Victorian Institute of Technology Pty Ltd v Administrative Appeals Tribunal

1. The interlocutory application is dismissed.
2. The proceeding is adjourned for hearing at 10:00am on Wednesday 9 March 2022.
3. The Applicant file and serve written submissions limited to 20 pages minimum 12 and a half point line spacing by 10:00am on Friday 4 March 2022.
4. The Second Respondent file and serve written submissions limited to 20 pages minimum 12 and a half point line spacing by 12:00pm Tuesday 7 March 2022.
5. The parties file a joint list of authorities by 10:00am.
6. The costs of the interlocutory application be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCELWAINE J: 1 Before the Court today is an urgent interlocutory application by the Victorian Institute of Technology (the Applicant) against the second respondent, the Tertiary Education Quality and Standards Agency (the Agency), that was initially formulated as: "an immediate interlocutory stay on condition one." 2 To understand that application, I briefly set out the following uncontroversial background facts. 3 The Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) provides for the registration of providers of education services to overseas students. By s 10B of the ESOS Act, the Agency may at any time impose a condition on the provider's registration or vary or remove a condition of the provider's registration. 4 On or about 31 August 2020, the Applicant applied to the Agency under the ESOS Act for renewal of its registration as a provider of higher education services to overseas students. On 3 December 2021, but not communicated until 8 December 2021, the Agency decided to refuse the Applicant's application for renewal of its registration under the ESOS Act with effect from 18 July 2022 - a date which corresponds with the expiry of its current registration. 5 At the same time, the Agency imposed five conditions upon the Applicant's current registration, and with immediate effect. Presently I am only concerned with condition 1, the effect of which is that the Applicant must not allow any overseas student to be newly enrolled or commence in any of its higher education courses with effect from the date on which the Applicant is notified of a decision to reject its application under s 10E of the ESOS Act. That provision is concerned with applications by a registered provider for renewal of registration to provide a course or courses at a location or locations if the provider meets the registration requirements. 6 The Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision not to renew its registration and also sought a stay of condition 1 as imposed upon its extant registration. As I understand it that application has been listed before the Tribunal for hearing between 23 and 27 May 2022. 7 In December 2021, the Tribunal heard the application for a stay of several conditions, including condition 1. For reasons published on 27 December 2021, a member of the Tribunal refused the application for the stay made pursuant to s 41 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). As is well understood, that provision confers power upon the Tribunal "if of the opinion that it is desirable to do so" to make "such order or orders staying or otherwise affecting the operation or implementation of the decision" for securing "the effectiveness of the hearing and determination of the application for review." 8 From that decision of the Tribunal, the Applicant on 11 February 2022 filed an originating application for judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and or for review pursuant to s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act). On five grounds, the Applicant contends that the Tribunal erred in law in its decision to refuse the stay application. In addition to the interlocutory relief sought, the Applicant seeks the following orders: (1) An order that the decision of the Tribunal be set aside; (2) In lieu of the decision of the Tribunal, there be substituted an order that there be a stay on condition 1 until the hearing and determination of the application to review the decision of the Agency; (3) Alternatively, an order remitting the case to be heard and decided by the Tribunal in accordance with law, either with or without the hearing of further evidence. 9 During the interlocutory hearing on 1 March 2022 the Court was greatly assisted by comprehensive written and oral submissions from Mr Williams AM QC on behalf of the Applicant and Mr Wood SC on behalf of the Agency. Time does not permit the Court to summarise the respective arguments in detail. As the transcript of the proceeding reveals, the Court invited counsel to proceed to address what appeared to the Court at least to be the critical matters for the interlocutory decision. In summary those matters are: Firstly, whether it is in contention that this court has jurisdiction pursuant to the Judiciary Act, s 39B, to review the decision of the Tribunal and, if it does, it relieves this court of the necessity to decide, at this preliminary stage, whether the application brought pursuant to the ADJR Act is competent. Secondly, if there is jurisdiction to review, whether this court has power to make an interim order of the type sought by the Applicant by reference to each of the alternatives as formulated during oral argument. Thirdly, if there is jurisdiction and power, whether in the exercise of the Court's discretion it is appropriate to grant the relief that the Applicant seeks. 10 On the first question, counsel agreed that the Court's jurisdiction to review the decision of the Tribunal has been regularly engaged. 11 It is the second question that was the subject of the detailed arguments put to the Court by counsel for the parties. Mr Williams, for the Applicant, correctly commences with the general proposition that this court has power by reason of s 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) to grant interim or interlocutory relief in order to preserve the subject matter of a proceeding or to ensure that a proceeding commenced in it is not rendered inutile by the passage of time. As Mr Williams correctly observes, that section confers power in relation to all matters in which this court has jurisdiction "to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of writs of such kinds, as the court thinks appropriate." 12 It is settled law that this is a wide power, although one subject to jurisdictional and other limitations. A limitation that is important for present purposes is that the power is constrained to the making of categories of orders "which are capable of properly been seen as appropriate to be made… in the exercise of its jurisdiction": Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 622, Deane J. Another, is that there must be a claim for final relief within the jurisdiction of this court in order to found an application for interlocutory relief: put another way, if the Applicant does not have a legal right to final relief, it follows that there is no right to interlocutory relief: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. 13 I have concluded that the only relief that the Applicant will be entitled to in the event that it makes out its contention is that the Tribunal decision be set aside, and the matter be remitted to the Tribunal for determination according to law. In my view this court does not have power to order, in the event that the Applicant succeeds, that there be a stay on condition 1 until the hearing of the review decision that is currently before the Tribunal. My reason for that conclusion is that the Tribunal is invested with statutory jurisdiction pursuant to s 41(2) of the AAT Act which jurisdiction turns upon the forming of the subjective jurisdictional fact by the Tribunal, and not this court, that it is desirable to grant a stay after taking into account each of the statutory criteria that are referred to in the provision. 14 That leaves for consideration whether this court has the power to grant either a stay of condition 1, as formulated in the application for interlocutory relief in the originating application, or to grant either of the two alternatives that were formulated on behalf of the Applicant in oral submissions: (1) The first alternative is to the effect that the second respondent forthwith remove condition 1 and not reimpose it until the final hearing and determination of the application before this court or until further order. (2) The second is that the second respondent vary condition 1 such that it takes effect from the final hearing and determination of this proceeding or further order, whichever comes first. 15 In my view, and despite the able submissions of Mr Williams, each of these alternatives is in the nature of an interlocutory mandatory injunction the effect of which is to require the Agency to take action of the type referred to. Neither is correctly characterised as an order that restrains the Agency from taking action of a particular type. In substance I accept the submissions of Mr Wood that there are several material obstacles to acceptance by this court that it has power pursuant to s 23 of the FCA Act to make the interlocutory orders that the Applicant seeks. 16 First, a broad order that "there be an immediate interlocutory stay on condition 1" is, in substance, a stay upon the operation of the ESOS Act. It also has the consequence that it constrains the ability of the Agency to exercise other statutory powers that are plainly open to it. An example, given by Mr Wood in argument, is s 83 of the ESOS Act which confers power upon the Agency to take certain types of action against a provider "if the Agency believes on reasonable grounds" that the provider, or an associate, is breaching or has breached the Act or certain prescribed standards. The categories of action are set out in subparagraph (3) and they include the imposition of "one or more conditions on the registered provider's registration", the suspension or the cancellation of the provider's registration for any one or more specified courses or at any one or more specified locations. Whilst I accept that a stay granted by the Tribunal may have this consequence that is as the result of the exercise of a specific statutory power that is conferred upon a merits review Tribunal and which is not conferred upon this court. 17 Second, the application for a general stay of the operation of condition 1 must address why it is open to this court to grant that interim relief when it is not open to this court to grant a stay as a component of final relief in the event that the application succeeds. Mr Wood described acceptance of this submission as "fatal" to the grant of a stay. In doing so he drew to the Court's attention the decision of O'Bryan J in Mohammed v Secretary, Department of Education, Skills and Employment [2020] FCA 900, particularly at paragraphs [13]-[15]. In that case the Applicant sought judicial review pursuant to the ADJR Act of a decision made by the respondent to cancel the Applicant's provider approval pursuant to A New Tax System (Family Assistance) (Administration) Act 1999 (Cth). By an interlocutory application the Applicant also sought orders pursuant to section 15 of the ADJR Act that the cancellation decision be stayed until the respondent delivered a decision pursuant to its internal review procedures. The application for the interim stay was refused. The Court accepted the respondent's submission: 13 …that section 15 of the ADJR Act does not empower the court to stay the cancellation decision pending the internal review, as the internal review is not a legal or equitable right which is being pursued or protected by the originating application; it is collateral to the legal remedy being pursued by the Applicant through the originating application… 18 In explaining why the Court accepted that proposition, O'Bryan J said: 15 While s 15 of the ADJR Act is stated in general terms, the power given to the court must be exercised for the purpose for which it is conferred. It is implicit in both the text and context of s 15 that the power to suspend or stay the operation of an administrative decision is a power that is in aid of the power of the court to review the administrative decision under s 5 of the ADJR Act. It is not a freestanding power, but a power that arises after an application for review has been made to the court and is for the purpose of the conduct of the review. 19 Of course, as explained by O'Bryan J at [18], that case was distinctly different in that the application for stay of the administrative decision "was unrelated to the determination of the primary application" that was made under the ADJR Act. Here it may be said, at least in a broad sense, that the application for the stay is related to the relief sought in the originating application in that if a stay is not granted, then the effluxion of time may render this present proceeding futile. In the present case the answer to that point of distinction is that the Applicant has not sought in this court to review the decision of the Agency for legal error. In the particular circumstances of this case a broad stay as sought by the Applicant collides with the statutory scheme of the Act pursuant to which the condition has legal effect unless and until it is set aside. Presently the only review application that the Applicant has brought to have the condition set aside is the merits review application that is before the Tribunal. 20 Third, this case is unlike some to which I was referred in argument whereby an order is made which has the effect of restraining the implementation of an executive decision: Levi v The Companies Auditors and Liquidators Disciplinary Board [2013] FCA 19. In that case, Farrell J restrained the regulatory authorities from taking action to implement the decision under review for a period of 28 days or until the Tribunal determined the interlocutory application for a stay that was remitted to it. The difficulty which the Applicant faces in this case is that condition 1 has effect according to its terms: there is no further step that is open to be taken, or which must be taken, by the Agency in order to give effect to it. 21 Fourth, I was referred to the decision of Richards J in Harding v Sutton [2021] VSC 741 which concerned an application for an interlocutory injunction to suspend the operation of mandatory vaccination directions that were given pursuant to various statutes in order to deal with the consequences of the COVID-19 pandemic. Ultimately the court concluded that it did not have power to suspend the operation of a statute by the grant of an interlocutory injunction. The particular reasoning of the court to which I was referred, by analogy, to this case is set out at paragraphs [140]-[146]. In that reasoning the court accepted that it did not have power to grant the interlocutory relief which: 140 …neither sought to restrain any person from doing any act or thing, or require a person to do any act or thing. Rather, they sought the 'suspension' of the 'operation' of the impugned directions in so far as they affect the Applicant plaintiffs. 22 Richards J relevantly reasoned at [143]-[144] as follows: I accept the submission of the defendants that the Court has no power to suspend the operation of Impugned Directions in so far as they affect the applicant plaintiffs. The Impugned Directions were given by Professor Sutton under s 200(1)(d) of the Public Health Act, and were given force and effect by other provisions of that Act. In particular, s 203(1) makes it an offence to fail or refuse to comply with a direction of an authorised officer given to a person in the exercise of a power under an authorisation given under s 199 of the Public Health Act. The authorities referred to by the plaintiffs did not meet the argument that the full and ample jurisdiction of the Court does not extend to a power to stay or suspend the operation of a statute. I am persuaded by the reasoning of Payne J in Council of the City of Ryde v Azizi that, absent some enabling statutory provision, the Court has no such power. The High Court's exposition of the inherent supervisory jurisdiction of a Supreme Court of a State in Kirk v Industrial Court of New South Wales does not suggest otherwise. (Citations omitted.) I agree with her Honour's reasons. 23 In reply submissions, Mr Williams took the Court to the decision in Council of the City of Ryde v AZIZ [2019] NSWSC 1605 (AZIZ), particularly paragraphs [170]-[175]. In doing so he addressed the Court's attention to reasoning in various cases to the effect that an interlocutory injunction may be granted, to protect the interests of individuals, who are affected by the operation of legislation. In AZIZ the court appears to have accepted the broad proposition that it could not enjoin the operation of or grant a stay in relation to the application of a statute, but it could enjoin individuals from taking steps pursuant to the exercise of statutory power. Mr Wood, when afforded a further opportunity to respond, correctly in my view, submitted that in this case the Applicant does not seek to enjoin the Agency from implementing the decision: that decision was made some time ago and it is currently the subject of the Applicant's application for review to the Tribunal. 24 Accordingly, and for these reasons, I have concluded that I do not have power to grant a stay of the character set out in the originating application of the Applicant. In reaching this conclusion I accept the submission put by Mr Wood that there are several cases in this court which appear to have assumed that this court, at least upon an application brought pursuant to the ADJR Act, has power to grant a stay of the operation of the impugned administrative decision: Otter Gold Mines Ltd v Deputy President Forrest (AAT) [1997] 47 ALD 89 at 92, Seymour v Migration Agents Registration Authority [2006] FCA 649; Seymour v Migration Agents Registration Authority [2007] FCAFC 5; Duncan v Companies and Auditors Liquidators Disciplinary Board [2006] 155 FCR 572; and Kumar v Secretary, Department of Social Services [2019] FCA 202 at [9]. However the difficulty with those cases, as correctly submitted by Mr Wood, is that the relevant views were expressed in obiter dicta or the point was not the subject of argument or challenge. 25 I turn next to each of the alternative orders sought by the Applicant as framed during oral argument. The difficulty with each is that they require the Agency to take positive steps to either remove condition 1 and not reimpose it or vary it such that its commencement is deferred. The primary objection to those alternative orders that was made by Mr Wood, and which I accept, is that they are incoherent with the statutory scheme and in particular s 10B(2) which provides: The ESOS agency for the provider or registered provider must use a risk management approach in deciding whether to impose, vary or remove a condition. 26 In my view it is not possible for this court, in the exercise of its general power to make orders pursuant to s 23 of the FCA Act, to do so in a way that is inconsistent with specific statutory provisions which regulate the exercise of the power that is in issue. I accept the submission of Mr Wood that either of the alternative orders would require the Agency to remove or amend condition 1 without undertaking the "risk management approach" in the exercise of the permissive statutory power that is conferred at s 10B(1) of the ESOS Act. Fortunately, in the context of this application for urgent interlocutory relief, I need not consider the meaning and particular operation of that phrase which was considered by Wheelahan J in King Educational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 3) [2021] FCA 692. 27 A further reason why it is not in my opinion open to use the general power conferred by s 23 of the FCA Act to make either of the alternative orders is that it is plain that the Agency does not have a duty, which may be compelled by the grant of mandatory interlocutory relief, to revise or alter condition 1. 28 For these reasons I dismiss the Applicant's application for interlocutory relief. 29 That brings me to the question of when the originating application may be listed. I do not doubt that it is urgent for the reasons set out on behalf of the Applicant. Not only is there the pressing question of the loss of prospective students, but also the position of students who have already enrolled and the quite severe adverse financial consequences for the Applicant if this proceeding is not dealt with swiftly. To that end I discussed with counsel whether they would be able to prepare their respective cases and to present them at 10:00am on Wednesday 9 March 2022. I was advised that this date can be accommodated. Accordingly, I will hear Counsel as to the making of procedural orders primarily directed to the exchange of written submissions. I certify that the preceding thirty-one (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.