United Business College Pty Ltd and Australian Skills Quality Authority

United Business College Pty Ltd applied to the Administrative Appeals Tribunal (AAT) for a variation of a previously granted stay order. The dispute concerned a condition imposed on the stay order, specifically a prohibition on new enrolments, which the College sought to have removed. The AAT, presided over by Senior Member Chris Furnell, considered whether to vary the existing stay order.

The primary legal issue before the Tribunal was whether it was desirable to vary the existing stay order by removing the condition preventing new enrolments. This required the Tribunal to consider the interests of persons affected by the review of the Australian Skills Quality Authority's (ASQA) decisions concerning the College, and the appropriateness of the variation for securing the effectiveness of the hearing and determination of the College's application for review. In addition, the Tribunal was required to assess other relevant considerations, including the prospects of success of the substantive application, the consequences for the College if the condition were not removed, the impact on the public interest, the consequences for ASQA in carrying out its functions, and whether the substantive application would be rendered nugatory without the variation.

The Tribunal applied a hybrid approach, re-orienting the traditional considerations for stay order requests to the specific context of a variation application. It weighed the impact of removing the no new enrolment condition on various stakeholders, including the College, ASQA, and the public interest. The Tribunal considered whether the continued imposition of the condition was necessary to ensure the effectiveness of the review process and whether its removal would render the substantive application nugatory. After balancing these considerations, the Tribunal concluded that the weight of the factors favoured refusing the application for variation.

Consequently, the Tribunal refused the Applicant's request under s41(3) of the Administrative Appeals Tribunal Act 1975 for an order varying the Tribunal's stay order of 1 November 2018.