1. The Tribunal must consider whether the Applicant is complying or will comply with the VET Quality Framework and the applicable conditions of registration under the NVR Act for the purposes of the RTO registration and the ESOS Act and the National Code for the purposes of the CRICOS registration.
2. Two primary issues were identified at the audit stage directed to non- compliance which remain contested before the Tribunal. The first is the use of a consultant without full disclosure as to the extent of that person's role. The second is the deficiencies in the disclosure contained in the FPP. At the hearing, a further issue emerged as to the appropriateness of Mr Al-Hadi as the sole trainer of Pendulum for the proposed courses.

1. Mr Sharma was engaged by Pendulum in September 2022, and he provided significant input to the documents submitted by the Applicant as part of the registration process. Pendulum concedes the Self-Assessment was not completed correctly and the answer to the consultant question was wrong.
2. The evidence of Mr Al-Hadi and Mr Sharma was consistent in that each of them played a role in completing the Self-Assessment. Mr Al- Hadi gave evidence that Mr Sharma marked the response as 'no' without his knowledge or authorisation. Mr Sharma was uncertain as to whether he simply edited a draft of the document completed by Mr Al-Hadi or if he provided a verbal response to be input into the form. He did not recall discussing the questions with Mr Al-Hadi or completing this question in the form. Neither took responsibility for the error.
3. The Tribunal is not satisfied the evidence establishes a deliberate intention to mislead ASQA by the response provided to the question. However, a prudent applicant would be expected to review the completed document before signing and submitting it, particularly where another person has contributed to its preparation. The evidence of Mr Al-Hadi and Mr Sharma demonstrates there was no clear process of verification or accountability for the accuracy of the information lodged.
4. Pendulum states the involvement of the consultant was not concealed from ASQA and the oversight in the Self-Assessment should be viewed in this context. ASQA was advised of Mr Sharma's attendance in advance of the compliance meeting and that he had been engaged as an external consultant.
5. The Applicant relied on Mr Sharma in preparing its applications for registration. While there is nothing inherently improper in engaging a consultant, Pendulum failed to clearly disclose the extent of Mr Sharma's involvement, including the preparation of key compliance documents. Transparency in this respect is important because ASQA must be satisfied that the Applicant and not an external consultant is capable of understanding and implementing the requirements of the statutory scheme.
6. The Tribunal accepts that ASQA was advised that Mr Sharma would be part of the compliance meeting and in this respect his involvement was not concealed. However, this does not retrospectively correct or excuse the inaccurate declaration lodged by the Applicant as part of the registration process. The purpose of the Self-Assessment is to enable ASQA to assess all relevant relationships at the time the application is made, not only once a matter progresses to a later stage.
7. The obligation to disclose exists independently of whether the ASQA becomes aware of the consultant involvement through another channel. The integrity of the registration system depends on ASQA being able to rely on declarations as complete and accurate at the point of lodgement.
8. Further, the Tribunal does not accept that advising of Mr Sharma's attendance or his participation in the compliance meeting amounts to full transparency about his role, which is what the question in the Self-Assessment is directed to. His involvement in the compliance meeting alone was not reflective of the full extent of his engagement.
9. The Tribunal finds that although ASQA later became aware that a consultant was associated with the Applicant, this did not remedy the initial non-disclosure in the Self-Assessment, inform the Respondent as to the full extent of the assistance provided or demonstrate a proactive approach to transparency. The Responded correctly concluded this conduct was not compliant with Clause 8.1 of the 2015 Standards.

1. In the first and second FPP declaration completed by Mr Al-Hadi he did not disclose any current or past association with an RTO. Following the compliance meeting with ASQA, Mr Al-Hadi provided a revised FPP in which he disclosed some of the previously omitted employment relationships. While the revised FPP corrected part of the record, it did not include all of his direct employment relationships or the associations arising from his directorship of Pendulum Australia.
2. The Tribunal finds that Mr Al-Hadi did not include all relevant associations in any of the FPPs provided to ASQA and the form was not completed correctly. The evidence shows Mr Al-Hadi has been employed in his personal capacity by four RTOs, at least two of which were not included in the FPP. He has also been director of at least two companies whose business included referring students to RTO's. The association with Pendulum Australia and Frontier was only acknowledged following prompting by ASQA. The full list of RTOs with whom Pendulum Australia has arrangements with, only came to light at the hearing.
3. Mr Al-Hadi stated in his evidence that he did not intend to conceal the relationships, and the disclosure issues were because he misunderstood what was required in order to properly respond to the question. More specifically,
   • He believed that employment referred to permanent or long- term positions;
   • He did not appreciate that the obligation extended beyond his immediate personal relationships to included entities in which he held a governance or business role; and
   • ASQA otherwise had access to this information through his resume or existing records.
4. Even if the Tribunal were to accept this statements at face value, it does not adequately explain the failure to disclose his role with Navias English and MTC English College in the first FPP or his employment with Australian English and Training Academy and Oxford Training at all. It also does not adequately explain why, after having the expectations outlined to him by ASQA why all of Pendulum's arrangements were not provided in full.
5. Although commercially sensitive aspects of Pendulum Australia's referral arrangements with RTO's may have been confidential, it was not clearly explained to the Tribunal why the referral relationships themselves could not be disclosed to the Regulator who routinely receives and safeguards sensitive information. A person of sound judgment and integrity would disclose the existence of such arrangements in general terms or request that details are also treated confidentially, rather than omit them altogether.
6. The declaration form and the accompanying guidance clearly require disclosure of all relevant interests that could influence the operations of an applicant or create a perception of conflict. The obligation is intentionally broad in order to promote transparency and integrity in the registration process. It is not for the Applicant to decide which relationships are sufficiently material for this purpose, or to assume the Respondent can or will identify any undisclosed but relevant relationships independently.
7. The Tribunal finds that Mr Al-Hadi's approach reflects a narrow and self-limiting understanding of the FPP process and disclosure obligations. A person committed to transparent and voluntary compliance would err on the side of caution and seek clarification where uncertainty exists. The selective and reactive disclosure in both the FPP demonstrate a lack of proactive engagement and is inconsistent with an attitude of openness in dealing with the Regulator. The Responded correctly concluded this conduct was not compliant with Clause 8.1 of the 2015 Standards.

The suitability of Mr Al-Hadi, Mr Rahman and Mr Bakshi as trainers

1. The Applicant argued that the concerns with Mr Al-Hadi as a trainer were not raised during the compliance process and to rely on the issue at the hearing amounted to a denial of procedural fairness. The Respondent says discrepancies in the Diploma of Leadership and Management were identified in an affidavit filed shortly before the hearing. The full extent of those discrepancies was only fully apparent following cross examination of Mr Al-Hadi. Regardless, the issue is squarely within the scope of the review as the qualifications of key personnel and their capacity to ensure compliance with the Standards are central to assessing an Applicant's suitability for registration.
2. It is a well-established principle that anything put against an Applicant should be put in a way that allows the Applicant opportunity to respond and to put to the decision-maker any evidence which might contradict or be relevant to the allegations raised.[18]
3. The Applicant did not request an adjournment of the hearing, but the Tribunal did provide Pendulum with an opportunity to file any further material directed to this issue. The Applicant took advantage of this opportunity and provided further material in respect of two alternative trainers. The Applicant also advised the Tribunal that Mr Al-Hadi would not be delivering any training for Pendulum.
4. Given the change in position adopted by the Applicant following the hearing, t is no longer necessary for the Tribunal to make any specific findings about suitability of Mr Al-Hadi as a trainer. For completeness, the Tribunal notes it was troubled by some of the evidence before it on this issue.
5. Mr Al-Hadi conceded in cross-examination that he had never undertaken any formal training or assessment in leadership and management. All of his formal qualifications were obtained through an RPL process. The most recent qualifications were issued by RTOs with whom Mr Al-Hadi (through Pendulum Australia) had commercial relationship. One of the qualifications was awarded by an RTO which later had its registration cancelled for serios non-compliance with the regulatory scheme.
6. Further, the transcripts for both the Diploma of Leadership and Management and the Advanced Diploma of Leadership and Management did not reflect that Mr Al-Hadi obtained those qualifications via an RPL process. Mr Al-Hadi was not concerned by this inaccuracy in the records which concerns with the Tribunal, noting that he is the director of a company seeking registration as an RTO and CRICOS provider.
7. The Applicant filed copies of documents that purport to demonstrate the capability and suitability of Mr Rahman and Mr Bakshi as trainers. No further context to those documents or how they would satisfy the 2025 Standards was provided.
8. The Tribunal observes proposing Mr Rahman and Mr Bakshi represents a significant departure from the initial registration application. The Tribunal does not have an investigatory function and for it to assess and verify this material against the relevant requirements, which is necessary to determine compliance, it outside the Tribunal powers on review. The evidence therefore can be given little, if any, weight.
9. Given the lacuna now present in the Applicant's case in respect of this issue, the Tribunal cannot be satisfied that Applicant is, or will be, compliant with s 3.1, 3.2, 3.3 of the 2025 Standards, (which deal with trainer and assessor qualities) s 22A of the NVR Act and s 11of the ESOS Act.

1. For the reasons outlined, the Tribunal agrees with the findings of the Respondent during audit and internal review stage that the Applicant was non-compliant with the 2015 Standards when it provided inaccurate information in the Self-Assessment and FPP, and only rectified the inaccuracies (in part) prompted.
2. Mr Al-Hadi relied on his ability to rectify non-compliance once it was identified rather than being committed to ensure that there was no non-compliance in the first instance. However, it is the Applicant who bears the onus of self-regulation, it being under legislative obligations to have systems and processes in place to ensure that it complies with the VET Quality Framework Standards, the applicable conditions of registration under the NVR Act for the purposes of the RTO registration and the ESOS Act and the National Code for the purposes of the CRICOS registration at all times. [19]
3. The Applicant's submission that that the implementation of the 2025 Standards has removed the legal foundation for the decisions cannot be accepted. Although there is no direct equivalent of Clause 8.1 in the 2025 Standards, this does not mean that RTOs are relieved of the obligations captured within the Clause more generally. The VET regulatory framework relies heavily on a model of voluntary compliance and self- assurance. For example:
   • Section 4.1 of the Outcome Standards requires governing person lead a culture of integrity, fairness and transparency;
   • Section 5 of the Compliance Standards where the National VET Regulator may have regard to whether a person has provided false or misleading information to the VET Regulator where it is reasonable to assume the person know the information was false or misleading;
   • Section 22 of the NVR Act which requires RTOs to cooperate with the National VET Regulator.
4. It is impractical and impossible for ASQA to continuously oversee all aspects of a an RTOS operations. ASQA must be able to rely upon the accuracy and completeness of the information provided by prospective and current providers. Where an applicant withholds, delays or provides misleading or incomplete information, that conduct undermines the trust that underpins the effectiveness of the regulatory system.
5. Voluntary compliance is not limited to meeting the minimum obligations. It extends to the providers attitude and responsiveness to regulatory oversite, including willingness to disclose relevant mattes, acknowledge deficiencies and take to corrective action without external compulsion.
6. A lack of transparency or pattern of non-disclosure raises serious concerns about an applicant's suitability to be registered. If the provider does not engage openly and cooperatively during the application process, when scrutiny is at its highest, there is little confidence it will do so once registered.
7. ASQAs role is to protect the integrity of the VET sector and to ensure that students and the community can have confidence in the quality and probity of registered providers. Permitting registration where voluntary compliance and transparency are not demonstrated would erode that confidence and compromise the deterrent effect of the regulatory framework.
8. The Tribunal accepts that human error can occur. However, the errors and omissions in this case have been minimised by the Applicant on the basis the ASQA obtained the relevant information through an alternate pathway. The Tribunal cannot be satisfied there is a clear process of verification or accountability. This undermines confidence in the Applicant's ability to ensure future compliance with more complex obligations imposed by the legislative scheme.
9. The objects of the NVR Act and ESOS Act place paramount importance on the interests of students and the public in the provision of quality education in Australia. On the evidence before it, and specifically the suitability of the proposed trainers, the Tribunal has concerns about the Applicant's capability to deliver quality training and assessment in the proposed courses. The Tribunal, therefore, cannot be satisfied Pendulum will comply with s 22A of the NVR Act and the relevant provisions of the 2025 Standards. The deficiencies in that evidence cannot be remedied by granting the registration and imposing conditions.

1. The Tribunal is not satisfied that the Applicant has demonstrated that it will operate in compliance with the VET Quality Framework, the applicable conditions of registration under the NVR Act or the National Code as required under the ESOS Act. The inaccuracies and omission of important matter during the audit and internal review undermine confidence that initial registration, even registration subject to a range of rigorous conditions, could be permissible while adhering to the statutory principles set out in the legislation.
2. To obtain registration as an RTO or CRICOS provider, an applicant must be able to provide suitably qualified trainers and assessors who are available to deliver quality training in the proposed courses. The Tribunal has considered whether registration should be granted subject to conditions but considers the deficiencies in Pendulum's evidence are too significant to be addressed that way.
3. A solution for the Applicant is to prepare a more comprehensive application which better responds to the expected requirements for ASQA's consideration and make a fresh application that can then be considered.

1. The Tribunal affirms the decisions of ASQA to reject the Applicant's application for initial registration as an RTO under the NVR Act. The Tribunal also affirms the decision of ASQA not to register the Applicant, under the ESOS Act, to provide courses for overseas students.

[1] s 17 of the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act)

[6] s 6C Education Services for Overseas Students Act 2000 (Cth) (ESOS ACT)

[16] Re Ivy Education Group Pty Ltd and Australian Skills Quality Authority (2013) 134 ALD 446 at [30] and Re Echelon National Security Agency Pty Ltd and Australian Skills Quality Authority [2014] AATA 151 at [17]

[17] At internal review, ASQA also raised a concern that Pendulum's application included documents almost identical to those used by another RTO and this was relevant to the non-compliance finding in respect of Clause 8.1 of the Standards. This issue was not addressed in the Respondent's Statement of Facts, Issues and Contentions and it was not addressed in the Respondent's closing submissions. The Tribunal infers the explanation provided by the Applicant, namely that the documents were drafted by Mr Sharma from a template which was not properly proof read, has been accepted and does not need to be addressed by the Tribunal.

[18] Achieve Goals Pty Ltd v Australian Skills Quality Authority [2019] AATA 1239 at [92]

[19] Achieve Goals Pty Ltd v Australian Skills Quality Authority [2019] AATA 1239 at [104]