Prestige Technical Training Institute Pty Ltd and Australian Skills Quality Authority [2019] AATA 460 (12 March 2019)

Last Updated: 21 March 2019

Prestige Technical Training Institute Pty Ltd and Australian Skills Quality Authority [2019] AATA 460 (12 March 2019)

Division: GENERAL DIVISION

File Number: 2019/0841

Re: Prestige Technical Training Institute Pty Ltd

APPLICANT

And Australian Skills Quality Authority

RESPONDENT

DECISION

Tribunal: Dr L Bygrave, Member

Date: 12 March 2019

Date of written reasons: 21 March 2019

Place: Sydney

The application for an extension of time is refused.

................................[sgd]........................................

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – rejected application for registration as a registered training organisation – application to Tribunal not within time – whether reasonable in all the circumstances – explanation for delay – whether prejudice to respondent and general public – whether substantive application has merit – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 29

National Vocational Education and Training Regulator Act 2011 (Cth) ss 21, 22, 23, 24, 25, 26, 27, 28

CASES

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441

REASONS FOR DECISION

Dr L Bygrave, Member


21 March 2019

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 12 March 2019. The following paragraphs are the reasons for my decision.

INTRODUCTION

2. On 14 February 2019, the applicant lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) seeking an extension of time to make an application to review a decision made on 17 December 2018 by the Australian Skills Quality Authority (ASQA) (the reviewable decision).
3. The reviewable decision was to reject Prestige Technical Training Pty Ltd’s application for registration as a “NVR registered training organisation” (RTO) because the applicant did not meet the conditions of registration set out in sections 21 to 28 of the National Vocational Education and Training Regulator Act 2011 (Cth) (the NVR Act).
4. ASQA opposes the extension of time sought.
5. The application was heard by the Tribunal in Sydney on 12 March 2019. Prestige Technical Training Institute Pty Ltd was represented by its’ Director, Mr Saad Malik, who attended the hearing and provided submissions by telephone. Ms Alana Cunningham provided written and oral submissions on behalf of ASQA.

PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

6. Ordinarily, in accordance with paragraph 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.
7. Pursuant to subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” [emphasis added].
8. The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] paraphrased as follows:
   • (a) an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;
   • (b) a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
   • (c) any prejudice to the respondent caused by the delay;
   • (d) whether the general public would suffer any prejudice as a result of the extension;
   • (e) the merits of the substantial application; and
   • (f) considerations of “fairness as between the applicant and other persons” in a similar position.
9. These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441, 444.
10. All of the circumstances of the case must be considered; the overriding consideration being whether it is “reasonable in all the circumstances” to grant the extension.

REASONS FOR DELAY

11. The length of delay in the applicant seeking a review of the reviewable decision is approximately three weeks after the 28 day time limit.
12. Mr Malik told the Tribunal he received an email from ASQA on 17 December 2018, which noted two documents were attached in relation to the outcome of the initial VET registration audit. However, Mr Malik contended these documents were not attached to the email and he continued to wait to receive the attachments. He did not contact ASQA until 16 January 2019 and subsequently received the documents on 17 January 2019.
13. Mr Malik’s submissions were contrary to the evidence provided by ASQA. I note ASQA provided:
    • an affidavit from the administrative support officer who sent the email to Prestige Technical Training Institute Pty Ltd on 17 December 2018; and
    • email verification that show the email dated 17 December 2018 contained the attached documents, a decision letter incorrectly dated 17 November 2018 and the final audit report.
14. While I accept the evidence is contradictory, I note it is curious that Mr Malik waited almost one month before contacting ASQA on 16 January 2019 regarding the decision letter and final audit report.
15. As the delay is relatively short, and in view of the contrary evidence, I am satisfied this principle neither weighs for nor against granting an extension of time.

PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

16. It is in the interests of both the respondent and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes.
17. I accept that ASQA and the general public would have expectations about the finality of the decision-making process in relation to this matter. This factor weighs against granting an extension of time.

MERITS OF SUBSTANTIVE APPLICATION

18. The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time. The issue for determination in the substantive application is whether Prestige Technical Training Institute Pty Ltd meets the requirements for registration as a RTO under the NVR Act.

Relevant legislation and consideration

19. In brief, the history of the substantive application is as follows:
    • On 14 December 2017, the applicant submitted an application to ASQA seeking registration as a RTO under the NVR Act.
    • ASQA audited the applicant on 4 April 2018 to assess its compliance with the VET Quality Framework and Standards. ASQA found the applicant was not compliant with the Standards and prepared an audit report.
    • On 12 June 2018, 12 July 2018 and 14 August 2018, ASQA contacted the applicant by email informing the applicant it was non-compliant and requesting further information.
    • The applicant provided further rectification material to ASQA on 7 September 2018.
    • ASQA reviewed this material and identified the applicant remained non-compliant with clauses 1.1, 1.2, 1.3, 1.8, 7.2 and 8.1 of the Standards. ASQA then prepared the final audit report, which was emailed to the applicant on 17 December 2018.
20. The applicant has provided no further material to the Tribunal. I note that I am required to consider the prospects of success of the substantive application, not the application itself. I also note that Mr Malik viewed the process of merits review by the Tribunal as a mechanism to assist Prestige Technical Training Institute Pty Ltd to rectify its situation and to meet the Standards.
21. There is no additional information before the Tribunal to support the contention by Mr Malik that Prestige Technical Training Institute Pty Ltd is likely to meet the requirements for registration as a RTO under the NVR Act. In view of the findings in the final audit report, I concur with submissions from ASQA that the applicant’s application is deficient in its present form. I also observe that the role of merits review pursuant to the AAT Act is not to provide advice to Prestige Technical Training Institute Pty Ltd to enable it to remedy its situation.
22. I also find that the applicant can put in a fresh application, with no detriment to its current operations and at no cost to the public. In this situation, where the substantive application is deficient and a remedy exists for the applicant, I am satisfied that the limited merits of the substantive application weigh against granting an extension of time.

CONCLUSION

23. Taking into account all the evidence before me, I am not satisfied that it is reasonable in the circumstances to grant an extension of time.

DECISION

24. The application for an extension of time is refused.

I certify that the preceding 24 (twenty - four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 21 March 2019

Date of hearing:	12 March 2019
Representative for the applicant:	Mr S Malik Prestige Technical Training Institute Pty Ltd
Representative for the respondent:	Ms A Cunningham Australian Skills Quality Authority