the premises situated at Suite 40 Metro West Shopping Centre, in Albert Street, Footscray; a lease between the Applicant and Allied Educational Services Pty Ltd, the landlord of premises situated at Level 1, 382-384 Lonsdale Street, Melbourne; a bundle of employee payslips; a bundle of letters of employment; sundry employment documentation and a copy of what appears to be a printed bank statement downloaded from the Applicant’s online banking account;
b)A “Statement of Evidence” of Ifzal Syed dated 5 July 2018, with six annexures which include a copy of the Applicant’s Certificate of Incorporation; its monthly Profit and Loss Statements from December 2017 to May 2018; a bundle of bank statements; a document described as the Applicant’s “Organisational Chart” and a series of spreadsheets apparently identifying current students enrolled for various courses with the Applicant;
c)A “Second Statement of Evidence” of Ifzay Syed made on 11 July 2018 with an “Appendix A”. Appendix A is divided into four columns identifying the applicable Standards or provisions of the National Code; the Respondent’s “reasons for non-compliance”; the Respondent’s “complaints for non-compliance” and the Applicant’s purported “Rectification” of the non-compliance issues identified by ASQA.
Additionally, the Applicant’s counsel filed with the Tribunal written submissions in support of the application for the continuation of the interim stay order.
The Respondent filed three folders of documents which included, amongst other things, copies of each of the reviewable decisions and two iterations of the relevant compliance audit conducted by its officers and relied upon by it in making each of the reviewable decisions.[5]
[5] The First Audit Report (VET) (CRICOS) (to provider) is dated 9 October 2017 and document T 52 of the T documents. The second audit report (VET) (CRICOS) (Final) is dated 14 February 2018 and document T 59 of the T documents.
Also filed by the Respondent was a Statement of Reasons Pursuant to section 37(1)(a). This Statement of Reasons prepared by the Respondent’s solicitor contains extensive written submissions.
THE VARIOUS APPLICATIONS MADE TO ASQA, THE AUDIT AND OTHER FACTS LEADING TO THE REVIEWABLE DECISIONS
On 21 March 2016 the Applicant applied to the Respondent to amend its CRICOS registration to add three further courses.[6]
[6] The application is to be found that document T 67 of the T documents; it was accompanied by supporting documentary evidence which is found at document T 60 of the T documents.
The Applicant sought on 11 May 2016 to amend its VET registration to add an additional course.[7]
[7] The application and supporting material is to be found at document T 16 of the T documents.
By an application made on 22 March 2017 the Applicant sought to renew its registration as an RTO.[8]
[8] The application to renew the RTO registration is found document T 20 of the T documents. Such application was supported by evidence attached to an email from the Applicant to the Respondent which is document T 21 of the T documents. The supporting documentary evidence relied upon by the Applicant for the renewal of the registration is extensive and comprises many hundreds of pages.
On 12 May 2017 two events occurred. Firstly, the Applicant requested an extension of time in which to finalise the application to renew its CRICOS registration.[9] Secondly, it made an application to renew its CRICOS registration supported by sundry documentary evidence.[10]
[9] The letter seeking an extension of time to make the CRICOS renewal application is to be found in document T 28 of the T documents.
[10] The application to renew the CRICOS registration and supporting evidence is found in documents T 29, T 30 and T 31 of the T documents.
There was correspondence between the parties after each of the applications was lodged, which resulted in some further evidence being furnished by the Applicant to the Respondent in support of several of those applications. It is not necessary to examine this material in detail, other than to acknowledge that this series of steps concerning provision of information occurred.[11]
[11] Appropriate details of the exchange and reference to the documentary evidence establishing such exchange can be found in the Respondent's Statement of Reasons between paragraphs 30 to 33, inclusive.
The reviewable decisions subsequently evolved as a result of an extensive audit process undertaken by the Respondent, as the statutory regulator of RTOs such as the Applicant.
In the context of this application, it is useful to provide some background to the decision of the Respondent to undertake the audit process.[12] The Applicant was registered with the Victorian Registration and Qualifications Authority on 27 April 2006 and such registration was transferred to the Respondent on 1 July 2011. The Applicant is also what is known as a “CRICOS provider”. The Respondent contended that the Applicant “has had a poor compliance history since being under” its jurisdiction. Apparently, since approximately December 2016 three decisions of the Respondent’s Commissioners have been made, the effect of which was to change the Applicant’s scope of registration.
[12] This account is derived from the Final Audit Report of 14 February 2018 being T 59 of the T documents at page 2652.
Correspondingly, between February and August 2017 the Applicant was the subject of investigations by the Respondent’s Enforcement and Investigations section. This was in relation to allegations that the Applicant issued AQF qualifications without meeting the applicable training package requirements for such qualification, in breach of sections 107 of the NVR Act and 83 of the ESOS Act.
The Applicant’s VET registration expired on 30 April 2017. An authorised officer of the Respondent granted an extension of three months for the Applicant to submit its application for renewal of such registration. On 22 March 2017 the Applicant launched its application for renewal of registration.
The Applicant’s CRICOS registration expired on 30 April 2017.
The Respondent stated in the final audit of 14 February 2018 that the purpose of the audit was:
a)To assess ongoing compliance with the Vet Quality Framework (VQF) for the VET renewal applications;
b)To assess the Applicant’s ongoing compliance with the National Code and ELICOS standards for the purposes of the CRICOS renewal application; and
c)To assess compliance with the VQF in the context of the Applicant’s application to amend its VET scope of registration and confirm that such courses would meet the requirements to be added to CRICOS at an existing location.
The process commenced on 21 August 2017 when Mr Fred Garai, a Lead Regulatory Officer of the Respondent, sent the Applicant a notice that the Respondent proposed shortly thereafter to conduct a site audit.[13] The Notice of audit advised the Applicant that the audit was being conducted in response to its application for renewal of registration and also for the purposes of assessing the Applicant’s ongoing compliance with the VET Quality Framework and the ESOS framework. Included in the Notice of audit was a request for what was described as “Pre-audit Information/action required”.
[13] The Notice of audit is document T 40 of the T documents. The contents of the document are referred to in their entirety for their full force and effect.
In response, the Applicant by email on 5 September 2017 provided pre-audit information to the Respondent (described by the Respondent as “pre-audit evidence”).
A further Notice of audit was sent by Mr Garai on 18 September 2017 to the Applicant advising it that it had scheduled a site audit of the Applicant.[14] The Notice of audit advised the Applicant that such audit was being conducted in response to its application for renewal of its VET and CRICOS registration and amendment to its VET and CRICOS scope of registration. The purpose of such audit was to assess the Applicant’s compliance with the VET Quality Framework and the ESOS Framework. This notice of audit requested that the Applicant be fully prepared prior to the conduct of the audit. Further, it identified the scope of the audit, the evidence required prior to the site audit and advised that no audio or video recording be made of any audit activity conducted by the Respondent.
[14] The Notice of audit sent by the Respondent to the Applicant on 18 September 2017 is document T 43 of the T documents. It is referred to in its entirety for its full force and effect.
By way of two emails dated 27 September 2017, and further emails on 29 and 30 September 2017,[15] the Applicant provided the requested pre-audit evidence. The evidence consists of approximately 400 pages of material, including documents concerning Student Progress and Monitoring Policy, Course Progress, “Agreement and Contract” for tuition, “Training and Assessment Strategy”; documents that appear to be a syllabus and tuition program; documents described as “Trainer Matrix” and the “Training Schedule” for several courses.
[15] The emails concerned are documents T 44 to T 51 inclusive, of the T documents. The evidence consists of approximately 400 pages of material.
Mr Garai then conducted an audit from 3 to 6 October 2017. Upon completion of the audit an audit report was produced which comprised 43 pages (“the First Audit Report”).[16] The contents of this audit report warrant careful examination. The introductory portions of the audit report enumerate the “Background”, “Audit Sample”, “Interviewees”,[17] “About this Report” and “Original Action required by RTO.” It then records the results of the audit under the primary subject headings applicable to the courses offered by the Applicant of “Marketing/Recruitment Practices”, “Support and Progression”, “Training and Assessment” and “Completion”. The applicable Standards for each subject heading identified are then reproduced in full. Under each of those standards on every occasion that the Applicant was found to be “Not Compliant”, extensive particulars or details of such non-compliance are provided.
[16] The audit report is document T 52 of the T documents.
[17] In this section it identifies each employee or officer of the Applicant who was interviewed by the auditor during the conduct of the audit.
In the summary portion of the First Audit Report, under the heading “Original finding at time of audit”, it is recorded: “Audit finding: Critical non-compliance.” The specific findings of non-compliance in the First Audit Report were as follows:
a)The Standards for Registered Training Organisations (RTO’s) 2015: 1.1, 1.2, 1.3, 1.4, 1.7, 1.8, 1.13, 1.16, 2.1, 2.2, 2.3, 2.4, 3.1, 3.2, 3.3, 3.6, 4.1, 5.1, 5.2, 5.3, 6.1, 6.2, 6.3, 6.4, 6.5.
b)National Code of Practice for Providers of Education and Training to Overseas Students 2017 (National Code 2017): D 1.1, D 1.2, D 2.1, D 2.2, D 3.1, D 3. 2, D 4.1, D 4.3, D 4.4, D 4.5, D 6.1, D 6.2, D 6.3, D 6.5, D 6.6, D 9.1, D 9.2, D 10.1, D 10.2, D 10.5, D 10.6, D 13.2, D 14.1, D 14.2.
c)National Standards for ELICOS Providers and Courses 2011 (ELICOS Standards): P 1, P 2, P 3, P 4, P 5, P 6.1, P 6.2, P 6.3, P 6.4, P 6.7, P 6.8, P 7.2, P 7.3, P 8.1(b), P 8.2, P 8.4.

In an email of 11 December 2017 from Mr Garai to Mr Donkin (the Applicant’s CEO), the Applicant was furnished with a copy of the First Audit Report.[18] In the cover email, Mr Garai advised the Applicant that it had the opportunity to address the identified areas of

non-compliance by providing additional evidence of compliance. The email also contained a warning or reminder to the Applicant that if the non-compliance was not remedied, the Respondent could exercise the powers given to it under the NVR Act. In particulars the Respondent could impose sanctions across all parts of the Applicant’s existing registration under section 36, give a written direction to rectify breaches under section 35 or alternatively impose additional conditions of registration on its existing scope of registration under section 29.
[18] The email is document T 53 of the T documents.
The email of 11 December 2017 also warns that under the ESOS Act, the Respondent could take further actions. These include varying the period of registration, imposing conditions or varying conditions of registration, either generally or in respect of any one or more courses under Part 2 of that Act, and/or alternatively giving notice of intent to impose one or more sanctions for non-compliance across all or part of its existing registration under Part 6 of that Act.
On 18 January 2018 Mr Donkin sent an email to Mr Garai of the Respondent, attaching a large quantity of additional documentary evidence in support of its contention that it had “addressed the key issues identified as non-compliances in the audit conducted in October 2017.”[19]
[19] The email and the documentary evidence are documents T 54 and T 55 of the T documents. The documentary evidence consists of approximately 816 pages. Given the sheer volume of documents comprising the evidence, the Tribunal will not attempt to describe it other than to say it has been examined and includes a variety of material which is generated by the Applicant to enable it to provide the courses that it offers and in some instances also arise in the ordinary course of running its business.
In a further email from Mr Meehan (the new CEO of the Applicant) on 16 February 2018, still more documentary evidence was forwarded to Mr Garai.[20]
[20] The email and the further evidence are documents T 56 and T 57 of the T documents. They are approximately 168 pages.
On 19 February 2018 the Respondent sent an email to the Applicant advising that it did not accept any further evidence “after an original invitation date”.[21] The email further stated that the Applicant was advised that it was required to respond with further evidence by 10 January 2018. It appears from the language used in that email, that the first tranche of further evidence provided by the Applicant in its email of January 2018 was analysed and taken into account for the purposes of preparing a subsequent audit report. That analysis had been prepared for the Commissioners of the Respondent for final consideration prior to the receipt of the Applicant’s email on 16 February 2018 with still further documentary evidence.[22]
[21] The email from Mr Garai to the Respondent of 19 February 2018 is document T 58 of the T documents.
[22] Indeed, the Respondent at paragraph 40 of its submission stated that the further evidence accompanying the email of 16 February from the Applicant to the Respondent "was not accepted by the Respondent as it was provided too late".
An “updated” audit report (“Final Audit Report”) was produced by the Respondent on 14 February 2018 (completed by Mr Garai) following receipt of the additional evidence from the Applicant, which was furnished on 18 January 2018 in support of the contention that the Applicant had rectified each of the instances of non-compliance with the applicable Standards or clauses of the National Code.[23] The contents of the Final Audit Report are referred to in their entirety for their full force and effect. The architecture or geometry of the report follows a similar format to that of the First Audit Report. There is a moderately detailed background identifying the courses, the audit sample, interviewees, original action required, and details of its findings. In terms of findings, it identifies each area of non-compliance under separate subject headings of Marketing/Recruitment Practices, Enrolment, Support and Progression, Training and Assessment and Completion. Under each subject heading the applicable Standard and/or National Code clause is reproduced in its entirety. Extensive particulars of the material facts and circumstances relied upon by the auditor in concluding that there has been non-compliance are provided.
[23] The Final Audit Report of 14 February 2018 is document T 59 of the T documents. It comprises 62 pages.
In the Final Audit Report, under each finding of continuing non-compliance with the provisions of the relevant Standard or National Code, there were in most cases an additional sub-heading entitled “Analysis of additional evidence”. Under that sub-heading, the auditor provides a consideration of the additional evidence provided by the Applicant and gives reasons why such additional evidence did not satisfy the Respondent that the Applicant was compliant.
The Final Audit Report identified the following as areas of non-compliance on the part of the Applicant:[24]
a)The Standards for Registered Training Organisations (RTO’s) 2015: 1.1, 1.2, 1.3, 1.4, 1.7, 1.8, 1.13, 1.16, 2.1, 2.2, 2.3, 2.4, 3.1, 3.2, 3.3, 3.6, 4.1, 5.1, 5.2, 5.3, 6.1, 6.2, 6.3, 6.4, 6.5.
b)National Code of Practice for Providers of Education and Training to Overseas Students 2017 (National Code): D 1.1, D 1.2, D 2.1, D 2.2, D 3.1, D 3.2, D 4.1, D 4.3, D 4.4, D 4.5, D 6.1, D 6.2, D 6.3, D 6.5, D 6.6, D 9.1, D 9.2, D 10.1, D 10.2, D 10.5, D 13.2, D 14.1 and D 14.2.
c)National Standards for ELICOS Providers and Courses 2011 (ELICOS Standards): P1, P2, P3, P4, P5, P6.1, P6.2, P6.3, P6.4, P6.7, P6.8, P7.2, P7.3, P8.1 (b), P8.2 and P8.4.
ASQA’S POWER TO MAKE THE REVIEWABLE DECISIONS
[24] These details are taken from the Final Audit Report which is T 59 in the T documents at page 2665 (being page 16 of 62 in the Final Audit Report of 14 February 2018.)
THE NVR ACT
It is appropriate to briefly identify the relevant legislative framework under which the Respondent made each of the reviewable decisions.[25]
[25] This analysis largely is derived from the helpful consideration of this topic contained in the Respondent's Statement of Reasons.
The Applicant is an NVR RTO within the meaning of section 3 of the NVR Act.
The NVR Act empowers the Respondent to regulate “VET courses” and RTOs under the “VET Quality Framework”, within the meaning of section 3 of that Act. The purpose of empowering the Respondent as the regulator under this section is to ensure that nationally approved quality standards within the meaning of that Act are achieved.
As noted by the Respondent section 31(1) of the NVR Act provides:
The National VET Regulator may review an NVR registered training organisation’s registration under section 17 if the organisation makes an application for renewal…
Section 17(2) of the NVR Act provides:
In deciding whether to grant an application, the National VET Regulator must consider whether the applicant complies with:
(a) VET Quality Frameworks; and
(b) the applicable conditions of registration is set out in Subdivision B of this Division.
Section 3 of the NVR Act provides, amongst other things:
In this Act…VET Quality Framework means the following:
(a) the Standards for NVR Registered Training Organisations;…
The Standards for NVR RTOs are enabled under section 185 of the NVR Act and are to be found in the Standards for Registered Training Organisations (RTOs) 2105 (“Standards”).
Section 22(1) of the NVR Act provides:
An NVR registered training organisation must comply with the Standards for NVR Registered Training organisations.
By reason of sections 199(1) and 203 of the NVR Act, a decision to grant an application for registration (including renewal of such registration) as an RTO is a decision reviewable by this Tribunal.
The Respondent may, under section 36 of the NVR Act, where it is satisfied that it is appropriate to do so, impose administrative sanctions on an RTO. Specifically, section 36(2)(d) provides that the Respondent may:
... amend an NVR registered training organisations scope of registration;
Therefore, a decision to amend a RTO’s scope of registration under the NVR Act is a decision reviewable in this Tribunal by reason of the operation of sections 199 and 203 of that Act.
THE ESOS ACT
Two of the reviewable decisions have been made under the applicable provisions of the ESOS Act.
Pursuant to section 5 of the ESOS Act the Applicant is a “registered provider”.
Under section 6C of the ESOS Act, the Respondent is an “ESOS Agency” and performs the task of the statutory regulator of registered providers that conduct courses for students pursuant to the statutory framework contained in the ESOS Act.
A register known as the “Commonwealth Register of Institutions and Courses for Overseas Students”, known by its acronym (“CRICOS”), is maintained; and in which details of registered providers under the ESOS Act are recorded.
Section 10E(1) of the ESOS Act provides:
If a registered provider makes an application under section 10D, the ESOS agency for the provider may renew the provider’s registration to provide a course or courses at a location or locations if the provider meets the registration requirements.
This Tribunal has jurisdiction to review a decision made under section 10E of the ESOS Act by reason of the application of Item 4 of sections 169AB and 169AG of that Act.
Section 10J(1) of the ESOS Act provides:
If a registered provider makes an application under section 10H to add one or more courses at one or more locations to the provider’s registration, the ESOS agency for the provider may add those courses at those locations to the provider’s registration if the provider meets the registration requirements.
The Tribunal has jurisdiction to review a decision made under section 10J of the ESOS Act by reason of the application of Item 6 of sections 169AB and 169AG of the ESOS Act.
STAY APPLICATION
Section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) provides:
The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
In Re Scott and Australian Securities and Investments Commission (“Re Scott”),[26] Downes J identified that the following relevant factors should be taken into account for the purposes of a decision made under section 41:
a)the prospects of success of the applications;
b)the consequences for the applicant of the refusal of the stay;
c)the public interest;
d)the consequences for the Respondent in carrying out its functions depending on whether a stay is granted or not;
e)whether the application for review would be rendered nugatory if a stay were not granted; and
f)other relevant matters such as the length of time the cancellation has already been in place and the time between the application and the hearing of the application.[27]
[26] [2009] AATA 798 at [4]. Whilst this decision was in the context of a review of a decision by ASIC exercising its power of disqualification, the observations made by Downes J are equally apposite to a stay application under the legislation being considered in this case.
[27] Two very helpful recent decisions of Member Parker in this Tribunal concerning stay applications of decisions to cancel the registration of an RTO under the NVR Act and the ESOS Act are also referred to for their full force and effect, namely ReSher-E-Punjab Pty Ltd and Australian Skills Quality Authority [2018] AATA 46 and Re Australian College of Vocational Studies Pty Ltd and Australian Skills Quality Authority [2018] AATA 1088. They provide extremely useful guidance in the application of these relevant factors in the setting of this legislation. They warrant careful reading.
Whilst these matters identified by Downes J in Re Scott are relevant to the exercise by the Tribunal of the discretion conferred upon it by section 41(2), they are not a complete code or a “checklist” that limits or fetters the exercise of such discretion.[28]
[28] See the reasons of Member Maryniak QC in Re Trades College Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 1360.
As was noted by Tamberlin J in Re Bundy and Anor and Australian Securities and Investments Commission,[29] the need to protect consumers and customers is a matter of particular importance when assessing public interest impacts.
[29] [2013] AATA 199.
In embarking upon a consideration of the factors to be taken into account, particularly those identified by Downes J in Re Scott, it is important to consider what evidentiary burden, if any, rests upon the applicant for a stay when seeking to satisfy the Tribunal that it should exercise the discretion under section 41(2) in the Applicant’s favour.
The Tribunal considers, based on previous authorities, that in a Tribunal proceeding such as this, there is no onus of proof in the same sense that applies to a proceeding in a court of law. However, an obligation does rest upon an applicant for a stay under section 42(2) to establish to the reasonable satisfaction of the Tribunal the existence of facts concerning those factors identified by Downes J in Re Scott (or any other relevant matters) by appropriate evidence. As a general rule, those facts relevant to such a decision should be established on the balance of probabilities.[30]
[30] See for instance: Re Kirby and Collector of Customs (1989) 20 ALD 369 per Bulley J, Senior Member Beddoe and Member Horrigan.
The evidence produced by the Applicant in support of the stay application is particularly scant. When granting the interim stay order on 6 June 2018, the Tribunal made a direction that any evidence the Applicant intended to rely upon at the resumed hearing of such application be by way of affidavit, lodged with the Tribunal and served on the Respondents not less than seven days prior to the date of the resumed hearing.[31] No evidence was filed and served by way of affidavit. No real explanation was offered to the Tribunal for the Applicant’s failure to comply with this direction.
[31] Paragraph 2 of the Order made by the Tribunal on 6 June 2018 is referred to in its entirety for its full force and effect.
As noted above, there were only two statements of evidence from Ifzal Syed. Mr Syed is not a director of the Applicant. On the Applicant’s “Organisational Chart”,[32] he is described as “Director of Studies, Pathways & International Links”. The sole director of the Applicant, Mr Zain, has not given evidence. The Organisational Chart reveals that the Applicant has a CEO, Neil Donkin, who has also not given evidence.[33] Whether Mr Donkin remains the Applicant’s CEO may be open to question, given the fact that in an email of 16 February 2018 from the Applicant to the Respondent, the Applicant’s CEO (or sender of the email) is identified as Dennis Meehan. However, once again no explanation about this inconsistency has been offered at any time.[34] No explanation was furnished as to why either of these individuals did not give evidence.
[32] Annexure 5 to the First Witness Statement of Mr Syed.
[33] A TGA Summary, document T 65 of the T documents (page 2730), produced on 27 June 2018, shows Mr Donkin as the CEO.
[34] The email concerned from Dennis Meehan is document T 56 (page 2480) of the T documents.
It is extremely puzzling to the Tribunal that these individuals did not give evidence at the stay hearing. They are two obvious witnesses, sitting at the top of the organisational and management structure of the Applicant, who could have given relevant and probative evidence to the Tribunal that would have been of considerable assistance in deciding the outcome of this stay application. The Tribunal will discuss later in these reasons what inferences, if any, the Tribunal may draw when a party fails to call the witness who would be expected to be available to give evidence and who in the circumstances would have a close knowledge of the facts.[35]
[35] A consideration of the rule in Jones v Dunkel (1959) 101 CLR 298.
Each of the relevant factors referred to in Re Scott will now be considered.
THE PROSPECTS OF SUCCESS
As has been observed in several authorities, it is not the role of the Tribunal, in assessing the merits of a stay application under section 41(2), to conduct a preliminary hearing (or sometimes referred to “a mini trial”) of the evidence and issues to be raised subsequently at a final hearing, when evaluating an applicant’s prospect of success. The task of the Tribunal in such an application is to consider whether there exists facts and circumstances which would provide some basis for success.[36]
[36] The very useful decisions of Senior Member Redfern (as she then was): Re Oaklands and Australian Securities and Investments Commission [2011] AATA 199 and Re Commonwealth and Quirke 9 ALD 92 at [95]. Senior Member Fice in Re Gurkhas Institute of Technology and Australian Skills Quality Authority [2017] AATA 1018 reaches a similar view.
Member Maryniak QC in Re Trades College Australia Pty Ltd and Australian Skills Quality Authority (“Re Trades College Australia”)[37] helpfully observed:
19. In the circumstances of a Stay Application one would expect a party to put their “best foot forward” by evidence to show that they were well on the way to substantial compliance with the standards.
20. The evidence of the Applicant does not show that the non-compliances have now been addressed despite the Applicant having been on notice of the majority of them since 11 April 2016. The Applicant’s evidence is of a general nature and simply lacks specific detail as to any significant meaningful attempts at rectifying the non-compliances.
21. On the basis of the current state of the evidence the Tribunal finds that the Applicant’s prospects of success at final hearing are not good. After considering all the evidence the Tribunals finds that, despite having a clear opportunity to do so the Applicant has failed to adequately explain how to date its internal systems to ensure compliance have failed, nor has it successfully managed to explain how it will ensure any future repeat non-compliance, against a background of admitted non-compliance.
[37] [2018] AATA 1360 at [19].
These comments of Member Maryniak QC are equally applicable in a consideration of the evidence tendered before it by the Applicant (or perhaps more accurately not before it) in this application.
This now prompts a consideration of the evidence that has been advanced by the Applicant on the prospects of success.
Curiously, Mr Syed in his first Statement of Evidence dated 5 July 2018 does not address any evidence which either admits or denies the allegations of non-compliance contained in the several audit reports that have been produced by the Respondent. Most critically, he does not address the findings of non-compliance contained in the Final Audit Report. All he does, and it is the view of the Tribunal that it is inappropriate to do so, is to make the conclusory remark that it is his opinion that there is a good prospect of success in the current application as lodged by the Applicant. The grounds for making this conclusory statement is said to be based on his experience in the industry and working for the Applicant as Director of Studies. This is wholly inadmissible, inappropriate and as noted earlier is nothing more than an opinion unsupported by any evidence whatsoever. It seems unusual in the extreme that such a document prepared by legal practitioners was furnished to the Tribunal.

It is all the more puzzling given the fact that in the course of this statement Mr Syed provides details of his extensive qualifications, authorship of various texts and reports and further states that he has worked “in institutional compliance in the education sector, since 1988”, including for what he described as “World Bank projects”. Additionally, as was noted by the Respondent, in paragraph 8 of this witness statement, Mr Syed refers to his obligations to the Tribunal to assist it and not be an advocate.[38] Whilst the Tribunal accepts that as an officer (and possibly director) of the Applicant, My Syed will obviously give evidence in support of its application, it is most unsatisfactory that this statement was produced, filed and served in the form that it was.
[38] In Mr Syed’s second statement of evidence dated 11 July 2018, he does correct paragraph 8 of his first statement and concedes that he is giving evidence on behalf of the Applicant. However, in the paragraph clarifying and/or correcting his first statement, he says that he has given evidence in other cases as an expert. Surely, given his prior experience as an expert in compliance requirements in the education sector, he should be expected to understand the obligations of a witness and the requirement to produce evidence to the Tribunal to an acceptable standard, namely by the provision of appropriate particulars of the Applicant’s compliance with the Standards or the Provisions of the National Code; the requirements of which he is presumably familiar.
Mr Syed made a second statement which was filed and served on 11 July 2018. Again, it was not an affidavit as required by the direction of the Tribunal made on 6 June 2018. Similarly, it provides scant evidence addressing the matters raised in the various audit reports prepared by the Respondent. In paragraph 8 of this statement Mr Syed states that based upon the information provided to him by the Applicant (he does not identify who from the Applicant did so), the compliance issues raised by the Respondent have been remedied. Further, in paragraph 9 he refers to a table that is called “Appendix A” which is described as a table setting out the non-compliance issues identified by the Respondent in its section 37(1) statement. He then boldly states that the Applicant “has addressed each of the concerns and identified how TEA [the Applicant] has responded to those concerns”.
Mr Syed does not refer to any document, in either his first or second witness statements, which provides evidence of compliance with the relevant Standard or National Code, as the case may be. The table is broken up into four columns with headings. The first heading identifies the relevant Standard or provision of the National Code. The second heading provides a very brief summary of the Respondent’s “reasons for non-compliance” which appear to be derived from the audit. The third heading refers to the Respondent’s “complaints for non-compliance”. The fourth heading purports to identify the Applicant’s “Rectification”.
The Tribunal will not in these reasons examine each and every response provided by the Applicant in “Appendix A” to demonstrate what the Applicant relies upon in asserting that there has been “Rectification” of any non-compliance. However, by way of example, the Tribunal will consider the first entry in the table, the applicable Standard, the particulars of non-compliance and the particulars of “Rectification” furnished by the Applicant in “Appendix A” so as to show that the purported response by the Applicant is wholly inadequate.
As noted above, the Respondent found that the Applicant was non-compliant with the “Standards for RTO’s” under the heading “Training and Assessment”, clauses 1.1, 1.2 and 1.4.[39] Details of the non-compliance by the Applicant with these Standards for RTOs are to be found at pages 33 to 37 and page 50 of the audit report. The contents of these pages are referred to in their entirety for their full force and effect. The approach of the audit is to identify the relevant course applicable. Having identified the applicable course the failure to comply with the relevant Standard or provision of the National Code is particularised in each case.
[39] This is the first entry in the table constituting "Appendix A". It has been derived from the relevant portions of the Final Audit Report which specified each Standard or provision of the National Code with which the Applicant was non-compliant.
For example, it was held that the assessment tools for the following courses:
a)AUR30616 Certificate III in Light Vehicle Mechanical Technology;
b)AUR40216 Certificate IV in Automotive Mechanical Diagnosis;
c)22251VIC Certificate in EAL (Access);
d)22255VIC Certificate III in EAL (Further Study);
did not collect evidence to meet the training package requirements and therefore did not enable each learner to meet the requirements for each unit of competency in which they were enrolled (refer to clause 1.8 for details).
When one turns to clause 1.8 as directed (at pages 50 to 57 in the Final Audit Report), there were extensive details provided of the failure of the system as used by the Applicant to demonstrate that the candidate had the required knowledge as specified in the subject curriculum or syllabus. There was a litany of findings concerning the failure to implement an appropriate system for conducting assessment of a student against the subject requirements so as to enable a correct assessment of such student’s level of competency.[40]
[40] It should be recorded that Mr Cox on behalf of the Respondent placed considerable emphasis on this portion of the Final Audit Report and the failure of the Applicant to furnish any evidence to the Tribunal that demonstrated any non-compliance had been rectified.
In the table that comprises “Appendix A”, referred to in the second witness statement of Mr Syed, the response provided as establishing “Rectification” of all these particulars of non-compliance described in the Final Audit Report is as follows:
TEA rectified the TAS statement for automotive and childcare by including the amount of time the courses take. TEA notes that the automotive and childcare courses had been delivered in accordance with the requirements even though the TAS statements did not include reference to the delivery time.
The second sentence is conclusory and general in the extreme. It does not directly respond to the findings in the audit, provides no details and no grounds to support the making of that statement. Again, no documentary evidence of any rectification of the TAS statement or any other documentary proof of rectification was produced to the Tribunal. There is just no evidence other than the bold statement made in a table which is not verified on oath.
As noted earlier, this same complaint occurs throughout the Table comprising “Appendix A.” If one takes Standard 1.3 (a) “Training and Assessment Practices,” it is asserted that the complaint has been rectified by the Applicant now having two trainers in childcare and automotive. No details are given of either of those trainers, when they started and any details of their employment contract with the Applicant. No particulars are provided of the courses and/or subjects that they are teaching and how frequently they are providing such tuition.
Under Standard 1.8 “Training and Assessment Practices” (which was touched on earlier in these reasons), the Table under the Respondent’s “complaints for non-compliance” states:
The Auditor found that some of the TAS did not meet the training packages components assessment requirements.
The response of the Applicant is as follows:
TEA rectified by preparing new assessment validation templates which included all the components of the training packages components assessment requirements. New validation assessments based on 2018 validation facts sheet are being implemented by TEA from July 2018 onwards.
None of the validation templates or any other supporting documentation is produced in support of this conclusion. No proper explanation is given as to how such templates meet the assessment requirements. The 2018 validation facts sheets are not produced. No details other than this scant conclusory statement are furnished in support of the contention that the Applicant is now compliant or will be compliant with Standard 1.8.
The Applicant’s submissions contend that the prospects of success favour it.[41] The grounds relied upon in support of this conclusion are as follows:
a)The Applicant has provided responsive material to the Respondent’s Final Audit Report, on 18 January 2018 and 16 February 2018. It is submitted that this material, when reviewed by the Tribunal, is capable of demonstrating compliance with the regulations and a basis for success. The Tribunal cannot agree with this conclusion. On the material that was considered by the Respondent, what was found to be consistent with compliance was acknowledged in the Final Audit Report. Where it was not sufficient to demonstrate compliance, it was not accepted. The material that was not considered has not been addressed by the Applicant so as to enable the Tribunal to reach a conclusion that the Applicant does in fact have a prospect of success. Therefore, this contention is not accepted;
b)Secondly, it is stated that the second witness statement of Mr Syed provides a plain English explanation of the rectification that has occurred. For the reasons articulated above this contention is rejected. His explanations are one or two unsupported conclusory paragraphs. There is virtually no explanation. Such limited explanation is not supported by any corroborative documentary evidence. It is not even supported by a detailed explanation by the Applicant’s officers or employees who could depose to these matters, which is warranted given the extent of the particularity of the Final Audit Report. Therefore, this contention is rejected;
c)Thirdly, the Applicant contends that Mr Syed is a diligent and experienced professional in the area of CRICOS, NVR Act, ESOS Act and RTO compliance. In this context, it is contended that he has assessed the Final Audit Report and reached the conclusion that there is a good prospect of success. This contention is rejected for the reasons outlined above. This is all the more puzzling because if Mr Syed is as experienced in compliance as is contended (to World Bank standards, amongst others) he surely should have known that the statements he had made provide wholly insufficient proof of the compliance that the Applicant asserts has occurred. He, of all people, should have known what was required to satisfy the Respondent as the responsible regulator of RTOs. That he did not do so is telling against the Applicant and entitles the Tribunal to draw a very adverse inference.
[41] See paragraph 29 of the "Applicant's Submissions on Stay Application" filed in support of the stay application.
This evidence is wholly inadequate and leaves the Tribunal to conclude that the Applicant’s prospects of success at the final hearing are not good, if not remote. Certainly, on the current state of the evidence before the Tribunal, it is more likely than not to fail.
Having considered all the evidence before it, the Tribunal is perplexed that despite having had ample opportunity, the Applicant has failed to produce sufficient evidence to demonstrate compliance with the applicable Standards or the National Code. It has failed to explain how it will prevent any further non-compliance, given the history of the Applicant’s non-compliance with the applicable Standards for RTOs and National Code revealed by the two audit reports in evidence before the Tribunal.
THE CONSEQUENCES FOR THE APPLICANT OF THE REFUSAL OF THE STAY
Mr Syed’s first statement of evidence identifies a number of grounds relied upon in support of the contention that there are serious financial risks to the Applicant if a stay is not granted.
It is submitted on behalf of the Applicant that if a stay is not granted it will contribute to the collapse of the Applicant and cause irrevocable financial losses.[42]
[42] See paragraph 10 of Mr Syed’s First Witness Statement. In paragraph 17 of that statement he says that if the stay order was not continued the Applicant would not be likely to be able to meet its liabilities and in the event that it was not continued, significant monthly losses would be incurred.
There is limited evidence before the Tribunal as to the overall financial health of the Applicant. For instance, there are no complete, up-to-date, or recent financial statements or management accounts.[43] All that is provided are unverified Profit and Loss statements for the months December 2017 to June 2018.
[43] No taxation returns for any year have been provided. It would have been of significant assistance to the Tribunal if for instance taxation returns and a comprehensive set of financial statements were produced for say, the last three years. They would then provide the Tribunal with a historical account of the Applicant's financial performance in every respect which would enable a more accurate assessment to be undertaken of the financial impact on it in the event that the stay order was revoked. This failure to produce an up-to-date set of financial statements, accounts or taxation returns is all the more difficult to comprehend given that most businesses in this day and age use, as a business record-keeping system, any one of the readily available software packages that can be bought over-the-counter in any office supplies outlet. They are extremely helpful in undertaking an appraisal of a business’s performance.
The Profit and Loss statements reveal that the Applicant’s sole source of income is what is described as “Tuition Fee”. These accounts reveal a mixed performance ranging from a net loss for the month ended 30 June 2018 of $69,601 through to a net profit of $44,949 for the month ended 30 April 2018. The Tribunal is left to speculate as to whether these Profit and Loss Statements record all income received by the Applicant from all sources (whether they are consolidated Profit and Loss Statements) or whether they only record income from its training and education business.
There is no balance sheet provided that enables an analysis of the working and long term capital position of the Applicant. The Tribunal cannot verify what capital the Applicant is operating with.[44] There is no evidence of what recourse it may have to credit facilities to enable it to survive in the interim. There is no information about shareholder funds or whether, for instance, there is any uncalled capital which the company could have recourse to. No evidence is provided as to what other if any assets it may have that support it. There are no historic financial statements that might enable the Tribunal to consider its long-term viability.
[44] Of course if financial statements were produced and prepared in accordance with the relevant Australian Accounting Standards, there would be the usual notes to accounts that would also provide considerable assistance to the Tribunal in assessing the effect that cessation of a stay order might have on the Applicant. Such notes are frequently a source of considerable assistance in an evidentiary sense.
The absence of this information is most unsatisfactory. The Applicant contended that it can be reasonably projected that if the trend of declining revenue continues until the final hearing, it is likely the business will be insolvent before then.[45] Regrettably, there is just insufficient evidence to enable the Tribunal to determine whether this assertion is correct.
[45] This contention is found in paragraph 31 of the Applicant’s Submissions on the Stay Application prepared by its counsel.
What does emerge from an analysis of the expenditure items in the Profit and Loss Statements is that salaries, wages and rent remain largely consistent. For example for the month ended 30 June 2018, salaries and wages were $39,424; rent and rates were $23,374. Total expenses tend to range within reasonably predictable limits.
No explanation was offered to the Tribunal as to why no proper financial statements, accounts and/or tax returns were produced in support of the stay application. Under taxation and companies legislation,[46] a corporation is required to keep proper books of account or as they are frequently described in this day and age “business records”.[47] The failure to produce such books and records does not reflect well on the Applicant. The Tribunal is perplexed by this failure, given the fact that the matter was first heard on 6 June 2018 and at all times the Applicant has had a reputable firm of lawyers acting for it. Furthermore, at the hearing of the interim stay application, the Applicant was represented by highly competent and experienced counsel.
[46] It will be recalled that sections 1305 and 1306 of the Corporations Act 2001 provide:
1305 Admissibility of books in evidence
(1) [Prima facie evidence of contents]
A book kept by a body corporate under a requirement of this Act is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book.
(2) [Documents taken to be books]
A document purporting to be a book kept by a body corporate is, unless the contrary is proved, taken to be a book kept as mentioned in subsection (1).
1306 Form and evidentiary value of books
(1) A book that is required by this Act to be kept or prepared may be kept or prepared:
(a) by making entries in a bound or looseleaf book; or
(b) by recording or storing the matters concerned by means of a mechanical, electronic or other device; or
(c) in any other manner approved by ASIC.
…
(5) If:
(a) because of this Act, a book that this Act requires to be kept or prepared is prima facie evidence of a matter; and
(b) the book, or a part of the book, is kept or prepared by recording or storing matters (including that matter) by means of a mechanical, electronic or other device;
a written reproduction of that matter as so recorded or stored is prima facie evidence of that matter.
…
Unlike the business records provisions of the Evidence Act 1995 (Cth) which apply only to proceedings in a court, these sections provide that books kept by a body corporate are admissible in any proceedings including before a Tribunal. The combined effect of these sections is that business records are admissible as evidence in this proceeding and are prime facie the evidence of any matter stated or recorded in it. The Tribunal can look beyond the face of the document if it is justified to do so in the circumstances. It should be borne in mind that it is always open to a party to adduce evidence to counter the prima facie evidence of those matters stated in the business record or book.
[47] The provisions of section 69 “business records” and the broad definition of “business” and “record” contained in the Evidence Act 1995 (Cth) are referred to. Such legislation is generally seen as remedial, intended to remove the problems of proving certain facts in business situations, so it is to be given broad scope. Additional facilitative provisions also exist in other legislation such as section 25A of the Acts Interpretation Act 1901 (Cth) which provides for the mode of producing computer stored records, including computer generated books of account and financial statements. Whilst the Evidence Act 1995 (Cth) only applies to proceedings in a court (a federal court) it does not mean that the relevant business records legislation cannot in appropriate cases provide guidance for the admissibility of business records and recourse to them for the purposes of establishing facts before the Tribunal.
Given the unexplained failure to introduce into evidence before the Tribunal proper financial statements, accounts and/or tax returns, the Tribunal must consider what the consequences of that failure are and whether any, and if so what, inferences can be drawn from such failure.

This raises the issue of whether the rule in Jones v Dunkel (1959)[48] (“Jones v Dunkel”) has relevance to and is applicable in tribunal proceedings. The operation of the rule is such that the failure to bring before the tribunal some circumstance, document (including a party’s business records) or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serve to indicate as the most natural inference, that the party fears to do so, and this fear is some evidence that the document or witness, if brought, would have exposed facts unfavourable to the party.[49]
[48] (1959) 101 CLR 298.
[49] This is a portion of an often cited passage of Windeyer J in Jones v Dunkel at page 320. The rule is explained in paragraph [1215] of Cross on Evidence 9^th Edition J. D. Heydon. The learned author summarises eleven “principles” of the rule. They warrant careful reading. The first principle warrants repeating: “Firstly, unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case.”
This consideration has been addressed in several tribunal decisions. A most comprehensive analysis was undertaken by Deputy President Forgie in Re Kumar and Minister for Immigration and Citizenship.[50] Several passages warrant reproduction. The Deputy President observed:
111. It follows from this view that the rule in Jones v Dunkel has relevance in tribunal proceedings. It is directed to assessing the probity or otherwise of the fact that a party has not produced certain material in certain circumstances. One aspect of procedural fairness requires the Tribunal to act on logically probative material. Therefore the rule in Jones v Dunkel is relevant.
112. I have also considered the relevance of the rule in Jones v Dunkel lest, contrary to my view, the analysis of the Tribunal proceedings as either adversarial or as inquisitorial has any relevance. I have reached the same conclusion and will explain why.
113. What Jones v Dunkel signifies in a truly adversarial context is that, should a person fail to produce material (to use a general word) that would be within his or her power to produce to support the fact he or she claims to be so and does not produce that material then, unless there is a rational and reasonable explanation for that failure, the failure itself has probative value. It has probative value because an inference can be drawn from it that, if produced, the material would not support his or her claim. If the proceedings of the tribunal are adversarial, there is no reason why the rule would not be equally relevant in determining probity of evidence of omission.
[50] (2009) 107 ALD 178. Paragraphs [91] to [116] are particularly helpful and referred to in their entirety for a comprehensive analysis on this topic.
[51] [1975] VR 916.
In a consideration of the application of Jones v Dunkel, the eminent jurist Sir Oliver Gillard, as a member of the Full Court of the Supreme Court of Victoria, in

O’Donnell v Reichard[51]
(“O’Donnell v Reichard”) made several useful observations. In considering the often cited passage of Windeyer J in Jones v Dunkel (referred to above) and the references in that passage from Wigmore on Evidence, Sir Oliver reproduced a portion of the decision in Ward v Apprice[52] as an example of its application where there was a failure to produce books. The passage concerned stated:
“If an action be brought by a shopkeeper for money due on the sale of goods, we never enforce him to produce his books; but if very slender evidence be given against him, then, if he cannot produce his books it brings a great slur on his case”.
[52] (1704) 6 Mod Rep 264 per Hold CJ.
Sir Oliver noted that the effect of a party failing to call a witness (or produce other evidence such as a document) that would be expected to be available to such party and who in the circumstances would have close knowledge of the facts on a particular issue, would be to increase the weight of the proof given on such issue by the other party and to reduce the value of the proof given by the party failing to call the witness, or produce the document in evidence.
In O’Donnell v Reichard, Newton and Norris JJ concluded the weight of authority on this topic is as follows. Where a party, without explanation, fails to produce a document in evidence which it might reasonably be expected to produce, if the document would be favourable to them, then although the court may not treat it as evidence, it may as a matter of speculation think that what the document would have revealed would not have helped that party’s case. This rule is equally applicable to a party’s failure to call a witness. Should the court (or tribunal) draw that inference then it may properly take it into account against the party in question for two purposes, namely:
a)in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken (or the document may have addressed); and
b)in deciding whether to draw inferences of fact, which are open upon the evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken (or the document not produced could have addressed).
For the reasons articulated above, the Tribunal does infer that had the complete business records of the Applicant been produced, they would not have helped its stay application. Further, applying the observations of Sir Gillard, the failure to produce a complete set of business records on the part of the Applicant reduces the value that the Tribunal can place upon the limited records produced in evidence, namely the Profit and Loss Statements between the months of December 2017 and May 2018. Additionally, by reason of the above adverse inference being drawn, together with the scant nature of the other financial evidence produced, the Tribunal is unable to reach a conclusion concerning the capacity of the Applicant to meet its liabilities, whether such business is viable in the future and whether or not it may become insolvent prior to the final hearing and determination of this application.
The documentary evidence as it is does enable the Tribunal to conclude that there would be a considerable risk to the Applicant’s employees. Paragraph 14 of Mr Syed’s first Statement of Evidence identifies the 12 employees concerned and provides their job descriptions. The submission drafted by counsel for the Applicant states that they will be affected. Undoubtedly, they will. Unfortunately, the Tribunal is left to some extent to speculate as to what their fate may be.
In the Applicant’s bundle of documents filed with the Tribunal there is a document referred to as a “Contractor Agreement” which appears to be signed by several employees of the Applicant. Clause 19 of the Contractor Agreement provides that either party may terminate the agreement for any reason at any time on giving two weeks written notice. Nowhere in the witness statements prepared by Mr Syed does he state what would happen to these employees in the event that the stay order is revoked.[53] Obviously, if there are no courses for them to teach pending the hearing and determination of this application, it is open to the Tribunal to conclude that their future with the Applicant would be in peril.
[53] Counsel’s written submission at paragraph 32 simply states that the staff of the Applicant will be affected by the "closure of the business". This contention presupposes that the business will indeed close if the interim stay order is revoked. Presumably, it will be redundancy. However, nowhere in the witness statements of Mr Syed does he in fact say that. Once again the evidence is extremely scant.
Additionally, there are 172 current students who will be affected if the decision is not stayed.[54] Arrangements would have to be made for them to attend other training organisations to finalise or complete the courses. Ensuring that these arrangements are undertaken and finalised for both the benefit of the students and the interests of the Applicant will of necessity involve some disruption to both parties. This factor is acknowledged by the Tribunal.
[54] Details of current students’ enrolment by course and number, is contained in Annexure 6 to the first witness statement of Mr Syed. He also refers to this number of students at paragraph 16 of that statement.
A countervailing consideration with respect to the current students is the question of the quality of tuition that they are currently receiving. Given the unanswered issues identified in the Final Audit Report, which have been canvassed to some extent earlier in these reasons, this is of much concern to the Tribunal.
The objects of the NVR Act and the ESOS Act are referred to. The provision of quality education, together with consistency of vocational education and training, is a dominant purpose of the relevant legislation. Whilst there may be a disruption to the students that arises from the cessation of the interim stay order, if ultimately they can be transferred to an institution where they obtain quality education, the long-term detriment to them may be limited. This is regrettably somewhat speculative and there is really no evidence one way or another that the Tribunal is able to consider on this topic.
There is also the issue of the lease commitments that the Applicant has entered into. Whilst copies of the relevant leases were filed with the Tribunal, no explanation of them was given in the two witness statements filed by Mr Syed. Further, nowhere in the submissions filed by the Applicant in support of the stay application was the Tribunal taken to any relevant clauses of those documents, nor their effect explained. The Applicant’s sole director and its CEO have not given any evidence concerning the leases. One would have expected them to do so. In the circumstances, the Tribunal infers that their evidence would not have assisted the Applicant’s case. Other than to read the provisions of the leases concerned and take them into account, the Tribunal is left in a vacuum about the effect revocation of the interim stay order would have on the Applicant’s lease commitments. In this setting, the Tribunal will make some brief observations about the lease documents tendered by the Applicant.
The lease for the premises situated at Suite 40, Metro West Shopping Centre in Footscray has approximately one year remaining of its term.[55] There is a security deposit of $5041.66 held by the landlord. The rent is $55,000 per annum plus GST, with yearly increases pursuant to the CPI. There is no guarantor of the tenant’s obligations under this lease. There is no evidence before the Tribunal as to what would occur if the Applicant had to cease trading in terms of its need for these premises. For instance would it simply abandon the premises or otherwise surrender them to the landlord? Have any approaches been made to the landlord to determine its attitude to the Applicant having to vacate the premises? There is no evidence as to whether it would be able to assign the lease concerned for the remainder of the term reserved, or what would happen to the security deposit if either of these events occurred.
[55] The term of the lease expires on 20 July 2019.
The premises situated at 382-384 Lonsdale Street Melbourne are subject to a lease for a term of five years commencing on 1 January 2018.[56] The rent is said to be $107,100 per annum plus GST.[57] The lease’s performance is guaranteed by Mr Zain.[58] There is no evidence from him concerning his obligations under that lease. However, it would appear that if the Applicant is unable to continue functioning, there is a risk that the Applicant would have no need for the premises and ultimately would default under the terms of the lease, if it was not possible to enter into an assignment of such lease with another tenant. There is no evidence as to the current rental market for premises such as these in Lonsdale Street. Once again, had the Applicant provided such evidence it would have enabled the Tribunal to reach a more conclusive view on this consideration.
[56] Item 8 of the Schedule to the lease on page 19 of that document.
[57] Item 6 of the Schedule to the lease on page 19 of that document.
[58] Mr Zain is apparently the sole director of the Applicant. (See the "Organisational Chart" which is Annexure 5 to the first witness statement of Mr Syed. His signature appears on page 32 of the lease under the heading "Guarantor".
The premises situated at 156 Cowper Street, Footscray are subject to a written agreement which apparently expires on 14^th September this year. The document is described as “Contractor Agreement Renewal”. It has obviously been drafted by someone without any legal training. Construing it as best one is able to, it has the form of a license agreement permitting the Applicant to use the premises and equipment and facilities contained in it.[59] It appears that the landlord is a company known as “Seal Group Pty Ltd” which appears to be connected with Mr Syed. Beyond this scant evidence, there is nothing more that the Tribunal is really able to consider concerning this tenancy or license agreement. Given the limited number of days that the agreement has to its expiration, the overall impact on the Applicant must be minimal if any.
[59] The document itself at clause 5 states "The Contractor has arranged for the Principle to use the premises at 156 Cowper Street, Footscray fitted with equipment and facilities in Item 1 of the Schedule 1 to this Agreement for Technical Education Australia Pty Ltd." (Item 1 of Schedule on the next page of the document is blank.)
Clause 6 states "the Contractor agrees to provide all the facilities and equipment set out in Item 1 of Schedule 1".
THE PUBLIC INTEREST
The need to protect consumers and students is a matter of particular importance when assessing public interest impacts.
The Respondent quite properly referred the Tribunal to the reasons of Member Parker in Re Sher-E-Punjab Pty Ltd and Australian Skills Quality Authority.[60] It is useful to reproduce those sections in full as they provide an accurate statement of the task that the Tribunal must undertake in weighing up the public interest considerations in the course of a stay application:
[60] [2018] AATA 46 at [102] to [108].
102. 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.
103. 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] HCA 32; (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.
104. 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.
105. 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.
106. 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.
107. 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.
108. 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.
109. 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 devaluing 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.

There can be little doubt, based upon the evidence adduced by the Respondent that there is a real risk that a number of the objectives of the NVR Act and ESOS Act are undermined by the Applicant’s non-compliance. The consideration of the evidence under “Prospects of Success” above is referred to and repeated. There is extensive evidence in the T documents, particularly the contents of the First and Final Audit Reports, that points towards non-compliance with the requisite Standards and the National Code. The areas of non-compliance have not been addressed by the Applicant. The evidence to date concerning alleged rectification of such non-compliance is scant and confined to ‘Appendix A”, which as noted previously, is inadequate.
The conduct of the Applicant poses the question whether the NVR Act and ESOS Act are being complied with, as well as the applicable Standards and the National Code made thereunder. If there are breaches of those statutes as alleged by the Respondent, this has a significant impact on the reputation of Australia in the world marketplace for its capacity to offer high-quality vocational education; and it places a question mark on the quality and integrity of training, education and assessment that is offered.
Additionally, potential students from all over the world, and from this country, run the risk of paying significant sums of money for courses that are not being properly taught, if such allegations are correct. One of the critical objects of this legislation is to ensure that existing and future students are not at risk of paying money and not obtaining the outcomes they have paid for. Consumer protection, in so far as it is applicable under these statutes, is of critical importance.
It is important that the students be protected, and the integrity of accredited training and assessment in Australia be guarded. In these circumstances the Australian public and the students participating in the relevant courses are entitled to the protection of the Respondent’s decision, pending review by this Tribunal.
Therefore, this is a factor that must be taken into account in deciding whether or not to grant a stay.
THE CONSEQUENCES FOR THE RESPONDENT IN CARRYING OUT ITS FUNCTIONS DEPENDING ON WHETHER A STAY IS GRANTED OR NOT
The Respondent did not address this question in its submissions.
The Applicant submitted that there would be no adverse consequences for the Respondent in the event that the stay order was to continue. It made the point fairly that the Respondent will be required to and in fact can undertake ongoing monitoring in the event that the stay was continued.
Overall, the Tribunal accepts that there are limited consequences for the Respondent if the stay order continues. The Respondent can and no doubt will continue to monitor the performance of the Applicant if the stay order continues. Further, in the event that it is continued, the Respondent always has the capacity to return to the Tribunal and seek a revocation of the stay order if there is continuing non-compliance and/or breaches of any of the conditions attached.
Therefore, the Tribunal considers that this factor is of limited importance.
WHETHER THE APPLICATION FOR REVIEW WOULD BE RENDERED NUGATORY IF A STAY WERE NOT GRANTED
Neither party advanced much by way of argument concerning this consideration.[61]
[61] The Respondent at paragraph 71 of its submission asserted that the Applicant does not appear to contend that the review will be rendered nugatory if a stay is not granted. The Tribunal cannot accept this contention when one looks at the submissions of counsel for the Applicant which address this question. The Applicant's contentions are limited but nonetheless they were made.
The Applicant contended that if it ultimately succeeded at the final hearing but in the interim suffered “irreparable damage” as a result of revocation of the interim stay order, the application for review would be nugatory. The justification for this contention was that the purpose of the final hearing is to grant relief to a successful applicant and therefore avoid irreparable damage flowing from the decision under review. This contention obviously presupposes that the Applicant would become insolvent in the interim or its reputation so damaged prior to the final hearing that it could not “effectively recover commercially”.[62]
[62] This contention is contained in paragraph 40 of the Applicant’s submissions. Only two paragraphs of the submissions deal with the consequences if the application was rendered nugatory, namely paragraphs 39 and 40.
The Tribunal has some difficulty with this approach for several reasons. Firstly, as noted previously, there is just insufficient evidence to conclude that the Applicant would become insolvent or its reputation would be so damaged. Apart from some bare assertions, there is no evidence that enables the Tribunal to reach a view one way or another, as to what if any, reputational damage might be suffered by the Applicant in the event that the stay order was revoked.
The Applicant invites the Tribunal to engage in considerable speculation on this topic. It is a matter that Mr Syed, Mr Zain and Mr Donkin could have shed some light on. Yet again, the unexplained failure to both introduce evidence from these witnesses and have them address this topic is troubling. Evidence could have been adduced about the marketplace for potential students seeking to undertake courses with an RTO, together with what effect the reviewable decisions would have on its capacity to attract future candidates. Similarly, evidence could be adduced on whether or not rival RTOs might exploit the Applicant’s predicament if the interim stay order is revoked.
Overall, given the limited evidence, the Tribunal cannot place much weight on this factor.
OTHER CONSIDERATIONS
The Applicant by the submissions filed through its counsel has identified two other relevant matters for consideration by the Tribunal. They are as follows:
a)The nature of the non-compliance; and
b)The Respondent’s view of the history of the applicant’s non-compliance.
Concerning the nature of the non-compliance, the Applicant contended that it is almost inevitable that in every compliance audit conducted by the Respondent, there will be some areas of non-compliance revealed. The Applicant submitted that the Respondent’s contention that the Applicant’s history of non-compliance shows “evidence of systemic problems, poor judgement and an unwillingness to comply with the law” is misplaced.[63] The Applicant argued that the more critical consideration is the Applicant’s attitude to rectification and continued improvement, given the nature and effect of the identified problems. The Applicant submitted that the audit does not identify the Applicant as a dysfunctional or rogue operation, designed to flout the regulations or deny students education. Further, it is contended that any non-compliance history must be understood in the context of a small company with less than 200 students and 12 staff operating in a highly regulated environment without the support of a large compliance/human resources team.
[63] This contention is made in paragraph 74 of the Respondent's submissions filed with the Tribunal.
Whilst to some extent this contention cannot be fully addressed without a final hearing of the matters in dispute, the Tribunal again refers to its analysis of significant evidence of non-compliance and a history of non-compliance. As noted above, there has been insufficient evidence provided by the Applicant to demonstrate that all instances of

non-compliance identified in the Final Audit Report have been addressed.
The Applicant has a very strong case to answer and has not done so, other than in a most cursory fashion. The contents of the Final Audit Report, which identify the failure on the part of the Applicant to comply with the applicable Standards and National Code, are extensive and have not been remotely adequately addressed. Whether the Applicant is a small company or not, it has an obligation to adhere to the requirements of those Standards and the National Code. This obligation is mandated by each of the NVR Act and the ESOS Act. Compliance with the law is not too difficult an obligation to impose upon a RTO. Therefore, the Tribunal cannot accept this contention on the part of the Applicant.
As for the second limb of the Applicant’s contention, the Tribunal does not reach a conclusion one way or another concerning the Respondent’s view of the history of

non-compliance on the part of the Applicant. It does so for several reasons.
The Tribunal does not have the evidence which would enable it to reach a conclusion about the Applicant’s history of compliance or otherwise over the entire 12 years that it has conducted business. As is apparent from the content of the T documents, the Tribunal only has evidence concerning the audit most recently conducted by the Respondent on 3 to 6 October 2017. This audit has been the subject of two reports. Those audit reports identify significant failures by the Applicant to comply with the applicable Standards and the National Code. Those failures have not been adequately addressed by the evidence before the Tribunal in this application. It is this evidence upon which the Tribunal will make a decision concerning this application.
For these reasons the Tribunal does not find that there are other considerations that might weigh in the Applicant’s favour of not revoking the interim stay order.
CONCLUSION
Upon a consideration of the material, the Tribunal concludes that the Applicant has a significant case to answer, which was exposed by the audit conducted between 3 and 6 October 2017, the results of which are recorded in the two audit reports. The Applicant has been unable to produce adequate evidence to the Tribunal that enables it to form a conclusion that it has prospects of success.
The Applicant has been on notice of the non-compliance revealed by the audit from as early as 11 December 2017, when a copy of the audit report was forwarded to the Applicant. The Applicant was afforded an opportunity to address the areas of non-compliance by providing additional evidence to demonstrate rectification of the deficiencies identified in that audit.
The subsequent correspondence between the Respondent and the Applicant together with the reviewable decisions on 4 May 2018 well and truly alerted the Applicant to the fact that it had to get its operation in order. It did not. As Member Maryniak QC in Trades College Australia put it, the Applicant has not put its “best foot forward” by evidence to show that it is well on the way to substantial compliance with the applicable Standards and National Code. Overall, the Applicant’s evidence is of a general nature and simply lacks specific detail as to any significant, meaningful attempts at rectification of any of the extensive particulars of non-compliance identified as a result of the audit. Therefore, the Tribunal cannot realistically make an assessment in any way of the Applicant’s prospects of success. Certainly, on the current state of the evidence before the Tribunal, it seems more likely than not to fail.
Of the remaining relevant factors identified by Downes J in Scott, the Tribunal considers that the public interest assumes primacy. This is consistent with the objects of the NVR Act and the ESOS Act. It is also consistent with the unanswered results of the audit which raise significant questions about the quality and integrity of the training education and assessment that is offered to the students who have paid tuition fees and enrolled for courses with the Applicant.
There is also the consideration of the fact that international students are paying significant sums of money for courses that may not have been properly taught. The consumer protection considerations are critical. There is also Australia’s reputation in the international marketplace for higher and vocational education which must be considered as a matter of public interest. If the areas of non-compliance are not addressed, there is a potential for that reputation to be damaged.
As to the consequences for the Applicant of revoking the interim stay order, the Tribunal acknowledges such consequences do exist. Those consequences will be significant if the Applicant is forced to make its staff redundant. The Applicant may also default under the leases of the various premises occupied by the Applicant. There is also the effect on the Applicant’s sources of income and continuing obligation for recurring expenditure which likewise cannot be ignored. However, the evidence on these impacts is scant at best. Therefore, the weight that the Tribunal can accord these considerations is correspondingly less than might otherwise be the case if admissible evidence on this topic was before it.
As to the contention of possible reputational damage to the Applicant, once again there is no evidence that enables the Tribunal to reach a conclusion on this topic. Further, if there is the prospect of such reputational damage as contended by the Applicant, the other considerations are such that they outweigh this consideration. Principally, these other considerations are the public interest grounds which have been addressed in several places throughout these reasons, both in the context of consumer protection considerations and Australia’s international reputation for providing quality education.
As to whether the application for review would be rendered nugatory if the interim stay is revoked, once again the Tribunal is left to speculate. There is little evidence on this topic largely confined to submission rather than admissible evidence. Therefore the Tribunal cannot place much emphasis on it.
There are no other considerations that have any bearing either for or against revoking the interim stay order.
In conclusion, taking into consideration all the material that has been placed before the Tribunal, the absence of evidence adduced by the Applicant when compared with the significant evidence tendered by the Respondent, particularly the two audit reports and the Applicant’s failure to properly address the findings of non-compliance, the public interest justifies revoking the stay order granted on 6 June 2018.
DECISION
For the reasons articulated above the Tribunal revokes the stay order granted on 6 June 2018.

I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Cameron

...........................[sgd].............................................
Associate
Dated: 23 August 2018

Date(s) of hearing: 12 July 2018

Counsel for the Applicant: Theo Alexander

Solicitors for the Applicant: RSG Lawyers

Solicitors for the Respondent: Damian Cox

Date(s) of hearing:	12 July 2018
Counsel for the Applicant:	Theo Alexander
Solicitors for the Applicant:	RSG Lawyers
Solicitors for the Respondent:	Damian Cox