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

Birdseye and Tax Practitioners Board [2020] AATA 1250

Le'Sam Accounting Pty Ltd v Tax Practitioners Board [2020] AATA 890

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

Re Anderson and Australian and Securities and Investment Commission [2022] AATA 339

Re Oaklands and Australian Securities and Investment Commission [2011] AATA 199

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

Shi v Migration Agents Registration Authority [2008] HCA 31

Technical Education Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3047

1. Frontier Technology and Training Pty Ltd (Frontier or Applicant) has sought a review in the Tribunal of the following decisions made by the Australian Skills Quality Authority (ASQA or Respondent) on 28 August 2025:
   • cancel the Applicants registration as a registered training organisation (RTO) under the National Vocational Education and Training Act 2011 (Cth) (NVR Act);
   • reject the renewal of registration under the NVR Act; and
   • reject the change of scope application under the NVR Act.
2. Concurrently with the application for review, Frontier filed an application seeking a stay of the implementation of the Respondent's cancellation decision.
3. On 25 September 2025, the Tribunal granted an interim stay subject to the following conditions:
   • The Applicant not enrol or commence any student in a course or part of a course under the NVR Act or ESOS Act;
   • 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;
   • the Applicant not do anything for the purpose of recruiting on enrolling students or intending students for any course at any location.
4. The Applicant seeks a stay subject to only one condition that it does not enrol or commence any new student in particular courses, which it intends to apply to have removed from the scope of its registration.[1] The Respondent does not oppose a stay subject to the conditions contained within the interim stay order.

1. On 18 August 2023, ASQA notified Frontier of a compliance assessment audit. Between September 2023 and July 2024, the Applicant provided several traches of information to the Applicant as requested.
2. On 31 January 2025, Frontier applied to renew its registration as an RTO. On 20 February 2025, Frontier applied to add an additional electrician course to the scope of its RTO registration along with relevant unit of competency.
3. On 1 May 2025, ASQA sent Frontier a notice of intention to reject the Applicant's renewal application, reject the change of scope application and cancel its RTO registration (Notice of Intent). A statement of reasons dated 30 April 2025 was also provided. The reasons identified several breaches of the Standards for Registered Training Organisations 2025 (Cth) and the NVR Act.
4. Frontier provided further material to ASQA on 20 May 2025, 2 June 2025, 23 July 2025 and 4 August 2025. ASQA also issued a number of notices under ss 62 and 210 of the NVR Act to a number of government departments and third-party service providers under which a number of documents were produced.
5. On 28 August 2025, ASQA advised the Applicant of its Decisions. In the accompanying statement of reasons, the Respondent identified non-compliance with 1.4, 2.3. 3.3 and 4.4 of the Outcome Standards for Registered Training Organisations 2025 (Cth), ss 9, 10, 16, 17 and 20 of the National Vocational Education and Training Regulator (Compliance Standards for NVR Registered Training Organisations and Fit and Proper Person Requirements) Instrument 2025 (Cth) and ss 21, 22A, 23, 24, 25 and 111 of the NVR Act.

1. ASQA is the national vocational education and training (VET) regulator responsible for the registration of RTOs and monitoring their compliance under the NVR Act. This is achieved, in part, through the VET Quality Framework, which is defined in s 3 of the NVR Act and comprises 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] Subdivision B of the NVR Act sets out the conditions of registration.
2. The Respondent is responsible for enforcement under the NVR Act and 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. Making an application to the Tribunal seeking a review of a decision does not affect the operation of the decision.[3] The Tribunal will only make an order staying or otherwise affecting the implementation of the decision following an application by the Applicant, where 'it is desirable to do so for the purpose of ensuring the effectiveness of the review'.[4]
2. Section 32(7) of the ART Act provides that the Tribunal must not make an order staying the decision unless the Tribunal has given the parties to the proceeding a reasonable opportunity to make submissions to the Tribunal. Further, in determining whether to grant a stay, the Tribunal should not simply focus on 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.
3. A stay order can be subject to conditions.[5] The Tribunal should exercise some caution in imposing conditions that are unduly elaborate or require extensive regulator supervision.[6] Any stay order commonly has effect until the decision of the Tribunal on the application for review comes into operation.[7]
4. In considering whether a stay is desirable, although there is no exhaustive list of permissibly relevant considerations,[8] a number of factors, albeit expressed slightly differently as follows:[9]
   • 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. As the Tribunal observed in Technical Education Australia Pty Ltd and Australian Skills Quality Authority:[10]

Whilst the matters identified by Downes J in Re Scott are relevant to the exercise by the Tribunal of the discretion conferred upon it by section 42(2), they are not a complete code or a "checklist" that limits or fetters the exercise of such discretion.

6. While no party has a specific onus of proof, it is for the Applicant to satisfy the Tribunal that a stay is desirable to secure the effectiveness of the review, and the Tribunal must have sufficient evidence before it can draw that conclusion.[11]

1. The Tribunal was provided the following material in respect of the stay application:
   • Affidavit of Lupah Borah sworn on 5 November 2025;
   • Applicant's Response to Statement of Reasons -Investigations and Enforcement dated 5 November 2025;
   • Tax records of the Applicant;
   • Respondent's bundle of stay documents.
2. The Tribunal also had the benefit of oral and written submissions from both the Applicant and the Respondent.

1. Ms Borah is the Chief Executive Officer (CEO) of Frontier, a role she has been in since September 2016. In her affidavit, she deposed to the following matters:
   • The basis of the Respondent's Decision is very different from the original position taken during the audit process. The review will be the first opportunity afforded to Frontier to address some of those concerns;
   • Following the Respondent's Decisions, the Applicant has engaged the services of an experienced industry consultant to consider and respond to ASQA's reasons for decision. The Applicant's response is outlined in the Response document exhibited to the affidavit and includes evidence demonstrating compliance with the Standards;
   • The total annual lease costs are $705,000 and staffing costs are $1.08 million per year. Bank statements from July until September 2025, the lease agreement and an excel spreadsheet of the outgoings and profit and loss analysis for the 2025 income year were exhibited to the affidavit;
   • Frontier currently has 384 students. Since the cancellation decision, several schools have severed their relationship with the Applicant. If the current conditions were to remain, students may look to other RTOs, numbers will dwindle and without the pipeline of students the Applicant will not be able to maintain financial viability, comply with the ATO payment arrangement or maintain compliance with the Standards.
2. A review of the documents exhibited to the affidavit reveals:
   • The lease agreement for the commercial premises located in Glenroy, Victoria was provided. It disclosed an annual leave liability of $208,312. Ms Borah executed the agreement on 18 October 2024 on behalf of both the Lessor (The Trustee for the Borah family Asset Holding Trust) and the Lessee;
   • The bank statements indicate that the Applicant had limited cash reserves, with the accounts frequently having a balance under $10,000;
   • The profit and loss analysis contained in the excel spreadsheet indicates a net profit for the months July, August, September, October and December 2024 and March, April and August 2025. Other important financial statements, such as a balance sheet, have not been provided.

1. The Tribunal agrees at such an early stage, it is not appropriate to embark upon a full consideration of the merits of the substantive application. It must exercise caution when assessing prospects of success noting the evidentiary material remains incomplete.[12] For present purposes, it is sufficient for the Applicant to demonstrate there is a reasonable basis to doubt or question the Respondent's Decisions.
2. The Tribunal must form its view on the material presently before it at the stay hearing, recognising some of that material may not have been before the original decision-maker at the time when the reviewable decision was made.[13]
3. The Applicant says that case is slightly unusual in that the reasons for the Respondent's Decisions fundamentally changed between the Notice of Intent and the Decisions. This is an important context as Frontier has not had an opportunity to address ASQA's most recent concerns outside the review process.
4. Frontier says it has rectified the non-compliance identified in the Notice of Intent especially in respect of assessment and course delivery. Further, the Response Document is directed to the few remaining areas of non-compliance, namely that financial viability can be demonstrated, the alleged false and misleading information has been explained and the Applicant does not propose to continue to provide some courses and qualifications. These matters will be addressed in more detail at the final hearing and so the prospects of success are strong.
5. The Respondent says the Applicant's prospects of success are poor. Although it is clear Frontier joins issue generally with ASQA's findings, the Response Document does not actually grapple with the findings, which are serious, in any meaningful way. The Applicant simply asserts the conduct is historical and would not otherwise warrant cancellation.
6. The Tribunal acknowledges there are facts and issues that are likely to be explored more fully at the substantive hearing. However, even on a rough and ready assessment,[14] the Applicant's prospects are challenging. The financial records before the Tribunal, which are minimal and incomplete, suggest the Applicant has been in a precarious financial position since before the Respondent made the Decisions. Even if a stay were to be granted without a restriction on student enrolment, demonstrating financial viability is likely to be difficult.
7. In circumstances where the issue is finely balanced, the Tribunal does not consider this factor to weigh in one way more than the other. It is a neutral consideration in the context of this application.

1. Frontier asserted that even with a conditional stay it will lose its only revenue stream. As a result of this, the business will cease immediately and irreparably also affecting the wellbeing and best interests of the staff and students.
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, it is worth noting that the evidence before the Tribunal indicates the Applicant has been in a poor financial position for some time, including before the Respondent's Decisions and the current review.
3. The material before the Tribunal raises serious concerns as to the Applicant's solvency. The financial evidence is limited to bank statements for a relatively short period of time (July to August 2025), a profit and loss statement recorded in excel spreadsheet, a table of expenses and a Statement of Account from the Australian Taxation Office that shows that while instalments under a payment management are presently being met, ongoing tax liabilities appear to remain unpaid. No balance sheet, cash flow statement or other material has been provided from which the Tribunal could assess Frontier's overall liabilities, including its Bizcap borrowings or its capacity to meet liabilities as and when they fall due. The cash position of the Applicant was very tight prior to the Respondent's Decisions and Ms Borah in her affidavit stated that some referral arrangements had been terminated as a result of the compliance action. The Applicant may already be insolvent or become insolvent regardless of whether a stay is granted.
4. The Tribunal considers that it may infer some degree of adverse financial consequences to the Applicant. The Tribunal also acknowledges the impact on the staff and students. These interests weigh very slightly in favour of granting the stay without an enrolment condition.

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

1. Frontier argued that any risk to the public is minimised in circumstances where significant rectification has been undertaken by the Applicant and it is delivering quality education and training. The alleged remaining non-compliance does not bear significantly, if at all, in respect of the protection of students and the public interest.
2. In its submissions, ASQA contended that public interest weighs against an unconditional stay. The Respondent's findings include failures in a number of key areas such as the integrity of the qualifications, notification to ASQA of serious events, fit and proper person requirements and financial viability which are matters directly relevant to the student experience, student engagement and the public interest. Further, Frontier's scope of registration includes high-risk qualifications in the building, construction and electrical sectors which are attended by a higher degree of risk of harm.
3. The NVR Act is designed to protect the public who are exposed to the consequences of inadequate training and assessment, and who have an interest in the protection of Australia's reputation for quality education and training, the integrity of the VET export sector and student visa system. The interests of the students, both current and future, are also 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. In balancing interests that are competing, priority must be given to those whose interests are protected in the statutory scheme.[15] The Regulator protects students, and 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.
5. The Applicant's argument adopts an unduly narrow view of the public interest. Even if the Tribunal were to accept that ASQA's most recent findings do not directly concern training and assessment, this does not, of itself, neutralise the broader risk. Financial viability underpins an RTO's capacity to maintain resources and student services; fit and proper person requirements are directed to good governance and decision making. Each of these matters are directed to safeguarding the student experience into the future, ensuring students will not be exposed to instability or diminished educational outcomes.
6. A stay operates to preserve the status quo pending the outcome of the review. The question is not whether training and assessment presently meets minimum standards but whether it is in the public interest for continued unconditional operation of the Applicant in circumstances where the material before the Tribunal raises unresolved concerns going to Frontier's capacity to maintain compliance on an ongoing basis. This factor weighs against the granting of a stay.

1. The Applicant argued that should the stay be made subject to the conditions sought by the Respondent; the review would be rendered nugatory. The Applicant would be insolvent and unable to continue with the review.
2. For the reasons canvassed earlier, the Tribunal is concerned the Applicant may already be insolvent or become insolvent regardless of whether a conditional stay is granted. It is therefore possible the review may be rendered nugatory in any event, including a stay order without a non-enrolment condition.

1. It is common ground between the parties that a stay is desirable to secure the effectiveness of the review. This issue is whether a stay order should be subject to conditions limiting the enrolment of new students.
2. In balancing the competing interests, the Tribunal considers the public interest in minimising the risk to future students and the VET sector outweigh the other interests considered in this decision. Maintaining the status quo through the imposition of a non-enrolment condition balances those interests while allowing the Applicant to operate, albeit on a restricted basis.

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.
2. The interim order of the Tribunal dated 25 September 2025 is discharged.
3. Liberty to either party to apply.

[1] The relevant courses are CPC30120 Certificate III in Shopfitting, CPC31420 Certificate II in Construction Waterproofing, ITC 30524 Certificate III in Telecommunications Technology, MSF30422 Certificate III in Glass and Glazing, ICT50220 Diploma of Information Technology, RIIWHS204E Work Safely at Heights (short course), ICT60220 Advanced Diploma of Information Technology and BSB60420 Advanced Diploma of Leadership and Management.

[2] National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) s 3.

[3] Administrative Review Tribunal Act 2024 (Cth) (ART Act) s 32(1).

[6] Re Anderson and Australian and Securities and Investment Commission [2022] AATA 339 at [11].

[8] Panganiban and Australian Securities and Investment Commissioner [ 2016] AATA 703 at [7].

[9] The cases frequently cited being Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114; Poidevin and Australian Securities and Investments Commission [2009] AATA 798; Birdseye and Tax Practitioners Board [2020] AATA 1250.

[10] [2018] AATA 3047 at [60].

[11] Re Oaklands and Australian Securities and Investment Commission [2011] AATA 199 at [11].

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

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

[14] Le'Sam Accounting Pty Ltd v Tax Practitioners Board [2020] AATA 890 at [13].

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