Respondent: Commissioner, NDIS Quality and Safeguards Commission

1. In matter number 2025/5116, the Tribunal refuses the application made under s 32(2) of the Administrative Review Tribunal Act 2024 (Cth) for a stay of the respondent's decision of 17 September 2025.

1. In matter number 2025/5117, the Tribunal refuses the application made under s 32(2) of the Administrative Review Tribunal Act 2024 (Cth) for a stay of the respondent's decision of 17 September 2025.

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INTERLOCUTORY APPLICATION - applications for stay of a decision - permanent banning order under National Disability Insurance Scheme Act 2013 (Cth) - consideration of prospects of success - consequences on the parties - public interest - applications refused

Administrative Review Tribunal Act 2024 (Cth)

Crimes Act 1914 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Australian Securities & Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185

Lunn and Tax Practitioners Board (Practice and procedure) [2025] ARTA 697

McLean and Australian Securities and Investments Commission [2016] AATA 22

Oaklands and Australian Securities and Investments Commission [2011] AATA 199

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

Stephan-Miller and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 43

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

1. The Applicants are seeking a stay under s 32(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).

1. The Applicants, Nancy Jonah (Jonah) in proceeding 2025/5116 and Hope N Faith Care Pty Ltd (HFC) in proceeding 2025/5117 each apply for a stay of the Respondent's (the Commissioner) decisions of 17 September 2025, made pursuant to s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), imposing a permanent banning order on each of them (the Banning Orders) prohibiting them from being involved in the provision of supports or services to participants in the National Disability Insurance Scheme (NDIS).
2. The Applicants have filed with the Tribunal an application for review of the Banning Orders. The Tribunal has offered the parties an expedited hearing of those reviews which has been set down with scheduled case management directions for hearing on 2 February 2026.
3. The parties requested the Tribunal to decide the stay applications on the papers, and after directions for filing documents and submissions, the Tribunal was satisfied that it was appropriate to decide the stay applications without a hearing pursuant to s 106 of the ART Act, because the parties consented to such, and the issues for determination can be adequately determined in the absence of the parties.
4. The Tribunal has in considering its decision on the stay applications considered:

(a) The T-Documents in 2025/5116 (Exhibit R1). > > (b) The T-Documents in 2025/5117 (Exhibit R2). > > (c) The Supplementary T-documents (Exhibit R3). > > (d) Affidavit of Andrew Royan filed 18 November 2025 (Exhibit R4) > > (e) Affidavit of Nancy Jonah filed 18 November 2025 (Exhibit A1). > > (f) Applicant's submissions in support of stay (Applicant's Submissions). > > (g) Respondent's submissions opposing stay (Respondent's Submissions).

Decision to permanently ban the Applicants' registration as NDIS-service provider

1. On 17 September 2005, the Applicants' NDIS registration was permanently banned under s 100(6) of the NDIS Act, after an internal review following a decision of a delegate on 19 June 2025.[1]
2. The Banning Orders took effect from 20 June 2025 and the reason for the decisions for each of the Applicants are in practically similar terms:[2]
   • The Applicants have contravened or are likely to contravene the NDIS Act (s 73ZN(2)(a)(i)).
   • The Applicants are not suitable to be involved in the provision of supports or services to people with disability having regard to any matters prescribed by the National Disability Insurance Scheme rules (s73ZN(2)(a)(iii)).
   • The Commissioner believes that the Applicants have intentionally provided false and misleading information in relation to their application for NDIS provider registration, and are likely to contravene the NDIS Act, and in particular, the NDIS Code of Conduct as required under s73V of the NDIS Act.
   • The Commissioner believes that the Applicants are not suitable to be involved in the provision of supports or services, having regard to the matters prescribed by the National Disability Insurance Scheme rules, because, as 'any other matter' the Commissioner consider relevant.
3. The crux of the issue in the Commissioner's decision to make the Banning Orders is in respect to Jonah's criminal convictions in November 2009 for the indictable offences of 'obtaining property by deception' (11 counts) for which she was cumulatively sentenced to 6 months imprisonment, wholly suspended (the criminal convictions), and whether Jonah was obliged to give the Commissioner notice of the criminal convictions when applying as 'key personnel' on behalf of the corporate entity (HFC) for NDIS provider registration.
4. Related issues are that Jonah changed her name from 'Demo Chaabani' after the criminal convictions and a Mr Al Dainy (Dainy), listed as a key person of HFC, had a criminal conviction for 'general dishonesty'.
5. The Commissioner contends that Jonah, as the primary contact for HFC, by not disclosing the criminal convictions, her name change and Dainy's conviction, she has acted dishonestly in obtaining registration for HFC under the NDIS Act.

1. Section 32(1) of the ART Act makes it clear that making an application for review does not itself provide a ground for support of a stay. Pursuant to s 32(2) of the ART Act the Tribunal must be of the opinion that it is desirable to grant a stay. Before reaching this opinion, s 32(7)(b) states the Tribunal must consider the interests of any persons affected by the review.
2. The settled legal principles as to whether a stay should be granted under s 32(2) of the ART Act are summarised in Scott and Australian Securities and Investments Commission [2009] AATA 798 at [4]. Scott provides the non-exhaustive set of factors to be taken into account as:
   • the prospects of success;
   • the consequence for the applicant of the refusal of a stay;
   • the public interest;
   • the consequences for the respondent;
   • whether the review would be rendered nugatory;
   • the length of time the ban has already been in place; and
   • the gap between hearing the stay and the expected date for a hearing of the review application.
3. The decision of the Full Court of the Federal Court in Australian Securities & Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 (ASIC v AAT) provides binding guidance to the Tribunal as to whether a stay should be granted. The Full Court per Downes and Jagot JJ (as her honour then was) observed, at [50], that the power to make a stay is conditional on forming an opinion that it is desirable to make the order, and that the Tribunal may only form this opinion after taking into account 'the interests of any persons who may be affected by the review'.
4. The Full Court in ASIC v AAT said at [51]-[52]:
   1. The nature of the decision under review will affect the identification of the "interests of any persons 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. ... Given the nature of a banning order, the persons who may be affected by a review of its making include not only the recipient and his or her dependants, associates and employees but also that person's existing and potential clients, as well as the public at large.
   2. Determining whether the making of an order under s 41(2) of the AAT Act is desirable requires resolving these potentially competing interests. In this process of resolution the scheme embodied by the legislation under which the banning order is made is central. The context set by that scheme is a "fundamental element" in the formation of the opinion according to law (The Queen v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329).
5. The Commissioner contends that the Applicants bear the onus of satisfying the Tribunal that a stay should be granted, citing Stephan-Miller and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 43.[3] In Stephan-Miller, authority for that proposition is cited as Oaklands and Australian Securities and Investments Commission [2011] AATA 199 that says at [11]:

The Tribunal must have sufficient evidence before it to come to such a conclusion [referring to Scott] and, as such, for practical purposes the applicant in a stay application "bears the onus" of establishing that the considerations point to the granting of the stay.

1. The Tribunal rejects the contention that the Applicants bear the onus to satisfy the Tribunal to order a stay, because that contention is directly at odds with the decision of the Full Federal Court in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, rejecting an argument Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 applied to findings of fact in the AAT, per Flick and Perry JJ at [115]:

The attempt on the part of Mr Sullivan to side-line the fundamental importance of provisions such as ss 2A, 33 and 39 of the Administrative Appeals Tribunal Act - and to shift the focus of attention to the ultimate task of the Tribunal in making the "correct or preferable" decision as to whether it is "satisfied" for the purposes of reg 269(1)(d) of the Civil Aviation Regulations - should be soundly rejected. Such a submission, with respect, fails to recognise that:

• the rule in Briginshaw is a rule of evidence derived from curial proceedings;
• the Tribunal is not "bound by the rules of evidence"; and
• a party to proceedings before the Tribunal has no "onus of proof", let alone an "onus" to establish facts to any particular or pre-determined standard.

Moreover, the submission fails to also recognise the fact that the procedure of the Tribunal is within its own discretion.

1. The Tribunal accepts Oaklands, Stephan-Miller, and the other AAT decisions referred therein, correctly identify that the Tribunal must have sufficient evidence to make its decision when applying the Scott factors, and in a practical sense that might fall on the Applicants to provide sufficient evidence, but the Tribunal categorically rejects, on the binding authority of Sullivan, that can be categorised as the Applicants bearing the onus of proof.
2. In the context of those matters raised by the Full Court in ASIC v AAT the Tribunal will consider the Scott factors in turn.

1. The Tribunal accepts the Commissioner's expression of the threshold test as being whether there is the existence of facts or points of law that may be argued at a substantive hearing with the possibility that a different decision could be made.[4]
2. The Applicants contend they have strong prospects of success because:[5]
   • The Applicants have a four-year history in the NDIS industry with no complaints.
   • Jonah's criminal convictions are dated and 'spent' under state legislation.
   • Jonah's offending did not involve vulnerable persons and did not occur in a NDIS context.
   • Jonah is otherwise suitably qualified and can only be considered to be a 'fit and proper' person.
3. The solicitors for Jonah contend that she was entitled to not disclose the criminal convictions because of the operation of the Spent Conviction Act 2021 (Vic) (Spent Convictions Act) and the Crimes Act 1914 (Cth) (Crimes Act).
4. Dealing with the criminal convictions first. The non-contentious facts are:

(a) On 20 November 2009, Jonah was convicted on 11 counts of 'obtain property by deception'.[6] > > (b) On 16 March 2021, HFC was registered as a proprietary company limited by shares with Jonah as secretary and director and Dainy as a director.[7] > > (c) On 18 July 2021, HFC applied for registration as a NDIS provider with the application (the Registration Application):[8] > > > (i) recording Jonah as the primary contact for HFC; > > > > (ii) specifying key personnel of HFC as Jonah and Dainy; > > > > (iii) Jonah declaring she was duly authorised by HFC to submit the Registration Application and that to the best of her knowledge, the information provided in was true and correct.

5. The Commissioner does not make detailed submissions as to how the interplay between the Crimes Act and the Spent Convictions Act impacts on Jonah's obligations in respect of the Registration Application. The Tribunal is not presently in a position to resolve that issue.
6. The Tribunal notes the submissions and evidence provided by Jonah as to the circumstances of her criminal convictions, but again the Tribunal is not in a position to resolve that issue as it applies to the circumstances of the Banning Orders.[9]
7. There is no evidence before the Tribunal that Jonah knew about Dainy's conviction when completing the Registration Application or subsequently to comply with the ongoing obligation of disclosure under s 73H of the NDIS Act.
8. The Tribunal accepts that the criminal convictions did not involve vulnerable persons in a NDIS context and that Jonah has provided positive references from NDIS clients as to the supports provided by her and HFC.[10]
9. The Commissioner also complains that Jonah:

(a) Deliberately provided false information during her interview with an investigator of the Commission that she was not a director of any other company, when in fact she was and then took steps to conceal her involvement by transferring the directorship to her partner.[11] > > (b) Continued to be involved in the provision of supports or services to NDIS participants despite the Banning Orders contrary to s 73V of the NDIS Act and the NDIS Code of Conduct.[12]

10. Jonah has not yet put on evidence in respect to these further allegations.
11. This is not a simple or clear-cut case. There is contested evidence and a dispute about how the legislation should be interpreted and applied. There is significant documentary and affidavit evidence, including the transcript of a compulsory interview. The submissions made to the Tribunal on the stay applications indicate that much of the evidence is contested or at least needs to be considered in a wider context.
12. Both parties urged the Tribunal to find that the other party has poor prospects of success. On the material before the Tribunal, it is apparent that the Applicants have put forward evidence and arguments with respect to most of the contested issues above.
13. Some of the arguments depend upon factual findings that the Tribunal will need to make at the hearing. Others depend upon statutory interpretation which will be the subject of submissions.
14. It is not appropriate for the Tribunal to conduct a mini trial for the purpose of determining the Applicants prospects of success. The Tribunal concludes that the Applicants have at least an arguable case of overturning the Banning Orders. It cannot be said that their case is hopeless or unlikely to succeed. It follows that the Applicants have established a realistic possibility of a different decision being made on the review application.
15. The Applicants have got over the threshold test for prospects of success but, in terms of deciding whether to grant a stay, the Tribunal does not give this factor significant weight because it is difficult at this stage to evaluate the merits of the substantive review application.

The Consequences for the Applicants, the Respondent and the public interest

1. Hardship to the Applicants and associated persons is a significant factor in terms of whether to grant a stay but it must be weighed against the public interest.
2. In her affidavit of 29 October 2025, Jonah deposes to the effect that:

(a) HFC has a lease over premises that requires payment of rent ($2,200 per month), rates, insurance and outgoings (the Lease).[13] > > (b) HFC had 5 employees and since the Banning Orders, they have been unable to work and have suffered financial difficulties.[14] > > (c) NDIS clients of HFC are awaiting the outcome of the Tribunal proceedings and do not want to move as they feel comfortable with the support provided by HFC.[15] > > (d) HFC faces the risk of defaulting under the lease and being placed into liquidation and Jonah is facing the risk as guarantor of HFC under the lease if it defaults.[16] > > (e) Jonah is fully committed to doing whatever it takes to preserve his career including entering into a formal mentoring agreement and he would accept a partial or conditional stay to allow him to continue working in the financial services industry.[17]

(a) If the option to renew for a further two years under the Lease was exercised prior to the initial term ending on 30 June 2025 or has carried over month to month.[18] > > (b) How many NDIS clients HFC had at the time of the Banning Orders. > > (c) The financial position of HFC in respect to meeting its obligations, except to say that it appears that the nonpayment of rent under the Lease appears to be accruing.[19]

4. The Tribunal accepts that the affidavit evidence of Jonah prima facie demonstrates that the consequences for her, HFC and its employees of a stay refusal would be very significant.
5. The Banning Orders protects NDIS clients against misconduct by the Applicant. The Commission, as the supervising regulator, is tasked by the NDIS Act with 'protecting people with disability from being exposed to persons who have been engaged in fraud or dishonesty, or who have contravened or are likely to contravene the NDIS Ac_t'_.[20]
6. The granting of a stay has a negative consequence on the Commissioner because it impedes the carrying out of its statutory functions.[21]
7. The Tribunal accepts that prejudice or hardship 'will seldom, of itself, determine whether a stay is to be granted'.[22]
8. The Tribunal has taken these factors into account and is reasonably satisfied that they weigh against granting a stay.

Will the review application be rendered nugatory and relevance of when the Banning Orders were made and the length of time to the hearing

1. The Tribunals finds that it is likely that the Applicants, but particularly Jonah, will be able to return to their role providing supports under the NDIS Act if successful on the substantive review application.
2. The Banning Orders have been in effect over five months since 20 June 2025. The Tribunal has provided directions for an expedited hearing to take place on 2 February 2026, approximately two months hence. An expedited hearing reduces the financial impact of not granting a stay.
3. If the Applicants are successful, they will have been prevented by the Banning Order from operating for a period of approximately 8 months if the Tribunal delivers a decision by early March 2026, which is likely on current expectations.
4. The Tribunal is reasonably satisfied that that the review applications will not be rendered nugatory if a stay is not granted.
5. This is a significant factor which weighs against the granting of a stay because the Applicants have not shown that a stay is necessary to secure the effectiveness of the hearing.

1. The Tribunal is reasonably satisfied that no stay should be ordered because:

(a) Whilst the Applicants' prospects of success are not hopeless or unlikely to succeed, it is difficult at this stage to evaluate the merits of the substantive review application to give significant weight to this factor. > > (b) The consequences for the Applicants, and in particular Jonah and the employees of HFC are unfortunate, but the hearing can still proceed and the impact on the Applicants is lessened by the Tribunal offering an expedited hearing. > > (c) There is a significant public interest in the implementation of the Banning Orders which outweighs the consequences for the Applicants. > > (d) The review will not be rendered nugatory or pointless if a stay is not granted. > > (e) The deterrent factor and the negative consequences on the Commission who, having imposed a permanent ban, may be seen as not carrying out its statutory duties if the Banning Order are not implemented weigh against a stay.

1. The Tribunal refuses the applications made under s 32(2) of the ART Act for a stay of the respondent's decisions of 17 September 2025 in respect of each applicant.

[1] Exhibit R1, T2, p 29; Exhibit R2, T2, p 16.

[2] Exhibit R1, T2, p 36; Exhibit R2, T2, p 23.

[5] Applicant's Submissions at [1]-[4].

[9] Exhibit A1 at [4]-[13]; Applicant's Submissions, p 3.

[20] Respondent's Submissions at [85].

[21] Respondent's Submissions at [86].

[22] Lunn and Tax Practitioners Board (Practice and procedure) [2025] ARTA 697 at [38]; see also _McLean and Australian Securities and Investments Commissio_n [2016] AATA 22 at [21]- [22].