King Eeducational Service Pty Ltd v Australian Skills Quality Authority

• Jurisdiction: Australia Federal only
• Judgment Date: 29 January 2021
• Neutral Citation: [2021] FCA 42
• Court: Federal Court
• Date: 29 January 2021

Federal Court of Australia

King Eeducational Service Pty Ltd v Australian Skills Quality Authority [2021] FCA 42

File number(s):	VID 30 of 2021
Judgment of:	WHEELAHAN J
Date of judgment:	29 January 2021
Date of publication of reasons:	3 February 2021
Catchwords:	ADMINISTRATIVE LAW – application for interim stay of decision of Administrative Appeals Tribunal to affirm respondent’s decision to refuse to renew registration, and of the respondent’s original decision – where applicant has commenced appeal against Tribunal’s decision – where applicant’s further stay application to be heard by the Court – whether interim stay should be granted unconditionally or on terms
Legislation:	Acts Interpretation Act 1901 (Cth) s 7 Administrative Appeals Tribunal Act 1975 (Cth) ss 41(2), 43(5C), 44, 44A, 44A(2), 44(2A), Education Services for Overseas Students Act 2000 (Cth) ss 5, 6C, 9, 9AA, 9AB, 9AB(1)(a) and (f)(i), 9AC(5), 9AE, 10, 10B, 10D – 10F, 11, 11(b), 28, 29, 46A, 46D, 46F, 48A, 170, 176(1)(aa), Part 3 and Part 5 Education Services for Overseas Students Amendment (Streamlining Regulation) Act 2015 (Cth) Items 2(2) and 2(4) of Sched 6 National Vocational Education and Training Regulator Act 2011 (Cth) ss 155(1A)
Cases cited:	Australian International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097 Esber v The Commonwealth [1992] HCA 20; 174 CLR 430 Minister for Home Affairs v Zadeh [2018] FCA 1452 Shi v Migration Institute of Australia Ltd [2003] FCA 1304; 134 FCR 326 State of Queensland v Humane Society International [2019] FCA 534; 164 ALD 400
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	61
Date of hearing:	28-29 January 2021
Counsel for the Applicant:	Mr N Wood
Solicitor for the Applicant:	GPZ Legal
Solicitor for the Respondent:	Ms H Quadrio of the Australian Government Solicitor

ORDERS

		VID 30 of 2021
BETWEEN:	KING EEDUCATIONAL SERVICE PTY LTD Applicant
AND:	AUSTRALIAN SKILLS QUALITY AUTHORITY Respondent

order made by:	WHEELAHAN J
DATE OF ORDER:	29 January 2021

THE COURT ORDERS THAT:

1. Both the decision of the Administrative Appeals Tribunal in matter 2015/6179 dated 10 December 2020 and the decision of the respondent to which that Tribunal proceeding related, being a decision under s 9AB of the Education Services for Overseas Students Act 2000 (Cth) not to renew the applicant’s registration as an approved provider, be stayed under s 44A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) until 4.30 pm on 1 March 2021, subject to the condition that the applicant may not deliver training to any overseas student who has not, on or before 29 January 2021, started a course with the applicant.

2. The hearing of the applicant’s application for a stay of the Tribunal’s decision and the respondent’s decision be adjourned to 25 February 2021 at 10.15 am.

3. By 4.30 pm on 8 February 2021, the respondent file and serve any affidavits on which it intends to rely in relation to the applicant’s application for a stay.

4. By 4.30 pm on 18 February 2021, the applicant file and serve any further affidavits on which it intends to rely in relation to its application for a stay.

5. By 4.30 pm on 22 February 2021, the applicant file an outline of submissions in support of its application for a stay, limited to ten pages.

6. By 4.30 pm on 24 February 2021, the respondent file an outline of submissions in relation to the applicant’s application for a stay, limited to ten pages.

7. Costs reserved.

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

REASONS FOR JUDGMENT

(Revised from transcript)

Wheelahan J: Introduction

1. The applicant applied to the Court on an urgent basis for an extension of time within which to institute an appeal from a decision of the Administrative Appeals Tribunal dated 10 December 2020, and for orders under s 44A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) staying the operation of the decision of the Tribunal, and the decision of the respondent notified on 11 November 2015 that was the subject of the review by the Tribunal.

2. Yesterday, I heard and determined in the applicant’s favour its application to enlarge time for the institution of the appeal. I gave brief oral reasons for that decision which, in summary, were that I was satisfied that there was an explanation for the delay, it was accepted by the respondent that there was a question of law raised by the proposed appeal that was worthy of argument, there would be prejudice to the applicant if time were not extended, and it was accepted by the respondent that there was no relevant prejudice to it.

3. On the premise that the applicant would then proceed forthwith to institute the appeal, I proceeded to hear argument in relation to the applicant’s application for orders staying the operation of the Tribunal’s decision and the decision under review. In view of the urgency and the short notice of the application that had been given to the respondent, the applicant confined its application to one for an interim order. Ms Quadrio, who appeared for the respondent, did not oppose that course.

Background

4. The applicant’s application to the Tribunal resulting in its decision of 10 December 2020 has a lengthy history.

5. The applicant conducts a business providing educational services to international students. Pursuant to two regulatory schemes currently administered by the respondent, the applicant requires registration to provide courses to international students and, ultimately, carry on its business. This application concerns the registration scheme established by the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act).

6. On or about 20 October 2009, the applicant was registered as a registered training organisation by the Western Australia Training and Accreditation Council, a relevant regulatory body at that time. Subsequently, that body and its functions were succeeded by a national regulatory scheme established under the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act). Under that scheme, the applicant became registered as an NVR registered training organisation.

7. Separately, on 6 August 2012, the applicant was registered under the ESOS Act, referred to above, to provide specific courses to overseas students.

8. On 4 August 2014, the applicant applied to renew its registration as an NVR registered training organisation under the NVR Act, and on 6 August 2014 the applicant applied to renew its registration under the ESOS Act. On 27 October 2015, both applications were refused by the respondent. The applicant was notified of the decisions on 11 November 2015, and that they were to take effect on 16 December 2015.

9. On 25 November 2015, the applicant applied to the Tribunal for review of the decisions to refuse to renew its registrations. The application to the Tribunal was heard over 12 days in July 2016 and April, May, and June 2017, with the Tribunal reserving its decision on 7 June 2017. Shortly after reserving its decision, the...