Gurkhas Institute of Technology Pty Ltd trading as Royal Gurkhas Institute of Technology and Australian Skills Quality Authority [2017] AATA 1018 (3 July 2017)

Administrative Appeals Tribunal Act 1975; s 41(2)

Education Services for Overseas Students Act 2000; ss 83, 83(3), 93(2)

National Vocational Training Regulator Act 2011; ss 35, 37

Standards for NVR Registered Training Organisation's 2012

Standards for Registered Training Organisation (RTOs) 2015

Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130

Re Anthony Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114

1. Gurkhas Institute of Technology Pty Ltd, trading as Royal Gurkhas Institute of Technology (RGIT) is a registered training organisation (RTO) under the National Vocational Training Regulator Act 2011 (NVR Act) and the Education Services for Overseas Students Act 2000 (ESOS Act). It was first registered in 2008. RGIT is authorised to deliver qualifications in Business, Childhood Education, Information Technology and Hospitality.
2. Following a number of audits conducted by the Australian Skills Quality Authority (ASQA), RGIT was notified in letters from ASQA dated 23 May 2017 that its registration under the NVR Act and the ESOS Act for all courses at all locations was cancelled. ASQA also notified RGIT that as a consequence of the decision to cancel RGIT's registration, its applications to change the scope of registration as a provider of courses to overseas students registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) was rejected as was as its application for a change of scope of registration under the NVR Act.
3. On 13 June 2017 RGIT lodged applications with the Tribunal seeking review of all of the decisions made by ASQA. In addition, it lodged applications for a stay of the cancellation of registration decisions pursuant to s. 41 (2) of the Administrative Appeals Tribunal Act 1975 (AAT Act). ASQA opposed the applications for a stay of its decisions.

1. ASQA carried out an audit of RGIT between December 2013 and March 2014 following its application to renew its registration under the NVR Act. That audit apparently focused on eight training products including Certificate III in Commercial Cookery and Diploma of Hospitality.
2. I should mention that at the time of the 2013/2014 audit, the standards for NVR RTOs were set out in the Standards for NVR Registered Training Organisation's 2012 (the 2012 Standards). That instrument was revoked by the Standards for Registered Training Organisation (RTOs) 2015 (the 2015 Standards) which, save for some provisions, commenced on 1 January 2015. Effectively, the 25 standards described as SNRs in the 2012 Standards, were replaced by 8 standards with a discrete schedule (Schedule 3) setting out the Fit and Proper Person Requirements.
3. The final audit report resulting from the 2013/2014 audit disclosed that the standards audited were SNR 15, 16, 17, 18, 20 and 22.2. The audit included a site visit at the Melbourne premises located at 28 - 32 Elizabeth Street. At that time, RGIT had approximately 400 domestic students and 482 overseas students. The audit finding by standards resulted in non-compliant findings under SNR 15 and SNR 18. SNR 15 deals with: quality training and assessment across all of its operations. SNR 18 is concerned with the RTO's governance arrangements.
4. In order to become compliant, RGIT was required to provide revised assessment tools/tasks for four audited training products. ASQA stated that at that time: ... the evidence provided by the RTO did not support that assessment meets the requirements of the relevant training packages. Subsequently, RGIT provided rectification evidence to ASQA and ASQA was satisfied that RGIT complied with the SNR. As for SNR 18, non-compliance simply followed on from those matters described in SNR 15 because the CEO of RGIT did not ensure that it complied with the VET Quality Framework. It was regarded as being compliant when the matters of concern under SNR 15 were rectified.
5. RGIT was subsequently subject to a compliance audit in 2015, the audit being conducted between April and October of that year. At that time, concern had been expressed regarding students whose courses were funded under the VET FEE-HELP scheme. Apparently a number of complaints had been received from persons involved in that scheme. ASQA undertook 21 targeted audits of RTOs who were the subject of such complaints, including RGIT.
6. The focus of ASQA's audit of RGIT was the Diploma and Advanced Diploma level courses which were the only courses eligible for VET FEE-HELP funding. At the time of the audit, according to ASQA, RGIT's Diploma of Management had the highest number of enrolments under the VET FEE-HELP scheme, some 139 students out of a total of 222 enrolments.
7. On 27 April 2015 ASQA sent a letter to the Chief Executive Officer of RGIT stating:

While the auditor identified evidence of compliance with some requirements of the VET Quality Framework, some areas of non-compliance were also identified, which indicate that your organisation is not fully compliant with all requirements. I have attached an audit report which outlines the audit findings (including each area of non-compliance).

1. RGIT was given the opportunity to address the identified areas of non-compliance by providing rectification evidence to ASQA before 23 June 2015. That response was provided on 29 June 2015.
2. On 16 October 2015 ASQA wrote to the CEO of RGIT stating that the compliance audit had been finalised and, after reviewing the rectification evidence, RGIT was found to be compliant with the VET Quality Framework as relevant to the scope of the audit. The letter also advised RGIT that a further compliance audit to assess ongoing compliance with the VET Quality Framework would take place in approximately six months. ASQA also imposed a number of conditions on RGIT's continued operations. Those conditions required RGIT to provide to ASQA, on a monthly basis, details about learners enrolled in any training product; results of all completions of one or more units of competency; and the issuance of all qualifications or statements of attainment. RGIT was also required to retain and present to ASQA, on request, a number of materials dealing with assessment of all learners and completed evaluations, tests or similar instruments.
3. Of significance in this case is that RGIT was found to be non-compliant with Standard 1.8 of the 2015 Standards. It requires the RTO to implement an assessment system which ensures that assessment, including recognition of prior learning, complies with the assessment requirements of the relevant training package or VET accredited course; and that the assessment was conducted in accordance with the principles of assessment set out in Table 1.8 - 1 and the Rules of Evidence set out in Table 1.8 - 2. In its 16 October 2015 letter, ASQA noted:

The registered provider has demonstrated a plan to implement rectification strategies for all VET Fee-Help student's current as on the audit date. (222 students). This rectification exercise is currently ongoing and estimated to be completed by 31st July 2015.

1. ASQA accepted that RGIT complied with the conditions imposed on it for maintenance of its registration.
2. ASQA conducted a monitoring audit on 6 and 7 September 2016. The audit focused on Diploma of Early Childhood Education and Care, Certificate III in Commercial Cookery and Diploma of Hospitality, being training products which were not audited in 2015. Although I did not have the letter before me in evidence, it appears that on 7 December 2016 ASQA provided an interim audit report together with a notice to impose sanctions under s. 37 of the NVR Act and ss. 83(3) and 93(2) of the ESOS Act. In response, on

7 February 2017 and 23 March 2017, RGIT provided rectification evidence to ASQA. On 27 April 2017 ASQA completed a review of the rectification evidence and finalised its audit report. On 23 May 2017 ASQA sent two letters to RGIT notifying it of ASQA's decision to cancel RGIT's registration under the NVR Act and the ESOS Act. Those cancellation letters were based on failure of RGIT to demonstrate that: * it has implemented its rectification efforts from the audit conducted in April 2015, (Statement of Reasons) * it has carried out remedial action to address the impact caused to all learners impacted by the non-compliances identified in the compliance audit report (conducted September 2016) * it ensures learners have the existing skills, competencies and experience required in order to be trained and assessed in the qualification enrolled * training and assessment strategies and practices were consistent with the requirements of the relevant training packages * it has sufficient learning resources and facilities, including work placement, which are accessible to all learners * its assessment systems ensure assessment complies with all requirements of the training packages and is conducted in accordance with the Principles of Assessment and Rules of Evidence, and * it issues AQF certification documentation only to a learner whom it has assessed as meeting the requirements of the training product specified in the relevant training package. 3. In an affidavit sworn in support of ASQA's submission that a stay of the implementation and operation of its decision should not be granted, Mr Radomir Kovacevic, a Lead Regulatory Officer in the Regulatory Operations division of ASQA, outlined a number of further concerns identified by ASQA in the final audit following the 2016-2017 monitoring audit. They were as follows:

For BSB50215 Diploma of Business, 72% of learners enrolled between October 2015 and June 2016 had not attempted or submitted any assessments;

for BSB51915 Diploma of Leadership and Management, 66% of learners enrolled between 18 March 2016 and 30 May 2016 had not attempted or submitted an assessment; and

For SIT50313 Diploma of Hospitality, 41% of learners enrolled between October 2015 and June 2016 had not attempted or submitted an assessment.

1. I hasten to add that I did not have any evidence which supported the above statements other than Mr Kovacevic's affidavit. Mr Kovacevic said in his affidavit that he was not certain why such high percentages of learners were not engaging with the courses but, based on his experience, he drew the inference that the learners may not have been fully informed of the course requirements or were unsuitable or incapable of completing those courses. Although Mr Kovacevic said he made his affidavit based on the records held by ASQA and his own knowledge or belief, I had no evidence of the experience to which Mr Kovacevic referred.
2. In his affidavit Mr Kovacevic said he considered the non-compliances to be very significant and set out a number of reasons for concluding that to be the case. Amongst those reasons were the fact that RGIT did not have adequate kitchen facilities in the form of an operational commercial kitchen and that it did not have an operational bar where it could conduct simulated training and assessment in the Hospitality course.
3. The problem with what Mr Kovacevic said in his affidavit regarding kitchen facilities and bar facilities is that I had in evidence by way of attachments to an affidavit sworn by Mr Chandra Yonzon, the CEO of RGIT, photographs of the main campus commercial training kitchen which, by any standard, can be said to be very well equipped, spacious and suitable for the purpose. A list of the equipment located in the kitchen was provided. There was also a photo of what is described as the bar and barista room, capable of accommodating 20 students. From the photograph, it appears that the bar and barista room is also suitably equipped for the purpose.
4. In the course of his cross-examination, Mr Kovacevic was asked how he came to the conclusions he did about the kitchen and bar. Mr Kovacevic agreed that when he conducted his audit, it was pointed out to him that there was a space set aside for a bar but he did not go and examine it. When asked why, Mr Kovacevic said that it was up to RGIT to produce evidence to him of the existence of those facilities. When asked why he did not go back and have a look, he again simply reiterated that no evidence of those facilities was provided by RGIT.
5. With respect to Mr Kovacevic, I would have thought it to have been essential to have examined the entire premises before making comments such as those he made in the conclusions he has drawn under paragraph 32 of his affidavit. The conclusions he has drawn about those facilities, on the evidence before me, are patently incorrect. It obviously leads to some concern regarding what else might be in his audit report which is also based on assumption (or belief) rather than fact.
6. ASQA also noted that separate to the compliance audit, but at the same time, it conducted a change of scope of registration audit (VET and CRICOS). On the basis of ASQA's findings and decisions in relation to compliance matters, the change of scope of registration audits were discontinued. The change of scope of registration applications are the subject of matters No. 2017/3422 (VET) and 2017/3423 (CRICOS). The cancellation of registration under the NVR Act and the ESOS Act are the subject of matters No. 2017/3420 and 2017/3421 respectively.

1. Section 41 (2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides:

The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

1. As the Federal Court of Australia (Moore, Downes and Jagot JJ) said in Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130 at 143, when dealing with the decision to ban a person from providing financial services:

The nature of the decision under review will affect the identification of the "interests of any person who may be affected by the review". Accordingly, those interests are to be identified by reference to the statutory scheme under which the decision under review was made.

1. Division 3 of Part 2 of the NVR Act deals with ensuring compliance with the VET Quality Framework and Subdivision A is particularly concerned with audits. Section 35 of the NVR Act provides that ASQA may, at any time, conduct a compliance audit of a NVR registered training organisation's operations to assess whether the organisation continues to comply with the NVR Act or the VET Quality Framework. It also provides that ASQA may review or examine any aspect of an NVR registered training organisation's operations to determine any systemic issues relating to the quality of vocational education and training. The ESOS Act contains similar provisions regarding the imposition of sanctions for non-compliance with the Act, the National code or a condition of the provider's registration (s. 83).
2. Taking into account the framework within which a decision is made to cancel registration under the NVR Act or the ESOS Act, a wide range of persons may be affected by that decision. Significantly, the students themselves will be affected, as well as staff employed by the organisation providing the training. Overseas students will have the additional concern of maintaining the conditions of a visa. The training organisation will inevitably be financially affected by that decision. Its reputation is also likely to suffer detriment. There may also be a number of third-party institutions providing practical training which will be affected. Where an NVR Act registered training Organisation is receiving financial assistance from either the Commonwealth or a State, its ability to access those funds in the future may also be affected.
3. In determining whether it is desirable to grant a stay, there are a number of matters which I must consider. Downes J, the then President of the Tribunal, when dealing with a stay application in respect of a banning order in Re Anthony Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114, set out the following relevant considerations (at 115):
   1. The prospects of success.
   2. The consequences for the applicant of the refusal of the stay.
   3. The public interest.
   4. The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.
   5. Whether the application for review would be rendered nugatory if a stay were not granted.
   6. Other matters that are relevant, amongst which I would include the length of the time that the ban has already been in place and the gap between today and the hearing of the application.

1. In my opinion, determining the prospects of success is an important element when considering whether a stay should be granted. If there are no prospects of success or very limited prospects of success, it would rarely be appropriate to grant a stay. To do so in those circumstances would result in a waste of time and money for all concerned.
2. I am acutely aware that it is not my role in this type of preliminary hearing to undertake a full consideration of the merits of RGIT's application. I am required to consider whether there are facts and circumstances which, if established at the substantive hearing, would provide a basis for success on the substantive application, or whether there are points of law raised which, if sustained, would lead to that conclusion.
3. I have already referred to the fact that there was evidence before me on this hearing which disputes some of the findings made by ASQA regarding the facilities available at RGIT. In fact there are numerous photographs of its facilities attached to the affidavit of Mr Yonzon. Those photographs disclose a very well-resourced facility with appropriate equipment to deliver the courses provided. If that evidence is established at the substantive hearing, it is likely to have a positive impact on the outcome as far as RGIT is concerned.
4. Mr T Mitchell of counsel, who appeared on behalf of RGIT, submitted that the deficiencies identified by ASQA were all deficiencies relating to past events. There was no evidence, he submitted, of the risk of non-compliance in the future. He pointed out that much had been done by RGIT to ensure it complied with the standards set out in the relevant instrument, be it the 2012 Standards or the 2015 Standards. The evidence from Mr Yonzon was that if past students had been awarded certificates or diplomas without having met the requisite standards for the issue of those documents, they would be contacted where that was possible and, subject to the sanction that their certificates or diplomas would be withdrawn, be asked to present themselves for assessment.
5. It is also clear from the audit reports that where non-compliance has been exposed by ASQA, RGIT has, in most cases, if not all, accepted it was non-compliant and taken steps to rectify that situation. While its record is far from perfect in doing so, the evidence does disclose a willingness to comply where non-compliance has been identified. In fact Mr Yonzon said that one of the concerns raised by ASQA, that is the provision of work experience and training by third parties, had been discontinued and that RGIT would conduct all of its training and experience requirements in its own premises using its own staff. This aspect related particularly to the Certificate III course in Commercial Cookery. However, simply looking at the photographic evidence before me, it is not clear how ASQA can come to the conclusions it has regarding the inability of RGIT to satisfy the requirements for that course. It may be there is other evidence which I need to consider that was not before me on the hearing of this application.
6. I accept that the assessment systems in relation to the courses audited most certainly require rectification. However, I did not have any evidence before me which suggests that RGIT does not have the will or ability to rectify those shortcomings.
7. ASQA also submitted that the deficiencies it has identified throughout its audit program since 2013 discloses long-standing deficiencies. I accept that statement is partially correct. The original findings of non-compliance on the 2013 audit indicate rectification was successful and RGIT was deemed to be compliant subsequently. The 2015 audit was more extensive and focused on compliance with the VET FEE-HELP requirements. While some non-compliance was noted, following rectification, particularly in relation to VET FEE-HELP, RGIT was found to be compliant. In particular, RGIT amended its enrolment process to include pre-enrolment integrity checks which ensured that the learner being enrolled met the conditions for VET FEE-HELP.
8. Standard 8 of the 2015 Standards deals with RTO co-operation with the VET Regulator (ASQA). Although RGIT was found to be non-compliant at audit, that was only in respect of one item, being: providing information about substantial changes to its operations or significant changes to its ownership. It was found to be compliant in providing accurate and truthful responses to information requests relevant to its registration; the conduct of audits and the monitoring of its operations; providing quality/performance indicator data; and the retention, archiving, retrieval and transfer of records.
9. The 2016 audit focused on the Diploma and Certificate III courses. It is this audit which seems to have led to the cancellation of registration decision under both the NVR Act and the ESOS Act. However, as I have indicated above, there is material in evidence which, if accepted at the substantive hearing, may result in a different outcome for RGIT. For that reason, I find that RGIT does have some prospects of success, even if not necessarily complete success, were the matter to proceed to a substantive hearing.
10. Mr Mitchell also submitted that although RGIT had 11 business and information technology courses on its scope of registration, no comment was made about those courses. In fact, it is reasonably clear that those courses in themselves were not the subject of any audit. Accordingly, I find that there appears to be, as Mr Mitchell submitted, no ground for cancelling RGIT's registration to deliver those courses.

1. RGIT relied on the evidence of Mr Dipesh Gyawali, an accountant employed by RGIT. Attached to his affidavit, which was taken into evidence, was a spread sheet which included revenue projections in the event that the stay order were granted; in the event that the stay order were granted with conditions; and where a stay order was refused. In his opinion, if the cancellation of registration decisions were not stayed, RGIT would close and would likely be wound up. Furthermore, Mr Gyawali stated that if the decisions were stayed with a condition that RGIT not enrol any further students (a common stay condition in this jurisdiction), RGIT's financial position would progressively deteriorate. He stated that it would have to lay off a significant number of staff; students would be reduced substantially; and RGIT's revenue would be reduced to the point where it would have to borrow substantial funds to stay afloat. Mr Gyawali's conclusions on the impact of a stay or a conditional stay were based on the assumption that it would take six to nine months for the application for review to be determined.
2. Mr Yonzon testified that RGIT owned the building where its main campus is situated at

28 - 32 Elizabeth Street, Melbourne. He also said that the building had been sold in February 2016 although settlement was pending. However it was a condition of the sale that RGIT remained in the building as a tenant. If its registration were cancelled, RGIT would not be able to complete the contract for sale. Furthermore, RGIT leased a number of other premises and those lease commitments would need to be terminated, undoubtedly at some cost. 3. Mr Yonzon's evidence was that at the present time, RGIT had about 1850 enrolled students undertaking courses. International students made up approximately three quarters of its enrolled students. Mr Yonzon also testified that while RGIT was registered to participate in the VET FEE-HELP Loan Scheme and it had present funding under a Victorian State Government contract, its involvement in the VET FEE-HELP scheme had terminated although 123 students under that scheme were completing their courses. RGIT has not applied for a new Commonwealth Loan Funding Scheme. 4. Mr Yonzon said that if a stay were not granted, RGIT would need to close its facilities immediately. Existing students would need to be transferred to other colleges or be provided with refunds. RGIT would also be required to refund money under the VET FEE-HELP loan scheme. Overseas students would have a further problem given that their studies are linked to the visas which they currently hold. Mr Yonzon considered that they would suffer considerable disruption. Mr Yonzon also referred to the fact that ASQA's decision to cancel RGIT's registration had been published and that had attracted considerable concern from current students. I had in evidence the number of letters from students which support that evidence. 5. In addition to concerns about existing students, Mr Yonzon referred to staff that would obviously have their contracts terminated if RGIT was required to close its facilities. 6. Plainly, serious detriment is likely to be suffered by a significant number of persons were RGIT not able to continue to provide its vocational training programmes.

1. I have already referred to the parties whose interest would be affected were a stay not granted. As RGIT no longer has an involvement in taking students who are able to access the VET FEE-HELP loan scheme, there appears to be no particular risk to the public purse in the future should there be problems with the quality of the training provided by RGIT.
2. In his affidavit Mr Kovacevic provided a number of opinions regarding the public interest issue, although it is not clear to me what the basis is for those opinions or his qualifications to offer them. Mr Kovacevic said there were risks to current and future learners, potential employers and the general public if RGIT were allowed to continue operating and provide training and assessment to students which did not meet the requirements of the relevant training packages. While logically that appears to be correct, I did not have evidence before me that the training did not meet the relevant training packages provided. There was clearly a problem with some assessments although I believe, without further evidence, it is not correct to assume that the training has been inadequate. For example, there was no evidence before me that employers who had taken on students trained by RGIT experienced shortcomings in their training.
3. Although Mr Kovacevic referred to the risk that learners would be awarded a qualification without demonstrating the skills and knowledge to competently undertake the task required in the workplace in respect of the Early Childhood Education and Care course; the Commercial Cookery course; and the Hospitality course, the evidence before me on the hearing of this application only supports the possibility of a lack of practical training for students undergoing the Early Childhood Education and Care courses. As for that course, Mr Kovacevic said its shortcomings posed a risk of injury and other poor outcomes for vulnerable infants and young children. With respect, that appears to overstate the consequences of the absence of practical training. I did not have evidence which would support the possibility of such an outcome if it were accepted that no practical training was provided. As for the other courses referred to, as I have already said, on the evidence before me, RGIT has more than adequate kitchen facilities for the Commercial Cookery Course and also for the Hospitality Course. There was no evidence before me that any deficiencies in those courses could have serious adverse consequences for the public.
4. I find, in the context of a stay application, there is no public interest issue which might compel refusal of such an order.

1. I had no evidence before me indicating that ASQA would suffer any adverse consequences if a stay were granted for a relatively short period of time. Its reputation as a regulator would not be adversely affected given the nature of a stay being to simply put things on hold until such time as full consideration can be given to the identified problems in the course of a substantive hearing.

SECURING THE EFFECTIVENESS OF THE HEARING AND DETERMINATION OF THE APPLICATION

1. This consideration is often referred to as considering whether a review would be rendered nugatory if a stay were not granted. I need to take into account all of the relevant considerations to which I have referred above in order to determine whether the effectiveness of the hearing and determination of the application for review would nevertheless be secure regardless of whether or not a stay were granted. Put simply, if an applicant in a proceeding before the Tribunal were to succeed on the substantive hearing, but nevertheless would suffer irreparable damage, the hearing and determination would not be effective as its purpose is to grant relief to an applicant who is successful, thus avoiding irreparable damage.
2. The considerations I have canvassed above indicate that if a stay were not granted, and a hearing of the substantive application could not be brought on for hearing in a relatively short space of time, it is likely that irreparable harm will be caused to RGIT. It is highly likely that it would lose its business as a vocational training facility. The problem is that the Tribunal, at present, cannot guarantee a rapid hearing and publication of the decision such that I can be reasonably confident that irreparable harm will not be caused.
3. I am particularly concerned about enrolled students and the consequences upon them should a stay not be granted thus forcing them to find other vocational training institutions which can accommodate them in the courses they wish to pursue. There will inevitably be time delays and possibly additional expenses which would accompany such a course of action, particularly at very short notice. If a stay were granted, I would estimate a substantive hearing of this matter in possibly October of this year and that would provide existing students with a more reasonable time to make decisions regarding their future studies with RGIT. It would also provide RGIT with some time in which to make alternative arrangements for those students and of course, their own commercial concerns.

1. While I make no findings of fact regarding the merits of RGIT's claim, the evidence before me on the hearing of this application supports its contention that it has prospects of success. There was material in evidence which, if substantiated at the hearing of this matter, particularly in relation to the facilities it has available for the conduct of its courses, may result in a favourable outcome for RGIT.
2. I have found that RGIT would suffer serious detrimental consequences if a stay were refused. While it may continue for a short period of time with its existing enrolled student base, I accept that many students would start to take steps to find other institutions which would support the studies which they desire to undertake. It is obvious that RGIT has a significant financial stake in its business and refusal to grant a stay will have very serious financial consequences.
3. I have also found there are no public interest considerations which would be affected should a stay be granted. I have not been able to identify any adverse consequences for the respondent if RGIT were granted a stay.
4. Most importantly, I have found that if a stay were not granted and RGIT were to succeed on its substantive application, it is more likely than not that its success would be rendered nugatory as its business would most likely be affected to such an extent that it would no longer be viable. The very purpose of having a merits review proceeding available to persons adversely affected by administrative decisions is to, where appropriate, avoid such an outcome. The grant of a stay would give effect to that purpose.
5. Accordingly, the preferable decision in this case is to make an order staying the operation and implementation of ASQA's decisions to cancel the registration of RGIT under the NVR Act and the ESOS Act until final determination.
6. In closing submissions Mr Mitchell submitted that if ASQA were able to provide the s. 37 Documents promptly, RGIT could lodge and serve its Statement of Facts, Issues and Contentions as well as any additional evidence by 8 August 2017. He suggested that if ASQA were able to provide its Statement of Facts, Issues and Contentions and any further evidence upon which it intended to rely on the hearing of this matter by 5 September 2017, RGIT could file any material in reply by 19 September 2017 and be available for a hearing of 2 to 3 days duration in October.
7. The representatives of both parties should provide to the Tribunal a timetable for the conduct of preliminary steps and the availability of counsel, if required, and witnesses for a hearing in October 2017.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

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