Australian Competency Training for Industry and Vocational Employment Pty Ltd v Training and Employment Recognition Council [2011] QCATA 340

CITATION: Australian Competency Training for Industry and Vocational Employment Pty Ltd v Training and Employment Recognition Council [2011] QCATA 340 PARTIES: Australian Competency Training for Industry and Vocational Employment Pty Ltd (Applicant/Appellant) v Training and Employment Recognition Council (Respondent) APPLICATION NUMBER: APL067-11 MATTER TYPE: Appeals HEARING DATE: 13 July 2011 HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 14 September 2011 DELIVERED AT: Brisbane ORDERS MADE: The application for leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – ADMINISTRATIVE REVIEW – where the applicant was a Registered Training Organisation under the Vocational Education, Training and Employment Act 2009 – where the applicant did not notify the National Audit and Registration Agency of changes to the control of the organisation immediately after they occurred, in contravention of the Act – where the respondent required the applicant to apply for registration, and subsequently audited and cancelled the applicant’s registration – where the applicant sought a review of that decision at QCAT – where the Member confirmed the respondent’s decision – where the applicant seeks leave to appeal -- 1 of 5 -- 2 that decision on the grounds that the Member made errors of law and fact – whether the decision that the applicant was in breach of the Act and was required to apply for registration was lawful – whether the audit conducted by TVET was lawful – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, ss 20, 28(2) Vocational Education, Training and Employment Act 2009, ss 26(2), 31, 32, 37 Australian Competency Training for Industry and Vocational Employment Pty Ltd v TVET [2011] QCAT 40, cited Minister for Immigration and Ethnic Affairs v Liang 185 CLR 259, cited APPEARANCES and REPRESENTATION (if any): APPLICANT: D Wells of Counsel RESPONDENT: J M Horton of Counsel REASONS FOR DECISION President [1] In this matter the Appeal Tribunal which heard the matter on 13 July 2011 was comprised of QCAT Senior Member Ms Susan Booth, and me. Ms Booth has since given notice of her intention to resign from QCAT, and that she will not be returning to the Tribunal. In the circumstances I have changed the constitution of the Appeal Tribunal so that I am the sole Member1 for the purpose of deciding the matter. [2] The Australian Competency Training for Industry and Vocational Employment Pty Ltd (ACTIVE) was a Registered Training Organisation (RTO) under the Vocational Education, Training and Employment Act 2009 (the Act). In April of 2009, the director of ACTIVE, Ms Justine Gerry, resigned and Ms Mandy Reid was appointed. [3] Pursuant to s 26(2) of the Act, RTOs are required to notify the National Audit and Registration Agency of changes to the control or management of the training organisation immediately after they occur. ACTIVE notified the Agency of its change of director on 3 July 2009, several months after the resignation of Ms Gerry. 1 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 168. -- 2 of 5 -- 3 [4] The Agency’s delegate at the time,2 the Technical and Vocational Education and Training Australia Ltd (TVET) informed ACTIVE that it was in breach of the Act and that it did not meet the requirements for registration, and was therefore required to apply for registration. ACTIVE’s registration was conditionally approved and an audit was conducted to establish whether ACTIVE complied with the National Standards for Registration. [5] ACTIVE’s registration was subsequently cancelled because it failed to establish that it met the requirements for registration in accordance with the National Standards for Registration. [6] ACTIVE sought a review of this decision at QCAT. The learned Member found that a substantial change to the control or management of ACTIVE had occurred, that ACTIVE was in breach of s 26(2)(b) of the Act, and the procedure adopted by TVET resulting in the cancellation of ACTIVE’s registration was consistent with the requirements of the Act. The learned Member confirmed TVET’s decision. [7] ACTIVE now seeks to appeal that decision on the grounds that the learned Member erred in finding that: a) TVET’s decision of 3 August 2009 that ACTIVE was in breach of the Act and was required to apply for registration was lawful; and b) The subsequent audit conducted by TVET was lawful. [8] As ACTIVE is alleging that the Member erred on questions of mixed law and fact, leave to appeal is required.3 [9] Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [10] In reviews of administrative decisions, the reasons of a decision-maker should not be excessively scrutinised; see, Minister for Immigration and Ethnic Affairs v Liang:4 … [T]he reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. … [A]ny court reviewing a decision … must beware of turning a review of the reasons of the 2 Since 30 June 2011 the Agency’s delegate has been the second respondent, the Training and Employment Recognition Council. At the commencement of the appeal hearing it was substituted for TVET as the respondent. The parties agreed that no practical difficulty, or impediment, arose in the appeal through this circumstance. 3 QCAT Act, s 142(3)(b). 4 185 CLR 259 at 272. -- 3 of 5 -- 4 decision-maker upon proper principles into a reconsideration of the merits of the decision. [11] ACTIVE alleges that the learned Member erred in finding that TVET’s decision of 3 August 2009 – that ACTIVE was in breach of the Act and was required to apply for registration – was lawful. ACTIVE alleges that this decision failed to comply with requirements of ss 31 and 32 of the Act and effectively resulted in the cancellation of ACTIVE’s registration without affording it an opportunity to respond. [12] TVET concedes that it did fail to comply with the procedure set out in the Act but says that, in any event, its later requirement that ACTIVE apply for registration was a lawful exercise of power as it did not meet the requirements of the National Standards for Registration. [13] The role of a Member in the review jurisdiction is to consider the decision of the administrative body as a whole to ensure that the decision was the correct and preferable one.5 The Tribunal must conduct the review according to its substantial merits.6 [14] The learned Member found that TVET’s requirement that ACTIVE reapply for registration was a ‘shorthand, if inelegant, way to ensure that TVET has enough information … to be satisfied that [it was] suitable for registration’.7 [15] With respect, the learned Member’s findings on this point are plainly correct. Regardless of whether TVET’s actions in requiring ACTIVE to apply for registration were valid, ACTIVE did not demonstrate that it met the requirements of registration according the National Standards. As the learned Member indicated at paragraph [22] of the decision, even if it was found that TVET acted unlawfully, the parties would have inevitably ended up in the same position. Having regard to the available evidence, the learned Member found that ACTIVE had not demonstrated that it could meet the National Standards. [16] Accordingly, even if it was found that TVET had acted unlawfully, ACTIVE’s failure to demonstrate that it met the National Standards would have resulted in the same outcome. [17] This is because TVET had the power under the Act to cancel or suspend the registration of RTOs. Even though the procedure for cancelling or suspending ACTIVE’s registration was not followed, as TVET had the power to cancel ACTIVE’s registration, even if its decision was found to be invalid, ACTIVE’s registration would have inevitably been cancelled. As TVET relevantly indicates in its submissions, this aspect of the appeal is, therefore, futile. [18] ACTIVE further alleges that the subsequent audit of ACTIVE was unlawful. ACTIVE asserts that, given that the decision of 3 August was unlawful, all 5 QCAT Act, s 20. 6 QCAT Act, s 28(2). 7 Australian Competency Training for Industry and Vocational Employment Pty Ltd v TVET [2011] QCAT 40 at 4. -- 4 of 5 -- 5 subsequent acts of TVET, including the audit conducted, were also unlawful and effectively a nullity. This was not an issue addressed at the review hearing and, therefore, the learned Member did not make any errors in this respect. [19] In any event, TVET was authorised under the Act to conduct audits pursuant to ss 26(2)(f) and 37 in order to ensure that RTOs comply with the National Standards. TVET was in a position to conduct an audit at any time,8 if an RTO was registered conditionally or otherwise, which means that it was authorised to conduct the audit regardless of whether the decision of 3 August was valid. [20] In oral submissions made at the hearing for ACTIVE it was contended that the imperfect process adopted by TVET initially made its subsequent audit unlawful and, in the words of Mr Wells for the applicant, a product of ‘jurisdictional error’. This ignores, again, the fact that the decision to cancel registration was not contingent upon the first, erroneous process; occurred lawfully, within the statutory framework; and, not challenged before the learned Member and is not, it appears, challenged here. [21] The audit was, in effect, an opportunity for ACTIVE to demonstrate that it did meet the National Standards and the criteria for registration. Hence, contrary to its submissions, TVET was afforded an opportunity to respond to the potential cancellation of its registration. [22] With respect, the learned Member’s finding that TVET’s decision was the correct and preferable one was valid. The Reasons of the learned Member consider the decision as a whole, and review TVET’s decision having regard to the substantial merits of the case. [23] There is nothing in the ACTIVE’s submissions pointing to error in the Reasons of the learned Member, and there is no other sensible basis for granting leave to appeal in this case. The application is refused. 8 The Act, s 37(2). -- 5 of 5 --