PRACTICE AND PROCEDURE - application to stay decision - decision to cancel registration - whether desirable for the purpose of ensuring the effectiveness of the review - consideration of factors - prospects of success - consequences to the applicant - public interest - review nugatory - application granted subject to conditions

Administrative Review Tribunal Act 2024 (Cth)

National Vocational Education and Training Regulator Act 2011 (Cth)

Education Services for Overseas Students Act 2000 (Cth)

Australian Securities Investment Commission v Administrative Appeals Tribunal [2009] FCR 181

Bayahow and Australian Skills Quality Authority [2025] ARTA 176

McNamara v Secretary, Department of Social Services [2016] AATA 189 at [12]

Panganiban and Australian Securities and Investments Commission [2016] AATA 703

Poidevin and Australian Securities and Investments Commission [2009] AATA 798

Scott v Australian and Securities and Investments Commission [2009] AATA 798

Shi v Migration Agents Registration Authority [2008] HCA 31

1. Australasian College of Advanced Education Pty Ltd (Australasian College or Applicant), seeks a review of four decisions of the Australian Skills Quality Authority (ASQA or Respondent) made on 21 July 2025 to affirm the earlier decision of 14 October 2025 to:

• cancel the Applicant's registration as a vocational education provider under ss 36(2)(f) and 39 of the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act);
• cancel the Applicant's registration to provide courses to overseas students under s 83(3)(c) of the Education Services for Overseas Students Acts 2000 (Cth) (ESOS Act);
• reject the Applicant's application to renew its registration under the s 17 of the NVR Act; and
• not renew the Applicants registration for overseas students under s 10E of the ESOS Act.

1. On 6 August 2025, Australasian College applied to the Tribunal seeking a review of the Decisions. On 7 August 2025, the Applicant made an application seeking a stay of the implementation of the Decisions under section 32(2) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act).
2. On 9 September 2025, the Tribunal ordered the Decisions be stayed on an interim basis pending determination of the stay application, subject to the following conditions:
   1. not enrol or commence any student in a course or part of a course under the NVR Act or ESOS Act;
   2. students who are enrolled in and have commenced a course prior to the date of the order may continue until completion of that specific course only. Those students may not enrol in any new or further course or commence any new of further course;
   3. not do anything for the purpose of recruiting on enrolling students or intending students for any course at any location.
3. The application is opposed by the Respondent.

1. On 2 March 2023 the Applicant submitted applications for renewal of its registration as an RTO under the NVR Act and on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) under the ESOS Act. The Respondent conducted a performance assessment that would inform the decision about the Applicant's renewal applications.
2. On 14 November 2023, the Applicant was notified of the outcome which included identification of non-compliance with its regulatory obligations. ASQA approved an agreement to rectify which had been proposed by Australasian College. On 14 December 2023 the Applicant provided evidence of compliance pursuant to the agreement to rectify.
3. On 15 July 2024 ASQA found that the Applicant had failed to return to compliance pursuant to its agreement to rectify and issued a notice of intent to cancel its registration and reject the renewal applications. On 12 August 2024 and 19 September 2024, the Applicant provided additional evidence to the Respondent.
4. On 16 October 2024 the Respondent notified the Applicant of the original decisions.
5. On 6 December 2024, Australasian College lodged an application for internal review. There were some difficulties with the application such that it was not considered until April 2025. On 28 April 2025, ASQA granted a stay of implementation of the original cancellation decisions until the outcome of the internal review application. The Applicant provided further evidence as part of the review process.
6. On 22 July 2025 the Respondent informed the Applicant as to the outcome of the internal review, which affirmed the earlier decisions of 16 October 2024.
7. On 7 October 2025, the Applicant provided further material to the Respondent going to compliance under the NVR Act and ESOS Act.

1. ASQA is the National VET Regulator created under the NVR Act. It has a number of statutory functions including registering RTOS, conducting audits to ensure compliance with the registration regime and the promotion and encouragement of continuous improvement of an RTO's capacity to provide VET services.[1]
2. The objects of the NVR Act are found in section 2A and provide as follows:

(a) to provide for national consistency in the regulation of vocational education and training (VET**)**; and

(b) to regulate VET using:

(i) a standards - 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.

1. This is achieved, in part, through the VET Quality Framework, which is comprised of the Standards for NVR Registered Training Organisations (Standards), the Quality Standards, the Australian Qualifications Framework, Fit and Proper Person Requirements, Financial Viability Assessment Requirements and the Data Provision Requirements.[2]
2. Subdivision B of the NVR Act sets out the conditions of registration which include the Standards for NVR Registered Training Organisations.[3] There are three components to the Standards:
   • National Vocational Education and Training Regulator (Outcome Standards for NVR Registered Training Organisations) Instrument 2025 (Cth) (Outcome Standards) which are outcome focused requirements that support the delivery of a nationally consistent and high-quality training that leads to quality outcomes for students, industry, employers and the Australian community.
   • National Vocational Education and Training Regulator (Compliance Standards for NVR Registered Training Organisations and Fit and Proper Person Requirements) Instrument 2025 (Cth) (Compliance Standards) which are administrative requirements that support integrity in the sector; and
   • Credential Policy that outlines the credentials for delivering training and assessments and undertaking validation of assessment.
3. Prior to the implementation of the Outcome Standards, the Compliance Standards and the Credential Policy, the 2015 Standards were in force. The 2015 Standards were revised to provide greater clarity on the direct link between the requirements of providers and the outcomes they are expected to deliver.
4. ASQA is also responsible for enforcement under the NVR Act. The relevant enforcement provisions begin in s 36 which allow the Respondent to impose a sanction if it is satisfied it is appropriate to do so subject to certain natural justice requirements which are set out in s 37 of the NVR Act. Sections 38 and 39 deal with the specific powers to suspend or cancel registration respectively.

1. The objects of the ESOS Act are found in section 4A as follows:

(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 law relating to student visas.

1. The National Code, is a legislative instrument made under the ESOS Act. The National Code supports the objects of the ESOS Act by establishing a nationally consistent standards that govern the protection of international students and the delivery of courses by providers on the CRICOS.
2. ASAQ is the ESOS Agency under the ESOS Act.[4] ASQA may cancel a registered provider's registration in a number of circumstances, including when it believes on reasonable grounds there has been a breach of the National Code.[5] This is one of a number of sanctions or remedies available to ASQA for non-compliance.

1. The general rule is that making an application to the Tribunal seeking a review of a decision does not affect the operation of the decision.[6] There is no automatic right to a stay and the Tribunal will only make an order staying or otherwise affecting the implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.[7]
2. While no party has a specific onus of proof, it is generally accepted that it is the Applicant who will need to provide the Tribunal with sufficient evidentiary material to ensure the discretion is exercised in accordance with the law.[8]
3. In determining whether to grant a stay, the Tribunal should not limit its enquiry to the interests of the Applicant. Section 32(7)(b) of the ART Act prescribes that the Tribunal must consider the interests of any person who may be affected by the review of the decision.
4. In determining whether a stay is required to secure the effectiveness of the review, the Tribunal is not subject to an exhaustive list of permissibly relevant considerations.[9] There are, however, a few key factors that have been identified in the case law[10] which can assist the Tribunal with this task. They include:
   • the prospects of success;
   • the consequences to the Applicant;
   • the public interest;
   • the consequences for the Respondent in carrying out its functions depending on whether a stay is granted or not;
   • whether the application for review would be rendered nugatory if a stay were not granted; and
   • any other relevant matter.
5. A stay order can be subject to conditions[11] and usually has effect until the decision of the Tribunal on the application for review comes into operation.[12]

1. The Tribunal had the benefit of the following material in respect of the stay application:
   • Witness statement of C Banbas dated 21 November 2025;
   • Expert Financial Report prepared by K Pekenti dated 8 September 2025
   • Applicant's Response to Supporting Evidence
   • Respondent's Evidence Bundle for the Stay Application
2. The Tribunal also had the benefit of the written and oral submissions of both parties.

1. Mr Banbas is the co-founder and Chief Executive Officer of the Applicant. He holds a 50% beneficial interest in Australasian College together with Mr S Urch, through respective family trusts. Mr Banbas and Mr Urch also own a group of companies known as Prime Group who have contributed funds to the Applicant from time to time. The Prime Group and other business interests of Mr Banbas and Mr Urch are generally operationally separate from the Applicant.
2. In his witness statement, Mr Banbas explained that the Applicant operates an approved educational premises owned by a related entity, Stephcon Pty Ltd as trustee for the Urban Superannuation Fund, which is controlled by himself and Mr Urch. The lease is a fixed commitment which must be paid regardless of the number of students enrolled or the level of tuition revenue the Applicants receive. A copy of the current lease was exhibited to the affidavit and disclosed rent of $51,000 per annum.
3. Other relevant costs of the Applicant deposed to in the witness statement include expenses and utilities and of approximately $6000 per annum based on current contracts and invoices, and the salary of Mr AK of $2,400 per week.[13]
4. Mr Banbas advised Australasian College had no students and earned no income in the 2024 calendar year. In 2025 it enrolled 20 students with a total income of approximately $50,000. These students are expected to complete their studies in January 2026. Without the benefit of a stay the Applicant will remain liable for rent, utilities, staffing compliance and other fixed costs which will have a detrimental effect on the financial circumstances of the Applicant.
5. Mr Banbas has overseen a comprehensive overhaul of the quality assurance systems, internal controls, policies and procedures of the Applicant following ASQA's audit findings. There are systems in place to monitor compliance with the Standards and the Applicant has retained a consultant on a professional retainer for advice as appropriate.

1. Mr Pekenti is a chartered accountant who has been providing accounting, taxation and business advisory services to a wide range of clients including individuals, companies, partnerships and superannuation funds since 2009. He is a Principal with the 212 Financial Group and was engaged by the Applicant to review and prepare an external report modelled on four scenarios to assist to determine the projected financial viability of the Applicant.
2. The report states the following in respect of each scenario:

• Scenario one, which assumes an unconditional stay: no growth is expected in the first six months as time will be required to build enrolments. It is anticipated the Applicant would record a steadily increasing net profit over the next two years.
• Scenario two, which assumes a conditional stay providing for teach out of existing students only: it is anticipated the Applicant would generate sufficient income for a six month period only. Beyond this point there would be a financial shortfall as a result of the ongoing fixed and recurring costs.
• Scenario three, which assumes a teach out of existing students and a minimum number of new enrolments (28 students per month): would result in a small but steady net profit over the next two years.
• Scenario four, which assumes no stay; the Applicant would move into a deficit within six months as the income would fall to zero and the fixed costs would continue, leaving the organisation insolvent.

1. The Tribunal agrees at such an early stage, to embark upon a full consideration of the merits of the substantive application. It must exercise caution when assessing prospects of success at this stage of the review process, and where the evidentiary material remains incomplete. [14] For present purposes, it is sufficient for the Applicant to demonstrate there is a reasonable basis to doubt or question Respondent's Decisions.
2. The Tribunal must form its view on the material presently before it at the stay hearing, recognizing some of that material may not have been before the original decision-maker at the time when the reviewable decision was made.[15]
3. The Applicant argues that since the original decision and by the time of the reviewable Decisions, it now meets the Standards in relation to training quality assessment, facilities, staffing financial viability and student support. Any remaining non-compliance is significantly narrower than that identified during the audit process.
4. In respect of the remaining non-compliance, the Applicant relies on the Response Document which it says demonstrates that it has taken significant steps to rectify those matters and that any shortcomings do not warrant cancellation. The Applicant has therefore established it has strong prospects of success in the substantive review.
5. The Respondent acknowledged that further evidence had been provided by the Applicant but had not reviewed the material in any detail. In any event they still had some concerns about the provider noting the historical non-compliance. In their view, the prospects of success don't weigh heavily one way or another for the purposes of the stay application
6. The Tribunal is satisfied the Applicant has an arguable case on the material before it. Accordingly, the prospects of success weigh in favour of a stay but not heavily so.

1. Australasian College asserted that without a stay it loses its revenue, premises and be unable to meet its current liabilities rendering it insolvent and unable to pursue the substantive review. The suggested the consequences would be grave and irreversible. In support of this contention, the Applicant relied on the conclusion in the report prepared by Mr Pekenti.
2. The Tribunal accepts that the Applicant would lose its primary source of revenue should the stay be refused, and some adverse financial consequences would likely follow. However, the Tribunal does not consider the evidence establishes the more serious consequences alleged by the Applicant that it would become insolvent or suffer some other irreversible damage immediately upon the discharge of the interim stay order.
3. Mr Pekenti's report suggests a deficit would not occur until about six months after the revocation of the conditional stay. The largest fixed cost, which underpins this opinion, are the obligations under the lease. The landlord is a related entity with whom multiple lease agreement have been entered into over time, including on terms commercially favourable to Australasian College.
4. Although the Tribunal accepts Ms Sion's submission that the lease is an enforceable and formal legal arrangement, history suggests Mr Banbas has been willing to financially support the Applicant and on this basis some tolerance in respect of the lease obligation may be implied, at least in the short term.
5. The Tribunal considers that it may infer some degree of adverse financial consequences to the Applicant if the stay were revoked and this weighs very slightly in favour of granting the stay.
6. The Tribunal also acknowledges the impact on Mr Kalepa and the immediate disruption and inconvenience that would be experienced by current students so close to the conclusion of their studies. These interests also weight very slightly in favour of granting the stay.

The public interest and consequences on ASQA in carrying out its functions

1. Australasian College argued that any risk to the public is minimised in circumstance where significant rectification has been undertaken by the Applicant and they are confident full compliance will be demonstrated at hearing. To the extent there are any residual concerns, these can be dealt with by appropriate conditions.
2. In its submissions, ASQA contended that the public interest is the overriding consideration, and that the Tribunal must consider the objects of the regulatory regime when forming a view about whether it is desirable to revoke the stay or to allow the stay with conditions. The Respondent was concerned an unconditional stay would allow the Applicant to expand its business, which would be contrary to the protective function of the NVR and ESOS Acts.
3. The Federal Court has held that in balancing interests that are competing, priority must be given to those whose interests are protected in the statutory scheme.[16] The protection of students, the integrity of the VET export sector and student visa system and the reputation of the vocational education and training sector generally, are at the focus of the NRV Act and the ESOS Acts. The interests of the students, both current and future, are therefore paramount. Students are entitled to expect that courses offered by any education provider are compliant and that they receive a quality education which fulfils their requirements.
4. The Regulator protects students, the public interest in the integrity and reputation of the VET by taking appropriate action against non-compliant providers. It is in the public interest that registered educational providers comply with the statutory requirements and that the Regulator fulfill its statutory functions. This factor weighs against the granting of a stay.

1. The Applicant argued that should the stay be revoked, the review would be rendered nugatory. For the reasons canvassed earlier, and in the absence of evidence the Applicant will become insolvent (as opposed from experiencing financial hardship) before the resolution of the proceeding, the Applicant has not established the review would be rendered nugatory.

1. There are some factors present in this case that weigh in favour of granting a stay, such as the prospects of success, the consequences to the Applicant and the current student cohort. These matters need to be balanced against the public interest in minimising the risk of damage to the reputation of the VET sector by permitting the Applicant to continue to operate pending the review and it is not plain the review would be rendered nugatory.
2. The Tribunal is satisfied a stay is desirable to secure the effectiveness of the review subject to conditions which are designed to balance those competing interests.

1. The Applicant's application seeking a stay of the implementation of the Respondent's decision pursuant to s 32(2) of the ART Act is granted until determination of the review or until further order subject to the following conditions:
   1. The Applicant must not enrol or commence any student in a course or part of a course under the NVR Act or ESOS Act;
      1. Students who are enrolled in and have commenced a course prior to the date of the order may continue until completion of that specific course only. Those students may not enrol in any new or further course or commence any new of further course;
      2. The Applicant must not take any action to recruit or enrol students for any course at any location.

[1] National Vocational Educational and Training Regulator Act 2011 (Cth), s 155

[4] Education Service for Overseas Students Act 2000 (Cth), s 6C

[6] Administrative Review Tribunal Act 2024 (Cth) (the ART Act), s32(1)

[8] McNamara v Secretary, Department of Social Services [2016] AATA 189 at [12]

[9] Panganiban and Australian Securities and Investments Commission [ 2016] AATA 703 at [7]

[10] The cases frequently cited being Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114 and Poidevin and Australian Securities and Investments Commission [2009] AATA 798.

[13] The Applicant has other staff who are on secondment from the Prime Group and do not receive a salary from Australasian College. Neither Mr Banbas or Mr Urch receive directors fees.

[14] Bayahow and Australian Skills Quality Authority [2025] ARTA 176 at [36]

[15] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].

[16] Australian Securities and Investment Commission v the Administrative Appeal Tribunal [2009] 181 FCR at [51].