Vocational Education and Training - registration cancelled - application to change registration denied - non-compliance with legislative regime, standards and national code - decision affirmed
Third, on 4 April 2018, it decided to reject under s10J of the ESOS Act an application by the College to change its registration on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).[1]
Notice of each of these decisions was provided to the College by letters dated 11 April 2018.
Each of these decisions is a reviewable decision in respect of which applications for review may be made to the Tribunal.[2]
The College has made such an application in relation to each decision. It seeks to have all of them set aside.
For the reasons which follow, I have instead decided to affirm each of those decisions.
In those reasons I will first address the two registration cancellation decisions and then address the CRICOS registration change decision.
[25]
ASQA, as the National VET Regulator under the NVR Act, may cancel an NVR-registered training organisation's registration if it is satisfied that it is appropriate to do so. This is subject to satisfaction of certain "natural justice requirements", the satisfaction of which is not in issue in this proceeding.[3]
Cancellation is, however, only one of a number of sanctions or remedies available to ASQA.[4] As such, and as the power to cancel is exercisable for the benefit of the public rather than as a punishment, it ought only be exercised where to do so reflects the minimum sanction necessary for the protection of the public interest.[5]
While the power of ASQA to cancel an entity's registration is not conditioned on establishing any particular non-compliance, it is conferred in a division of the NVR Act which "identifies the regulatory tools available to ensure compliance with the registration regime",[6] a division directed, in particular, to ensuring compliance with the "VET quality framework".[7] For example, under this Division, ASQA is given power to conduct audits to assess NVR-registered training organisation compliance with that framework.[8]
The VET quality framework includes, amongst other things, certain standards made by legislative instrument under s185 of the NVR Act. Those that currently apply are set out in Attachment A to the Standards for Registered Training Organisations (RTOs) 2015 (the standards). Each NVR-registered training organisation is obliged to comply with them.[9]
The objects of the NVR Act include:
(a) the regulation of vocational education and training using a standards-based quality framework;
(b) the protection of Australia's reputation for vocational education and training (VET);
(c) the protection of students undertaking or proposing to undertake Australian VET by ensuring the provision of quality VET; and
(d) the facilitation of access to accurate information relating to the quality of VET.[10]
[26]
ASQA, as the ESOS agency under the ESOS Act for NVR-registered training organisations such as the College, may cancel a registered provider's registration for any one or more specified courses for any one or more specified locations. There are several circumstances in which ASQA may exercise that power. One such circumstance arises when it believes on reasonable grounds that the provider is breaching or has breached the National Code of Practice for Providers of Education and Training to Overseas Students, a code made and in force under Part 4 of the ESOS Act.[11]
The National Code so made and in force, currently and at the time of the decisions under review, is the National Code 2018 (the code).[12]
As with the NVR Act, registration cancellation is only one of a number of sanctions or remedies available to ASQA for non-compliance with the code.[13]
The principal objects of the ESOS Act include:
(a) the protection of Australia's reputation for quality education and training services; and
(b) the complementing of Australia's migration laws by ensuring that certain persons, including those registered as a RTO under the NVR Act, collect and report information relevant to the administration of the law relating to student visas.[14] In this regard, information to be reported includes information about any suspension or deferral of a student's studies.[15]
[27]
In this proceeding, standing in ASQA's shoes, the Tribunal may exercise the ESOS Act registration cancellation power if it believes the College is breaching or has breached the code and if it has reasonable grounds for that belief.
I do believe that the College is breaching or has breached the code. Moreover, I conclude that the grounds for that belief are reasonable. I elaborate on the material (including findings of fact) on which I rely in arriving at that belief and coming to that conclusion when considering whether the registration cancellation powers should be exercised.
Accordingly, the ESOS Act registration cancellation power is now exercisable.
In terms of the NVR Act, the question of whether the registration cancellation power is now exercisable turns on whether the Tribunal, standing in ASQA's shoes, is satisfied that, in the circumstances under consideration, it is appropriate to do so.
This melds, somewhat, the two-stage process I have applied to the ESOS Act cancellation decision into one. Put another way, inherent in any conclusion that there is, or is not, capacity to exercise the registration cancellation power found in the NVR Act is a conclusion that it should, or should not, be exercised.
Nevertheless, as with the ESOS Act, regulatory compliance is an issue of relevance in determining whether the NVR Act registration cancellation power is exercisable. Given that the context in which that power appears is (as previously outlined) one directed to ensuring compliance with the "VET quality framework", the state of satisfaction that must be arrived at as a pre-condition to an exercise of the power is one that might well be arrived at in circumstances where the relevant NVR registered training organisation is not (or has not been) operating in compliance with an element of the framework (such as the standards). This is especially so where the relevant non-compliance is inconsistent with, or puts at risk the attainment of, the objects of the NVR Act.
So in relation to both the NVR Act and the ESOS Act, non-compliance can be a trigger to an exercise of the applicable registration cancellation power, albeit that non-compliance may be assessed differently - by reference to the standards in the case of the NVR Act and by reference to the code in the case of the ESOS Act.
[28]
In determining whether a registration cancellation power should be exercised two underlying considerations are of particular significance.
The first consideration concerns the likelihood of the College substantially complying with the regulatory regime within a reasonable time frame, and to thereafter remain in substantial compliance.[16] In essence, this consideration calls for an assessment of the risk of the particular registered training organisation not becoming and remaining substantially compliant; that is, the risk of recidivism.
A consideration of this risk is of significance given that the registration cancellation power is "surely available where the decision-maker has reason to believe an RTO is unlikely to substantially comply with the regulatory regime within a reasonable time frame, and to thereafter remain in substantial compliance."[17]
The second underlying consideration concerns the interaction of the registration cancellation power and the objects of the legislation which confers the power. Specifically, I will consider the effect of a decision to cancel or not cancel the College's registration on its students and on Australia's reputation, both nationally and internationally, as a provider of high quality VET, and the related public interests associated with those matters.[18]
[29]
There are a number of ways to approach an assessment of the recidivism risk (or, put another way, an assessment of the likelihood of timely and sustained substantial future compliance). The approach I have adopted involves a series of subsidiary considerations.
The first concerns the significance and extent of any College non-compliance before being put on notice of ASQA's concerns.[19] This is relevant to an assessment of the recidivism risk because it is an indicator of the attitude or approach the College would adopt to regulatory compliance were it to be left substantially to its own devices (as it would be, were it to no longer be facing the immediate threat of loss of registration in an industry context that "is partly self-regulating, with limited resources available to the Regulator to conduct audits"[20]). Attitudes displayed by the College in the past may well be displayed in the future, especially as there has been no change in its directors or shareholders since the College's initial registration under the NVR Act.
The second consideration concerns the significance and extent of any past non−compliance and the extent to which, and manner in which, such non-compliance has been rectified.[21] This is relevant to an assessment of the risk of recidivism as it is an indication of the College's capacity and willingness to implement remedial action which is both timely and effective to restore the College to a position of regulatory compliance.[22]
The third consideration concerns the significance and extent of any current non−compliance.[23] Current non-compliance is relevant to an assessment of the risk of recidivism as:
(a) non-compliance in the face of an immediate threat to its survival as an educational institution does not bode well for the capacity or willingness of the College to achieve and maintain regulatory compliance in the future, absent that threat; and
(b) it is suggestive of the extent to which changes made by the College since being alerted to its compliance issues are likely to be successful in its achieving and sustaining substantial compliance.
As an aside, I mention that the focus of this third consideration is on current non-compliance rather than on current compliance. "Tardy compliance, adopted by an RTO only against the background of the impending finality of cancelled registration, may be an unsatisfactory basis to conclude that its registration may appropriately be continued. The reason is that tardy compliance, implemented only in response to the immediate urgings of self-preservation, may not engender confidence of ongoing commitment to compliance and improvement."[24] Put another way, ""[b]elated compliance or compliance under compulsion does not necessarily assist the applicant."[25]
In each of these considerations I refer to the significance of non-compliance. To my mind that is to be assessed in the context of the objects of the NVR Act and the ESOS Act. Regard, in particular, ought be had to the impact non-compliance might have on the provision of quality VET to students and on Australia's reputation with respect to the provision of quality education and training services generally and VET more particularly.
[30]
What was the significance and extent of any non-compliance by the College before it was put on notice of ASQA's concerns?
[31]
Arguably, the College was at all times on notice of ASQA's concerns about compliance. Given its history with ASQA (which I elaborate on later), at all material times, the College would have been aware that regulatory compliance was essential to its ongoing capacity to offer tuition in the courses it was offering.
Nevertheless, prior to October 2017, the College's awareness of the need for compliance (and of ASQA's concerns to ensure compliance was maintained) may well have been relatively subliminal, when compared to the level of awareness that would have been induced as a result of events occurring after September 2017.
In early October 2017, the College was advised of ASQA's intention to cancel its registration under both the NVR Act and ESOS Act.[26] That advice and the decisions now under review arose out of the findings of two audits conducted by ASQA in August 2017, one with respect to certain standards and the other with respect to certain clauses of a predecessor of the code.
In terms of the standards, five categories were the subject of the audit. The College was found to be non-compliant with standards relating to four of those categories,[27] a finding which was accepted by the College[28] and not challenged at the hearing of this proceeding. I adopt that finding.
This non-compliance with the standards was significant. It was characterised by the auditor as critical. The College did not challenge the accuracy of that characterisation. This is not surprising given the nature of the non-compliance identified. For example, as a result of the accepted non-compliance, the auditor considered that one third of the College's students were not progressing in a manner that would enable them to complete the relevant training product, having regard to its expected duration. In both nature and scope, such a result reflects a significant inconsistency with a concern to protect students undertaking or proposing to undertake Australian VET by ensuring the provision of quality VET.
In terms of the code, while it did not apply in 2017, a predecessor of the code did apply (the 2017 code). The auditor characterised the College's non-compliance with the 2017 code as critical. Again, the accuracy of that characterisation was not challenged by the College.
Certain clauses of two parts of the 2017 code were the subject of audit. With respect to one of those parts, only two clauses were audited. The College was found to be non-compliant with both those clauses.[29] One such clause concerned formalisation of enrolment (Part D, standard 3). The other concerned adequate and appropriate staffing and facilities (Part D, standard 14).
As to the finding of non-compliance with the latter clause, the College was said not to have adequate resources, including facilities, equipment and premises required by the quality assurance framework for the courses for which it was registered. This conclusion was arrived at by the auditor partly in reliance on material submitted by the College in relation to two cookery courses for which it was registered at the time of the audit. In the month in which the College was advised of the audit results (October 2017) it removed those courses from its registration. In doing so the College stated that it would reapply to include those courses within its scope of registration "when it's ready to ensure access to sufficient equipment to support the learner cohort size".[30] I infer from this that the College had obtained registration for courses, and was preparing to accept enrolment into courses, in circumstances when it was unable to ensure that it could provide them to an adequate standard, given the resources and facilities at hand.
This inference finds support when regard is had to the nature of the arrangements which the College had put in place in terms of kitchen facilities. The facilities were located at premises which the College had sought in March 2017 to add to its CRICOS registration. While the College rather generously characterised the arrangements it had with respect to the facilities as a lease, upon review, what it had was an instrument expressed to be a licence, a licence which applied to shared facilities to which the College had no reserved access, whether at any particular time or for any particular quantum of students.[31]
I find that this represented non-compliance with the 2017 code requirement concerning adequacy of resources. I also find that this non-compliance was significant. Vesting in the College a capacity to offer overseas students enrolment into courses when it had not secured access to facilities essential for their adequate provision is inconsistent with a concern to protect Australia's reputation with respect to the provision of quality education and training services.
What I infer from these findings is that, in 2017, the attitude or approach of the College reflected a lack of either capacity or willingness to avoid operating in a state of serious non-compliance.
This inference is reinforced given that the College could hardly have been unaware in early 2017 of the importance of compliance. It had already had several interactions with ASQA concerning allegations of non-compliance. Its initial registration under the NVR Act in 2015 only occurred after it had provided evidence of rectification of non-compliance alleged in an audit conducted in 2014. Similarly, its initial registration under the ESOS Act in 2016 only occurred after provision of evidence of rectification of non-compliance alleged in an audit conducted in 2015. It has, in essence, been constantly on notice of the need for compliance.
As an aside, I note that the first batch of rectification material provided by the College (which I discuss later) includes a statement by the College that the role of student mentoring had been shifted from its "Internal auditor/consultant".[32] Given his identification in that material as internal auditor of the College, I infer that this was a reference to a Mr Agraja. Mr Agraja is a consultant to the College. The fact that the College had thought it appropriate to allocate such a significant role to a consultant, engaged only from time to time by the College, suggests, at the least, a lack of resources to address compliance adequately or a lack of willingness to do so.
[32]
Significance and extent of past non−compliance and rectification efforts
[33]
I turn now to address the significance and extent of the College's past non−compliance and the extent to which and manner in which such non-compliance has been rectified. In doing so I refer to two batches of "rectification" material provided by the College.
The first batch comprises material provided in purported rectification of the non-compliance identified in the August 2017 audits, being material considered in an updated audit report of 20 December 2017 with respect to 2017 code non-compliance and an updated audit report of 21 December 2017 with respect to standards non-compliance[33] (together, the 2017 rectification audit).
The overall conclusion of the 2017 rectification audit was that there remained serious non-compliance, despite the efforts at rectification reflected in the first batch of material. While the College's rectification efforts had resulted in the significance of the non-compliance being downgraded from critical to serious, non-compliance was nevertheless considered to subsist. In particular, the College was said to remain non-compliant with clauses 1.1, 1.2, 1.3, 1.7, 1.8 and 2.2 of the standards and 14.2 of the 2017 code.
As for:
(a) 1.1 and 1.2 of the standards, the College was required to adopt training and assessment strategies and practices consistent with course requirements so as to enable each learner to meet the requirements of each unit of competency, with the amount of training for each learner determined having regard to, amongst other things, the learner's existing skills and knowledge. In the rectification audit the focus of the non-compliance alleged with respect to these standards appeared to be on an absence of resources and facilities, a focus better expressed in terms of 1.3 of the standards.
(b) 1.3 of the standards, the College was, in essence, required to have trainers and assessors, learning resources and facilities sufficient to provide the relevant training and assessment. In the audit in 2017 the auditor had noted, in relation to the College's cookery courses, that there was no evidence that the College could provide adequate access to relevant kitchen facilities. The College's response was to remove the cookery courses from its scope of registration. However, the tourism, travel and hospitality training package courses remaining on the College's scope of registration still required certain facilities to which the College was said in the 2017 rectification audit not to have access. Those remaining courses were, in 2018, removed by the College from its scope of registration. From this, I infer that the College was non-compliant with the relevant standards in that it did, indeed, lack access to facilities necessary for the provision of adequate tuition in those courses.
(c) 1.7 of the standards, the College was required to determine the support needs of individual learners and provide access to services necessary for learners to meet course requirements. In the 2017 audit the auditor had said, by way of example, that one learner who had been enrolled for approximately five months at the time of the audit had not attempted any assessments and had only attended training once, with no evidence to demonstrate that the College had offered services to address the learner's progress failures. In response, the College claimed that it would strictly follow its policies and procedures and, in terms of the particular learner concerned, provided evidence suggesting that it had notified the learner of his unsatisfactory progress in October 2017 (that is, after the conduct of the audit). Absent evidence from the College as to how what it proposed addressed its non-compliance, however, it was, in my view, rightly considered in the 2017 rectification audit to remain non-compliant with the standard.
(d) 1.8 of the standards, the College was required to implement an assessment system that ensured assessment complied with course requirements and was conducted in accordance with certain principles and rules. Like the approach adopted in relation to 1.1 and 1.2 of the standards, in the 2017 rectification audit the focus of the non-compliance alleged with respect to this standard appeared to be on an absence of resources and facilities, a focus better expressed in terms of 1.3 of the standards.
(e) 2.2 of the standards, the College was required to, amongst other things, systematically monitor its training and assessment strategies and practices to ensure ongoing compliance with standard 1. In response to the findings in the 2017 audit the College produced checklists identifying monitoring activities that had occurred.[34] As concluded in the rectification audit, I find that that the production of checklists outlining past activities did not establish systematic monitoring and that the College was non-compliant with the standard, as evidenced by its non-compliance with clauses 1.3 and 1.7 of the standards.
(f) 14.2 of the 2017 code, the College was required to have provided adequate education resources and facilities. I make the same comments, and arrive at the same conclusion, as I did in relation to clause 1.3 of the standards.
The second batch of "rectification" material was provided by the College on 15 November 2018 in answer to directions of the Tribunal to provide material on which it relies in its review applications. This second batch of material was considered in what is characterised as an evidence review, as annexed to and referred to in an affidavit of 11 January 2019 of a Mr Scott, a principal regulatory officer in the employ of ASQA (the 2018 review).[35]
This second batch of material did little to improve the position from ASQA's perspective. In the 2018 review the College was said to not only remain non-compliant with the clauses with respect to which it was said to be non-compliant in the 2017 rectification audit but also non-compliant with standard 1.26, and with clauses of the code (1.2.4, 2.2, 8.9 and 8.12).
As for:
(a) 1.1 and 1.2 of the standards, it was said in the 2018 review that there was no evidence in strategies provided by the College that it had conducted any industry engagement. For reasons which will become apparent later, I find that the College was, indeed, non-compliant with the standards by reason of its lack of industry engagement (albeit that the non-compliance is, I believe, better expressed in terms of clauses 1.5 and 1.6 of the standards[36]).
(b) 1.3 of the standards, it was said in the 2018 review that the College had not provided evidence to demonstrate that it had sufficient qualified trainers and assessors. While not adopting this contention, I refer to it because, in responding to it, the College provided various trainer files, including a file with respect to a particular trainer it had apparently engaged with respect to a website development course.[37]
(c) 1.7 of the standards, it was said in the 2018 review that the College's training and assessment strategies did not identify course requirements. This rendered the College unable to identify when students required support, a difficulty compounded by a lack of clarity as to how the College monitored, amongst other things, student attendance. For reasons which will become apparent later, I find that the College was, indeed, non-compliant with this standard given that the determination of student support needs to meet course requirements presupposes the identification of those requirements and a means of measuring student engagement (or at least disengagement) by reference to student attendance.
(d) 1.8 of the standards, it was said in the 2018 review that it could not be confirmed that the College had implemented an appropriate assessment system with respect to its Diploma of Leadership and Management course[38] given extensive temporary changes to its incomplete course training and assessment document. Given that the College responded to this statement by simply referring to course materials and assessment tools for all its courses,[39] I find that the College had failed to comply with the standard in relation to the relevant course.
(e) 1.26 of the standards, the College was, in essence, required to ensure that transition with respect to a superseded course was undertaken within a year. It was said in the 2018 review that the College's transition plan with respect to a particular superseded course was too vague. I do not find that this constitutes non-compliance. It is difficult to see why a vague plan reflects a failure to observe a requirement to do something within a year.
(f) 2.2 of the standards, it was said in the 2018 review that the College had failed systematically to monitor its training and assessment strategies and practices, as evidenced by its non-compliance with various clause 1 standards. For reasons which will become apparent later, I find that the College was, indeed, non-compliant with this standard.
The non-compliances identified in the 2017 rectification audit and in the 2018 review, and which I have found to have existed, reflect adversely on the College's capacity or willingness to implement remedial action which is timely and effective.
In 2017 the College remained non-compliant despite its having accepted that it had been non-compliant with the standards to an extent characterised as critical. Thereafter, it had either continued to remain non-compliant despite having a prolonged opportunity to rectify or had managed to become non-compliant at a time when it was confronting intense regulatory pressures concerning its non-compliance (as is apparent from the 2018 review).
Moreover, certain of the non-compliances I have found to have existed were significant. I refer, in particular, to:
(a) the failure to engage with industry (expressed in terms of 1.1 and 1.2 of the standards);
(b) the failure to identify course requirements (1.7 of the standards; 8.9 of the Code);
(c) the failure to implement an assessment system that ensured assessment complied with course requirements and was conducted in accordance with certain principles and rules (1.8 of the standards);
(d) the failure to monitor its training and assessment strategies and practices (2.2 of the standards); and
(e) the failure to monitor and record course attendance (8.12 of the code).
Each of these failings had the potential to have a materially adverse impact on the provision of quality VET to students and, in so doing, had the potential to impact adversely on Australia's reputation with respect to the provision of quality education and training services generally and VET more particularly.
[34]
Significance and extent of any current non−compliance
[35]
I turn now to address the significance and extent of the College's current non−compliance. In doing so I refer to a third and fourth batch of "rectification" material provided by the College.
The third batch comprises material provided by the College in May 2019 (consisting of nine boxes, one folder and correspondence concerning public liability insurance) and material examined or obtained in connection with a compliance monitoring visit to premises of the College on 4 June 2019. This material was the subject of what was characterised as an evidence analysis, as annexed to and referred to in an affidavit of 18 June 2019 of a Ms Chiam, a lead regulatory officer in the employ of ASQA (the 2019 review).[40]
The fourth batch of material comprises material identified in an affidavit of Mr Agraja of 27 June 2019, provided in apparent response to Ms Chiam's affidavit.[41]
The first thing to note is that the College does not deny current non-compliance.[42] Indeed, in his closing address at the hearing of this matter, the College's representative admitted that there was current non-compliance. This admission was unsurprising given the evidence adduced at the hearing.
The second thing to note is that the College seemed to have great difficulty in identifying non-compliance. While it contends (as will be seen later) that it has a self-monitoring regime in place, that regime did not identify instances of material non-compliance until pointed out by ASQA. For example, in late May 2019 ASQA raised with the College the fact that its financial reports did not reflect any insurance expenditure. That resulted in correspondence which disclosed that the College had been operating since its inception without any public liability insurance[43] (apparently due to its having misunderstood the role of a strata title body corporate and its failure properly to investigate the issue).
On occasion, even when ASQA identified an issue of material non-compliance, the College's initial reaction appeared to be denial, followed by belated acceptance when that became, in reality, the only viable option. For example, in the 2019 review, Ms Chiam identified problems with the College's assessment processes in the light of certain specific examples of plagiarism. The College denied the validity of the identified examples. At the hearing, however, it became obvious that the examples Ms Chiam had identified were valid, so much so as to prompt an admission that the College had a systemic problem with plagiarism.[44]
The third thing to note is that neither the third nor fourth batch of material was considered by ASQA to address its concerns as to compliance.
As for the specifics of current non-compliance, it is said in the 2019 review to arise in the context of 1.1, 1.2, 1.3, 1.7, 1.8, 1.26 and 2.2 of the standards and 2.2, 8.9 and 8.12 of the code.
In terms of 1.1 and 1.2 of the standards, as with the 2018 review, non-compliance was alleged because of a failure to undertake industry engagement. As I stated earlier, such a failure is better expressed in terms of 1.5 and 1.6 of the standards. These clauses require that training and assessment strategies be informed by industry engagement, that a range of strategies for industry engagement be implemented and that the outcome of those strategies be systematically used to ensure industry relevance of its strategies and practices.
I find that there was non-compliance by the College with those standards. Mr Sesham admitted that there had been no industry engagement for at least two years with respect to all College courses other than the Diploma of Website Development.[45] Hence, the College's strategies could not have been informed by industry engagement and, even if they had been, the College's strategy for such engagement had not been implemented (given that the College's policy on industry engagement called for at least annual engagement).[46]
In terms of 1.3 of the standards, the College did (as I mentioned earlier) provide various trainer files. In the 2019 review it was alleged that there was non-compliance with 1.3 of the standards, partly because the file relating to the trainer engaged with respect to the College's Diploma of Website Development course revealed a lack of current knowledge and skills. While denying this allegation, on 19 June 2019 (less than two weeks prior to the hearing of this matter) the relevant trainer was replaced. The College contended that the replacement had the necessary competencies, knowledge and skills based on his work experience and his having undertaken (or undertaking) a diploma of website design.[47]
As for this replacement trainer's educational qualifications, Mr Sesham testified that the trainer had completed a particular diploma course.[48] This was incorrect. The trainer stated that he had finished only about a third of the course and that he would need to complete the course in its entirety before it could be said to have covered the content of the College's Diploma of Website Development course.[49]
In terms of experience, while I do not doubt that the trainer has some experience in website development, I find that it is limited.
In material dated 20 June 2019, the trainer described his experience as, in the period from "January 2018 to (Current) Freelance IT consultant",[50] and went on to identify three websites that he claimed to have worked on. As it transpired, he had developed none of those websites, his input being apparently limited to the provision of advice and the making of some programming amendments. He had, however, apparently undertaken some website design work not identified in the material he provided, but this seemed to be limited to work for family members.[51]
The limited nature of the trainer's website design experience is reinforced when regard is had to material provided by the trainer in March 2019. No mention is made in that material of such experience. Instead, in that material, he stated that he was a "Professional Engineer by vocation and qualified VET trainer/assessor and currently practising training and assessing profession in the vocational areas of engineering and Project management at various Govt funded TAFEs as well as private RTOs".[52]
I find that the engagement of this trainer to undertake the Diploma of Website Development course did reflect the College's non-compliance with 1.3 of the standards. His engagement did not mean that the College had sufficient trainers to deliver the relevant training and assessment. He was unable to deliver that training and assessment without contravening 1.13 of the standards. Under that latter standard, the College is required to have its training and assessment delivered only by persons who have, amongst other things, vocational competencies at least to the level being delivered and assessed, and current industry skills directly relevant to the training and assessment being provided. At the time of the hearing the trainer's education and experience was not such as to suggest that he then had the necessary competencies and skills. Indeed, the trainer's efforts to complete his own studies in website design reflected, I suspect, recognition of the need for enhancement of his competencies and skills.
In terms of 1.7 of the standards, the College initially rejected the contention, found in the 2018 review, that its training and assessment strategies did not identify course requirements. In the College's course progress and attendance policy and procedure,[53] those requirements were said to be clearly defined in the training and assessment strategy for each course.
In his evidence, after asserting that the requirements for each course were clear in both the policy and the strategy documents,[54] Mr Sesham was taken to the documents. He was unable to identify anywhere in them where the course requirements were specified. He eventually accepted that they were not so specified,[55] as did the College's consultant.[56]
As I stated earlier, standard 1.7 presupposes the identification of course requirements. The College cannot have determined student support needs to meet course requirements without first identifying the requirements. It did not do so. I find it was, as a result, non-compliant with the standard.
Also in terms of 1.7 of the standards, the College's training and assessment strategies indicated that students were required to meet computer literacy standards. This is reflected in the College's pre-enrolment documentation, which suggested that an assessment of digital literacy would be undertaken.[57] The College's consultant stated, however, that the assessment referred to in the form was not of digital literacy.[58] As such, I find that the College did not assess student digital literacy. It thereby placed itself in a position of non-compliance with 1.7[59] as it was unable to determine the support needs of individual learners.
As for 1.8 of the standards, as I mentioned earlier, it requires of the College that it implement a system that ensures that its assessments are conducted in accordance with certain principles and rules. Amongst other things, those rules and principles require that assessment results be comparable irrespective of the assessor involved and that the relevant assessor be assured that the relevant learner has the requisite skills, knowledge and attributes and has presented his or her own work.
I find that the College does not comply with 1.8.
Assessors at the College could not be assured that learners had presented their own work. In the 2019 review, as an example of plagiarism, a student's answers to an assessment were said to be identical to those found in the applicable trainer/assessor guide. This was denied by the College,[60] a denial initially echoed in evidence given by Mr Sesham.[61] Once taken to the documentary material, however, Mr Sesham acknowledged that the College had a systemic plagiarism problem,[62] despite stating that he did not know how many students had been found to have engaged in plagiarism as a result of checks implemented by the College after receipt of the 2019 review.[63] Later evidence given by the College RTO co-ordinator was to the effect that those checks revealed that 40% of the College's students had so engaged in plagiarism,[64] evidence consistent with a characterisation of the problem as systemic.
I note that students found to have plagiarised were required to resubmit assessments.[65] By simply mandating resubmission the College again failed to implement one of its own policies, one which stated that students suspected of unethical behaviour would be managed through disciplinary procedures.[66]
Amazingly, one student who refused to resubmit was nevertheless given a certificate of attainment with respect to a number of course units to which the assessments he had refused to resubmit related.[67]
Student assessment results could not be said to be comparable irrespective of the assessor involved. In the 2019 review it was revealed that a student had been given a score of 10 out of 10 for an assessment where his response to a question concerning legislation relevant to staffing involved the citation of foreign legislation addressing contract law in a non-Australian jurisdiction.[68] An assessor had given the student a perfect score despite the answer clearly not reflecting the sample answer provided in the applicable trainer/assessor guide.[69] Another student's assessment was considered to be competent despite the College now accepting that the material he had submitted was nonsense.[70] Some students were allowed to reformulate questions posed in assessment material so as to be conformable with their individual experience.[71]
In terms of 1.26 of the standards, the College was, in the 2019 review, said not to be in compliance with paragraph (a) of the standard, essentially because of a failure to provide certain information to students and defects in a transition plan. I do not find that this constitutes non-compliance. It is difficult to see why such failures or defects reflect a failure to observe a requirement to do something within a year.
As for 2.2 of the standards, I find that the College does not comply with the standard as it failed systematically to monitor its training and assessment strategies and practices so as to ensure ongoing compliance with standard 1.
Evidence for this finding is found in the failure of the College to comply with a number of the clause 1 standards. It is also found in what would appear to have been the College's response to the 2018 review (which also found non-compliance with standard 2.2).[72]
After the 2018 review the College sought to document various monitoring compliance efforts. Rather than assist in establishing compliance with standard 2.2, the monitoring documentation produced by the College served to reinforce a finding of non-compliance. Without finding any deliberate attempt to be dishonest, I was nevertheless left with the impression that the College's focus in adopting the documentation was on the appeasement of ASQA, rather than on reflecting the reality of its monitoring activities or policies.
For instance, the College adopted a compliance management schedule, seemingly in March 2019.[73] A task provided for in the schedule involved an internal audit of compliance, with the audit to be conducted in relation to all standards annually. Under the terms of the document, however, an annual audit was not feasible. Further, while the document called for an internal audit with respect to standard 1 compliance in January 2019 the person said by Mr Sesham to have conducted the audit denied doing so.[74]
The College provided a document headed "Systematic Monitoring".[75] It described monitoring activities said to have been undertaken by Mr Sesham and the College's consultant on each of four dates. One such date was in August 2018. The consultant, however, had given evidence to the effect that he was not engaged at that time.[76] Mr Sesham initially confirmed this,[77] then said that the consultant provided some oral advice only[78] and finally said the consultant was engaged at the time to undertake the specified monitoring activities.[79]
When it was put to Mr Sesham that the College did not have in place any system to check for compliance, his response was to the effect that the College needed to engage its consultant more "...so that we can focus and have the systematic monitoring every time".[80] I infer from this an acceptance of the College's failure to monitor its compliance systematically, i.e., an acceptance of non-compliance with standard 2.2.
In terms of 2.2 of the code, as I mentioned previously, the College was required to have and implement a documented policy and process for assessing the sufficiency of overseas student English language proficiency, educational qualifications or work experience. While the College would seem to have had a policy that required assessment of prospective student digital literacy (noting that its pre-enrolment documentation suggested that an assessment would be undertaken[81]), the policy was not implemented. The College's consultant's evidence was that the assessment referred to in the pre-enrolment form was not of digital literacy.[82] I find that it thereby placed itself in a position of non-compliance with 2.2 of the code.
As for 8.9 of the code, the College was required to have and implement a documented policy and process for assessing course progress that included requirements for achieving satisfactory course progress. I find that the College is not compliant with this requirement, given the failure to document course requirements discussed in the context of 1.7 of the standards.
Under 8.12 of the code, the College was required to have and implement a documented policy and process for monitoring and recording attendance of overseas students specifying, amongst other things, processes for recording course attendance.
Given substantive change in the College's practices claimed to have been made shortly before the hearing of this matter it is not possible to conclude whether or not the College was in compliance with the 8.12 requirement at the time of the hearing. What can be said, however, is that until a fortnight or so before the hearing it was non-compliant.
ASQA made a compliance monitoring visit to the College's premises on 4 June 2019. At the time of that visit (at 10:46am) 22 students were supposed to be in attendance at the College. Not one was present. This was so despite classes technically commencing at 9am. The College suggested that the reason for this was that most of its students, being Muslim, were celebrating the last day of Ramadan. Students did, however, wander in during the course of the day.[83] Celebrating the end of Ramadan did not, apparently, preclude attendance, just timely attendance.
An inference that the College had a lax attitude to attendance is reinforced when regard is had to student attendance rolls with respect to a roughly three month period commencing in February 2019[84] and to College practice (as opposed to College policy).
As for student attendance rolls, in none of them were the columns dealing with start time, end time or hours of attendance completed. This is because of an unwritten policy concerning student attendance then being implemented by the College. If a student was late to class, rather than reflect that in the column of the class roll specifying start times,[85] the relevant trainer was supposed to offer to stay back with the student.[86] Indeed, prior to June 2019, trainers were not instructed to record whether students were physically present.[87] Apart from the practical difficulties of actually giving effect to such a policy,[88] it reflected clear non-compliance with the requirement of 8.12 of the code that the relevant policy be documented.
I note that evidence was adduced to the effect that as from 5 June 2019 the College would record student attendance start and end times.[89]
As for College practice, prior to June 2019, student attendance records would be reviewed monthly.[90] This was despite the College's course progress and attendance policy and procedure requiring that this be done weekly.[91] This again reflected clear non-compliance with the requirement of 8.12 of the code that documented policies with respect to student attendance be implemented.
I note that the College claimed to have altered its practice as from 20 June 2019 so as to conform with its policy.[92]
The non-compliance I have found to exist is significant. I refer, in particular, to:
(a) the longstanding failure to engage with industry (expressed in terms of 1.1 and 1.2 of the standards);
(b) the longstanding failure to identify course requirements (1.7 of the standards; 8.9 of the Code);
(c) the failure to implement an assessment system that ensured assessment complied with course requirements and was conducted in accordance with certain principles and rules (1.8 of the standards), a failure "...which assumes particular importance in a regulatory framework that prioritises the integrity of assessment processes in the issue of qualifications";[93]
(d) the longstanding failure to monitor its training and assessment strategies and practices so as to ensure compliance with standard 1 (2.2 of the standards);and
(e) the failure until at least shortly before the hearing of this application to have and implement a documented policy and process for monitoring and recording student attendance (8.12 of the code).
Non-compliance such as I have particularised has the potential to have a materially adverse impact on the provision of quality VET to students. In so doing, it has the potential to impact adversely on Australia's reputation with respect to the provision of quality education and training services generally and VET more particularly.
As with the College's past non-compliance, the instances of non-compliance identified in the 2019 review and which I have found to exist reflect adversely on the College's capacity or willingness to implement remedial action which is timely and effective. The College remains non-compliant or fell into non-compliance despite a prolonged opportunity to rectify its practices and the immediate threat of registration cancellation. If the College cannot achieve compliance in circumstances such as these it is unlikely to do so in the future or, at least unlikely to do so promptly. It is suggestive of a material risk of continued non-compliance.
Presumably, in order to combat such a suggestion assurances were given that non-compliance will be addressed.[94] Similar assurances in the past, however, have not been honoured. For example, in response to ASQA's audit in 2017 the College undertook to strictly follow its policies and procedures.[95] As is evident from my discussion of its past and current non-compliances, it did not do so. Further, and by way of example, Mr Sesham testified that the College had put in place a plagiarism checking process since February 2019, using a product called "Grammarly".[96] A College trainer and its RTO co-ordinator testified, however, that he had not used "Grammarly" before June 2019.[97]
In support of the College's assurances, evidence was led which appeared to be directed to a contention that dramatic changes had been made within the College; changes which would provide comfort as to the College's ability to achieve and sustain substantial compliance.
This approach to past non-compliance emulates that considered by the Tribunal in the Australian Academy of Management & Science decision.[98] There the applicant was said to have made significant and substantial improvements, including the engagement of "new, experienced and capable, senior personnel", resulting in "significant improvements evident at audit."[99] As a result, the Tribunal limited the role past non-compliance played in its determination. Past non-compliance was said to properly inform "...a decision about prospective cancellation or suspension only to the extent that the evidence goes beyond generalities and reveals matters of material significance."[100]
Here, however, the College was, in 2017, and remained at the time of the hearing, a business effectively run by Mr Sesham. At all material times, Mr Sesham has been the sole director, sole shareholder, chief executive officer and "high managerial agent" (within the meaning of the ESOS Act) of the College.
Mr Sesham asserted that he was trying hard to have the College achieve compliance. I do not doubt this. This assertion, however, is made in a context of his admitted lack of relevant experience. He describes himself as "[a]n inexperienced person coming from a migration agent background, sole trader and at the same time no RTO experience, no qualification is there";[101] and he acknowledged that he is "not expert for the compliance issue".[102] Hence, for example, in explaining his inaction in relation to trainers who had marked as correct or competent student assessments that were clearly wrong or plagiarised Mr Sesham noted that he had "not done any disciplinary action before so I'm not experienced so I need to get in touch with the consultant and get the feedback...".[103]
Given his inexperience, Mr Sesham opined that, without a consultant, compliance would be impossible.[104] Yet there can be no guarantee that the College's capacity to engage consultants will be exercised. This is in a context where Mr Sesham testified that, for financial reasons, the College would not engage a regulatory compliance officer until its student cohort roughly doubled in size.[105] Even if and for so long as the College engaged a consultant, there can be no certainty that advice proffered will be heeded (as was the case in Australian Tertiary Academy decision[106]). Indeed, it is clear that the College has on occasion failed to heed its current consultant's advice.[107]
Also, unlike the position considered by the Tribunal in the Australian Academy of Management & Science decision:
(a) it is questionable whether the College has made significant and substantial improvements. I have no doubt that the College has attempted to introduce change. Many of those changes appear to have been directed to appeasing ASQA, however, rather than reflecting change actually made in College operations.[108] Some changes had not been implemented at the time of the hearing;[109]
(b) significant improvements in compliance have not become evident; and
(c) the evidence of non-compliance goes well beyond generalities so as to reveal matters of material significance.
Hence, while I have no doubt that changes have been made, I do doubt that they will amount to timely, substantial and sustained compliance.[110]
Mr Sesham has applied what would appear to be an abundance of entrepreneurial spirit to a field which is highly regulated and in which he admittedly has little experience. Such an approach to business carries with it risks. Unfortunately, those risks have crystallised.
[36]
Given my findings in relation to the various subsidiary considerations I have taken into account in assessing the recidivism risk, I conclude that there is a material risk of the College not substantially complying with the regulatory regime within a reasonable time frame and thereafter remaining in substantial compliance.
This weighs heavily against the College's application to have the registration cancellation decisions set aside.
[37]
I was urged by ASQA to find that there was a failure to satisfy the fit and proper person requirements.
I am not precluded from doing so merely because ASQA did not consider the issue when making the decisions under review.[111] Nevertheless, I do not address the issue.
First, it is unnecessary for me to do so, given the decision I have come to on other issues before me. Second, I am concerned that the College did not have an adequate opportunity to consider it. That is, I am concerned that it would not have been procedurally fair to the College for the Tribunal to address the issue.[112]
The issue was raised late and in the context of a protracted proceeding involving a legally unrepresented applicant. While it was briefly mentioned in Ms Chiam's affidavit provided roughly two weeks before the first day of the hearing of this proceeding, it was not raised in ASQA's amended Statement of Facts, Issues and Contentions provided at around the same time (let alone in its initial Statement of Facts, Issues and Contentions). When raised at the hearing, it was clear that the College misunderstood what was being put against it, characterising the issue in terms of a challenge to the integrity of Mr Sesham (which did not reflect the basis on which ASQA was seeking to have the issue addressed).
[38]
As I stated earlier, the second consideration underlying a determination as to whether a registration cancellation power should be exercised concerns the effect on the College's students and on Australia's reputation, both nationally and internationally, as a provider of high quality VET, and the related public interests associated with those matters.
Essentially, this consideration devolves down into a simple question: would the public interests reflected in the objects of the NVR Act and ESOS Act be served by the continuing registration of the College?
I have concluded that they would not be.
No doubt the College's existing students will be inconvenienced. This concern, however, is outweighed by other public interests which favour registration cancellation; and is ameliorated by the likelihood of the students having an opportunity to enrol in similar courses provided by other registered organisations.[113]
The imposition of a requirement to comply with the standards and the code and the reinforcement of that requirement by vesting "sanction" powers in ASQA reflects the public interests at work in having registered organisations operate at a satisfactory standard.
If registered organisations operate at a satisfactory standard, it is of benefit to students, the maintenance of Australia's reputation as a provider of high quality education and training[114] and the maintenance of "confidence in the integrity of the industry - including the confidence of other entities involved in providing services, the students who seek out the qualifications, and those members of the public who depend upon receiving qualified assistance from those students once they have completed their courses."[115]
Unfortunately, if registered organisations do not operate at a satisfactory standard (as is the case with respect to the College), the reverse is true. The "...public interest in ensuring that VET colleges operate at the required standard and that Australia's reputation, both nationally and internationally, as a provider of high quality VET is maintained... requires that colleges which remain significantly non-compliant after they have had a proper opportunity to rectify the areas of non-compliance, should not be allowed to continue as registered RTOs."[116]
Given my conclusion that there is a material risk that the College will continue to not operate at a satisfactory standard (i.e., that the College will not substantially comply with the regulatory regime within a reasonable time frame and thereafter remain in substantial compliance), the various public interests would be put at risk were the College to remain registered. Clearly, this weighs against the College's continued registration.
The fact that the non-compliance of the College, both past and current, reflects, to an extent, poor judgement and systemic problems adds further weight against the College's continued registration, from a public interest perspective. As stated by the Tribunal in the context of a stay application with respect to decisions made by ASQA under the NVR Act "...[t]he regulatory system was devised to protect consumers of these courses, and to protect the good name of Australian educational institutions 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."[117]
Another aspect of the public interest concerns deterrence; and this, too, weighs against the College's continued registration. Regard must be had not only to the risk of recidivism and the need for specific deterrence in the case of the College. Regard must also be had to the public interest in general deterrence, in the sense of "the need to promote compliance by other RTO's who might be influenced by how ASQA deals with a particular RTO."[118] Allowing an organisation to remain registered despite long standing, significant, non-compliance would be suggestive of a regulatory regime which fails to take the need for compliance seriously.
My conclusion is that the relevant public interests would not, on balance, be served by the College's continued registration. Given the College's sustained, extensive and significant non-compliance,[119] no other "sanction" (such as suspension or the making of binding directions)[120] would be sufficient to protect those interests. As opposed to other potential "sanctions", registration cancellation is appropriate in a context where, as here, an organisation "...is likely to experience ongoing difficulty in complying with the regulatory regime".[121] In this regard, "c_olleges which remain significantly non-compliant after they have had a proper opportunity to rectify the areas of non-compliance, should not be allowed to continue as registered RTOs."[122]_
Hence, as with the consideration directed to the risk of recidivism, the public interest consideration weighs heavily against the College's application to have the registration cancellation decisions set aside.
[39]
Conclusion as to whether cancellation power should be exercised
[40]
The power to cancel the College's registration under the NVR Act and ESOS Act should be exercised.
[41]
Under the ESOS Act certain persons, including a person being a registered training organisation under the NVR Act (an RTO), may apply for registration as a provider to overseas students of a course or courses at a particular location or locations.[123]
A person so registered can apply to add a course or courses at one or more locations to its registration.[124]
If that occurs, ASQA (as the "ESOS Agency" in relation to an RTO such as the College):
(a) may add the course or courses at the relevant locations to the person's registration if the person "meets the registration requirements";[125] and
The College applied in March 2017 to add six courses and two locations to its registration under the ESOS Act.[127] Apparently as a result of its decision to cease providing cookery and hospitality management courses, however, the College's application would now seem only to comprise a request to add two courses to its registration.[128]
Whatever the scope of the application, ASQA's power to grant it is contingent on the College meeting the registration requirements. In order for the College to have met those requirements a number of conditions need to be satisfied.[129] One such condition is that ASQA be satisfied that the College is complying, or will comply, with the code.[130] Standing in ASQA's shoes, I am not satisfied that it is so complying or will so comply.
As for my not being satisfied that it is complying with the code, I refer, in particular, to my conclusions relating to current non-compliance in relation to 2.2 and 8.9 of the code.
As for my not being satisfied that the College will comply with the code, I refer to my conclusion with respect to the risk of recidivism. While I have no reason to doubt the good faith of the College in its endeavours to achieve compliance with the code, I do have reason to doubt the capacity or willingness of the College to obtain and apply the resources that compliance with the code requires.
If, as I have concluded, the College has not achieved code compliance in the face of a long standing threat to its registration, it is difficult to be confident that it will achieve code compliance absent that threat. More specifically and in terms of a risk management approach[131], it is suggestive of a material risk of future non-compliance.
In so far as there have been any improvements to date in the College's level of compliance they would seem largely to have been a result of an intensive and iterative process involving ASQA as regulator. Given this history, management of the risk of future non-compliance would be likely to entail intensive, ongoing, regulatory supervision imposing a burden on the regulator which it ought not to have to bear, and vesting a benefit in the College to which it has no entitlement.
As the College's application for review of the decision to cancel its registration under the NVR Act has not been successful, I note that another registration requirement is also not met. It could not be said that I have no reason to believe that the College will not provide education of a satisfactory standard.[132]
Hence, I reject the College's application to have the Tribunal set aside ASQA's decision to reject the College's application to change its CRICOS registration and make a decision to grant that application in substitution for the decision so set aside.
[42]
The Tribunal affirms each decision the subject of review.
[43]
I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Chris Furnell, Senior Member
[16]Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority[2018] AATA 4875 at [40].
[52]
[18]Austwide Institute of Training Pty Ltd and Secretary, Department of Education and Training[2016] AATA 266 at [73]; Western Institute of Technology Pty Ltd and Australian Skills Quality Authority[2019] AATA 657 at [29]; Ivy Education Group Pty Ltd and Australian Skills Quality Authority[2013] AATA 138 at [103].
[53]
[20]Commonwealth of Australia v Restar[2016] FCA 657 at [40]. The self-regulatory nature of the industry is reflected in standard 2.2 which calls for RTO self-monitoring of compliance.
[54]
[22] See Ivy Education Group Pty Ltd and Australian Skills Quality Authority[2013] AATA 138 at [100] as to relevance of past non-compliance.
[55]
[24]Australian Academy of Management & Science Pty Ltd and Australian Skills Quality Authority[2013] AATA 530 at [134].
[56]
[25]Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority[2018] AATA 4875 at [45].
[27] T27, p183: the standards concerning enrolment (5.2, 5.2 and 5.3), support and progression (1.7), training and assessment (1.1, 1.3 and 1.8) and regulatory compliance and governance (2.2).
[59]
[31] Licence Agreement of 23 March 2017 made by the College with Bay Leaf Catering.
[60]
[36] 1.5. The RTO's training and assessment practices are relevant to the needs of industry and informed by industry engagement.
[61]
1.6. The RTO implements a range of strategies for industry engagement and systematically uses the outcome of that industry engagement to ensure the industry relevance of:
[62]
a) its training and assessment strategies, practices and resources; and
[63]
b) the current industry skills of its trainers and assessors.
[64]
[38] Being one of the two VET courses in which the College had students enrolled as at 18 June 2019.
[57] Audit rectification table exhibited to affidavit of Mr Agraja (being ExA4), p5 in which it is contended that Ms Chiam failed to understand the College's enrolment documentation (2019 rectification table).
[68]
[59] And potential non-compliance with standard 5.1 requiring the provision of advice to potential students about training products which takes into account their existing skills and competencies.
[69]
[66] Training and assessment policy and procedure [ExA3, p221].
[70]
[81] Audit rectification table exhibited to affidavit of Mr Agraja (being ExA4), p5 in which it is contended that Ms Chiam failed to understand the College's enrolment documentation (2019 rectification table).
[71]
[88] As noted in evidence of Ms Chiam see Transcript, p220.
[72]
[93]Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority[2018] AATA 4875 at [96].
[73]
[94] ExA4 [29.2], "insofar as there are any remaining alleged non-compliances, these will be promptly addressed..."
[74]
[98]Australian Academy of Management & Science Pty Ltd and Australian Skills Quality Authority[2013] AATA 530.
[106]Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority[2018] AATA 4875 at [98].
[78]
[108] I refer to my discussion concerning College documentation of its various monitoring compliance efforts. I also note efforts at industry engagement with respect to the College's website design course included obtaining statements from trainers employed by the College [ExR5, 50-54].
[79]
[109] For example, the move to Google Classroom incorporating an automated plagiarism check was due to take place on 7 July 2019.
[80]
[110] As was the position considered in Ivy Education Group Pty Ltd v Australian Skills Quality Authority[2013] AATA 138 [101].
[116]Ivy Education Group Pty Ltd and Australian Skills Quality Authority[2013] AATA 138 [103].
[87]
[117]Metro College of Technology Pty Ltd and Australian Skills Quality Authority unreported decision of Deputy President McCabe in application number 2015/6137, as cited in Sher-e-Punjab Pty Ltd and Australian Skills Quality Authority [2018] AATA 46 at [108].
[88]
[118]Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority[2018] AATA 4875 at [39].
[128] ExR1 [43] based on College letter of 13 July 2018.
[94]
[131]Raffles College Pty Ltd and Tertiary Education Quality Standards Agency[2015] FCA 734 [36] "...a risk management approach is an approach which addresses itself to the risk that a provider will be unable to comply with its obligations under the ESOS Act."
Legislation Cited (6)
Education Services for Overseas Students Regulations 2019
Services for Overseas Students Regulations 2001
Appeals Tribunal Act 1975
Services for Overseas Students Act 2000
Services for Overseas Students Regulations 2019
Vocational Education and Training Regulator Act 2011
(g) 1.2.4 of the code: under this clause, the College was required not to have provided any false or misleading information relevant to, say, itself or the courses offered by it. In the 2018 review it was said that there had been non-compliance by reason of a failure accurately to describe computer literacy course entry requirements. Computer literacy skills were said to be required "prior to graduation", suggesting (incorrectly) that they were not required as a prerequisite to course entry. I find that this constituted non-compliance with this clause.
(h) 2.2 of the code: under this clause the College was required to have and implement a documented policy and process for assessing the sufficiency of overseas student English language proficiency, educational qualifications or work experience. Again, it was said in the 2018 review that there had been non-compliance by reason of a failure accurately to describe computer literacy course entry requirements. I do not find that this constituted non-compliance with this clause. A misleading statement as to computer literacy requirements is not a failure to have and implement a policy and process.
(i) 8.9 of the code: under this clause, the College was required to have and implement a documented policy and process for assessing course progress that included requirements for achieving satisfactory course progress. It was said in the 2018 review that non-compliance with the clause arose out of the failure to identify course requirements outlined in the context of clause 1.7 of the standards. I accept this contention so that, as with clause 1.7, I find that the College was non-compliant with this clause.
(j) 8.12 of the code: under this clause, the College was required to have and implement a documented policy and process for monitoring and recording attendance of overseas students specifying, amongst other things, processes for recording course attendance. Again, non-compliance with the clause was said in the 2018 review to arise out of the failure of the College to identify clearly how it monitored student attendance (as had been outlined in the 2018 review in the context of clause 1.7 of the standards). Again, I accept this contention and find that the College was non-compliant with this clause.