Technical Education Australia Pty Ltd and Australian Skills Quality Authority Secretary, Department of Education and Training

[2015] AATA 496

[2015] AATA 496 

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2013/4159; 2013/4924; 2013/4925; 2013/4926; 2014/3075; 2015 /0921
Re	Technical Education Australia Pty Ltd
APPLICANT
And	Australian Skills Quality Authority
RESPONDENT
And	Secretary, Department of Education and Training
RESPONDENT

DECISION

TribunalMr Egon Fice, Senior Member

Date  19 June 2015

Date of written

reasons  10 July 2015

PlaceMelbourne

The Tribunal:

(a)sets aside ASQA’s decision to cancel the registration of TEA under the NVR and ESOS Acts (matter No. 2015/0921);

(b)sets aside ASQA’s decision made pursuant to s. 33 of the NVR Act refusing TEA’s application to include the following subjects in its scope of registration (matter No. 2015/0921):

·22251 VIC Certificate II in EAL (Access)

·22255 Vic Certificate III in the EAL (Further Study)

·22258 Vic Certificate IV in EAL (Further Study)

·AUR 40212 Certificate IV in Automotive Mechanical Diagnosis

·CHC 30113 Certificate III in Early Childhood Education and Care

·CHC 50113 Diploma of Early Childhood Education and Care

·AUR 30612 Certificate III in Light Vehicle Mechanical Technology

·AUR 50112 Diploma of Automotive Management

(c)sets aside ASQA’s decision made pursuant to s. 9AG of the ESOS Act refusing TEA’s application to include on CRICOS the following courses at its Metrowest Plaza premises (matter number 2015/0921):

·SIT 30813 Certificate III in Commercial Cookery

·SIT 50313 Diploma of Hospitality

·SIT 60312 Advanced Diploma of Hospitality

·AUR 40212 Certificate IV in Automotive Mechanical Diagnosis

·CHC 30113 Certificate III in Early Childhood Education and Care

·CHC 50113 Diploma of Early Childhood Education and Care

·22251 VIC Certificate II in EAL (Access)

·22255 VIC Certificate III in EAL (Further Study)

·22258 VIC Certificate IV in EAL (Further Study)

·AUR 30612 Certificate III in Light Vehicle Mechanical Technology

·AUR 50112 Diploma of Automotive Management

(d)sets aside ASQA’s decision made pursuant to s. 33 of the NVR Act to reject TEA’s application to add the following courses to its scope of registration (matter No. 2013/4924);

·FNS 40611 Certificate IV in Accounting

·FNS 50211 Diploma of Accounting

·TEA 40110 Certificate IV in Training and Assessment

(e)sets aside ASQA’s decision made pursuant to s. 9AG of the ESOS Act refusing TEA’s application to include on CRICOS the following courses at its Metrowest Plaza premises (matter No. 2013/4925):

·FNS 40611 Certificate IV in Accounting

·FNS 50211 Diploma of Accounting

(f)sets aside ASQA’s decision made pursuant to s. 9 AG of the ESOS Act to include on CRICOS the following courses at its Metrowest Plaza premises (matter No. 2014/3075):

·SIT 30813

·SIT 50313

·SIT 60313

1. Remits to ASQA the decisions refusing to register the courses referred to in (1) above for the purpose of granting those registrations.

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

   Egon Fice, Senior Member

   Catchwords

   Cancellation of registration – application for registration for new courses – audit for compliance purposes – role of CEO – set aside and remitted.

   Legislation

   Administrative Appeals Tribunal Act 1975 s. 43

   Education Services for Overseas Students Act 2000 ss. 7A, 9AB, 83(1), 83(3)

   National Vocational Education and Training Regulator Act 2011 ss. 3, 36(2)(d), 36(3), 37

   Select Legislative Instrument 2011 No. 92

   Standards for NVR Registered Training Organisations 2011

   Standards for NVR Registered Training Organisations 2012

   Cases

   Shi v Migration Agents Registration Authority (2008) 235 CLR 286

   REASONS FOR DECISION

   Egon Fice, Senior Member

   10 July 2015

2. Technical Education Australia Pty Ltd (TEA) is a Registered Training Organisation (RTO) under the National Vocational Education and Training Regulator Act 2011 (NVR Act) and a Registered Provider (RP) under the Education Services for Overseas Students Act 2000 (ESOS Act).

3. The Australian Skills Quality Authority (ASQA) is the National Vocational Education and Training Regulator (National VET Regulator) established under Part 7 Division 1 of the NVR Act (see Select Legislative Instrument 2011 No. 92). It is also a Designated Authority pursuant to s. 7A of the ESOS Act. It holds delegations from both the Minister and the Secretary under the ESOS Act. While the proper respondent to certain decisions made by ASQA under delegation from the Minister under the ESOS Act is the Minister administering that Act, and some decisions are made by ASQA under delegation from the Secretary referred to in the ESOS Act where the respondent is the Secretary, for convenience, in this decision ASQA is referred to as the respondent in respect of all decisions made by it under the NVR Act and those made by it as a delegate under the ESOS Act.

4. The chain of events giving rise to all of the applications under review commenced in March 2012 when ASQA conducted a compliance audit of TEA. ASQA produced an audit report dated 30 March 2012 identifying non-compliance with aspects of the VET Quality Framework. The VET Quality Framework is defined in s. 3 of the NVR Act and it includes Standards for NVR Act Registered Training Organisations. Those standards are found in a legislative instrument entitled Standards for NVR Registered Training Organisations 2011 (the SNR) which was in force between 1 July 2011 and 7 February 2013 when a new instrument, Standards for NVR Registered Training Organisations 2012 came into effect.

5. After being given the opportunity to rectify the deficiencies identified by ASQA, ASQA conducted a further site rectification audit identifying continuing non-compliance with a number of SNRs.  Not satisfied with TEA’s attempts to rectify identified deficiencies, on 3 April 2013 ASQA gave TEA notice that it intended to remove from its scope of registration the qualification Certificate III in Hospitality (Commercial Cookery). That sanction was imposed under s. 36(2)(d) of the NVR Act. ASQA also imposed that sanction on TEA pursuant to s. 83(3)(c) of the ESOS Act. Those two decisions are the subject of review in matter 2013/4159.

6. In 2012 TEA applied to have a number of additional courses added to its scope of registration under the NVR Act and the ESOS Act.  In letters dated 23 September 2013 ASQA notified TEA that its applications under both Acts were rejected on the grounds that the requirements under each respective Act had not been met.  These decisions are the subject of applications to the Tribunal in matters 2013/4924 and 2013/4925.

7. On 15 November 2012 TEA lodged with ASQA an application to renew its registration under the ESOS Act to provide courses to overseas students in five identified units at premises located at 109 Nicholson Street, Footscray, Victoria. Registration is made in a Register called the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). On 29 August 2013 the Chief Commissioner accepted the recommendation not to renew TEA’s registration under s. 9AB of the ESOS Act. TEA was advised of ASQA’s decision not to renew its registration under the ESOS Act by letter dated 23 September 2013. This decision is the subject of review before the Tribunal in matter 2013/4926.

8. On 1 May 2014 ASQA determined that applications by TEA to add three further units of study for courses to be conducted at 109 – 111 Nicholson Street, Footscray, Victoria and three units to be conducted at 222 Nicholson Street, Footscray, Victoria not be recommended.  That decision was approved by the Acting Chief Commissioner.  Those decisions are the subject of review by this Tribunal in matter 2014/3075.

9. On 30 January 2015 the Chief Commissioner approved recommendations made by ASQA that TEA’s registration under the NVR Act and ESOS Act be cancelled 35 days after TEA received written notification of the decision.  The Chief Commissioner also approved ASQA’s recommendation that TEA’s applications to change the scope of registration under the NVR Act and three applications under the ESOS Act not be approved.  These decisions are the subject of review by the Tribunal in matter 2015/0921.  Those decisions, of course, logically followed the decisions to cancel registration.

10. While all of the matters referred to above are the subject of merits review by the Tribunal, the parties agreed that the outcome of the cancellation of NVR and ESOS registration decisions (2015/0921) will determine the course to be taken in respect of the other proceedings.

11. In addition, since commencement of these proceedings, TEA has changed premises and now conducts its courses from Metrowest Plaza, 27 Albert Street, Footscray, Victoria.  Furthermore, a number of courses the subject of the applications made for a change in the scope of registration under both Acts have been superseded.  The following are the consequences on the applications referred to above.

    Matter 2013/4159

12. TEA has withdrawn its application for review of the decisions in this matter.  The qualification SIT630807 was replaced by SIT30812 which itself was replaced in October 2013 by SIT30813.  Commencing 1 July 2014 ASQA granted TEA registration to deliver the course in qualification SIT30813, SIT50813, SIT60813 and, on 28 October 2013, the course in qualification SIT30813. 

13. The ESOS Act removal decision was overtaken by the non-addition decision which is the subject of matter 2014/3075.

    Matter 2013/4924

14. The only issue which remains alive in this proceeding is ASQA’s decision to refuse to add the following course qualifications under the NVR Act: FNS40611, FNS50211 and TAE40110.

    Matter 2013/4925

15. The only remaining issue is ASQA’s refusal to add the following course qualifications under the ESOS Act: FNS40611 and FNS50211.  The original applications were made when TEA was trading from its former premises and it now seeks registration of these courses at its new premises.

    Matter 2013/4926

16. TEA has withdrawn this application in its entirety.  All of the qualifications which were the subject of ASQA’s refusal are superseded courses which were conducted at the former premises.  ASQA has registered TEA under the NVR Act to deliver the course qualifications SIT60307 and SIT50307 (the 2013 Training Package) and BSB60207 and BSB50207 (the 2015 Training Package).  TEA expects ASQA to register these course qualifications under the ESOS Act if TEA is successful in setting aside the cancellation decisions (matter 2015/0921).

    Matter 2014/3075

17. TEA no longer seeks to proceed with ASQA’s decision not to renew under the ESOS Act the course qualifications SIT30807, SIT50307 and SIT60307 as they are superseded courses registered at the former premises.

18. However, TEA continues to pursue ASQA’s decision regarding course qualifications
    SIT30813, SIT50313 and SIT60313 at its current premises. 

    Matter 2015/0921

19. In addition to cancelling TEA’s NVR and ESOS Registration, ASQA also rejected TEA’s application for a change in scope of course qualifications under the NVR Act and its application to change its CRICOS registration for a number of further course qualifications.  TEA continues to seek registration of the course qualifications rejected by ASQA under both Acts assuming, of course, that the cancellation of registration decisions are set aside by the Tribunal.

    CONDUCT LEADING TO THE CANCELLATION DECISIONS

20. Much water has passed under the bridge since ASQA first became concerned with the courses conducted by TEA under both Acts.  In fact, as I have stated above, ASQA’s involvement commenced in March 2012 following a monitoring (compliance) audit of TEA.  When TEA was notified that it was non-compliant, it proceeded to rectify those course requirements which it was claimed were non-compliant.  That evidence was then provided to ASQA on 27 July 2012.  On reviewing the rectification evidence, ASQA identified a number of course requirements which had not been fully addressed leaving a number of non-compliant requirements remaining in respect of a number of standards.

21. Throughout the course of 2012 TEA requested a number of amendments to its scope of registration.  A follow-up rectification audit for compliance monitoring purposes was conducted on 13 November 2012.  Also, as part of that audit, TEA’s applications for extension to scope and registration on CRICOS were examined over that period.  ASQA identified a number of outstanding non-compliance issues under the NVR Act and the ESOS Act.  A subsequent rectification desktop audit conducted on 16 April 2013 failed to satisfy ASQA that all non-compliance issues had been addressed.

22. ASQA produced a further audit report on 4 June 2013 identifying remaining non-compliance with a number of Standards for NVR Registered Training Organisations 2012 (SNRs).  In September 2013 ASQA made decisions refusing TEA’s applications to add further course qualifications under the NVR Act and ESOS Act.  It also notified TEA that it refused TEA’s application for renewal of registration under the ESOS Act.

23. In May 2014 TEA served on ASQA the rectifications it sought to rely on in order to satisfy its claimed non-compliance with SNRs and the National Code.  On 8 July 2014 ASQA wrote to TEA stating that it identified only two remaining issues.

24. In July 2014 TEA notified ASQA that it was required to vacate its existing premises at Nicholson Street, Footscray and was seeking an urgent audit of its new premises located at Metrowest Plaza, Albert Street, Footscray.  Although not required under the NVR Act, the ESOS Act registers approved providers to conduct courses at approved locations
    (s. 9AB(4)).  The application relating to the new premises was not lodged until
    13 October 2014.  The two outstanding issues remained unresolved.

25. It appears that ASQA requested a meeting with Mr Ken Betts, the then Chief Executive Officer of TEA, on 21 November 2014.  The request appeared to be at short notice (one day) and Mr Betts explained why he could not meet with ASQA staff on the following day.  One of the reasons given by Mr Betts was that TEA was closed until the New Year, 2015.  Subsequently, in a witness statement made by Mr Ifzal Syed on 4 May 2015, Mr Syed stated that TEA was not in fact closed until 11 December 2014, reopening on 6 January 2015.  Mr Syed described himself as the Director of Studies at TEA, having been in that role since 12 October 2014.

26. ASQA also remained concerned that TEA had breached the conditions of a stay order made by the Tribunal on 28 October 2014 which stated:

    4.  The stays of the respondent’s decisions, in matters 2013/4159 and 2013/4926, are each varied to provide that the stay is conditional upon the applicant from 23 October 2014 until further order of the Tribunal not:

    a. Doing anything for the purpose of recruiting or enrolling students for any course at the new premised [sic]; and

    b. Permitting any student to begin the course if the student has been enrolled or accepted in a course at the new premises before 23 October 2014 but has not begun the course by 23 October 2014.

27. According to Mr P Cribb, a legal officer with ASQA who appeared on its behalf, it is essentially TEA’s conduct over the past three years which led ASQA to believe it will not comply with its statutory obligations in the future without close supervisory oversight by ASQA.  Mr Cribb made it plain that ASQA did not have the resources to maintain constant oversight.  Furthermore, Mr Cribb was concerned that TEA had breached the stay order made by the Tribunal on 28 October 2014 which, he submitted, evidenced its reluctance to comply with the law.  There were also two further less significant matters which were raised and which I will deal with presently.

28. Both parties directed my attention to the High Court of Australia (Kirby, Hayne, Hayden, Crennan and Kiefel JJ) decision in Shi v Migration Agents Registration Authority (2008) 235 CLR 286. Kirby J said this about s. 43 of the Administrative Appeals Tribunal Act 1975 (AAT Act) which deals with the Tribunal’s decision on review, at 299:

    Purpose of s 43 of the AAT Act: Thirdly, a conclusion that, ordinarily, the Tribunal might have regard to new, fresh, additional or different evidence in reaching its own decision is reinforced by the apparent purpose of s. 43 of the AAT Act.  Under that section, when the Tribunal decides to set the decision under review aside, it must consider whether to remit the decision to the Tribunal for reconsideration (with or without directions or recommendations) or whether to make a fresh decision “in substitution for the decision so to set aside” (59).

    Of necessity, any such fresh decision replaces the decision of the primary administrative decision-maker within the Executive Government of the Commonwealth.  In law, and in effect, it becomes the decision of the Executive Government.  Many days, weeks, months or even a year or more might have passed since the original decision was made by the primary decision-maker.  It would be theoretically conceivable that the Tribunal might make a decision which ought to have been made years, months, weeks or many days earlier, leaving it to the primary decision-maker then to update or alter that decision if any new facts or circumstances required, or warranted, that course.…

    When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available.  This rule of practice is no more than a feature of good public administration.

29. Hayne and Heydon JJ, on the same issue, said at 315:

    Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear up on circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review.  If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.

    ARE THE CANCELLATION DECISIONS WARRANTED

30. Division 3 of Part 2 of the NVR Act provides for the means by which ASQA may ensure compliance with the VET Quality Framework.  Subdivision A provides that ASQA may at any time conduct a compliance audit of an NVR Act registered training organisation’s operation to assess compliance.  It may also review or examine any aspect of an NVR Act registered training organisation’s operations to determine any systemic issues related to the quality of vocational education and training.

31. Section 36(3) of the NVR Act sets out the matters which ASQA may take into account when determining the action to be taken under the sanction provisions. It provides:

    (3) In determining what action to take in relation to an NVR registered training organisation, the National VET Regulator may have regard to:

    (a)the organisation’s conduct, or circumstances existing, before the Regulator had cause to consider imposing a sanction on the organisation (including before the commencement of this section); and

    (b)if section 37 applies – the organisation’s conduct, or circumstances existing, since the Regulator gave the organisation a written notice as mentioned in that section.

32. The s. 37 requirements are that ASQA must give the organisation notice that it intends to make a decision and invite a response to the notice. In effect, it is required to provide a show cause notice to the organisation. It must consider the response and then make a decision regarding the sanction to be imposed.

33. Those sanctions include suspension, cancellation or other enforcement action.  Plainly, as Mr T Mitchell of counsel, who appeared on behalf of TEA, submitted, cancellation of registration is the most severe of those sanctions.  He submitted that TEA’s conduct did not warrant such a severe sanction.  In fact, Mr Mitchell submitted that the purpose of the sanctions was not to impose a punishment for non-compliance but rather, they were directed to ensuring compliance in the future.  He maintained that TEA was now fully compliant.

1. The imposition of sanctions under the ESOS Act is provided for in Division 1 of Part 6. Section 83(1) provides that the Minister may take one or more of the actions listed in subsection (3) where a registered provider is breaching, or has breached, the ESOS Act, the National Code or a condition of the provider’s registration. Section 83(3) provides:

   (3) The actions are:

   (a)to impose one or more conditions on the registered provider’s registration either generally or in respect of any one or more specified courses for any one or more specified locations (see section 86);

   (b)to suspend the registered provider’s registration for any one or more specified courses for any one or more specified locations (see section 95);

   (c)to cancel the registered provider’s registration for any one or more specified courses for any one or more specified locations.

2. Again, cancellation of registration is the most severe sanction able to be imposed on a provider under the ESOS Act.

3. Although many matters which were the subject of non-compliance notices had been rectified by the time I heard this matter, and I will briefly deal with those matters which remained the cause of some concern, Mr Cribb submitted that what caused ASQA serious concern was that it was denied access to the premises when requested in November 2014 and that Mr Betts had lied about the reason for denying access.  Also, ASQA was of the view that TEA breached the conditions of the stay order granted in October 2014 indicating that it was not inclined to follow the rules.  In those circumstances, Mr Cribb submitted that the Tribunal could not have confidence that TEA would continue to abide by the requirements of the NVR and ESOS Acts.  ASQA did not have the resources to maintain surveillance over TEA’s operations.

4. I had in evidence witness statements from a number of persons who have either been recently appointed to TEA or are associated with two restaurants whose premises are used in part to deliver commercial cooking courses to TEA.

5. Mr Syed holds significant tertiary qualifications in economics and business administration as well as food handling and food handling supervisor certificates.  He also holds a number of training and assessment qualifications.  In addition to his role with TEA, Mr Syed teaches Vocational Business Education at RMIT University in the Department of Finance and Accounts and International Trade, Marketing and Logistics.

6. Mr Syed testified that he joined TEA in the course of its current dispute with ASQA and his brief was to bring the college into full compliance with all regulatory requirements.  He described his role as follows:

   (a)to fulfil the role of Director of Studies, which entailed oversight of all of the courses delivered by TEA;

   (b)to train the trainers of the college; and

   (c)to bring institutional practices of TEA to a state of compliance and to put in place practices and procedures to ensure that compliance is maintained.

   Amendment of documents

7. Mr Syed referred to ASQA’s complaint regarding two remaining issues which related to matters 2013/4159 and 2013/4924 – 6.  They involved TEA’s Staff Recruitment Induction Review and Development Policy and the menu for the Kismaayo restaurant.  Mr Cribb wrote to TEA on 20 October 2014  raising the following issues:

   (a)the Kismaayo restaurant menu referred to TEA’s address as Metrowest Plaza, Albert Street, Footscray although TEA did not commence operations at that address until late July 2014; and

   (b)the document dealing with staff recruitment, induction, review and development referred to the document being revision 1 dated January 2012.  It was described as the original and predated the identified non-compliance.

8. In response, Mr Syed testified that the version of the document dealing with staff recruitment, induction, review and development was incorrectly referred to as revision 1.  Mr Syed said he was the author of the changes and he had neglected to insert the date of the second revision which effectively addressed ASQA’s complaint.  He said an updated version was provided to ASQA on the following day.  That updated version was annexed to his witness statement.  In his oral evidence, Mr Syed was taken to the updated document annexed to the affidavit of Mr Matthew McMahon made on 8 May 2015.  That document discloses a revision 2 document dated October 2014 referring to an amended reference check requirement.  That was identified to be the requirement set out under the heading Recruitment at paragraph 5.3 of the document.  Also annexed to Mr Syed’s affidavit was the amended document and it is plain from a comparison of the two documents that paragraph 5.3 had been amended.

9. As to the menu relating to the Kismaayo restaurant, Mr Syed said that it referred to the new premises which TEA hoped would be approved in the near future by ASQA.  He did agree that the menu did not include a breakfast section and therefore it needed to be amended.

10. It should be apparent that, even without correction, the matters referred to above could not reasonably be described as highly significant.  In any event, I find that TEA now satisfies the requirements set out in SNR 15.3 and SNR 15.4.

    New premises site audit

11. Mr Syed testified that he was present at the site audit conducted by ASQA on 12 November 2014.  He said that the auditors who attended were Mr Matthew McMahon and Mr Steven Morrissey.  An informal debriefing was held following the audit and Mr Syed testified that he was left with the impression that there were a small number of minor logistical issues to be addressed and the auditors recommended that TEA commence rectifying those as soon as possible.

12. On 17 November 2014, TEA received an email from ASQA stating that it had been approved to operate from the new premises.  In fact the email from Mr Cribb on that date stated ASQA had agreed to remove the courses Advanced Diploma of Business; Advanced Diploma of Hospitality; Certificate III in Hospitality (Commercial Cookery); Diploma of Business; and Diploma of Hospitality, conducted under the ESOS Act from the Nicholson Street location, and to add them to the Metrowest Plaza location without any change being made to its approved student capacity.  In a letter dated 5 December 2014, solicitors for TEA set out the six items identified by the auditors which they considered required rectification.  Those said to be remaining at the time of hearing this matter were:

    (a)Diploma of Hospitality – evidence of competency of the trainer to teach first aid in order to conduct the unit and whether there were resources to support this unit – whether facilities were adequate to conduct training in Certificate III in Commercial Cookery; and

    (b)Trainer Files – ensure qualifications were inserted on trainer files.

    Commercial cookery course

13. In order to conduct practical training for the purposes of Commercial Cookery, TEA needed access to an appropriate commercial kitchen.  It did not have that facility at its premises.  However, there was no dispute that practical training could be conducted off-site.  TEA claim to have an agreement with two restaurants, both of them situated in Sydney Road, Coburg, Victoria.  I had in evidence witness statements from Mr Sharifu Khan and Mr Usman Naseer.

14. Mr Khan is a chef at the Nila Restaurant and Catering (Nila Restaurant).  The restaurant serves Indian and Malaysian food.  Mr Khan said that Nila Restaurant had an agreement with TEA to use its premises for the delivery of its courses.  Mr Khan said that on 12 May 2015 he conducted an audit at the restaurant premises confirming the items of equipment present and available for use by TEA students.  Attached to his witness statement was a list of those items and also some photographs of the premises.

15. Mr Naseer described himself as the Director of Aussie Dera restaurant in Coburg.  He described it as a Pakistani restaurant.  Mr Naseer said Aussie Dera had an agreement with TEA to use its premises for the purposes of delivering its courses.  Mr Naseer set out, in an annexure to his statement, a list of equipment present and functioning at the restaurant.  He also attached photographs of the restaurant’s kitchen facilities to his witness statement.

16. The audit report made by Mr McMahon following the audit of the Metrowest Plaza site on 12 November 2014 recorded a number of identified items of equipment required by TEA in accordance with its Training Pack for the Certificate III in Commercial Cookery.  At that time, TEA had an agreement with a commercial kitchen and restaurant called Global Food Café Pty Ltd.  Mr McMahon noted a number of deficiencies including limited bench space; the availability of only one commercial oven; the absence of a cool room; the absence of a blast chiller and blast freezer; the absence of a butchers block; and the fact that the kitchen was a small confined area, there being insufficient room for the number of students nominated for that course to safely occupy the space.

17. At the hearing, I received oral evidence from Ms Navneet Pathania, who described herself as a trainer in hospitality courses.  She commenced her employment with TEA in December 2014.  Ms Pathania attended the Nila restaurant on the day prior to her giving evidence and checked the commercial equipment available at the restaurant against a checklist.  That checklist was admitted into evidence.  The only items which Ms Pathania identified as not being present were a commercial dishwasher and a marble bench or slab.  She agreed that there were commercial workbenches allowing 1.5 m per person and commercial ovens with timers and trays, one per two people.  As for the commercial dishwasher, Ms Pathania said it was not necessary as it was not part of the course and, although there was no marble bench or slab, there were stainless steel benches which she said were adequate. She had never seen a marble bench in any restaurant.  Ms Pathania also testified that that TEA did not provide any study units which required the use of a blast chiller or a blast freezer.

18. In cross-examination, Ms Pathania was referred to the Training Package produced by Industry Skills Councils for the course described as SIT12 Tourism, Travel and Hospitality.  That document states it was generated on 26 July 2014.  Amongst other things, it contains statements about the environment and equipment required for teaching units about operational commercial kitchens.  According to Mr Cribb, the matters set out in that document and, in particular, the equipment necessary for teaching the unit dealing with commercial cookery were mandatory.  I did not understand Ms Pathania to disagree with that suggestion.  In fact the checklist which she used when attending the Nila restaurant replicates the list of fixtures and large equipment required for teaching that unit as mandated by the SIT12 Training Package.  As there was no evidence which contradicted what Ms Pathania said about the equipment, and that the checklist attached to Mr Naseer’s witness statement indicates that a commercial dishwasher is available at the Aussie Dera restaurant, I find that TEA does have access to premises and equipment suitable for teaching a course in commercial cookery.

19. In his 7 May 2015 audit report, Mr McMahon said that the physical resources used for the delivery and assessment of first aid training were not located at TEA’s nominated premises.  First aid training is a part of a unit in the commercial cookery course.

20. I had in evidence two witness statements made by Mr Syed Zaid, the student welfare officer employed by TEA.  Mr Zaid also gave oral evidence.  He said that he had examined the first aid equipment available at TEA premises and had made a checklist of that equipment.  That checklist, together with photographs which Mr Zaid said he took, was admitted into evidence.  He attached to his second affidavit photographs of four further first aid pieces of equipment which he said he omitted to photograph when completing the checklist.  When cross-examined about why the omitted items were not included amongst the first group of photographs, Mr Zaid suggested he forgot to do so.  Although Mr Cribb expressed concern about that explanation, there was no evidence before me that all of the items of equipment identified by Mr Zaid were not in fact now at TEA’s new premises.

    Library resources

21. Another criticism levied by Mr McMahon in his finding on 7 May 2015 was that TEA did not demonstrate it had all the resources specified within the organisation’s own training and assessment strategy.  He said many of the textbooks listed within the training and assessment strategy were not available on TEA’s premises.    Mr Zaid explained that following Mr McMahon’s findings on this issue, TEA had responded on 2 February 2015 stating that certain resources were unavailable because the library was in the process of being indexed and automated.  Mr Zaid stated the indexation and automation process was now complete and that he had personally reviewed the contents of the library.  He said that TEA had at its site, available to students, copies of each of the learner guides required; particularly for the delivery of the unit in Diploma of Business and the unit contained in the Certificate III of Commercial Cookery dealing with First Aid.  Attached to his statement was a photograph of the learner guides for each unit of competency.  The photograph appears to coincide with what Mr Zaid said in his evidence.

    New CEO

22. In order to address the concerns expressed by ASQA about ongoing surveillance and supervision, TEA notified ASQA that Mr Betts was no longer the CEO and that his position had been filled by Mr John Meehan.  Mr Syed testified that Mr Betts was no longer employed by TEA.  In fact, Mr Syed explained that Mr Betts’ refusal to have the auditors attend at short notice in November 2014 was due to the fact that he was conducting an electoral campaign in the Victorian State Government elections.  Nevertheless, he was critical of Mr Betts’ decision not to cooperate with the auditors. 

23. Mr Meehan provided a witness statement dated 15 May 2015 which was admitted into evidence.  He also attended the hearing and gave oral evidence.

24. Mr Meehan testified that he held a Masters of Education (University of New South Wales); a Bachelor of Arts (University of New England); and a Diploma of Education (University of New England).  He also said he had extensive experience in and responsibility for ESOS compliance, most notably as Director of International Marketing and Recruitment and Deputy Director International at the University of Technology Sydney between 2001 and 2007.  He has worked at a number of tertiary institutions in managerial roles and in legislative and compliance areas.  These were detailed in his curriculum vitae.

25. Mr Meehan said that if these proceedings concluded in favour of TEA, he intended to sign an Executive Employment Contract with TEA.  He said on appointment, he would conduct an internal review of TEA to ensure that its institutional practices complied with the relevant legislation and put in place practices and procedures which would ensure the maintenance of compliance.  He also said that he would be answerable and directly accessible to ASQA in all matters related to compliance.

26. Mr Meehan attached to his witness statement an undated agreement between TEA and himself by which he agreed to engage as a contractor to provide consulting services.  Although he had executed that agreement, it was yet to be executed by TEA.  While Mr Cribb raised concern about fact that TEA had not executed that document, in the context of an impending agreement subject to TEA being successful in its application to the Tribunal, that should not raise concern.  In cross-examination by Mr Cribb, Mr Meehan said that if TEA received a favourable outcome from this proceeding, he would execute the Executive Employment Contract.

27. Given Mr Meehan’s impressive qualifications and experience in the field of education, and the fact that he is prepared to relocate from Sydney to Melbourne in order to take up this position, I have confidence that he will perform his role diligently as he said he would.

    Breach of conditions on stay order

28. The final outstanding matter which caused ASQA concern was its claim that TEA had breached the conditions upon which the stay order was granted by the Tribunal on 28 October 2014.

29. Mr Syed addressed this issue in his witness statement of 4 May 2015.  He explained that this happened in the context of TEA being forced to vacate the premises from which it previously conducted courses and the move to its new premises at Metrowest Plaza.  In essence, the conditions prevented TEA from recruiting or enrolling students for any courses at the new premises.  It was permitted to allow students to commence a course if enrolled or accepted in the course at the new premises before 23 October 2014 if the student had not begun the course by that date.

30. Mr Syed testified that after TEA had received ASQA’s email on 17 November 2014 informing it that ASQA had agreed to TEA conducting a number of its courses at the new premises by adding them to its registration under the ESOS Act, the conditions set out in paragraph 4 of the stay order made by the Tribunal no longer applied because the condition was imposed by agreement between the two parties.  He said it did not occur to him that TEA needed to approach the tribunal and seek a variation of the order. 

31. On 8 January 2015 Mr Cribb sent an email to TEA explaining that it had been brought to his attention that TEA was not complying with the conditions of the stay order.  He explained that TEA was taking steps to enrol students for a course at the new premises.

32. Mr Syed did not dispute that students were enrolled while the condition was in force.  He said that he was now aware that TEA should not have enrolled those students at that time. He apologised for what he described as an unintentional contravention of the Tribunal’s orders which he assumed had been overtaken by ASQA’s consent to registration of the new premises.  Mr Syed also accepted that ASQA’s complaint on 20 January 2015 regarding the further enrolment of a number of students was valid.  He said that on or shortly after 8 January 2015, he became aware that TEA was not entitled to enrol any new students and that all relevant administration staff, including Mr Muhammad Qureshi, were informed and instructed not to recruit, enrol or permit a student to start a new course.  He did not know why Mr Qureshi had allowed that to occur.  Mr Qureshi is no longer employed by TEA.

33. Mr Mitchell submitted that three of the alleged new enrolments did not contravene the Tribunal’s order of 28 October 2014 because those students had been enrolled in a course at the new premises before 23 October 2014.  I had documents in evidence which supported that submission.  Those three students had in fact deferred their studies at TEA.  However there was no explanation given by Mr Mitchell for the subsequent enrolment of four students following that date.

34. While the evidence discloses there may have been a contravention of the Tribunal’s stay order, it does not disclose that this was deliberate or ongoing.  In fact, the persons directly responsible are no longer employed by TEA and one was not available to give evidence at the hearing of this matter.  The evidence does not, in my opinion, substantiate Mr Cribb’s submission that TEA is unlikely to comply with statutory requirements in the future.

    CONCLUSION

35. I have found that the majority, if not all, significant non-compliance issues identified by ASQA have been dealt with by TEA.  Furthermore, the persons responsible for the provision of courses at TEA have significantly altered since the audits were conducted by ASQA.  In particular, I accept that the proposed new CEO, Mr Meehan, will provide TEA with quality leadership and oversight with which ASQA can be comfortable.  He is a person with a significant reputation to protect.  I have no reason to believe that TEA will not comply with the relevant statutory obligations and standards imposed under those Acts.  For those reasons, I would:

    (a)set aside ASQA’s decision to cancel the registration of TEA under the NVR and ESOS Acts (matter No. 2015/0921);

    (b)set aside ASQA’s decision made pursuant to s. 33 of the NVR Act refusing TEA’s application to include the following subjects in its scope of registration:

    ·22251 VIC Certificate II in EAL (Access)

    ·22255 Vic Certificate III in the EAL (Further Study)

    ·22258 Vic Certificate IV in EAL (Further Study)

    ·AUR 40212 Certificate IV in Automotive Mechanical Diagnosis

    ·CHC 30113 Certificate III in Early Childhood Education and Care

    ·CHC 50113 Diploma of Early Childhood Education and Care

    ·AUR 30612 Certificate III in Light Vehicle Mechanical Technology

    ·AUR 50112 Diploma of Automotive Management

    (c)set aside ASQA’s decision made pursuant to s. 9AG of the ESOS Act refusing TEA’s application to include on CRICOS the following courses at its Metrowest Plaza premises:

    ·SIT 30813 Certificate III in Commercial Cookery

    ·SIT 50313 Diploma of Hospitality

    ·SIT 60312 Advanced Diploma of Hospitality

    ·AUR 40212 Certificate IV in Automotive Mechanical Diagnosis

    ·CHC 30113 Certificate III in Early Childhood Education and Care

    ·CHC 50113 Diploma of Early Childhood Education and Care

    ·22251 VIC Certificate II in EAL (Access)

    ·22255 VIC Certificate III in EAL (Further Study)

    ·22258 VIC Certificate IV in EAL (Further Study)

    ·AUR 30612 Certificate III in Light Vehicle Mechanical Technology

    ·AUR 50112 Diploma of Automotive Management

    (d)set aside ASQA’s decision made pursuant to s. 33 of the NVR Act to reject TEA’s application to add the following courses to its scope of registration (matter No. 2013/4924;

    ·FNS 40611 Certificate IV in Accounting

    ·FNS 50211 Diploma of Accounting

    ·TEA 40110 Certificate IV in Training and Assessment

    (e)set aside ASQA’s decision made pursuant to s. 9AG of the ESOS Act refusing TEA’s application to include on CRICOS the following courses at its Metrowest Plaza premises (matter No. 2013/4925):

    ·FNS 40611 Certificate IV in Accounting

    ·FNS 50211 Diploma of Accounting

    (f)set aside ASQA’s decision made pursuant to s. 9 AG of the ESOS Act to include on CRICOS the following courses at its Metrowest Plaza premises (matter No. 2014/3075):

    ·SIT 30813

    ·SIT 50313

    ·SIT 60313

I certify that the preceding 67 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

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

Associate 

Dated 10 July 2015

Date of hearing	11 June 2015
Counsel for the Applicant	Mr T Mitchell
Solicitors for the Applicant	Denison Toyer
Advocate for the Respondents	Mr P Cribb