Victorian Institute of Technology Pty Ltd v Administrative Appeals Tribunal

• Jurisdiction: Australia Federal only
• Judgment Date: 01 March 2022
• Neutral Citation: [2022] FCA 195
• Date: 01 March 2022
• Court: Federal Court

Federal Court of Australia

Victorian Institute of Technology Pty Ltd v Administrative Appeals Tribunal [2022] FCA 195

File number(s):	VID 46 of 2022
Judgment of:	MCELWAINE J
Date of judgment:	1 March 2022
Catchwords:	ADMINISTRATIVE LAW – interlocutory application for a stay of a condition imposed on the registration of the Victorian Institute of Technology – where it is not possible for the Court in the exercise of its power pursuant to s 23 of the Federal Court of Australia Act 1976 to make the orders sought – interlocutory application dismissed
Legislation:	A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) s 41 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 15 Education Services for Overseas Students Act 2000 (Cth) ss 10B, 10E, 83 Federal Court of Australia Act 1976 (Cth) s 23 Judiciary Act 1903 (Cth) s 39B
Cases cited:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Council of the City of Ryde v AZIZ [2019] NSWSC 1605 Duncan v Companies and Auditors Liquidators Disciplinary Board [2006] 155 FCR 572 Harding v Sutton [2021] VSC 741 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 King Educational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 3) [2021] FCA 692 Kumar v Secretary, Department of Social Services [2019] FCA 202 Levi v The Companies Auditors and Liquidators Disciplinary Board [2013] FCA 19 Mohammed v Secretary, Department of Education, Skills and Employment [2020] FCA 900 Otter Gold Mines Ltd v Deputy President Forrest (AAT) [1997] 47 ALD 89 Seymour v Migration Agents Registration Authority [2006] FCA 649 Seymour v Migration Agents Registration Authority [2007] FCAFC 5
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	29
Date of publication of reasons:	8 March 2022
Date of hearing:	1 March 2022
Counsel for the Applicant:	Mr D J Williams AM QC with Mr T P Mitchell
Solicitor for the Applicant:	GPZ Legal
Counsel for the Second Respondent:	Mr N Wood SC with Mr J Wherrett
Solicitor for the Second Respondent:	Australian Government Solicitor

ORDERS

		VID 46 of 2022
BETWEEN:	VICTORIAN INSTITUTE OF TECHNOLOGY PTY LTD Applicant
AND:	ADMINISTRATIVE APPEALS TRIBUNAL First Respondent ; TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY Second Respondent

order made by:	MCELWAINE J
DATE OF ORDER:	1 MARCH 2022

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

(Revised from transcript)

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...