THE CONSEQUENCES FOR THE APPLICANT OF THE REFUSAL OF THE STAY

1. Mr Syed's first statement of evidence identifies a number of grounds relied upon in support of the contention that there are serious financial risks to the Applicant if a stay is not granted.
2. It is submitted on behalf of the Applicant that if a stay is not granted it will contribute to the collapse of the Applicant and cause irrevocable financial losses.[42]
3. There is limited evidence before the Tribunal as to the overall financial health of the Applicant. For instance, there are no complete, up-to-date, or recent financial statements or management accounts.[43] All that is provided are unverified Profit and Loss statements for the months December 2017 to June 2018.
4. The Profit and Loss statements reveal that the Applicant's sole source of income is what is described as "Tuition Fee". These accounts reveal a mixed performance ranging from a net loss for the month ended 30 June 2018 of $69,601 through to a net profit of $44,949 for the month ended 30 April 2018. The Tribunal is left to speculate as to whether these Profit and Loss Statements record all income received by the Applicant from all sources (whether they are consolidated Profit and Loss Statements) or whether they only record income from its training and education business.
5. There is no balance sheet provided that enables an analysis of the working and long term capital position of the Applicant. The Tribunal cannot verify what capital the Applicant is operating with.[44] There is no evidence of what recourse it may have to credit facilities to enable it to survive in the interim. There is no information about shareholder funds or whether, for instance, there is any uncalled capital which the company could have recourse to. No evidence is provided as to what other if any assets it may have that support it. There are no historic financial statements that might enable the Tribunal to consider its long-term viability.
6. The absence of this information is most unsatisfactory. The Applicant contended that it can be reasonably projected that if the trend of declining revenue continues until the final hearing, it is likely the business will be insolvent before then.[45] Regrettably, there is just insufficient evidence to enable the Tribunal to determine whether this assertion is correct.
7. What does emerge from an analysis of the expenditure items in the Profit and Loss Statements is that salaries, wages and rent remain largely consistent. For example for the month ended 30 June 2018, salaries and wages were $39,424; rent and rates were $23,374. Total expenses tend to range within reasonably predictable limits.
8. No explanation was offered to the Tribunal as to why no proper financial statements, accounts and/or tax returns were produced in support of the stay application. Under taxation and companies legislation,[46] a corporation is required to keep proper books of account or as they are frequently described in this day and age "business records".[47] The failure to produce such books and records does not reflect well on the Applicant. The Tribunal is perplexed by this failure, given the fact that the matter was first heard on 6 June 2018 and at all times the Applicant has had a reputable firm of lawyers acting for it. Furthermore, at the hearing of the interim stay application, the Applicant was represented by highly competent and experienced counsel.
9. Given the unexplained failure to introduce into evidence before the Tribunal proper financial statements, accounts and/or tax returns, the Tribunal must consider what the consequences of that failure are and whether any, and if so what, inferences can be drawn from such failure.
10. This raises the issue of whether the rule in Jones v Dunkel (1959)[48] ("Jones v Dunkel") has relevance to and is applicable in tribunal proceedings. The operation of the rule is such that the failure to bring before the tribunal some circumstance, document (including a party's business records) or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serve to indicate as the most natural inference, that the party fears to do so, and this fear is some evidence that the document or witness, if brought, would have exposed facts unfavourable to the party.[49]
11. This consideration has been addressed in several tribunal decisions. A most comprehensive analysis was undertaken by Deputy President Forgie in Re Kumar and Minister for Immigration and Citizenship.[50] Several passages warrant reproduction. The Deputy President observed:

111. It follows from this view that the rule in Jones v Dunkel has relevance in tribunal proceedings. It is directed to assessing the probity or otherwise of the fact that a party has not produced certain material in certain circumstances. One aspect of procedural fairness requires the Tribunal to act on logically probative material. Therefore the rule in Jones v Dunkel is relevant.

112. I have also considered the relevance of the rule in Jones v Dunkel lest, contrary to my view, the analysis of the Tribunal proceedings as either adversarial or as inquisitorial has any relevance. I have reached the same conclusion and will explain why.

113. What Jones v Dunkel signifies in a truly adversarial context is that, should a person fail to produce material (to use a general word) that would be within his or her power to produce to support the fact he or she claims to be so and does not produce that material then, unless there is a rational and reasonable explanation for that failure, the failure itself has probative value. It has probative value because an inference can be drawn from it that, if produced, the material would not support his or her claim. If the proceedings of the tribunal are adversarial, there is no reason why the rule would not be equally relevant in determining probity of evidence of omission.

1. In a consideration of the application of Jones v Dunkel, the eminent jurist Sir Oliver Gillard, as a member of the Full Court of the Supreme Court of Victoria, in

O'Donnell v Reichard[51] ("O'Donnell v Reichard") made several useful observations. In considering the often cited passage of Windeyer J in Jones v Dunkel (referred to above) and the references in that passage from Wigmore on Evidence, Sir Oliver reproduced a portion of the decision in Ward v Apprice[52] as an example of its application where there was a failure to produce books. The passage concerned stated:

"If an action be brought by a shopkeeper for money due on the sale of goods, we never enforce him to produce his books; but if very slender evidence be given against him, then, if he cannot produce his books it brings a great slur on his case".

1. Sir Oliver noted that the effect of a party failing to call a witness (or produce other evidence such as a document) that would be expected to be available to such party and who in the circumstances would have close knowledge of the facts on a particular issue, would be to increase the weight of the proof given on such issue by the other party and to reduce the value of the proof given by the party failing to call the witness, or produce the document in evidence.
2. In O'Donnell v Reichard, Newton and Norris JJ concluded the weight of authority on this topic is as follows. Where a party, without explanation, fails to produce a document in evidence which it might reasonably be expected to produce, if the document would be favourable to them, then although the court may not treat it as evidence, it may as a matter of speculation think that what the document would have revealed would not have helped that party's case. This rule is equally applicable to a party's failure to call a witness. Should the court (or tribunal) draw that inference then it may properly take it into account against the party in question for two purposes, namely:
   1. in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken (or the document may have addressed); and
   2. in deciding whether to draw inferences of fact, which are open upon the evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken (or the document not produced could have addressed).
3. For the reasons articulated above, the Tribunal does infer that had the complete business records of the Applicant been produced, they would not have helped its stay application. Further, applying the observations of Sir Gillard, the failure to produce a complete set of business records on the part of the Applicant reduces the value that the Tribunal can place upon the limited records produced in evidence, namely the Profit and Loss Statements between the months of December 2017 and May 2018. Additionally, by reason of the above adverse inference being drawn, together with the scant nature of the other financial evidence produced, the Tribunal is unable to reach a conclusion concerning the capacity of the Applicant to meet its liabilities, whether such business is viable in the future and whether or not it may become insolvent prior to the final hearing and determination of this application.
4. The documentary evidence as it is does enable the Tribunal to conclude that there would be a considerable risk to the Applicant's employees. Paragraph 14 of Mr Syed's first Statement of Evidence identifies the 12 employees concerned and provides their job descriptions. The submission drafted by counsel for the Applicant states that they will be affected. Undoubtedly, they will. Unfortunately, the Tribunal is left to some extent to speculate as to what their fate may be.
5. In the Applicant's bundle of documents filed with the Tribunal there is a document referred to as a "Contractor Agreement" which appears to be signed by several employees of the Applicant. Clause 19 of the Contractor Agreement provides that either party may terminate the agreement for any reason at any time on giving two weeks written notice. Nowhere in the witness statements prepared by Mr Syed does he state what would happen to these employees in the event that the stay order is revoked.[53] Obviously, if there are no courses for them to teach pending the hearing and determination of this application, it is open to the Tribunal to conclude that their future with the Applicant would be in peril.
6. Additionally, there are 172 current students who will be affected if the decision is not stayed.[54] Arrangements would have to be made for them to attend other training organisations to finalise or complete the courses. Ensuring that these arrangements are undertaken and finalised for both the benefit of the students and the interests of the Applicant will of necessity involve some disruption to both parties. This factor is acknowledged by the Tribunal.
7. A countervailing consideration with respect to the current students is the question of the quality of tuition that they are currently receiving. Given the unanswered issues identified in the Final Audit Report, which have been canvassed to some extent earlier in these reasons, this is of much concern to the Tribunal.
8. The objects of the NVR Act and the ESOS Act are referred to. The provision of quality education, together with consistency of vocational education and training, is a dominant purpose of the relevant legislation. Whilst there may be a disruption to the students that arises from the cessation of the interim stay order, if ultimately they can be transferred to an institution where they obtain quality education, the long-term detriment to them may be limited. This is regrettably somewhat speculative and there is really no evidence one way or another that the Tribunal is able to consider on this topic.
9. There is also the issue of the lease commitments that the Applicant has entered into. Whilst copies of the relevant leases were filed with the Tribunal, no explanation of them was given in the two witness statements filed by Mr Syed. Further, nowhere in the submissions filed by the Applicant in support of the stay application was the Tribunal taken to any relevant clauses of those documents, nor their effect explained. The Applicant's sole director and its CEO have not given any evidence concerning the leases. One would have expected them to do so. In the circumstances, the Tribunal infers that their evidence would not have assisted the Applicant's case. Other than to read the provisions of the leases concerned and take them into account, the Tribunal is left in a vacuum about the effect revocation of the interim stay order would have on the Applicant's lease commitments. In this setting, the Tribunal will make some brief observations about the lease documents tendered by the Applicant.
10. The lease for the premises situated at Suite 40, Metro West Shopping Centre in Footscray has approximately one year remaining of its term.[55] There is a security deposit of $5041.66 held by the landlord. The rent is $55,000 per annum plus GST, with yearly increases pursuant to the CPI. There is no guarantor of the tenant's obligations under this lease. There is no evidence before the Tribunal as to what would occur if the Applicant had to cease trading in terms of its need for these premises. For instance would it simply abandon the premises or otherwise surrender them to the landlord? Have any approaches been made to the landlord to determine its attitude to the Applicant having to vacate the premises? There is no evidence as to whether it would be able to assign the lease concerned for the remainder of the term reserved, or what would happen to the security deposit if either of these events occurred.
11. The premises situated at 382-384 Lonsdale Street Melbourne are subject to a lease for a term of five years commencing on 1 January 2018.[56] The rent is said to be $107,100 per annum plus GST.[57] The lease's performance is guaranteed by Mr Zain.[58] There is no evidence from him concerning his obligations under that lease. However, it would appear that if the Applicant is unable to continue functioning, there is a risk that the Applicant would have no need for the premises and ultimately would default under the terms of the lease, if it was not possible to enter into an assignment of such lease with another tenant. There is no evidence as to the current rental market for premises such as these in Lonsdale Street. Once again, had the Applicant provided such evidence it would have enabled the Tribunal to reach a more conclusive view on this consideration.
12. The premises situated at 156 Cowper Street, Footscray are subject to a written agreement which apparently expires on 14th September this year. The document is described as "Contractor Agreement Renewal". It has obviously been drafted by someone without any legal training. Construing it as best one is able to, it has the form of a license agreement permitting the Applicant to use the premises and equipment and facilities contained in it.[59] It appears that the landlord is a company known as "Seal Group Pty Ltd" which appears to be connected with Mr Syed. Beyond this scant evidence, there is nothing more that the Tribunal is really able to consider concerning this tenancy or license agreement. Given the limited number of days that the agreement has to its expiration, the overall impact on the Applicant must be minimal if any.

1. The need to protect consumers and students is a matter of particular importance when assessing public interest impacts.
2. The Respondent quite properly referred the Tribunal to the reasons of Member Parker in Re Sher-E-Punjab Pty Ltd and Australian Skills Quality Authority.[60] It is useful to reproduce those sections in full as they provide an accurate statement of the task that the Tribunal must undertake in weighing up the public interest considerations in the course of a stay application:

102. It was contended by the ASQA that the Tribunal should take into account, as a fundamental element, the context set by the regulatory regime underpinning the Relevant Decisions, when forming an opinion about whether it is desirable to revoke the stay or to allow the stay to remain in place.

103. The ASQA relied on the observations of Downes and Jagot JJ in the Full Court of the Federal Court of Australia decision in Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another [2009] FCAFC 185 as follows:

[51] 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. In the case of a banning order [...] 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.

[52] 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 (R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329). The scheme discloses that a banning order protects the public. It is intended to protect the public from obtaining financial services from a person who (amongst other things) has not, or ASIC reasonably believes has not, complied with a financial services law or had had their Australian financial service licence suspended or cancelled (s 920A(1)).

[53] The structure of the scheme also indicates Parliament's assessment of the appropriate resolution of the competing interests of persons who may be affected by a banning order. Other than in limited circumstances a banning order cannot be made without giving the proposed recipient a right to be heard and to make submissions in private to ASIC... A banning order must be accompanied by a statement of reasons [...] If, and only if, ASIC makes a banning order is it required to make public that fact[...] For the AAT to form an opinion under s 41(2) of the AAT Act (that it would be desirable and in the "interests of any persons who may be affected by the review" to make an order staying or otherwise affecting the operation or implementation of ASIC's decision) these elements of the statutory regime, and the balance between the competing interests that they represent, must be treated as a fundamental element in the weighing of the competing interests.

104. It was contended by the ASQA that the protection of students and the reputation of the vocational education and training sector generally, are at the forefront of these legislative schemes comprising the NRV Act and the ESOS Act.

105. The ASQA drew the Tribunal's attention to s 4A of the ESOS Act which provides as follows:

4A The principal objects of this Act are:

(a) To provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and

(b) To protect and enhance Australia's reputation for quality education and training services; and

(c) To complement Australia's migration laws by ensuring providers collect and report information relevant to the administration of the laws relating to student visas.

106. The objectives of the NRV Act are set out in s 2A and provide as follows:

2A The objects of this Act are:

(a) to provide for national consistency in the regulation of vocational education and training (VET); and

(b) to regulate VET using:

i. a standard-based quality framework; and

ii. risk assessments, where appropriate; and

(c) to protect and enhance:

i. quality, flexibility and innovation in VET; and

ii. Australia's reputation for VET nationally and internationally; and

(d) to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia's social and economic needs for a highly educated and skilled population; and

(e) to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and

(f) to facilitate access to accurate information relating to the quality of VET.

107. The Tribunal also notes the legislated functions of the ASQA as set out in s 157 of the NVR Act. The ASQA is empowered, as the relevant regulator, to undertake enforcement action and to make decisions intended to promote and protect the students and the general reputation of the Australian vocational education and training sector, both nationally and internationally, and to ensure that registered RTOs and CRICOS providers are operating in compliance with their statutory obligations. The Tribunal also notes one of the specific objectives of the ESOS Act is to facilitate access to accurate information relating to the quality of vocational education and training. Further, s 15 of the ESOS Act specifically imposes a statutory obligation on registered providers not to engage in misleading and deceptive conduct.

108. The Tribunal notes and agrees with the observations of Senior Member McCabe in the Administrative Appeals Tribunal decision of Metro College of Technology Pty Ltd and Australian Skills Quality Authority (unreported)[34] in considering a stay application in relation to the cancellation of an RTO's registration under the NVR Act:

[10] But there is also the question of the public interest. The regulatory system was devised to protect consumers of these courses, and to protect the good name of Australian educational institutions overseas. Many students travel long distances from overseas [...] The regulatory regime assumes there is a public interest in ensuring these programs are properly run according to recognized standards. Failures to adhere to standards - particularly where those failures suggest systemic problems, poor judgment or an unwillingness to comply with the law - must be taken very seriously.

[...]

[16] [...] But I am troubled by the important questions of public interest that have been raised. If the decisions are affirmed, the students who are still enrolled, or who may enroll, will rightly feel their qualifications have been undermined. That may undermine the confidence in the regulatory system and the integrity of the Australian vocational education and training sector.

109. The Tribunal is satisfied there is a real risk that a number of the objectives of the legislative regime including the risk of damage to the reputation of the Australian vocational education and training sector and the risk of undermining and devaluing the qualifications issued by SPI, would not be met if SPI were permitted to continue operating for the time being as an RTO and CRICOS provider. The Tribunal considers that SPI's prospects of being found, at the final hearing, to have implemented a system of fabricating its student files and providing false information to the ASQA about that when it is audited is high.

1. There can be little doubt, based upon the evidence adduced by the Respondent that there is a real risk that a number of the objectives of the NVR Act and ESOS Act are undermined by the Applicant's non-compliance. The consideration of the evidence under "Prospects of Success" above is referred to and repeated. There is extensive evidence in the T documents, particularly the contents of the First and Final Audit Reports, that points towards non-compliance with the requisite Standards and the National Code. The areas of non-compliance have not been addressed by the Applicant. The evidence to date concerning alleged rectification of such non-compliance is scant and confined to 'Appendix A", which as noted previously, is inadequate.
2. The conduct of the Applicant poses the question whether the NVR Act and ESOS Act are being complied with, as well as the applicable Standards and the National Code made thereunder. If there are breaches of those statutes as alleged by the Respondent, this has a significant impact on the reputation of Australia in the world marketplace for its capacity to offer high-quality vocational education; and it places a question mark on the quality and integrity of training, education and assessment that is offered.
3. Additionally, potential students from all over the world, and from this country, run the risk of paying significant sums of money for courses that are not being properly taught, if such allegations are correct. One of the critical objects of this legislation is to ensure that existing and future students are not at risk of paying money and not obtaining the outcomes they have paid for. Consumer protection, in so far as it is applicable under these statutes, is of critical importance.
4. It is important that the students be protected, and the integrity of accredited training and assessment in Australia be guarded. In these circumstances the Australian public and the students participating in the relevant courses are entitled to the protection of the Respondent's decision, pending review by this Tribunal.
5. Therefore, this is a factor that must be taken into account in deciding whether or not to grant a stay.

THE CONSEQUENCES FOR THE RESPONDENT IN CARRYING OUT ITS FUNCTIONS DEPENDING ON WHETHER A STAY IS GRANTED OR NOT

1. The Respondent did not address this question in its submissions.
2. The Applicant submitted that there would be no adverse consequences for the Respondent in the event that the stay order was to continue. It made the point fairly that the Respondent will be required to and in fact can undertake ongoing monitoring in the event that the stay was continued.
3. Overall, the Tribunal accepts that there are limited consequences for the Respondent if the stay order continues. The Respondent can and no doubt will continue to monitor the performance of the Applicant if the stay order continues. Further, in the event that it is continued, the Respondent always has the capacity to return to the Tribunal and seek a revocation of the stay order if there is continuing non-compliance and/or breaches of any of the conditions attached.
4. Therefore, the Tribunal considers that this factor is of limited importance.

WHETHER THE APPLICATION FOR REVIEW WOULD BE RENDERED NUGATORY IF A STAY WERE NOT GRANTED

1. Neither party advanced much by way of argument concerning this consideration.[61]
2. The Applicant contended that if it ultimately succeeded at the final hearing but in the interim suffered "irreparable damage" as a result of revocation of the interim stay order, the application for review would be nugatory. The justification for this contention was that the purpose of the final hearing is to grant relief to a successful applicant and therefore avoid irreparable damage flowing from the decision under review. This contention obviously presupposes that the Applicant would become insolvent in the interim or its reputation so damaged prior to the final hearing that it could not "effectively recover commercially".[62]
3. The Tribunal has some difficulty with this approach for several reasons. Firstly, as noted previously, there is just insufficient evidence to conclude that the Applicant would become insolvent or its reputation would be so damaged. Apart from some bare assertions, there is no evidence that enables the Tribunal to reach a view one way or another, as to what if any, reputational damage might be suffered by the Applicant in the event that the stay order was revoked.
4. The Applicant invites the Tribunal to engage in considerable speculation on this topic. It is a matter that Mr Syed, Mr Zain and Mr Donkin could have shed some light on. Yet again, the unexplained failure to both introduce evidence from these witnesses and have them address this topic is troubling. Evidence could have been adduced about the marketplace for potential students seeking to undertake courses with an RTO, together with what effect the reviewable decisions would have on its capacity to attract future candidates. Similarly, evidence could be adduced on whether or not rival RTOs might exploit the Applicant's predicament if the interim stay order is revoked.
5. Overall, given the limited evidence, the Tribunal cannot place much weight on this factor.

1. The Applicant by the submissions filed through its counsel has identified two other relevant matters for consideration by the Tribunal. They are as follows:
   1. The nature of the non-compliance; and
   2. The Respondent's view of the history of the applicant's non-compliance.
2. Concerning the nature of the non-compliance, the Applicant contended that it is almost inevitable that in every compliance audit conducted by the Respondent, there will be some areas of non-compliance revealed. The Applicant submitted that the Respondent's contention that the Applicant's history of non-compliance shows "evidence of systemic problems, poor judgement and an unwillingness to comply with the law" is misplaced.[63] The Applicant argued that the more critical consideration is the Applicant's attitude to rectification and continued improvement, given the nature and effect of the identified problems. The Applicant submitted that the audit does not identify the Applicant as a dysfunctional or rogue operation, designed to flout the regulations or deny students education. Further, it is contended that any non-compliance history must be understood in the context of a small company with less than 200 students and 12 staff operating in a highly regulated environment without the support of a large compliance/human resources team.
3. Whilst to some extent this contention cannot be fully addressed without a final hearing of the matters in dispute, the Tribunal again refers to its analysis of significant evidence of non-compliance and a history of non-compliance. As noted above, there has been insufficient evidence provided by the Applicant to demonstrate that all instances of

non-compliance identified in the Final Audit Report have been addressed. 4. The Applicant has a very strong case to answer and has not done so, other than in a most cursory fashion. The contents of the Final Audit Report, which identify the failure on the part of the Applicant to comply with the applicable Standards and National Code, are extensive and have not been remotely adequately addressed. Whether the Applicant is a small company or not, it has an obligation to adhere to the requirements of those Standards and the National Code. This obligation is mandated by each of the NVR Act and the ESOS Act. Compliance with the law is not too difficult an obligation to impose upon a RTO. Therefore, the Tribunal cannot accept this contention on the part of the Applicant. 5. As for the second limb of the Applicant's contention, the Tribunal does not reach a conclusion one way or another concerning the Respondent's view of the history of

non-compliance on the part of the Applicant. It does so for several reasons. 6. The Tribunal does not have the evidence which would enable it to reach a conclusion about the Applicant's history of compliance or otherwise over the entire 12 years that it has conducted business. As is apparent from the content of the T documents, the Tribunal only has evidence concerning the audit most recently conducted by the Respondent on 3 to 6 October 2017. This audit has been the subject of two reports. Those audit reports identify significant failures by the Applicant to comply with the applicable Standards and the National Code. Those failures have not been adequately addressed by the evidence before the Tribunal in this application. It is this evidence upon which the Tribunal will make a decision concerning this application. 7. For these reasons the Tribunal does not find that there are other considerations that might weigh in the Applicant's favour of not revoking the interim stay order.

1. Upon a consideration of the material, the Tribunal concludes that the Applicant has a significant case to answer, which was exposed by the audit conducted between 3 and 6 October 2017, the results of which are recorded in the two audit reports. The Applicant has been unable to produce adequate evidence to the Tribunal that enables it to form a conclusion that it has prospects of success.
2. The Applicant has been on notice of the non-compliance revealed by the audit from as early as 11 December 2017, when a copy of the audit report was forwarded to the Applicant. The Applicant was afforded an opportunity to address the areas of non-compliance by providing additional evidence to demonstrate rectification of the deficiencies identified in that audit.
3. The subsequent correspondence between the Respondent and the Applicant together with the reviewable decisions on 4 May 2018 well and truly alerted the Applicant to the fact that it had to get its operation in order. It did not. As Member Maryniak QC in Trades College Australia put it, the Applicant has not put its "best foot forward" by evidence to show that it is well on the way to substantial compliance with the applicable Standards and National Code. Overall, the Applicant's evidence is of a general nature and simply lacks specific detail as to any significant, meaningful attempts at rectification of any of the extensive particulars of non-compliance identified as a result of the audit. Therefore, the Tribunal cannot realistically make an assessment in any way of the Applicant's prospects of success. Certainly, on the current state of the evidence before the Tribunal, it seems more likely than not to fail.
4. Of the remaining relevant factors identified by Downes J in Scott, the Tribunal considers that the public interest assumes primacy. This is consistent with the objects of the NVR Act and the ESOS Act. It is also consistent with the unanswered results of the audit which raise significant questions about the quality and integrity of the training education and assessment that is offered to the students who have paid tuition fees and enrolled for courses with the Applicant.
5. There is also the consideration of the fact that international students are paying significant sums of money for courses that may not have been properly taught. The consumer protection considerations are critical. There is also Australia's reputation in the international marketplace for higher and vocational education which must be considered as a matter of public interest. If the areas of non-compliance are not addressed, there is a potential for that reputation to be damaged.
6. As to the consequences for the Applicant of revoking the interim stay order, the Tribunal acknowledges such consequences do exist. Those consequences will be significant if the Applicant is forced to make its staff redundant. The Applicant may also default under the leases of the various premises occupied by the Applicant. There is also the effect on the Applicant's sources of income and continuing obligation for recurring expenditure which likewise cannot be ignored. However, the evidence on these impacts is scant at best. Therefore, the weight that the Tribunal can accord these considerations is correspondingly less than might otherwise be the case if admissible evidence on this topic was before it.
7. As to the contention of possible reputational damage to the Applicant, once again there is no evidence that enables the Tribunal to reach a conclusion on this topic. Further, if there is the prospect of such reputational damage as contended by the Applicant, the other considerations are such that they outweigh this consideration. Principally, these other considerations are the public interest grounds which have been addressed in several places throughout these reasons, both in the context of consumer protection considerations and Australia's international reputation for providing quality education.
8. As to whether the application for review would be rendered nugatory if the interim stay is revoked, once again the Tribunal is left to speculate. There is little evidence on this topic largely confined to submission rather than admissible evidence. Therefore the Tribunal cannot place much emphasis on it.
9. There are no other considerations that have any bearing either for or against revoking the interim stay order.
10. In conclusion, taking into consideration all the material that has been placed before the Tribunal, the absence of evidence adduced by the Applicant when compared with the significant evidence tendered by the Respondent, particularly the two audit reports and the Applicant's failure to properly address the findings of non-compliance, the public interest justifies revoking the stay order granted on 6 June 2018.

1. For the reasons articulated above the Tribunal revokes the stay order granted on 6 June 2018.

I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Cameron

...........................[sgd].............................................

[1] Those applications are numbered 2018/2656, 2018/2657, 2018/2658 and 2018/2659. A separate application has been made for each of the reviewable decisions identified in these reasons.

[2] Throughout these reasons the Respondent will be referred to as "ASQA."

[3] The four decisions concerned are contained in letters dated 4 May 2018 signed by Benn Gramola - Manager Regulatory Operations, Adelaide on behalf of the Respondent. They are documents T 61, 62, 63 and 64 of the T documents. They are also attached to each of the separate Applications for Review filed with the Tribunal and are documents numbered T 1, 2, 3, and 4.

[4] The terms of the Stay Order of 6 June 2018 are referred to for their full force and effect.

[5] The First Audit Report (VET) (CRICOS) (to provider) is dated 9 October 2017 and document T 52 of the T documents. The second audit report (VET) (CRICOS) (Final) is dated 14 February 2018 and document T 59 of the T documents.

[6] The application is to be found that document T 67 of the T documents; it was accompanied by supporting documentary evidence which is found at document T 60 of the T documents.

[7] The application and supporting material is to be found at document T 16 of the T documents.

[8] The application to renew the RTO registration is found document T 20 of the T documents. Such application was supported by evidence attached to an email from the Applicant to the Respondent which is document T 21 of the T documents. The supporting documentary evidence relied upon by the Applicant for the renewal of the registration is extensive and comprises many hundreds of pages.

[9] The letter seeking an extension of time to make the CRICOS renewal application is to be found in document T 28 of the T documents.

[10] The application to renew the CRICOS registration and supporting evidence is found in documents T 29, T 30 and T 31 of the T documents.

[11] Appropriate details of the exchange and reference to the documentary evidence establishing such exchange can be found in the Respondent's Statement of Reasons between paragraphs 30 to 33, inclusive.

[12] This account is derived from the Final Audit Report of 14 February 2018 being T 59 of the T documents at page 2652.

[13] The Notice of audit is document T 40 of the T documents. The contents of the document are referred to in their entirety for their full force and effect.

[14] The Notice of audit sent by the Respondent to the Applicant on 18 September 2017 is document T 43 of the T documents. It is referred to in its entirety for its full force and effect.

[15] The emails concerned are documents T 44 to T 51 inclusive, of the T documents. The evidence consists of approximately 400 pages of material.

[16] The audit report is document T 52 of the T documents.

[17] In this section it identifies each employee or officer of the Applicant who was interviewed by the auditor during the conduct of the audit.

[18] The email is document T 53 of the T documents.

[19] The email and the documentary evidence are documents T 54 and T 55 of the T documents. The documentary evidence consists of approximately 816 pages. Given the sheer volume of documents comprising the evidence, the Tribunal will not attempt to describe it other than to say it has been examined and includes a variety of material which is generated by the Applicant to enable it to provide the courses that it offers and in some instances also arise in the ordinary course of running its business.

[20] The email and the further evidence are documents T 56 and T 57 of the T documents. They are approximately 168 pages.

[21] The email from Mr Garai to the Respondent of 19 February 2018 is document T 58 of the T documents.

[22] Indeed, the Respondent at paragraph 40 of its submission stated that the further evidence accompanying the email of 16 February from the Applicant to the Respondent "was not accepted by the Respondent as it was provided too late".

[23] The Final Audit Report of 14 February 2018 is document T 59 of the T documents. It comprises 62 pages.

[24] These details are taken from the Final Audit Report which is T 59 in the T documents at page 2665 (being page 16 of 62 in the Final Audit Report of 14 February 2018.)

[25] This analysis largely is derived from the helpful consideration of this topic contained in the Respondent's Statement of Reasons.

[26] [2009] AATA 798 at [4]. Whilst this decision was in the context of a review of a decision by ASIC exercising its power of disqualification, the observations made by Downes J are equally apposite to a stay application under the legislation being considered in this case.

[27] Two very helpful recent decisions of Member Parker in this Tribunal concerning stay applications of decisions to cancel the registration of an RTO under the NVR Act and the ESOS Act are also referred to for their full force and effect, namely Re Sher-E-Punjab Pty Ltd and Australian Skills Quality Authority [2018] AATA 46 and Re Australian College of Vocational Studies Pty Ltd and Australian Skills Quality Authority [2018] AATA 1088. They provide extremely useful guidance in the application of these relevant factors in the setting of this legislation. They warrant careful reading.

[28] See the reasons of Member Maryniak QC in Re Trades College Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 1360.

[29] [2013] AATA 199.

[30] See for instance: Re Kirby and Collector of Customs (1989) 20 ALD 369 per Bulley J, Senior Member Beddoe and Member Horrigan.

[31] Paragraph 2 of the Order made by the Tribunal on 6 June 2018 is referred to in its entirety for its full force and effect.

[32] Annexure 5 to the First Witness Statement of Mr Syed.

[33] A TGA Summary, document T 65 of the T documents (page 2730), produced on 27 June 2018, shows Mr Donkin as the CEO.

[34] The email concerned from Dennis Meehan is document T 56 (page 2480) of the T documents.

[35] A consideration of the rule in Jones v Dunkel (1959) 101 CLR 298.

[36] The very useful decisions of Senior Member Redfern (as she then was): Re Oaklands and Australian Securities and Investments Commission [2011] AATA 199 and Re Commonwealth and Quirke [1986] AATA 57; 9 ALD 92 at [95]. Senior Member Fice in Re Gurkhas Institute of Technology and Australian Skills Quality Authority [2017] AATA 1018 reaches a similar view.

[37] [2018] AATA 1360 at [19].

[38] In Mr Syed's second statement of evidence dated 11 July 2018, he does correct paragraph 8 of his first statement and concedes that he is giving evidence on behalf of the Applicant. However, in the paragraph clarifying and/or correcting his first statement, he says that he has given evidence in other cases as an expert. Surely, given his prior experience as an expert in compliance requirements in the education sector, he should be expected to understand the obligations of a witness and the requirement to produce evidence to the Tribunal to an acceptable standard, namely by the provision of appropriate particulars of the Applicant's compliance with the Standards or the Provisions of the National Code; the requirements of which he is presumably familiar.

[39] This is the first entry in the table constituting "Appendix A". It has been derived from the relevant portions of the Final Audit Report which specified each Standard or provision of the National Code with which the Applicant was non-compliant.

[40] It should be recorded that Mr Cox on behalf of the Respondent placed considerable emphasis on this portion of the Final Audit Report and the failure of the Applicant to furnish any evidence to the Tribunal that demonstrated any non-compliance had been rectified.

[41] See paragraph 29 of the "Applicant's Submissions on Stay Application" filed in support of the stay application.

[42] See paragraph 10 of Mr Syed's First Witness Statement. In paragraph 17 of that statement he says that if the stay order was not continued the Applicant would not be likely to be able to meet its liabilities and in the event that it was not continued, significant monthly losses would be incurred.

[43] No taxation returns for any year have been provided. It would have been of significant assistance to the Tribunal if for instance taxation returns and a comprehensive set of financial statements were produced for say, the last three years. They would then provide the Tribunal with a historical account of the Applicant's financial performance in every respect which would enable a more accurate assessment to be undertaken of the financial impact on it in the event that the stay order was revoked. This failure to produce an up-to-date set of financial statements, accounts or taxation returns is all the more difficult to comprehend given that most businesses in this day and age use, as a business record-keeping system, any one of the readily available software packages that can be bought over-the-counter in any office supplies outlet. They are extremely helpful in undertaking an appraisal of a business's performance.

[44] Of course if financial statements were produced and prepared in accordance with the relevant Australian Accounting Standards, there would be the usual notes to accounts that would also provide considerable assistance to the Tribunal in assessing the effect that cessation of a stay order might have on the Applicant. Such notes are frequently a source of considerable assistance in an evidentiary sense.

[45] This contention is found in paragraph 31 of the Applicant's Submissions on the Stay Application prepared by its counsel.

[46] It will be recalled that sections 1305 and 1306 of the Corporations Act 2001 provide:

A book kept by a body corporate under a requirement of this Act is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book.

A document purporting to be a book kept by a body corporate is, unless the contrary is proved, taken to be a book kept as mentioned in subsection (1).

(1) A book that is required by this Act to be kept or prepared may be kept or prepared:

(a) by making entries in a bound or looseleaf book; or

(b) by recording or storing the matters concerned by means of a mechanical, electronic or other device; or

(a) because of this Act, a book that this Act requires to be kept or prepared is prima facie evidence of a matter; and

(b) the book, or a part of the book, is kept or prepared by recording or storing matters (including that matter) by means of a mechanical, electronic or other device;

a written reproduction of that matter as so recorded or stored is prima facie evidence of that matter.

Unlike the business records provisions of the Evidence Act 1995 (Cth) which apply only to proceedings in a court, these sections provide that books kept by a body corporate are admissible in any proceedings including before a Tribunal. The combined effect of these sections is that business records are admissible as evidence in this proceeding and are prime facie the evidence of any matter stated or recorded in it. The Tribunal can look beyond the face of the document if it is justified to do so in the circumstances. It should be borne in mind that it is always open to a party to adduce evidence to counter the prima facie evidence of those matters stated in the business record or book.

[47] The provisions of section 69 "business records" and the broad definition of "business" and "record" contained in the Evidence Act 1995 (Cth) are referred to. Such legislation is generally seen as remedial, intended to remove the problems of proving certain facts in business situations, so it is to be given broad scope. Additional facilitative provisions also exist in other legislation such as section 25A of the Acts Interpretation Act 1901 (Cth) which provides for the mode of producing computer stored records, including computer generated books of account and financial statements. Whilst the Evidence Act 1995 (Cth) only applies to proceedings in a court (a federal court) it does not mean that the relevant business records legislation cannot in appropriate cases provide guidance for the admissibility of business records and recourse to them for the purposes of establishing facts before the Tribunal.

[49] This is a portion of an often cited passage of Windeyer J in Jones v Dunkel at page 320. The rule is explained in paragraph [1215] of Cross on Evidence 9th Edition J. D. Heydon. The learned author summarises eleven "principles" of the rule. They warrant careful reading. The first principle warrants repeating: "Firstly, unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party's case."

[50] [2009] AATA 124; (2009) 107 ALD 178. Paragraphs [91] to [116] are particularly helpful and referred to in their entirety for a comprehensive analysis on this topic.

[51] [1975] VicRp 89; [1975] VR 916.

[52] (1704) 6 Mod Rep 264 per Hold CJ.

[53] Counsel's written submission at paragraph 32 simply states that the staff of the Applicant will be affected by the "closure of the business". This contention presupposes that the business will indeed close if the interim stay order is revoked. Presumably, it will be redundancy. However, nowhere in the witness statements of Mr Syed does he in fact say that. Once again the evidence is extremely scant.

[54] Details of current students' enrolment by course and number, is contained in Annexure 6 to the first witness statement of Mr Syed. He also refers to this number of students at paragraph 16 of that statement.

[55] The term of the lease expires on 20 July 2019.

[56] Item 8 of the Schedule to the lease on page 19 of that document.

[57] Item 6 of the Schedule to the lease on page 19 of that document.

[58] Mr Zain is apparently the sole director of the Applicant. (See the "Organisational Chart" which is Annexure 5 to the first witness statement of Mr Syed. His signature appears on page 32 of the lease under the heading "Guarantor".

[59] The document itself at clause 5 states "The Contractor has arranged for the Principle to use the premises at 156 Cowper Street, Footscray fitted with equipment and facilities in Item 1 of the Schedule 1 to this Agreement for Technical Education Australia Pty Ltd." (Item 1 of Schedule on the next page of the document is blank.)

Clause 6 states "the Contractor agrees to provide all the facilities and equipment set out in Item 1 of Schedule 1".

[60] [2018] AATA 46 at [102] to [108].

[61] The Respondent at paragraph 71 of its submission asserted that the Applicant does not appear to contend that the review will be rendered nugatory if a stay is not granted. The Tribunal cannot accept this contention when one looks at the submissions of counsel for the Applicant which address this question. The Applicant's contentions are limited but nonetheless they were made.

[62] This contention is contained in paragraph 40 of the Applicant's submissions. Only two paragraphs of the submissions deal with the consequences if the application was rendered nugatory, namely paragraphs 39 and 40.

[63] This contention is made in paragraph 74 of the Respondent's submissions filed with the Tribunal.