(g) The reputation of the Applicant will be significantly tainted, the repercussions of which will perpetuate, even if the Applicant is successful at final hearing.

1. The Applicant also asserts that it does not have sufficient funds to support its existence while the cancellation decision is in effect (A2, para. 19). In support of that claim Mr Posselt attached a bank statement to his witness statement which showed a closing balance as at 30 March 2019 of $24,735.
2. In his statement provided immediately after the hearing, Mr Posselt advises that:
   • (a) The Applicant currently has six full-time employees;
   • (b) The Applicant currently offers the following courses:
     • (i) UEE32211 - Certificate III in Air-conditioning and Refrigeration which

(at the time of that statement) had 105 students (47 in WA, 31 in Victoria, 20 in Queensland and seven in New South Wales) all in different stages of their courses * (ii) UEENEEJ174a - Apply Safety awareness and legal requirements for Hydrocarbon refrigerants and UEENEEJI75a - Service and Repair of

self-contained hydrocarbon Air-conditioning and refrigeration systems

(127 students that have completed training and 170 students wishing to enrol. Only the Applicant offers these courses.)

(iii) UEE20111 - Certificate II in Split Air-conditioning and Heat Pump Systems (30 students have completed training but are awaiting for their qualification. Thirty students are waiting to enrol.)

(c) The Applicant is the only RTO that offers technical support after the students have been trained. The Applicant currently has, amongst others, the following clients:

• BHP;

• Goldfields;

• Coca-Cola;

• Schweppes;

• Ashanti beverages; and

• Scope

(d) As far as he is aware, the Applicant is the only RTO that has over 10 years' experience dealing in the two units of competencies for natural refrigerants and training in natural refrigerants for the new ranges of products for the refrigeration and air-conditioning industries.

1. In relation to this consideration the Respondent in its submissions says that:
   • (a) it accepts that the decision to cancel the registration of an RTO negatively affects its business;
   • (b) any reputational damage arising from the decision has already occurred because the decision to cancel has been published on the Respondent's website;
   • (c) the Applicant has not provided tax returns, lease agreements or balance sheets verified by accountants to verify the "dire predictions made by Mr Posselt" and that the bank statement that has been provided demonstrates the Applicant's bank account as being intertwined with a series of unexplained transaction with another company;
   • (d) any prejudice occasioned by the effect of the decision taking effect is outweighed by the detriment to the public interest in the decision not having immediate effect.
   • (e) It is in the public interest, the interests of stakeholders and students to protect them from non-compliant training and to send a message that cutting corners is unacceptable. In support of that submission the Respondent cites Bromwich J's comments in AIC at [38]:

...fundamentally, I am not satisfied that AIC's financial predicament, to the extent that it was demonstrated to the Tribunal and replicated before me, was such as to outweigh the legitimate concerns of ASQA as the regulator, as expressed at the stay hearing before the Tribunal, that "international students should be quarantined from undertaking noncompliant training". That is especially so given the extended period of time that AIC has had to rectify the identified defects since commenting on the audit report in May 2018. I also note that there is no evidence that I was taken to that indicated that this was no longer any basis for concern,...

1. The circumstances being considered by Bromwich J in AIC were distinguishable from those in the present case. The argument that came before Bromwich J did not relate to whether a stay should be granted, but rather whether the conditions that were attached to an existing stay order should be removed or changed. The RTO in AIC was seeking to remove, or reduce, the conditions attached to the stay that restricted it from enrolling new students. It was in the context of whether the condition that prohibited AIC from enrolling students, that is the condition that "quarantined" international students from undertaking non-compliant training, should be removed, that his Honour made the above observation.
2. In the present case there is a stay already in place which prohibits the Applicant from enrolling students or issuing qualifications (see [2] above). There is no suggestion that those conditions be removed or reduced. While I agree with the Respondent's observation that the financial material provided by the Applicant is far from fulsome, I am prepared to accept the statement made by Mr Posselt (A2, para. 19) that the Applicant does not have sufficient funds to survive if the decision were to have effect now. In that regard I also note the apparent concession by the Respondent at paragraphs 75 and 76 of its submissions in relation to the hearing being rendered nugatory (see [86]-[87] below).

Public interest and consequences to the Respondent

1. The Respondent cites decisions of the Tribunal in Sunrise Institute of Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3935 and Institute of Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 4127, which in turn cited other Tribunal decisions, which emphasise the importance of the public interest and the maintenance of public confidence in ensuring that providers of VET are compliant. The Respondent submits that it has "a duty to protect future students who may enrol with [the Applicant] and suffer from paying their fees only to find that their training and qualifications are de-valued..." (R1, para. 70)
2. I am mindful of that need. I am also mindful, however, of the fact that there are in place conditions in the current stay order preventing the Applicant from enrolling any new students, the very limited number of courses that the Applicant offers, the nature of the courses and the nature of the students and prospective students (mainly mature age and already qualified in a trade - see [53] above) that the risk identified by the Respondent is relatively low.
3. The relevant risk to consider for the purposes of the current application is also the risk associated with an extension of the current stay order, with the same conditions, until the substantial hearing, not the risk that would be associated with indefinitely letting

non-compliant RTOs continuing to operate. While it is obviously not ideal, the likely damage to "prospective students and the reputation of Australia as a provider of quality education both domestically and internationally" (R1, para. 74) in extending the current stay order which prevents the Applicant enrolling any students for three or four months until the final determination of the substantive application, is, in my view, not going to be significant.

The evidence of [the Applicant] appears to show that if a stay were not granted, [the Applicant] would, by the time of the final hearing on the merits, be unlikely to be able to restore itself to its previous status and position, having presumably lost both students and teachers.

1. The Respondent, however, submits that "...there are compelling overriding reasons of public interest to have the decision under review come into effect." (R1, para. 76).
2. Obviously if the Applicant did not survive financially any final hearing would become academic. In other words, it would be rendered nugatory. By its submissions at paragraphs 75 and 76 of its submissions, the Respondent, in effect, agrees that that would be the case.

1. Applying the considerations identified by President Downes J in Scott, the approach that has generally been taken by tribunal members since the time of that decision, I find that, on balance, the order made by consent on 14 May 2019 that the implementation of the decision under review be stayed and that the Applicant must not enrol students or issue VET statements of attainment or VET qualifications until further order of the Tribunal should remain in place. Given the terms of that order I therefore make no further order.

I certify that the preceding 89 (eighty nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

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