King Eeducational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 05 March 2021
• Neutral Citation: [2021] FCA 183
• Court: Federal Court
• Date: 05 March 2021

Federal Court of Australia

King Eeducational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 2) [2021] FCA 183

File number(s):	VID 30 of 2021
Judgment of:	WHEELAHAN J
Date of judgment:	5 March 2021
Catchwords:	ADMINISTRATIVE LAW – application for stay of a decision of the Administrative Appeals Tribunal to affirm the respondent’s decision to refuse to renew registration, and of the respondent’s original decision – where Tribunal ordered stay of respondent’s original decision – whether the Tribunal’s decision came into effect notwithstanding the Tribunal’s stay of the original decision – whether Court can make an order under s 44A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) with retrospective operation – whether stay should be granted unconditionally or on terms – stay granted with retrospective operation and on terms
Legislation:	Acts Interpretation Act 1901 (Cth) ss 15AA, 33(3) Administrative Appeals Tribunal Act 1975 (Cth) ss 41(2) (3) and (6), 43(5A) to (5C), 44, 44(5), 44A(1), (2) and (4) Administrative Decisions (Judicial Review) Act 1977 (Cth) s 15 Bankruptcy Act 1966 (Cth) s 37(1) Education Services for Overseas Students Act 2000 (Cth) ss 9AB, 9AC(5), 19(1)(c) and (d), 46A, 108, 113 Fair Work Act 2009 (Cth) s 603 Federal Court of Australia Act 1976 (Cth) s 23 Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 482 Administrative Decisions Review Act 1997 (NSW) s 60 Civil and Administrative Tribunal Act 2013 (NSW) s 61 Security Industry Act 1997 (NSW) s 29(3) Supreme Court Act 1970 (NSW) s 66(4) ; Federal Court of Australia Rules 2011 (Cth) r 1.61(5) Maxwell on Statutes, 6th ed
Cases cited:	Attia v Health Care Complaints Commission [2017] NSWSC 178 Australian International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097 Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd [2020] FCAFC 81; 276 FCR 172 AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302 Azaria Family Day Care Pty Ltd v Secretary, Department of Education and Training [2018] FCA 1640 Director-General of Social Services v Chaney (1980) 47 FLR 80 Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; 263 CLR 551 FAI General Insurance Company Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 George Hudson Ltd v Australian Timber Workers’ Union [1923] HCA 38; 32 CLR 413 Jadwan Pty Limited v Secretary, Department of Health and Aged Care [2003] FCAFC 288; 145 FCR 1 King Eeducational Service Pty Ltd v Australian Skills Quality Authority [2021] FCA 42 Long v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 774; 122 FCR 159 McBride v Walton (Court of Appeal (NSW), Handley JA, 27 August 1993, unrep) Ooi v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 133 Plaintiff M174 of 2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 Re Wardle; ex parte Widen v Australia and New Zealand Banking Group Ltd (1987) 70 ALR 633 Riverside Nursing Care Pty Ltd v Bishop [2000] FCA 434; 60 ALD 704 Russo v Legal Services Commissioner [2016] NSWCA 95 Shi v Migration Institute of Australia Ltd [2003] FCA 1304; 134 FCR 326 Wilde v Australian Trade Equipment Co Ltd [1981] HCA 13; 145 CLR 590 Williment v Federal Commissioner of Taxation [2010] FCA 808; 190 FCR 234 Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 Zivanovic v Australian Securities and Investments Commission [2017] FCA 1633
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	91
Date of last submission/s:	1 March 2021
Date of hearing:	25 February 2021
Counsel for the Applicant:	Mr N Wood
Solicitor for the Applicant:	GPZ Legal
Counsel for the Respondent:	Ms S Wright
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		VID 30 of 2021
BETWEEN:	KING EEDUCATIONAL SERVICE PTY LTD Applicant
AND:	CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SKILLS QUALITY AUTHORITY; Respondent

order made by:	WHEELAHAN J
DATE OF ORDER:	5 March 2021

THE COURT ORDERS THAT:

1. Subject to further order, until the hearing and determination of this appeal, pursuant to s 44A(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the operation and implementation of the following decisions shall be stayed, effective from 7 January 2021 –

   1. the decision of the Administrative Appeals Tribunal dated 10 December 2020 in matter 2015/6179; and

   2. the decision of the respondent to which the decision of the Tribunal related –

to the extent that those decisions determined for the purposes of s 9AB of the Education Services for Overseas Students Act 2000 (Cth) that the registration of the applicant as an approved provider should not be renewed.

2. By 4.00 pm on 12 March 2021, the applicant, pursuant to s 44A(4)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), is to:

   1. review the accuracy of its data in the PRISMS system;

   2. use its best endeavours to remedy any inaccuracies; and

   3. advise the respondent of when that task has been completed.

3. The name of the respondent be amended to “Chief Executive Officer of the Australian Skills Quality Authority”.

4. The proceeding is listed for hearing at 10.15 am on Monday, 19 April 2021 on an estimate of one day.

5. On or before 4.30 pm on 22 March 2021, the applicant serve Parts A and B of the appeal book prepared in accordance with Practice Note APP2 and Special Measures Information Note SMIN-3.

6. The requirements of r 33.24 of the Federal Court Rules 2011 (Cth) and paragraphs [4.1] to [4.4] of Practice Note APP2 be dispensed with.

7. On or before 4.30 pm on 22 March 2021, the applicant file and serve an outline of submissions, not exceeding ten pages, and chronology of relevant events.

8. On or before 4.30 pm on 7 April 2021, the respondent file and serve an outline of submissions, not exceeding ten pages, a chronology of relevant events, and a list of materials to be included in Part C of the appeal book.

9. On or before 4.30 pm on 13 April 2021, the applicant file and serve any submissions in reply, not exceeding five pages.

10. By 4.30 pm on 13 April 2021, the applicant serve Part C of the appeal book in accordance with Practice Note APP2 and Special Measures Information Note SMIN-3.

11. On or before 4.30 pm on 13 April 2021, the applicant file and serve a chronologically ordered appeal book in electronic form, which:

    1. is produced in a text-recognised and enhanced PDF format;

    2. is paginated and within the divisions of the appeal book is...