Australian Skills Quality Authority v Brighton Pacific Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 11 May 2020
• Neutral Citation: [2020] FCA 617
• Court: Federal Court
• Date: 11 May 2020

FEDERAL COURT OF AUSTRALIA

Australian Skills Quality Authority v Brighton Pacific Pty Ltd [2020] FCA 617

Appeal from:	Brighton Pacific Pty Ltd and Australian Skills Quality Authority [2019] AATA 3645
File number(s):	QUD 640 of 2019
Judge(s):	COLLIER J
Date of judgment:	11 May 2020
Catchwords:	ADMINISTRATIVE LAW – appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – appeal from decision of Administrative Appeals Tribunal (Tribunal) to set aside decisions of the applicant to cancel the first respondent’s registrations under the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) and the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) – where the first respondent had not complied with relevant regulatory standards – whether Tribunal made an error of law in respect of its jurisdiction – powers exercisable by Tribunal under s 43(1) AAT Act “for the purpose of reviewing a decision” – whether the Tribunal exceeded its jurisdiction or acted beyond its power – whether Tribunal renewed registrations under relevant legislation – whether Tribunal had power to impose conditions on registration – whether the Tribunal had regard to an irrelevant consideration –where the Tribunal stands in the place of the original decision-maker in reviewing a decision of the original decision-maker – where Tribunal is not confined to exercise the same powers as those exercised by the original decision-maker – where it was open to the Tribunal to set aside decisions of the applicant to cancel the first respondent’s registrations under the NVR Act and the ESOS Act – where it was open to the Tribunal to impose conditions on the first respondent’s registration – where it was open to the Tribunal to align the first respondent’s registrations under the NVR Act and the ESOS Act
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) – ss 25(1), 43(1) National Vocational Education and Training Regulator Act 2011 (Cth) – ss 20(2), 26, 29, 36(1), 36(2), 37, 39, 203 Education Services for Overseas Students Act 2000 (Cth) – ss 10L, 10L(2), 10D, 10E, 19(1)(c)-(f), 21, 21(2)(a), 46F, 47H, 83(3), 93(4), 108, 119, 169AB, 169AG National Code of Practice for Providers of Education and Training to Overseas Students 2018 Standards for Registered Training Organisations 2015 ELICOS Standards 2018
Cases cited:	Australian Securities and Investments Commission v Donald (2003) 136 FCR 7; [2003] FCAFC 318 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 Commissioner of Taxation v Hornibrook (2006) 156 FCR 313; [2006] FCAFC 170 Commissioner of Taxation v Zoffanies Pty Ltd (2003) 132 FCR 523; [2003] FCAFC 236 Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation (2005) 148 FCR 427; [2005] FCAFC 244 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; (1979) 46 FLR 409 Fletcher v Commissioner of Taxation (1988) 19 FCR 442 Frugtniet v Australian Securities and Investments Commission (2019) 367 ALR 695; [2019] HCA 16 HFM045 v The Republic of Nauru (2017) 350 ALR 34; [2017] HCA 50 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Plaintiff M64-2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 Rawsthorne v Minister for Immigration & Citizenship (2013) 140 ALF 524; [2013] FCAFC 39 Re Control Investments Pty Ltd & Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Secretary, Department of Employment, Education, Training and Youth Affairs v MacKay (1998) 29 AAR 95 Secretary, Department of Social Security v Hodgson (1992) 108 ALR 322; (1992) 37 FCR 32 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31
Date of hearing:	20 April 2020
Date of last submissions:	22 April 2020
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	108
Counsel for the Applicant:	Ms M Brennan SC
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the First Respondent:	Mr Crowe QC
Solicitor for the First Respondent:	MinterEllison
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

ORDERS

		QUD 640 of 2019
BETWEEN:	AUSTRALIAN SKILLS QUALITY AUTHORITY Applicant
AND:	BRIGHTON PACIFIC PTY LTD First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	11 may 2020

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The parties provide joint draft case management orders within seven days in respect of further submissions concerning costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1. Before the Court is an appeal by the Australian Skills Quality Authority (ASQA) from the decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), in Brighton Pacific Pty Ltd and Australian Skills Quality Authority [2019] AATA 364. In that decision the Tribunal:

• found in favour of the first respondent (Brighton Pacific) and set aside the decisions of ASQA cancelling:

• the registration of Brighton Pacific under the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) pursuant to s 39 of the NVR Act; and

• the registration of Brighton Pacific under the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) pursuant to ss 83(3) and 93(4) of the ESOS Act; and

• affirmed ASQA’s decision to refuse the application of Brighton Pacific to change its Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registration.

2. The Tribunal also imposed a limit of 3 years on the respective registrations, and a number of conditions on Brighton Pacific aimed at ensuring future compliance with the provisions of the NVR Act and the ESOS Act.

3. The third decision of ASQA, namely to refuse an application by Brighton Pacific to change its CRICOS registration, subsequently affirmed by the Tribunal, was not the subject of the current proceedings before me and I make no further reference to it.

background

4. The Tribunal summarised relevant background in its reasons for decision, which summary I gratefully adopt as follows:

• Brighton Pacific was registered as a registered training organisation under the NVR Act on 4 May 2015 and traded under the name of Australia Institute of Business & Technology.

• Its Chief Executive Officer at all material times was Ms Fiona Kee.

• Brighton Pacific was registered pursuant to the ESOS Act on 29 July 2015. It...