Tang v Secretary, Department of Customer Service - [2024] NSWCATOD 168 - NSWCATOD 2023 case summary — Zoe

NSWNSWCATOD

Tang v Secretary, Department of Customer Service

[2024] NSWCATOD 168

NCAT Occupational|2023-09-22

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2023-09-22

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

Background

Nuo Tang (the Applicant) was issued with a contractor licence in the category of carpenter on 7 July 2015. In obtaining this licence, the Applicant relied on a Certificate III in Carpentry (CPC30211) issued by the Institute of Training dated 22 July 2014 (IOT Certificate III).
On 1 September 2022, the Applicant submitted an application to vary his licence in the category of carpenter to an individual contractor licence in the category of general building work (the Application). In the Application, the Applicant relied on a Certificate IV in Building and Construction (Building) (CPC40110) (IOT Certificate IV) and Statement of Results, which were issued by Warren Jack, Chief Executive Officer, Institute of Training (IOT) on 9 September 2014.
On 7 February 2023, a delegate of the Secretary, Department of Customer Service (the Respondent) issued the Applicant with a Notice of Intention to Cancel the Applicant's carpentry licence (Notice of Intention) and the Applicant was given 28 days to provide a submission in response.
On 7 February 2023, Respondent separately issued a Notice of Refusal to the Applicant refusing the Application (the Decision).
The Decision referred to the Australian Skills Quality Authority (ASQA) as the agency responsible for the registration of all training organisations that conduct vocational education training in Australia. The Decision noted that the registration of IOT had been cancelled on 5 November 2018 and that ASQA could not verify the Applicant's qualifications. As a consequence, the delegate determined that the qualifications submitted in support of the Application could not be accepted and that the Application must be refused.
On 27 February 2023, the Applicant sent an email to the Respondent attaching a Certificate III in Carpentry (CPC30211) issued to him by Career Skills Australia on 1 February 2023.
On 27 February 2023, the Applicant sent a separate email to the Respondent seeking an internal review of the Decision attaching a Certificate IV in Building and Construction (Building) (CPC40110) issued to him by Career Skills Australia on 13 February 2023.

[3]

Preliminary issues

Following the submissions and discussion on this issue, the Applicant advised that for the purpose of the review application before the Tribunal, he did not wish to rely on the Certificate IV from Career Skills Australia and confirmed that he relied only on the IOT Certificate IV included in his Application. There was no objection by the Respondent to the proposed course, and given that the Decision itself was limited to the IOT Certificate IV, the matter proceeded on that basis.
It was also clarified by the Respondent at the hearing that no further action had been taken in relation to the Notice of Intention to Cancel the Applicant's carpentry licence, but that the issue might be further considered by the Respondent following a decision in the current proceedings. It was not contended by either party that the Applicant's carpentry licence formed part of the Decision. Accordingly, whilst such licence, or the qualifications relied upon for it, may form part of the qualifications relied upon for the Applicant's contractor licence, I have limited my consideration in this matter to the IOT Certificate IV. Accordingly, I have not given further consideration to the Applicant's carpentry licence or to any other qualifications obtained by the Applicant, including the Certificate IV from Careers Skills Australia or to any material that solely relates to these issues.
It became evident at the hearing through the provision of emails sent by the Applicant, and was subsequently conceded by the Respondent, that the Applicant had sought an internal review of the Decision on or about 27 February 2023. This request appeared not to have been received by the Respondent. In any event, it was not disputed that the request for internal review of the Decision was not actioned by the Respondent within the statutory time frame provided by the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
Section 53(9)(b) of the ADR Act provides that an internal review is taken to be finalised if the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged. I am satisfied in the circumstances of this case that the Applicant did lodge a request for an internal review on or about 27 February 2023 and as a consequence of the Applicant not being notified of the outcome of the review within 21 days, the internal review can be taken to have been finalised at that time.
The Applicant lodged his review application with the Tribunal on 1 May 2023 and ticked the box to indicate that it had been lodged within the time allowed under the relevant legislation. It was contended by the Respondent that this application was lodged out of time, however the Respondent submitted that the Tribunal should extend the time in which the review application can be made as there is no prejudice to the Respondent. Whilst the Applicant did not acknowledge any confusion, the Respondent fairly acknowledged the potential confusion arising from the Applicant having been issued with the Decision and the Notice of Intention on the same day.
In the circumstances of this case, I am satisfied that to the extent that it is required, it is appropriate for the Tribunal to extend the period of time for the Applicant to lodge his review application pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and I extend the time for the lodging of this application to 1 May 2023.

[6]

Relevant legislation

The HBA regulates home building and specialist work within NSW.
The Respondent is empowered to grant contractor licences pursuant to s 19 of the HBA, in accordance with Part 2 (other than s 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW). Section 21 of the HBA authorises the holder of a contractor licence to contract to do certain residential building work.
Section 20(1)(a1) and s 20(1)(a2) of the HBA provide that an application for a contractor licence must be refused if the Respondent is not satisfied as to the matters of which the Secretary is required to be satisfied by s 33B and s 33C of the HBA.
Section 20(2) of the HBA was amended, with effect from 5 July 2021, to read: (2) The Secretary may, by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence.
Section 33C(1)(b)(i) of the HBA requires that a contractor licence must not be issued unless the Secretary is satisfied that "the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate, satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant".
Section 33D(1) of the HBA provides: 33D Additional requirements for obtaining supervisor and tradesperson certificates (1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant - (a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and (b) has had experience of such a kind and for such a period as the Secretary considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and (c) is capable of doing or supervising work for which the certificate is required.
On 15 December 2022, the Commissioner for Fair Trading, the Secretary at that time, published a notice in the Gazette under s 20(2) and s 25(2) of the HBA , specifying the qualifications and experience or additional standards or other requirements required to be held or met by the applicant for an endorsed contractor licence or supervisor certificate for general building work (the Instrument).

[8]

Applicant's evidence

The Applicant relied on his undated statement that was filed on or about 24 August 2023, together with a number of attachments. However, following the Applicant confirming to the Tribunal that he relied only on the IOT Certificate IV for the purpose of his review application, a large amount of material in the statement was no longer relevant and was not relied upon by the Applicant.
As a consequence, parts 1, 5, and 6 of the Applicant's statement were admitted into evidence, together with pages 8 and 9 (exhibit A1). Part 1 was admitted on the basis that it was conceded by the parties that the Applicant became aware that IOT was no longer operating in around late September or early October 2022, namely after the Application was lodged. Parts 5 and 6 of the Applicant's statement were admitted, except for those portions of Part 5 that specifically referred to Career Skills Australia. Pages 8 and 9 of the Applicant's statement, which included email responses from ASQA, were admitted on the basis that the Tribunal would consider the weight of the information provided, given that as at the date of the hearing, there was no evidence available as to the request made to ASQA by the Applicant. The Applicant did not rely on any of further material in his statement and consequently, none of the material following page 9 of the Applicant's statement was admitted into evidence.
The Applicant's statement makes reference to the decision of the Administrative Appeals Tribunal of Australia in Institute of Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 4127 (5 November 2018) (IOT Decision). The parties agreed that the registration of the IOT was cancelled in 2018 and agreed to the Tribunal having regard to the decision referred to by the Applicant. A hard copy of that decision was provided to the Tribunal with the consent of both parties.
The Applicant's statement contains a combination of evidence and submissions, and I have accorded appropriate consideration to both.

[10]

Further evidence relied upon by the Applicant

On 6 October 2023, the Applicant provided a series of emails between him and ASQA dated from 7 February 2023 to 15 June 2023. Having reviewed this material, and in the absence of any objection from the Respondent, I have admitted those emails into evidence (exhibit A2).
On 20 October 2023, the Applicant filed further material that included a document dated 12 October 2023 (12 October 2023 document) and the original "hard copy" of the IOT Certificate IV. In the 12 October 2023 document, the Applicant indicated that he had no additional material to submit. In addition to the IOT Certificate IV, the Applicant also provided a copy of the IOT Statement of Results. Whilst the IOT Certificate IV was referred to as the original "hard copy", both the IOT Certificate IV and IOT Statement of Results appeared to be identical to those attached to the Application except that the "hard" copies were in colour.
Whilst the Respondent has not objected to this further evidence filed by the Applicant, I am of the view that it does not fall within the scope of the directions made following the hearing, nor can it be characterised as evidence in reply to the affidavit of Ms Ivers.
The evidence that is sought to be provided in the Applicant's 12 October 2023 document also appears to suggest that the Applicant only became aware of the closure of IOT after he received the Notice of Refusal of his Application. This Notice was dated 7 February 2023. As referred to above, Part 1 of the Applicant's statement (exhibit A1) was admitted on the basis that it was conceded that the Applicant became aware of the closure of IOT in late September or early October 2022. This date was after the lodgement of the Application and prior to the Notice of Refusal.
Having regard to the basis of the admission of Part 1 of the Applicant's statement; the Applicant's limitation of the scope of his review application; and the orders and directions made following the hearing on 22 September 2023; I have not admitted the further evidence contained in the Applicant's 12 October 2023 document or attachments. In reaching this decision, I have had considered the principles expressed in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [4]-[5]. Accordingly, I give no further consideration to the evidence submitted by the Applicant in, and together with, the 12 October 2023 document. I have however considered any submissions made by the Applicant in that document.

[14]

Has the Applicant satisfied the Qualifications criteria specified in the Instrument

In the Application and in the proceedings before the Tribunal, the Applicant relied on the IOT Certificate IV issued on 9 September 2014 and signed by Mr Jack. As conceded by the Respondent, the IOT Certificate IV appears on its face to be valid. I accept that it appears on its face to comply with the references to "CPC 40110 Certificate IV in Building and Construction (Building)" under the heading "Qualifications or Examinations" in Column 1 of Schedule 1 - Table A of the Instrument. Further, the IOT Statement of Results appears on its face to include all of the units of competency listed in Table B of the Instrument.
As previously referred to, the parties agree that the registration of IOT was cancelled in 2018 and I accept the submission from the Respondent that there is limited information available as to the reasons for the cancellation of its registration.
The primary material before me relating to the de-registration of IOT is the IOT Decision which relates to an application by IOT to stay the ASQA decision to cancel its registration as an RTO under provisions of the National Vocational Education and Training Regulator Act 2011 (Cth). Whilst it is not pertinent to the current matter, the Tribunal ultimately refused the application by the IOT for a stay of ASQA's decision to cancel its registration.
Having regard to the IOT Decision, I accept the Respondent's submission that it records the following salient observations in relation to the IOT: 1. The IOT was first registered as an RTO on 17 February 2010, and from 1 July 2011, came under the jurisdiction of ASQA: at [2]. 2. IOT was purchased by Mr Khadar Roude from Mr Jack on or about 13 June 2015 and offered courses in building and construction: at [3] - [4]. 3. Following receipt of complaints, ASQA took action against the IOT and on 17 August 2018, notified the IOT of ASQA's decision to cancel its accreditation: at [5] and [11]. 4. The basis of the ASQA decision was that the IOT had failed to conduct adequate assessment, including recognition of prior learning assessments, of students to ensure they are competent against all the requirements of the training products; had failed to ensure that appropriate certification was issued only to qualified learners; and had failed to evidence that it had undertaken sufficient remedial action to bring itself into a compliant position [at 34].
It is apparent from the IOT Decision that the IOT was purchased from Mr Jack in 2015 and there is no evidence that Mr Jack was involved in the IOT after that date. It was not submitted by either party that the IOT Decision makes any reference whatsoever to the Applicant or to any qualifications or certificates issued by the IOT in 2014, including to the Applicant, and I accept that it does not. I am satisfied that the relevance of the IOT Decision is limited to those observations set out in the previous paragraph.
In his statement, the Applicant said that at the time he submitted his licence application, he was unaware that the IOT had closed. He stated that had he known this, he would not have submitted the Application with a qualification issued by a closed RTO. He said it was only later, during conversations with workmates about the licence and application process, that he learned the qualification might not be accepted by the Respondent. Subsequently, he searched the internet and discovered that the IOT had been closed in 2018.
As referred to previously, this part of the Applicant's statement was admitted on the basis that the Applicant became aware of the closure of the IOT in late September or early October 2022. This was after the lodgement of his Application and prior to the Application being refused.
In Part 5 of his statement, the Applicant indicated that he understood from his interactions with the Respondent after the refusal of his Application that there were certain concerns about his assessment from the IOT, including the time that it should take to complete a Certificate IV.
The Applicant stated that these interactions led him to doubt that the Respondent would accept his certificates and consequently, he made the decision to enrol in a new RTO, the Master Builders Association, as a contingency plan, and to begin the assessment process again. He indicated that the RTO had been in operation since 2008, and that it had been mentioned by a staff member of the Respondent, leading him to believe that it is reputable. He indicated that it would be a timeline of three months to obtain his Certificate III and then three months for the Certificate IV.
The Applicant made further submissions about RTOs in general and the challenge to students in being able to discern between good and "dodgy" RTOs. He noted that the uncertainty about whether the Respondent would accept a particular qualification, coupled with the lack of clear guidance, had resulted in a complete waste of time and money for him.
In his 12 October 2023 document, the Applicant indicated that he applied for his carpentry licence in 2015 and at that time, his IOT Certificate III was verifiable as the IOT was still in operation. It was submitted that he could not have anticipated that the IOT would close and that it is disappointing that certificates issued under the Australian Qualifications Framework are not accepted by the Respondent.
The email exchange between the Applicant and ASQA adduced by the Applicant after the hearing (exhibit A2) included a response from ASQA dated 11 February 2023. This response indicates that ASQA had carried out a search and that the Applicant's student records were not included in the records provided to ASQA by the IOT. The email went on to state that when RTOs close, "they are required to hand all records to ASQA. In this case however, we have not received the necessary information. This means that we cannot provide your study records."
The email goes on to indicate that for "any training completed after 1 January 2015", the Applicant should check to see if the records are held by the national Unique Student Identifier (USI) transcript service. I am satisfied that the Applicant's IOT Certificate IV is dated in 2014 and prior to 1 January 2015 and that based on the ASQA email, no USI would be available for the training relating to the IOT Certificate IV.
The email from ASQA refers to the possibility of the Applicant obtaining a certificate or statement of attainment from another RTO on the basis of prior learning.
In ASQA's separate email response of 20 March 2023, it was indicated that if the Applicant's former provider failed to provide ASQA with the Applicant's records upon their closure and USI data is not available, "then unfortunately there is no other avenue to go through to obtain your records". The email continued on to state that the Applicant could apply for Recognition of Prior Learning (RPL) with another training organisation and that if he met the requirements, a new RTO could issue him with a certificate or statement of attainment.
The email noted that the Applicant stated that he held the hard copy of his certificate and said as follows: "If your former provider has closed down, USI data is not available and ASQA cannot provide records, then the information in this certificate will not be able to be verified. This does not necessarily imply that you have not undertaken the training; it could be that the RTO failed to enter the data prior to their closure. In such instances, organisations can look up the details of the [RTO] on Australia's national register… in order to verify that the organisation was approved to deliver the relevant training and assessment at that time…. An organisation may grant recognition of a student's original certificate if that process verifies that the now closed RTO had the item on scope at the time the certification was issued, and they have no reason to doubt the authenticity of the certificate presented. They may also choose to supplement this process by conducting 'challenge testing' on the training product to test that the student is competent in the training product. On the other hand, if organisations have reason to doubt the authenticity of the AQF documentation provided, or that the student is not competent in the training product they claim to hold, in such instances an organisation may choose not to accept the student's evidence of competency. This is a decision for individual organisations to make taking into account all of the information described in this email, ASQA is not able to provide a private ruling on such matters."
Given the further emails provided by the Applicant, I place considerable weight on the responses from ASQA (exhibit A2), with the exception of the email response from ASQA dated 15 June 2023. This response largely relates to the USI and does not assist me in my determination.
The affidavit of Ms Ivers (exhibit R2) confirms that the registration of the IOT was cancelled on 5 November 2018. The Applicant conceded the IOT's cancellation in 2018 at the hearing before the Tribunal and this was not in dispute.
Ms Ivers' affidavit further confirms that she had searched the ASQA student records relating to the IOT and was not able to find any issue of an IOT qualification for the Applicant. The Applicant did not challenge that the IOT had not provided his records to ASQA but submitted that he had no control over this.
Having regard to all of the evidence, both from the Applicant's email trail and Ms Ivers' affidavit, I am satisfied that ASQA does not hold any student records from the IOT relating to the Applicant and that the available records do not show the issue of an IOT qualification to the Applicant. In making this finding, I accept that it was the responsibility of the IOT to provide records to ASQA and not that of the Applicant.

[15]

Consideration

The Tribunal in McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176 at [48] noted that "the overall purpose of the HBA is to protect consumers in the contracting for and the construction of residential buildings".
The Respondent submitted that the Tribunal, when considering the application before it, will need to balance the competing public interests in protecting NSW consumers by ensuring that people applying for building licences are both qualified and appropriately experiences against the private interest of the Applicant seeking an authority under the Act to operate as a builder in NSW.
As the Tribunal stated in Valdecon Group Builders & Developers Pty Ltd v Commissioner for Fair Trading, Office of Finance and Services [2015] NSWCATOD 147 at [19]: 19. Public interest is not defined in the Home Building Act. It can include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system - see Constantin v Commissioner of Police New South Wales Police Force [2013] NSW ADT AP 16 at 33. The decision maker must exercise the discretion promoting the objects and principles of the Home Building Act. The applicant's interest in having a contractor licence is subordinate to that of the public interest in ensuring public safety - see Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657.
I agree with the Tribunal's statement and accept that whilst the Applicant has stated that he has wasted time and money in relation to the IOT Certificate IV, the Applicant's interest in having a contractor licence in general building is subordinate to that of the public interest in ensuring public safety: Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657.
It is not in dispute that the registration of the IOT was cancelled in November 2018 and that this occurred after the date of the issue of the IOT Certificate IV, and before the Application was lodged. It is also not in dispute that the Application was not aware of the cancellation of the IOT when he submitted his Application that included the IOT Certificate IV. It was agreed by the parties that the Applicant became aware of the cancellation of IOT's registration in late September or early October 2022. As referred to previously, the Applicant said in his statement that had he known this at the time of submitting his Application, he would "not have submitted the application with a qualification issued by a closed RTO."
The Applicant did not provide any reasons as to why he made this statement, but he appears to be acknowledging the obvious difficulty in seeking to rely on a qualification that is not able to be verified by the provider. The Applicant also stated that he had made the decision to enrol in a new RTO, the Master Builders Association to begin the assessment process again, for both his IOT Certificate IV and his IOT Certificate III, and that this would mean he could reapply for his licence if this Tribunal dismissed his review application.
The Applicant did not adduce any independent evidence, such as course payment fees or materials relating to his obtaining of the IOT Certificate IV. It is possible due to the period of time that has elapsed since 2014 that the Applicant no longer holds such material, but he gave no evidence in relation to this issue. No other evidence was adduced by the Applicant as to the circumstances in which he had undertaken the IOT Certificate IV in 2014, such as where the course was conducted, the time taken to complete the course, or how the course was conducted.

Tang v Secretary, Department of Customer Service

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Court

Decision date

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Judgment (17 paragraphs)

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Legislation Cited (5)

Cases Cited (10)