Victorian Institute of Technology Pty Ltd and Tertiary Education Quality and Standards Agency

The Administrative Appeals Tribunal considered an application for a stay order brought by Victorian Institute of Technology Pty Ltd (the applicant) against a decision made by the Tertiary Education Quality and Standards Agency (the respondent). The dispute concerned a single condition imposed on the applicant's registration, and the applicant sought to stay the operation of this condition pending the final determination of its application for review.

The Tribunal was required to determine whether to exercise its power under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) to grant a stay order. This involved considering various factors, including the prospects of success of the review application, the consequences for the applicant if the stay were refused, the public interest, and the consequences for the respondent in carrying out its functions. The Tribunal also had to assess whether the application for review would be rendered nugatory without a stay.

In reaching its decision, the Tribunal applied the principles outlined in Re Scott and Australian Securities and Investments Commission, which guide the assessment of stay applications. While acknowledging the respondent's residual concerns regarding the applicant's compliance with the Higher Education Standards Framework, particularly in areas of governance, quality assurance, student well-being, and staffing, the Tribunal found that the applicant had asserted facts which, if established, could provide a reasonable basis for success. The Tribunal considered that granting a stay was desirable for the purpose of securing the effectiveness of the hearing and determination of the application for review, taking into account the interests of the persons affected.

Consequently, the Tribunal ordered that the operation of Condition 4(b) of the respondent's decision of 29 June 2020, imposed on 3 July 2020, be stayed pending the final hearing and determination of the application for review.