We also refer to the current Tribunal directions, which require the Respondent to lodge its Statement of Facts, Issues and Contentions and evidence by today, 1 August 2024. We confirm that the Respondent intends to liaise with the Applicant to seek to reach agreement to proposed terms to resolve the proceeding, and therefore does not propose to lodge a SFIC or further evidence at this time. To enable to parties an opportunity to reach an agreement, the Respondent, with the Applicant's consent, respectfully requests an extension of time until 8 August 2025 to lodge its Statement of Facts, Issues and Contentions.

10. On Friday 8 August, the Respondent advised the Tribunal that it has decided to seek an order remitting the matter for reconsideration under s85(1) of the ART Act. A copy of the proposed order, which required reconsideration within four (4) months was also submitted. The Tribunal was informed the application was contested.
11. The interlocutory hearing took place on 10 November 2025. The Applicant was represented by Mr Nagle of counsel. The Respondent by Mr Rebikoff SC and Ms Anderson.

1. ASQA is the National VET Regulator created under the NVR Act. It is responsible for granting applications for registration as an RTO. In deciding to grant an application for registration, ASQA must consider whether the applicant is complying, or will comply with the VET Quality Framework and the applicable conditions of registration as set out in Subdivision B of the NVR Act.[2] The Respondent may conduct a compliance audit of an RTO at any time to ensure compliance with the registration regime.[3]
2. Subdivision B of the NVR Act sets out the conditions of registration which relevantly include, the Standards for NVR Registered Training Organisations[4], a commitment and capability to deliver quality training[5], and cooperation with the National VET Regulator necessary for the Regulator to perform its functions.[6]
3. On 1 July 2025, the 2025 Standards for NVR Registered Training Organisations (2025 Standards) came into effect. There are three components to the 2025 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.
4. Prior to the implementation of the 2025 Standards, the Standards for Registered Training Organisations 2015 (Cth) (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.

1. The general rule, found in s 31(1) of the ART Act, states that after an application is made to the Tribunal for a review of a reviewable decision, the decision may not be altered otherwise than by the Tribunal.
2. Section 31(2) of the ART Act sets out the exceptions to the general rule, which relevantly include where the decision is remitted to the decision maker under s 85 of the ART Act.[7] That section is in similar terms to its predecessor, s 42D of the Administrative Appeals Tribunal Act 1975 (Cth).[8]
3. Section 85(1) of the ART Act provides as follows:

Tribunal may remit decision to decision - maker > > (1) At any time during a proceeding for review of a reviewable decision, the Tribunal may remit the decision to the decision - maker and ask the decision - maker to reconsider the decision.

4. When remitting a decision for reconsideration, the Tribunal cannot direct the decision-maker with any direction as to how, or what, decision ought to be made.[9] Once remitted, the decision-maker must reconsider the decision and either affirm, vary or set aside the decision and make a new decision in substitution for the decision set aside.[10]
5. After the decision has been reconsidered and affirmed, varied, or set aside with a new decision substituted, the proceeding in the Tribunal recommences in relation to the new decision. At that stage, the applicant may either proceed or withdraw the application.[11]
6. The power to remit a reviewable decision for reconsideration is discretionary. That discretion should be exercised according to the circumstances of the particular case, having regard to any considerations thought by the Tribunal to be relevant, and confined only by the subject matter and object of the section to permit the Tribunal to achieve its statutory objectives.[12]
7. The circumstances in which it is appropriate to exercise the power have not been generally defined. It is clear however, the power to remit for reconsideration a decision the subject of its review may be exercised without the consent of both parties concerned. [13]
8. Examples where it has been suggested exercising the remittal power is appropriate, include:
   • Where the reasons are so unsatisfactory that it can be inferred the decision maker has not applied their mind to the decision, or the reasons can be categorised as a sham;[14] and
   • To correct a flawed or erroneous decision.[15]
9. Circumstances where it has been suggested that the power ought not be exercised, include where the remittal is sought due to inadequate findings of fact, references to evidence or reasons or because the decision maker supports the decision on a basis different to that originally put.[16]

1. The issue for determination is whether the Tribunal should exercise its discretion under s 85 of the ART Act to remit the decision under review, or whether the review should continue to a final hearing.

1. The Respondent argues there are two relevant matters, since the making of the decision, which justify the remittal of the review for reconsideration:

(a) The 'significant' changes to the legislative framework arising from the introduction 2025 Standards which reconfigure the assessment of compliance with the VET Quality Framework required by s17 of the NVR Act; and > > (b) To allow ASQA to conduct a further assessment of the Applicant's resources, processes and procedures including an assessment of the changes to its staffing, record-keeping and RPL kits not yet considered in the context of this application.

2. The Respondent accepted in their submissions the decision maker mischaracterised the effect of the AAT decision in determining the registration application, but did not concede the substance of the decision was incorrect. The Respondent argued it would be more appropriate for ASQA (rather than for the Tribunal) to receive substantial new material to enable it to assess the application for registration and decide the matter in accordance with the facts and legislative requirements as they exist at the time of the Tribunal's decision.

1. The most compelling submissions put by the Applicant in opposing the application go to prejudice and delay in the matter being remitted, rather than moving ahead toward a hearing.

1. When the Tribunal reviews a decision, its function is to stand in the shoes of the original decision maker and make the correct or preferable decision. In the circumstances of this case, the Tribunal will decide whether or not the Applicant should be registered as an RTO pursuant to s 17 of the NVR Act. This, in turn, requires the Tribunal to consider whether the Applicant is complying or will comply with the VET Quality Framework and the applicable conditions of registration.
2. Although the Respondent now accepts that the decision under review is affected by error, it does not contend that rejection of the registration is substantively wrong or would be decided differently on reconsideration. The Respondent has not, to the Tribunal's knowledge, evaluated all of the material provided by the Applicant in 2024 as part of the application for registration with respect to either the 2015 or the 2025 Standards.
3. Implicit in the Respondent's contention is that the Applicant can and will provide substantial new material in order to demonstrate compliance with the VET Quality Framework and the conditions of registration. There is no evidentiary basis upon which the Tribunal can conclude that substantial new material would be provided or required by the Applicant for this purpose.
4. In any event, it is the nature of merits review that an applicant can rely upon material not before the primary decision maker and a respondent may seek to support its decision on different grounds to those earlier relied upon. The task of the Tribunal is to make a decision on the evidence before it, including new, fresh, additional or different material regardless of whether it has been considered by the original decision maker as part of the reviewable decision.[17] Even if the volume of new evidence here is considerable or far greater than might be regarded as normal, that does not justify separate consideration by an original decision maker following a remittal.[18]
5. It is a common feature of many cases in which compliance with the applicable RTO Standards are in issue, for an applicant to file significant new evidence directed to rectification or compliance as part of the review proceeding and for the respondent to respond to that material for the first time as part of the Tribunal process. It is both regular and routine for parties to revise their position in light of new material or argue their case with respect to new evidence or on grounds that are vastly different to those that were before the original decision maker. In this regard, this case is no different to the vast number of cases before the Tribunal in which an applicant has provided substantial additional evidence after a decision has been made as part of the review.
6. It is unclear whether remittal would result in a more efficient resolution of the matter. The Tribunal is empowered to manage its own process including to confine and limit the issues for determination. In practical terms, a Tribunal hearing could be conducted within a time frame similar to that required for a fresh assessment by the Respondent. Remittal produces a true efficiency only if the Respondent ultimately grants the registration, which is unable to be accurately predict on the current state of affairs.
7. Should the Respondent reject the registration following the provision of further material, and assuming the Applicant continues with the review, it would be provided a further opportunity to supplement its case upon the revival of the Tribunal proceeding extending out any resolution of the matter and undermining any perceived efficacy in the remittal.
8. The Respondent relies heavily on the recent introduction of the 2025 Standards as a basis for remittal, submitting that they represent a significant change to the legislative framework. Putting to one side whether the change is as significant as that alleged by the Respondent, the Applicant is in substantially the same position as other applicants currently before the Tribunal where the decision under review was made under the old statutory regime but the Tribunal will (or has) decided the application with respect to the 2025 Standards. The Respondent has not explained why remittal is specifically necessary in this case or why the Respondent cannot advance its case before the Tribunal in the usual way.

1. Having regard to the statutory framework, the nature of merits review, the absence of any demonstrated utility and the likely delay to the final resolution, the Tribunal is not satisfied it is appropriate to remit the decision under s 85 of the ART Act.
2. The review should proceed to a final hearing so that the Tribunal can determine whether the applicant should be registered as an RTO.

1. For these reasons, remittal is not the appropriate course and the Respondent's application is therefore refused.

[1] Trades College Australia Pty Ltd v Australian Skills Quality Authority [2020] AATA 812 At [16]

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

[3] Ibid s 17A

[4] Ibid s 22

[5] Ibid s 22A

[6] Ibid s 27

[7] s 32(2)(b) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act)

[8] Given the similarity, the cases decided in relation to s42D of the Administrative Appeals Tribunal Act 1975 (Cth) are still of relevance.

[9] Commissioner of Taxation v Cancer and Bowel Research Association (2013) 305 ALR 534; [2013] FCAFC 140 [15]; Negi and National Disability Insurance Agency [2022] AATA 1423 [24].

[12]Browne v Commissioner of Taxation [2013] AATA 866 at [22] citing Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 504-505, per Dixon J

[13] See for example Re SRRRRR and Commissioner of Taxation [2008] AATA 181; (2008) 100 ALD 690

[14] NT98/41-48 and Commissioner of Taxation [1998] AATA 311 at [12].

[15] N1112/00A v Minister for Immigration and Multicultural Affairs [2000] FCA 1597; [2000] 32 AAR 76 at 82.

[16] Re Lavery & Registrar, Supreme Court of Queensland (No 2) (1996) 23 AAR 52; Browne v Commissioner of Taxation [2013] AATA 866

[17] Shi v Migration Agents' Registration Authority [2008] HCA 31 ; (2008) 235 CLR 286 at [37]

[18] Murdaca and Australian Securities and Investment Commission [2010] AATA 792