The assessment of an organisation's financial viability risk is directed at evaluating the likelihood of business continuity, and its capacity to achieve quality outcomes. In particular, the assessment informs a judgement about whether the organisation has the financial resources necessary to...[33]

Both FVRA tools completed by the Applicant in relation to its application for registration as an RTO required the business plan to be attached. However, the Applicant has provided ASQA with business plans containing inaccurate information on two occasions and has now simply decided to not provide one at all. The conclusion to be drawn here is that at best the Applicant simply does not understand its obligations or if it does, it has adopted a deliberately cavalier attitude as to its compliance with the Financial Viability Risk Assessment Requirements. [34]

1. When Mr Hamid, on behalf of the Applicant, signed the Form (FVD-0001) as part of the Financial Viability Risk Assessment Pack, a document which is regrettably undated[35] but appears as part of a larger collection of material signed on 16 January 2017,[36] he agreed to a statement in the following terms:

(a) A current business plan, which clearly demonstrated my organisation's purpose for initial registration is or will be to provide education and/or training, and details of the objectives of the business, analysis of the business markets, basic strengths, weaknesses, opportunities and threats and financial projections for the next 12-24 months.

...

4. I have produced a copy of my organisation's business plan and all relevant financial information to the Nominated Accountant...."

1. ASQA has also attacked the Applicant's approach to the development of its business plans as follows:[37]

26. With respect to the second business plan provided by the Applicant, both Ms Eldamouni and Mr Dhillon[38] conceded that this business plan was based on a template.[39] The evidence before the Tribunal demonstrates that the business plan submitted by the Applicant is in large sections identical to the business plans of Illuminate Institute Pty Ltd and 1 Vision International Pty Ltd.[40] Recent decisions of the Tribunal highlight that 'template' or 'cut and paste' business plans are simply not satisfactory.

27. In the unreported decision of South Pacific Education College Pty Ltd and ASQA [2018/1697] Senior Member Nikolic observed:

"The business plan it submitted was inaccurate. Key parts of it were unrelated to the scope of registration being sought. It was a document largely replicated in a number of other application submitted for RTO registration. It did not genuinely, in my view, reflect the scope of South Pacific's intended registration. I can only conclude its sole purpose was to satisfy the business plan requirement rather than constituting an honest and complete reflection of the intended scope of registration."[41]

1. The Applicant's attitude towards the role of a formal business plan in its operations was expressed by Ms Eldamouni in the following terms:

"If you ask me again to produce a business plan, a fresh one, update one, obviously based on the new financial viability risk assessment, I would revise the one we have, currently have, and update the financial figures according to the new financial viability risk assessment and resubmit is again with other main areas, what analysis would be revised but may not change."[42]

"Despite the importance of business plan, it is, at the end it's speculative document. It is a fact things could go either way."[43]

1. The Tribunal was not reassured by Ms Eldamouni's further comment:

"If every person thinks with their brains before committing to a new business, no one would be in the business and take a risk, but wise business people actually think with their hearts."[44]

1. Although the Applicant appears somewhat dismissive of the role of business plans in its, or other organisation's operations, the Tribunal takes note of the fact that on the Australian Government's own business.gov.au website under the heading "Writing a business plan" it advises:

You don't have to start with a blank sheet of paper

To write an effective business plan you'll need discipline, time and focus. Although the process can seem challenging, it's very rewarding and gives you a sense of control over your business. You don't have to start with a blank sheet of paper. Download our Business plan template and guide to get you started.[45]

1. That same website defines what a business plan is, or should be:

A business plan is a documented set of business goals, objectives, target market information and financial forecasts that you are aiming to achieve over a certain period of time. It is important to prepare a business plan when starting or growing your business and review it regularly to keep it up to date.[46]

1. The Tribunal however, is persuaded that for the purposes of registration as an RTO, any applicant needs to meet certain standards consistent with the Objectives of the Act. One of these is to have a valid and meaningful business plan.
2. In Complete Training Institute Pty Ltd, the Tribunal stated clearly:

"Persons applying for registration as RTOs are expected to provide more than 'cut and paste' documents"

1. and that any document purporting to be a business plan which was no more than a cut and paste submission would amount to a:

"business plan [..] inconsistent with a proposed RTOs obligations under the NVR Act."[47]

1. Mr Dhillon, who appeared as a witness for the Applicant, told the Tribunal that he had taken a leading role in the preparation of the business plans.[48] When asked about market research undertaken to provide a basis for assumptions or projections to be incorporated into those plans he stated:

"Market research is available. If we consider, like, that sector has a very limited market research that you could do. Most of the statistics are present on the web sites, the government web sites, so we have pretty much extracted the research information..."[49]

1. He gave important testimony about his, and Ms Eldamouni's understanding of the relevance of business plans to their registration application, as follows:

"And we have to keep in mind that the whole decision is based on business planning, then ASQA's requirement at that time, on page 8 of the business financial viability document it states what it requires is a very basic business plan. So on page 8 ASQA explicitly states the requirements from the candidate, and it also states that ASQA will be examining it through the initial period of registration, clearly stating that the application will not go ahead until these requirements have been met, so this is a very initial process. And in responding to that, what we did with Ms Eldamouni, what was required what we call is a lean business plan or a dehydrated business plan."[50]

1. The Tribunal views this approach as justifying the claim made by ASQA that the Applicant was writing their business plan primarily to satisfy ASQA requirements, rather than as a genuine guide to the way in which they intended to operate their business or upon which they based their assessments about financial viability and training requirements an approached remarked upon with disapproval by the Tribunal in South Pacific Education (see above).
2. ASQA puts its position thus:

In addition, ASQA contends that the Applicant, rather than provide true information as to the nature of its organisation and how intends to operate, is simply providing ASQA the information it thinks will ensure ASQA will find it compliant and grant registration.[51]

1. Mr Dhillon also confirmed both that he relied upon the use of templates to construct business plans and that he had been the consultant to both iVision International and Illuminate Institute, the organisations whose near-identical business plans were referenced in Mr Auburn's affidavit.[52]

1. It is a well-established principle that this Tribunal must make its decision(s) based upon the evidence which is before it at the time of the hearing, irrespective of the fact that such material may not have been before the original decision-maker at the time they made the reviewable decision. This was made clear in Drake where the Federal Court stated:

"The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal."[53]

"But ultimately, it was for the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision."[54]

1. Thus, new material, relevant to the decision-making in question may legitimately be considered by the Tribunal. This was also made explicit in Echelon[55] where the Tribunal stated:

[17] It is not in doubt that the Tribunal can and should consider any new material or evidence of relevance to the original decision and to the particular grounds identified by the original decision-maker. For example in the present case if there is new information about compliance with standards 4.2, 4.3. 4.4 and 4.5, then that information can properly be considered by the Tribunal. But what is the position if an entirely new ground has been raised?

1. The Tribunal went on the answer its own question about the issue of entirely new material being raised by considering the Federal Court cases of Secretary, Department of Social Security v Hodgson[56] and Secretary, Department of Employment, Education, Training, and Youth Affairs v McKay[57] in adopting their position that:

[24] In both those decisions the Federal Court held that the Tribunal did have jurisdiction to consider a new ground provided it was relevant to the decision under review. Different grounds were then considered which were not the basis of the original decision but which were relevant to that decision.

1. In this instance, ASQA draws to the attention of the Tribunal two further matters which, it alleges constitute breaches of the Standards.
2. The first of these relates to clause 2.2 which provides:

(a) systematically monitors the RTO's training and assessment strategies and practices to ensure ongoing compliance with Standard 1; and

(b) systematically evaluates and uses the outcomes of the evaluations to continually improve the RTO's training and assessment strategies and practices. Evaluation information includes but is not limited to quality/performance indicator data collected under Clause 7.5, validation outcomes, client, trainer and assessor feedback and complaints and appeals.

1. In relation to this clause ASQA alleges that the Applicant has provided no evidence "to demonstrate that it has in place systems and processes to ensure its own compliance with the Standards or that it systematically monitors its own training and assessment strategies and practices."[58]
2. The second relates to clause 8.1 which provides:

8.1. The RTO cooperates with the VET Regulator:

(a) by providing accurate and truthful responses to information requests from the VET Regulator relevant to the RTO's registration;

(b) in the conduct of audits and the monitoring of its operations;

(c) by providing quality/performance indicator data;

(d) by providing information about substantial changes to its operations or any event that would significantly affect the RTO's ability to comply with these standards within 90 calendar days of the change occurring;

(e) by providing information about significant changes to its ownership within 90 calendar days of the change occurring; and

(f) in the retention, archiving, retrieval and transfer of records.

1. In this instance, ASQA alleges that the Applicant provided false information to it on a number of occasions. It particularises these as follows:[59]

63. On the evidence before the Tribunal, it is clear that the Applicant has provided ASQA false information in the following instances:

63.1. when it submitted its initial application for registration

63.2. when it provided its business plan to ASQA on 30 June 2017; 26

63.3. when it provided its rectification evidence on 26 September 2017;

63.4. when it provided the requested additional evidence on 27 October 2017;

63.5. when it provided its financial viability risk assessment form to ASQA on 3 December 2018.

64. In addition, ASQA contends that the Applicant, rather than provide true information as to the nature of its organisation and how intends to operate, is simply providing ASQA the information it thinks will ensure ASQA will find it compliant and grant registration. For example, following the initial audit report where ASQA identified the concern that the Applicant did not have adequate resources, the Applicant provided evidence that it had decided to offer training and assessment from four delivery sites rather than the one site initially proposed. However in the most recent evidence provided by the Applicant, the Applicant states it has decided to operate from one site only.

1. It is an equally 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.
2. As Griffiths J has recently emphasised in Twentyman[60] this is a matter of procedural fairness, incorporating the rule established in in Browne v Dunn (1893) 6 R 67. His Honour said:
   1. ..... There can be no doubt that the principles of procedural fairness applied in the proceedings conducted by the second AAT. As Brennan J stated in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629 (emphasis added):

... in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.

1. Earlier, in Kioa, Brennan J referred at 618 to the joint judgment of Dixon CJ and Webb J in Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395, where their Honours described as "a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard."
2. The Tribunal was at pains to ensure that these matters, not specifically particularised in the Audit report nor in the original material put before the Commissioners and thus not formally recorded as part of their decision-making, were put to the Applicant directly, in the hearing. The Applicant was given an opportunity to respond to each of these matters and indeed did so in some detail.
3. There are essentially, two matters raised here by ASQA: the Applicant's plans to ensure compliance with the Standards and the issue of whether it has provided false information to the regulator (ASQA).
4. In relation to the former, the following exchange took place in the hearing:

(Respondent) "Ms Eldamouni, does Achieve Goals have a compliance plan? ---Yes.

Have you provided that to ASQA? --- No, I was not asked to do it, or to even, we have not discussed that ever. This is the first time I hear about it."[61]

"Do you have the responsibility for the compliance of Achieve Goals? --- As a trainer, I will be making sure my work is correct. Then it will be them - have the external consultants do my compliance work, together with the CEO.

Are you responsible for the compliance of the organisation or is it the CEO?--- The CEO will be responsible for the compliance, together with external consultancy.[62]

1. On the other hand in her formal Statement to the Tribunal, Ms Eldamouni writes:

"Ms Eldamouni intends to operate a 100% successful and compliant RTO."[63]

"Ms Eldamouni and the leadership team will take responsibility for the implementation and adherence to all processes and procedures to make sure Achieve Goals Pty Ltd is compliant at all times."[64]

1. The Tribunal has no confidence that Mr Khalik possesses any of the qualifications necessary to ensure compliance with the Standards, even less so taking into account Ms Eldamouni's statement to the effect that he had not fully read the Business Plan before submitting it to ASQA[65]. Although Ms Eldamouni somewhat qualified this in her oral testimony on 21 May 2019, the Tribunal is left with the clear impression that Mr Khalik is not in a position to be able to monitor adequately the Applicant's compliance responsibilities. It is unfortunate that Mr Khalik chose not to appear before the Tribunal to assist it in its deliberations.
2. In this respect ASQA is correct to draw to the Tribunal's attention the analogous comments by Deputy President McCabe in Australian Tertiary Academy:

I am satisfied Mr Hawchar's performance is such that I cannot be satisfied the applicant meets the fit and proper person requirements. He has not demonstrated the competence and commitment that is to be expected of a diligent manager of an organisation that is conducting a regulated activity of this nature.[66]

1. It would be inappropriate for Ms Eldamouni herself to monitor compliance given her position both as the sole owner/operator and trainer of the organisation.
2. The Applicant also failed to provide any coherent response to ASQA's concerns about the lack of assessment strategies or outcome validations.
3. The Applicant seemed reliant upon her 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. She stated, in response to a question about the possibility of non-compliance reoccurring (as it had with her previous organisation, iGrow Family):

No, because that's why, working with ASQA and having external consultants and you conducting your post initial, you have your own mechanisms in place and I have my own mechanisms in place and if you find something that is not compliant, there is room for rectification."[67]

1. Taken together, these concerns lead the Tribunal to agree to a general proposition advanced by ASQA in the following terms:

"Ms Eldamouni's reliance on being able to rectify non-compliances demonstrates a profound misunderstanding of the regulatory regime. The onus is on registered training organisations to remain compliant with the NVR Act and the Standards at all times; in Trades College Australia Pty Ltd and ASQA [2018] AATA 1360 the Tribunal has previously observed at [11]:

The Applicant bears the onus of self-regulation under the Standards, it being under legislative obligations to have systems and processes in place to ensure that it complies with the Standards at all times, as required by the Act."[68]

1. The Tribunal has stated above that it accepts the Respondent's assertion that, in terms of the requirements of the NVR Act, Mr Khalik is not a fit and proper person and has given reasons for that decision. However, in a broader context, the Tribunal believes it should explain the basis for such decision making.
2. The High Court has made it clear that the term "fit and proper person" is one which "takes its meaning from its context" and is necessarily a "value judgment ... for evaluation by the decision maker."[69] Equally, the High Court has stated that the "very purpose (of the expression) is to give the widest scope for judgment and indeed rejection."[70]
3. Further, the President of the NSW Administrative Decisions Tribunal in Haining stated, in relation to a regulated industry, that

"Whether a person is 'fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry."[71]

1. The contextual nature of the determination of who is a fit and proper person was emphasised by Hill J in Davies v Australian Securities Commission:

"...the content of what is necessary to constitute a fit and proper person to occupy a particular office or pursue a particular vocation will vary having regard to the office or vocation under consideration."[72]

1. Finally, in Echelon, Deputy President Groom accepted that evaluations of compliance with the Fit and Proper Persons requirements were an integral part of determining the fit and proper status of applicants applying for registration as an RTO.[73]
2. These authorities allow the Tribunal to bring into its considerations the stated objectives of the public policy underpinning the ASQA regulatory scheme which are set out in section 2 of the NVR Act (see above) and the specific requirement in FPPR4(j):

"(j) whether the public is likely to have confidence in the person's suitability to be involved in an organisation that provides or assesses national qualifications".

1. The question then arises as to whether the fit and proper requirements are met by Ms Eldamouni in her role as owner and the effective controller of the company in her stated role as "high managerial agent".[74]
2. ASQA has set out its reasons for contending that Ms Eldamouni is not a fit and proper person for the purposes of the NVR Act in the following terms:

67. ASQA contends that it is clear on the evidence before the Tribunal that the Applicant's executive officer, Ms Hilani Eldamouni, provided ASQA false or misleading information in the following instances:

67.1. when she provided the delivery data summary on behalf of iGrow on 14 October 2016;

67.2. when she provided pre-audit evidence on behalf of iGrow on 11 November 2016;

67.3. during the audit of iGrow on 24 November 2016;

67.4. when she signed the Chief Executive Officer/Principle (sic) Executive Officer Certificate on 18 January 2017;

67.5. when she signed the Fit and Proper Person Declaration on 24 October 2017;

67.6. when she provided the business plan on behalf of Achieve Goals Pty Ltd on 28 August 2018; and

67.7. when she provided the financial viability risk assessment tool on behalf of Achieve Goals Pty Ltd on 3 December 2018.

68. ASQA further contends that due to Ms Eldamouni's involvement in iGrow and the findings of critical non-compliance while she was sole Director, Shareholder and trainer/assessor for the RTO the public is unlikely to have confidence in her suitability to be involved in an organisation that provides, assesses or issues nationally recognised qualifications.

69. In the circumstances ASQA contends that it cannot be said Ms Eldamouni satisfies the Fit and Proper Person Requirements. That is particularly so having regard to the objects of the NVR Act and the position of trust and confidence that RTOs hold under the regulatory regime. If the key personnel behind an applicant for registration are willing to mislead ASQA this undermines the ability of ASQA to carry out its regulatory function.[75]

1. Ms Eldamouni has stated in her Submission to the Tribunal that she held the position of CEO and Director of iGrow Family Day Day Care between August 2013 and June 2017.[76]
2. The Tribunal is not satisfied that ASQA has made out the case that statements made by Ms Eldamouni as outlined in subparagraphs 67.1 to 67.4 (above) were all materially false and misleading. Some of them are open to a variety of interpretations and understandings.
3. Equally, the Tribunal does not find that the business plans and financial viability risk assessment material (subparagraphs 67.6 and 67.7) was necessarily false or misleading. It was certainly inadequate and confused/confusing, but that is a different matter.
4. However Ms Eldamouni confronts a more compelling accusation when considering the ASQA claim (subparagraph 67.5 above) that when she signed the Fit and Proper Person Requirements declaration on 24 October 2017[77] she made a false declaration by answering "no" to the question:

Have you ever been an executive officer or high managerial agent of an organisation at a time when its actions resulted in its registration being cancelled or suspended in part or in full:

1. In relation to this, ASQA contends:[78]

33. Ms Eldamouni was previously an executive officer and high managerial agent of the registered training organisation (RTO) iGrow Family Day Care Pty Ltd (iGrow). As a result of the post initial audit ASQA found that organisation critically non-compliant and subsequently cancelled its registration.

34. Ms Eldamouni's contention is that as she was no longer involved with the organisation at the time of its cancellation, she was unable to seek a review of the decision and therefore it should not result in a finding that she does not meet the Fit and Proper Person Requirements. In her written statement provided to the Tribunal, Ms Eldamouni stated "the decision to cancel the NVR Act Registration meant the opportunity to rectify non-compliance's was taken out of my hands and I could NEVER fix anything."[79]

35. At no point has Ms Eldamouni contended that iGrow was in fact compliant; her responses rely on the fact she was unable to "fix" anything.

1. The position put by ASQA is unassailable on the facts. The statement signed by Ms Eldamouni contained a false answer. It leads to an inevitable conclusion that, in the context of the NVR Act and its requirements she does not meet the fit and proper person test. The Tribunal makes no findings on this matter beyond that narrowly circumscribed by the NVR Act and its associated requirements.
2. The Tribunal's attention was drawn to the fact that ASQA has recently revised its Fit and Proper Person declaration and that the question outlined above has been replaced with a more precise question:

"Were you or any related person associated with an RTO, a CRICOS provider or higher education provider at the time (or within 12 months prior to) a decision being made by ASQA or another VET regulator to:

• reject an application for initial registration as an RTO/CRICOS provider
• cancel registration, in part or in full
• suspend registration, in part or in full
• reject an application to renew registration
• determine that the provider breached a condition of registration
• impose a condition on registration
• issue an infringement notice."[80]

1. The Tribunal agrees that this is a more coherent and accurate question to be put to establish any prior relationships between an Applicant and any previous roles as a service provider in the sector. However, this was not the question operational at the time of Ms Eldamouni's declaration and it is only in relation to that statement that the Tribunal can have any regard.

1. The Tribunal notes that on 14 December 2018 a new General Direction: Resourcing requirements - for applicants seeking initial registration or change of scope of registration (the Direction) was made under section 28(1) of the NVR Act. This Direction sets out a series of resourcing requirements covering educational and support services; facilities; equipment, initial cohort numbers; learning resources; trainers and assessors and states:

"Applicants are expected to have access to all required resources for each training product included in the application at the time of submitting the application."

1. The Direction then sets out clauses 1.3, 1.8 and 7.5 of the National Standards and states: "Organisations must meet these requirements at the time of lodging an application."
2. Arising from this, ASQA made a final submission to the Tribunal as follows:

ASQA's submission is that it is clear from the evidence before the Tribunal that the applicant is not in a position to commence operation as a registered training organisation. The evidence before the Tribunal establishes that the applicant does not currently have assessment tools that meet the requirements of the training package for all of its scope of registration, that it does not currently have approval from the council to operate an education facility at the proposed site of training delivery and that the applicant does not currently have a finalised business plan.

The applicant has today handed up a printout of its website where it can be purchase training tools. However, simply purchasing assessment tools does not mean that those assessment tools will be compliant with the standards for registered training organisations or that they will meet the training package requirements. In most situations, once an applicant purchases assessment tools, they then need to contextualise those assessment tools for the method of training and delivery and the context of the training and delivery that they propose to undertake and that needs to take into account the cohort of trainers and their experience and background. Without these assessment tools, the applicant is simply unable to commence operations as a registered training organisation.

Similarly, whilst the applicant has submitted that it is able to obtain the relevant council approval, the position is it does not currently have that approval. Accordingly, it is ASQA's position that the applicant does not satisfy clause 1.3 or 1.8 of the standards which require the organisation to have learning resources and facilities and requires the organisation to implement an assessment system that complies with the assessment requirements of the relevant training package.

Similarly, without a business plan it is unclear the direction the applicant intends to take. For example, during the hearing and on cross-examination, Mr Eldamouni gave evidence with respect to whether the training was intended to be online or face to face. What is in the applicant's application for initial registration differed from what was in the business plan and upon questioning, Ms Eldamouni was unable to give a clear answer as to what the intended position was with respect to that.[81]

1. The Tribunal can find no basis upon which not to accept this submission.
2. The required elements of assessment tools, physically available premises and a coherent business plan to take the Applicant forward to deliver training on the instant that registration is granted, are simply not present and cannot be demonstrated.
3. The business plans submitted, such as they are, demonstrate a failure to be based on sound, comprehensive, competent market research; their allocations for training resources are questionable and problematic and they are devoid of necessary arrangements for monitoring and evaluation. Similarly the provisions for administrative support referencing the proposed roles and qualifications of Mr Jamil Khalik and Ms Nahla Khlaik (see above) appear less than adequate.
4. The Tribunal is less inclined to accept ASQA's final submissions calling into question the financial viability of the Applicant. Evidence given by Ms Eldamouni about the financial position of the Applicant was to the effect that:

At the same time, it was obvious to me, and I could tell ASQA had no clue how to analyse financial numbers in debt and how to put it into perspective whether the business cash flow is positive or negative. It should have been very obvious that there is still 67,000 in the bank account that you have in front of you, and you had evidence of that. In fact, I was asked, 'How did you say the business cost you 14,000,[82] which is true figure, where in the bank there were 70,000 left, so that's 110. That's when I replied that the rest is from personal cash injection that I won't reimburse myself. However, if I want to reimburse myself, I would still have 30,000 in the bank account. Hence the business would still have positive cash flow to survive for a year before making any income.

Other assets as per balance sheet of 22,000 are already held by the entity. The financial viability risk assessment has given us the green status, that's your own design and model, so it was - it says it's okay to submit to ASQA, so it was okay to submit it based on the green status. We have no liabilities whatsoever. Our combined assets, including current cash on hand, 100,000, including the 70 Achieve Goals. We have a real estate property which is our residence, bare minimum valuation would be 1.5 mil, two cars, 55,000, personal effects 30,000, and we have a commercial shop worth 500,000, and that would be 2.2 million as a total value of our combined income and assets, and net assets because there's no liabilities. We are able to sustain a business for long time.[83]

1. The Tribunal finds nothing unusual about a small business operation conducting its affairs in this fashion and while ASQA has a clear responsibility to ensure that students are not put at risk because of a lack of financial viability on the part of the training provider, it does not believe that this risk has been established, by ASQA, on the basis of the material before it.

1. The Tribunal has to decide, ultimately, whether the grounds upon which the Commissioners made their refusal to register decision were valid grounds, based upon all available evidence; along with consideration of matters arising after promulgation of the 2018 General Direction.
2. The Commissioners' decision related to three standards:
   • (a) 1.3: the Applicant's capacity to deliver the training proposed to the required standards: the Tribunal finds that the Commissioners' decision in this respect was and is fully justified by the evidence before the Tribunal. In particular, the lack of a coherent business plan and the lack of clear strategy to ensure compliance with the Standards, must count very heavily against the Applicant.
   • (b) 7.2: the financial viability of the Applicant: the Tribunal has been presented with evidence which leads it to a conclusion that the Applicant has sufficient capacity to maintain at least a medium-term level of financial viability which would allow its continued operation.
   • (c) 7.1: Ms Eldoumani's status as a fit and proper person as per the requirements of the NVR Act and regulations: in this instance the Tribunal agrees with the finding of the Commissioner that she does not so qualify.
3. In addition, the Tribunal agrees with ASQA's subsequent contentions in relation to clauses 2.2 and 8.1 of the standards, namely that the Applicant has not demonstrated a coherent strategy or programme for monitoring and evaluating the training and assessment requirements of the standards and that it has, in a number of instances provided misleading and false information to ASQA as the national regulator.
4. Finally, the Tribunal accepts ASQA's proposition that, were registration to be granted, the Applicant would not be in a positon to commence, immediately, providing the training services its proposes and this is incompatible with compliance with the 2018 General Direction.

I certify that the preceding 133 (one hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Ms J Pellow, Australian Skills Quality Authority

This unit covers the development and use of emotional intelligence to increase self-awareness, self-management, social awareness and relationship management in the context of the workplace. It includes identifying the impact of own emotions on others in the workplace, recognising and appreciating the emotional strengths and weaknesses of others, promoting the development of emotional intelligence in others and utilising emotional intelligence to maximise team outcomes. It applies to managers who identify, analyse, synthesise and act on information from a range of sources and who deal with unpredictable problems. They use initiative and judgement to organise the work of self and others and plan, evaluate and co-ordinate the work of teams. No licensing, legislative or certification requirements apply to this unit at the time of publication.

BSBLDR502 - Lead and manage effective workplace relationships

This unit describes the skills and knowledge required to lead and manage effective workplace relationships. It applies to individuals in leadership or management who have a prominent role in establishing and managing processes and procedures to support workplace relationships taking into account the organisation's values, goals and cultural diversity. At this level work will normally be carried out within complex and diverse methods and procedures, which require the exercise of considerable discretion and judgement, using a range of problem solving and decision making strategies. No licensing, legislative or certification requirements apply to this unit at the time of publication.

This unit describes the skills and knowledge required to present and negotiate persuasively, lead and participate in meetings and make presentations to customers, clients and others. It applies to managers and leaders who identify, analyse, synthesise and act on information from a range of sources, and who deal with unpredictable problems. They use initiative and judgement to organise the work of self and others and plan, evaluate and co-ordinate the work of teams. No licensing, legislative or certification requirements apply to this unit at the time of publication.

[1] By passage of: National Vocational Education and Training Regulator Act 2011 (Cth); National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 (Cth) and National Vocational Education and Training Regulator (Transitional Provisions) Act 2011 (Cth).

[2] https://www.asqa.gov.au/vet-registration/understand-requirements-registration

[3] Outlines of these courses are attached as an Appendix.

[4] Section 37 Tribunal Documents at [91].

[5] Section 37 Tribunal Documents at [94], Audit report 1 July 2017 page [2].

[9] Section 37 Tribunal Documents at [295].

[10] Ibid at [163] Business Plan Table 7.

[12] Ibid at [295] referring back to figures at [89].

[13] Affidavit of Stephen Auburn, dated 6 February 2019, at [41.2].

[14] Respondent's Statement of Facts, Issues and Contentions at [53]-[60].

[15] Transcript of proceedings, Achieve Goals Pty Ltd v Australian Skills Quality Authority, no 3074 of 2018, dated 3 May 2019 at [19.20]. (Hereafter Transcript.)

[18] Applicant's Submissions at [Tab 9 page 2].

[20] There is some understandable confusion as to the name of this Company. The ASIC website shows it registered in this name (the word "Day" occurring twice) as ACN 165 471 572 /ABN 29 165 471 572 registered 24/08/2013 and deregistered 20/01/2019. The company's registration as an RTO shows the name as iGrow Family Day Day Care Pty Ltd (see Section 37 Tribunal Documents at [386]). Many of the documents refer to the company as iGrow Family Day Care or simply iGrow.

[21] Affidavit of Stephen Auburn, dated 6 February 2019, at [26]-[34].

[22] Section 37 Tribunal Documents at [286].

[23] Section 37 Tribunal Documents at [178].

[24] Ibid at [200]. ESOS Act = Education Services for Overseas Students Act 2000 (Cth).

[25] Section 37 Tribunal Documents at [199].

[26] Affidavit of Stephen Auburn, dated 6 February 2019.

[27] Section 37 Tribunal Documents at [299]-[300].

[28] Respondent's Statement of Facts, Issues and Contentions at [74].

[30] Respondent's Statement of Facts, Issues and Contentions at [28].

[31] ASQA: Outline of Respondent's closing submissions (21 May 2019) at [8.3], [16.1], [17.1].

[32] Financial Viability Risk Assessment Requirements 2011 being a legislative instrument made under subsection 158(1) of the National Vocational Education and Training Regulator Act 2011.

[33] Financial Viability Risk Assessment Requirements; FVRAR 5.

[34] ASQA: Outline of Respondent's closing submissions (21 May 2019) at [18].

[35] Section 37 Tribunal Documents at [28].

[37] ASQA: Outline of Respondent's closing submissions (21 May 2019).

[38] Mr Dhillon is an independent consultant who provided advice to the Applicant in the development of their Business Plan(s) and gave evidence before the Tribunal.

[40] Affidavit of Mr Auburn at [41.4].

[41] Transcript of oral decision 5.45 - 6.2

[42] Transcript dated 21 May 2019 (hereafter Transcript 2) at [7.11-15].

[45] www.business.gov.au/planning/business-plans/writing-a-business-plan. Updated 14/08/2018.

[47] Complete Training Institute Pty Ltd and Australian Skills Quality Authority [2018] AATA 4638 at [48].

[51] ASQA, Statement of Facts, Issues and Contentions at [64].

[52] Transcript at [95.47] and [97.25-28].

[53] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at [589].

[54] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.

[55] Re Echelon National Security Agency and Australian Skills Quality Authority [2014] AATA 151.

[56] [1992] FCA 338; (1992) 27 ALD 309.

[57] (1998) 58 ALD 130.

[58] Respondent's Statement of Facts, Issues and Contentions at [61].

[59] Ibid at [63]-[64]. Tribunal document citations omitted.

[60] Twentyman v Secretary, Department of Social Services [2019] FCA 586.

[63] Applicant's S_tatement,_ dated 2 December 2018_,_ Tab 5 at page 6.

[66] Australian Tertiary Academy Pty Ltd and ASQA [2018] AATA 4875 at [100].

[68] ASQA: Outline of Respondent's closing submissions (21 May 2019) at [37].

[69] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [380] and [388] per Toohey and Gaudron JJ.

[70] Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at [156-7].

[71] Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 at [41].

[72] [1995] FCA 1496; (1995) 59 FCR 221 at 232.

[73] Echelon National Security Agency Pty Ltd and Australian Skills Quality Authority [2014] AATA 438 at [51]- [54].

[74] Section 37 Tribunal Documents at [12]. Ms Eldamouni is covered by this requirement as per the definitions of "Executive officer" and "High managerial agent" appearing on page 1 of the Fit and Proper Person Requirement declaration, see Section 37 Tribunal Documents at [31].

[75] Respondent's Statement of Facts, Issues and Contentions.

[76] Applicant's Submission (2 December 2018) at [1].

[77] Section 37 Tribunal Documents at [284]-[288].

[78] ASQA: Outline of Respondent's closing submissions (21 May 2019).

[79] Applicant's Statement at page [8].

[80] ASQA Fit and Proper Person declaration, updated 13 March 2019.

[81] Transcript 2 at [20.41] to [21.34].

[82] The figure in the printed Transcript is "14,000" however this may be a mistake as it would be more logical for this to be "40,000" being the difference between the $70.000 left over and the $110,000 figure given.