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 – (a) the decision of the Administrative Appeals Tribunal dated 10 December 2020 in matter 2015/6179; and (b) 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: (a) review the accuracy of its data in the PRISMS system; (b) use its best endeavours to remedy any inaccuracies; and (c) 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: (a) is produced in a text-recognised and enhanced PDF format; (b) is paginated and within the divisions of the appeal book is chronologically ordered; (c) contains electronic bookmarks and descriptions to each document in the appeal book; and (d) includes an index. 12. On or before 4.30 pm on 13 April 2021, the applicant: (a) file a joint list of legislation and authorities to be relied upon at the hearing; and (b) provide the Court, by email to the Chambers of the Honourable Justice Wheelahan (at Associate.WheelahanJ@fedcourt.gov.au and EA.WheelahanJ@fedcourt.gov.au), with a download link with electronic copies of each authority, in text-recognised and enhanced, PDF format, titled with the full case name and citation. 13. The applicant have leave to rely on an amended interlocutory application in the form previously submitted to the Court. 14. Costs of the interlocutory application shall be costs in the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT WHEELAHAN J: Introduction 1 The applicant conducts a business involving the education of international students which is regulated by Commonwealth legislation. It has brought an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) against a decision of the Tribunal dated 10 December 2020 to the extent that the Tribunal affirmed a decision of the respondent dated 27 October 2015 refusing its application for renewal of its registration under the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act). On 29 January 2021, pursuant to s 44A(2) of the AAT Act, I stayed on an interim basis the decision of the Tribunal, together with the underlying decision of the respondent that was affirmed by the Tribunal on review: King Eeducational Service Pty Ltd v Australian Skills Quality Authority [2021] FCA 42 (the interim decision). The applicant now seeks a stay pending the hearing and determination of its appeal against the Tribunal's decision. I have proposed and will order that the appeal be fixed for hearing on 19 April 2021. The respondent opposes any form of further stay. Background 2 The applicant's application for a stay of the Tribunal's decision pending the hearing and determination of the appeal has some unusual features. I referred to some of those features in my reasons for granting an interim stay. 3 The applicant first applied for renewal of its registration in August 2014 under two pieces of legislation: the ESOS Act, and the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act). The applications were refused by the respondent on 27 October 2015, notice of which was given to the applicant on 11 November 2015. On 25 November 2015, the applicant applied to the Tribunal to have the respondent's decisions reviewed. The hearing of the review took place over 12 days in July 2016, and April, May, and June 2017. In 2020, the Tribunal received further written evidence upon the review, although no further substantive oral hearing took place. The Tribunal published its decision on 10 December 2020, which was to renew the applicant's registration under the NVR Act for a period expiring on 24 December 2023, but subject to conditions, and to affirm the respondent's decision not to renew the applicant's registration under the ESOS Act. The appeal from the Tribunal's decision relates only to the renewal of the applicant's registration under the ESOS Act. 4 During the period when the applicant's application for renewal of its registration under the ESOS Act remained pending before the respondent, its registration was taken to continue pursuant to s 9AC(5) of the ESOS Act, as then in force. Subsequently, during the period the review remained pending before the Tribunal, a sequence of stay orders was made by the Tribunal pursuant to s 41(2) of the AAT Act. Some of those orders contained conditions. However, the orders made by the Tribunal on 7 June 2017 did not contain conditions, and remained in force until 7 January 2021 when they were vacated and replaced by further orders to which I shall refer below. 5 The result of all of this is that for a period of over six and a half years, the applicant has been conducting its business without having its registration under the ESOS Act renewed, and with the benefit of a statutory deeming of its registration, and for most of the period, the benefit of stay orders. 6 In its decision of 10 December 2020, the Tribunal found that the applicant had been in breach of a number of statutory standards, including breaches relating to its assessment procedures, and breaches that resulted from offering courses that were superseded and replaced. Many of the breaches were the subject of the evidence that was admitted by the Tribunal in 2020, and to which the applicant was given an opportunity to respond. The responses were contained in reports of Ms Jacqueline Hodge, who is a director of a consultancy business under the name "RTO Advice Group". The Tribunal found that Ms Hodge had prepared new documentation and procedures that complied with the relevant statutory standards. However, the Tribunal expressed concern about the nature and extent of the work that had been undertaken to achieve compliance. In relation to the renewal of the applicant's registration under the ESOS Act, the Tribunal at [204] of its reasons framed the issue as being whether the applicant "is complying, or will comply" with the relevant statutory provisions. Whether that was the correct question is in issue in the appeal. After framing the issue in those terms, the Tribunal stated – Under s 10E of the amended ESOS Act, I must use a risk management approach. I have had regard to the findings that I have made in relation to [the applicant's] breaches of the amended ESOS Act. At the heart of most of them lies a lack of proper assessment tools and lack of monitoring. I am satisfied that [the applicant] has, for the most part, addressed the assessment tools. What remains to be tested is whether it is able to implement those tools and do so efficiently and effectively and to sustain the effort required to do so over the period of its registration. … Given its past history and given the scope of the work that had to be undertaken by [Ms Hodge], I am not satisfied that [the applicant] will comply with the amended ESOS Act and the National Code. Therefore, I have decided to affirm ASQA's decision dated 27 October 2015, and notified to [the applicant] on 11 November 2015, to reject [the applicant's] applications for renewal of its registration under the amended ESOS Act. 7 The Tribunal's decision was notified to the applicant on 10 December 2020. The applicant did not file a notice of appeal or seek an extension of time within which to file a notice of appeal within the 28 day period prescribed by s 44(2A) of the AAT Act. The evidence is that in correspondence with the respondent's solicitor the applicant's solicitor persisted in expressing the view that the time period prescribed by s 44(2A) of the AAT Act was subject to r 1.61(5) of the Federal Court of Australia Rules 2011 (Cth), and that the time between 24 December 2020 and 14 January 2021 was not to be counted. Counsel for the applicant did not make that submission to the Court, and instead the applicant sought and on 28 January 2021 was granted an extension of time within which to file a notice of appeal. 8 On 7 January 2021, and upon the application of the applicant, the Tribunal made the following order staying the operation and implementation of the decision under review until "close of business" on 29 January 2021. The legality and effect of that order is in issue, so I shall set it out in full – UPON APPLICATION of the applicant lodged on 25 November 2015 for review of a decision of the Australian Skills Quality Authority (ASQA) dated 11 November 2015 AND UPON the Tribunal's having made an order dated 7 June 2017 amending a stay order dated 28 April 2017 and staying the operation and implementation of the respondent's decision dated 11 November 2015 until the Tribunal heard and determined the application for review or until further order AND UPON MY DECIDING the application on 10 December 2020 AND UPON the applicant's considering whether or not it wishes to lodge an appeal or an application for extending the time within which to lodge an appeal AND UPON HEARING Mr Galatas on behalf of the applicant and Mr Pritchard and Mr Lloyd on behalf of the respondent IT IS ORDERED that: 1. the stay order dated 7 June 2017 be vacated; and 2. subject to the applicant's not delivering any training and not enrolling any new students, the operation or implementation of the respondent's decision dated 11 November 2015 is stayed until close of business on 29 January 2021. 9 On 29 January 2021, I granted an interim stay of the Tribunal's decision and the decision under review to which I referred in [1] above to the extent that they concerned the renewal of the applicant's registration under the ESOS Act. Preliminary issues 10 There are two preliminary questions which arise on the application and that I will address. 11 First, the respondent alleges that by operation of the s 41(6) of the AAT Act, the Tribunal's order of 7 January 2021 ceased to have effect on 8 January 2021, which is the date on which the respondent alleges that the Tribunal's decision dated 10 December 2020 came into operation. The respondent submits that as a result of the Tribunal's decision coming into operation, from 8 January 2021 the applicant ceased to be registered under the ESOS Act, in consequence of which the applicant defaulted for the purposes of Part 5 of the ESOS Act, and in particular s 46A. A default event under the ESOS Act triggers obligations on the provider to, inter alia, arrange alternative courses for its international students, or provide refunds of any unspent tuition fees. The respondent submits that by reason of the occurrence of a default event, and of the applicant's obligations under the ESOS Act that were triggered by the default event, any further stay of the Tribunal's decision now ordered would lack utility. 12 Second, one of the applicant's responses to the respondent's claim that the order of the Tribunal ceased to have effect on 8 January 2021 is that the Court may order that the Tribunal's decision be stayed with retrospective effect, that is, from 8 January 2021. The applicant's submission raises the questions whether the Court's power under s 44A(2) of the AAT Act extends to making an order with retroactive effect, and if so, whether as a matter of discretion the Court should make such an order, putting other discretionary issues to one side. Did the Tribunal's order of 7 January 2021 cease to have effect on 8 January 2021? 13 Section 41(2) of the AAT Act empowers the Tribunal to make an order staying or otherwise affecting the operation or implementation of the decision under review, and s 41(3) empowers the Tribunal to vary or revoke such an order – 41 Operation and implementation of a decision that is subject to review … (2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review. Note: This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division. (3) Where an order is in force under subsection (2) (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on request being made by a party to the relevant proceeding, make an order varying or revoking the first-mentioned order. … 14 Under s 41(6) of the AAT Act, an order that is in force under s 41(2) ceases to have effect upon the expiration of any period of operation specified in the order or, if the application for review is decided by the Tribunal before the expiration of that period, when the decision of the Tribunal comes in to operation – (6) An order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)): (a) is subject to such conditions as are specified in the order; and (b) has effect until: (i) where a period for the operation of the order is specified in the order—the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or (ii) if no period is so specified—the decision of the Tribunal on the application for review comes into operation. 15 It is next necessary to refer to s 43(5A) to (5C) of the AAT Act. Section 43(5C) effects a stay of the Tribunal's decision initially until the end of the period within which an appeal might be brought, or such further period for bringing the appeal that is allowed by the Court before the end of that period, and if an appeal is brought, until the determination of the appeal – When Tribunal's decision comes into operation (5A) Subject to subsection (5B), a decision of the Tribunal comes into operation forthwith upon the giving of the decision. (5B) The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date. (5C) Despite subsections (5A) and (5B), if: (a) the Tribunal has made an order under subsection 41(2) staying the operation or implementation of the decision under review; and (b) the order was in force immediately before the decision given by the Tribunal on the review; then, unless the Tribunal, the Federal Court of Australia or the Federal Circuit Court of Australia otherwise orders, the operation or implementation of the Tribunal's decision is stayed until: (c) subject to paragraph (d), the end of the period within which a party to the proceeding before the Tribunal may appeal from the decision to the Federal Court of Australia under subsection 44(1) (including any further time for bringing the appeal that is allowed by the Federal Court before the end of that period); or (d) if such an appeal is brought—the appeal is determined. 16 In the present case, the Tribunal did not specify in its decision of 10 December 2020 that the decision was not to come into operation until a later date. Because the Tribunal had stayed the decisions under review, by operation of s 43(5C) the operation or implementation of the Tribunal's decision was stayed until 8 January 2021, being the day after the expiry of the period within which the applicant could appeal. The respondent submitted that the Tribunal's power under s 43(5C) of the AAT Act extends to ordering that its decision is to come into operation forthwith as s 43(5A) provides, rather than upon the expiration of the appeal period referred to in s 43(5C). In substance, the respondent submitted that the power under s 43(5C) to otherwise order did not extend to enlarging the period of the stay of the Tribunal's decision effected by s 43(5C), and that the Tribunal's power to specify a date on which its decision would come into effect was under s 43(5B), and that this power had not been exercised because the Tribunal had not specified in its decision of 10 December 2020 that the decision was not to come into operation until a later date. 17 In these circumstances, the respondent submitted that the source of the Tribunal's power, if any, to make the order of 7 January 2021 was in s 41(2) of the AAT Act, and that by operation of s 41(6), the Tribunal's order of 7 January 2021 ceased to have effect on 8 January 2021. The respondent submitted that the Tribunal's order of 7 January 2021 was therefore futile. By its submissions, the respondent accepted that it did not raise this issue at the hearing before the Court of the application for an interim stay. It appears that the respondent's solicitors first notified the applicant's solicitors of this contention by letter dated 18 February 2021. 18 The Tribunal's order of 7 January 2021 operated in respect of the decision of the respondent to refuse renewal of the applicant's registration under the ESOS Act. That decision was affirmed by the Tribunal, and may be regarded as a "valid affirmed decision": Plaintiff M174 of 2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [40]. 19 There may be questions about the statutory foundation for the orders made by the Tribunal on 7 January 2021 that stayed the decisions under review until 29 January 2021. However, having regard to the preamble of the Tribunal's order, the objective of the order is clear enough: it was to preserve the applicant's position while it considered whether to appeal the Tribunal's decision. There is no evidence that at the time the order was made that the respondent submitted to the Tribunal that it lacked power to make the order. And following the making of the Tribunal's order, the respondent did not bring any application to the Court for a remedy under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), or s 39B of the Judiciary Act 1903 (Cth) in respect of the order. 20 There are reasons to question the respondent's submission that the Tribunal's order of 7 January 2021 ceased to be effective on 8 January 2021. The first reason is that, assuming that the Tribunal's order was made under s 41(2) of the AAT Act, which is not itself free from argument, there is doubt whether s 41(6)(b)(i) was engaged. That is because at the time the Tribunal made the order, the Tribunal had already on 10 December 2020 made its decision. The application for review was therefore not decided after the making of the order and before the expiration of the period of the stay. This argument treats the words, "is decided by the Tribunal" in s 41(6)(b)(i) as looking to the future beyond the date of the order. 21 The above analysis directs attention to an alternate view that s 41(2) of the AAT Act does not authorise the making of an order after the Tribunal has made its decision on the review. Section 41(2) provides that the Tribunal may make an order "for the purpose of securing the effectiveness of the hearing and determination of the application for review", which are words of limitation on the power. However, it is at least arguable that the effective exercise of rights of appeal under s 44 of the AAT Act and the Court's power under s 44(5) of the AAT Act to remit the case to be heard again might be regarded as an integral part of the application for review for which the Act provides. As I have noted, the respondent has not brought any application to challenge the legality of the Tribunal's order on the ground that it was outside the power conferred by s 41(2). 22 A further alternative is that the Tribunal's order of 7 January 2021 was authorised by s 43(5C) of the AAT Act. The respondent's submission that the power of the Tribunal or of the Court to "otherwise order" is limited to an order negating the effect of s 43(5C) upon the operation or implementation of the Tribunal's decision so that there is no stay, does not reflect the way in which s 43(5C) has been understood by the Court. In Zivanovic v Australian Securities and Investments Commission [2017] FCA 1633, Gleeson J refused an application to vary the stay effected by s 43(5C) in order to permit the Australian Securities and Investments Commission to publish a media release following a Tribunal decision that affirmed a decision of a delegate to disqualify a person from managing corporations. Although the application was refused, there is nothing in her Honour's reasons that casts doubt on the power to vary the effect of the statutory stay short of removing the statutory effects completely. However, the power under s 43(5C) is a power to make an order that derogates from the statutory stay of the Tribunal's decision: it is not a power that is at large. That leads to what in my view is the real difficulty for the applicant in relying on s 43(5C), which is that the subject of s 43(5C) is the operation or implementation of the Tribunal's decision, and not the decision under review. The order made by the Tribunal on 7 January 2021 was not directed to the operation or implementation of the Tribunal's own decision, but to the operation and implementation of the respondent's decision dated 11 November 2015. The terms of the order therefore suggest that the Tribunal was purporting to exercising power under s 41(2) of the AAT Act to make an order affecting the respondent's decision, rather than power under s 43(5C) to make an order affecting the statutory stay on its own decision. 23 I have concluded that it is not appropriate to express final views about the validity and the effect of the Tribunal's order of 7 January 2021 on an interlocutory application to stay or otherwise affect the operation or implementation of the Tribunal's decision of 10 December 2020, and of the respondent's decision that was subject to the review. It is sufficient to say that I do not consider that the respondent's submissions about these matters are so compelling as to lead to the conclusion that an order of the Court under s 44A(2) would be inutile. Can the Court make an order under s 44A(2) of the AAT Act with retrospective operation? 24 The above considerations direct attention to the applicant's primary argument that the Court should stay the decisions of the Tribunal and of the respondent in terms that are expressed to commence from 7 January 2021. If the Court has power to make such an order, and determines to make it, any difficulties with the efficacy of the Tribunal's order of 7 January 2021 may be of even less significance to the question whether there would be utility in the Court granting a further stay. 25 The Court's power to make an order staying or otherwise affecting the operation or implementation of a decision of the Tribunal is expressed in broad terms in s 44A(2) of the AAT Act, which should be read with s 44A(1) for context – 44A Operation and implementation of a decision that is subject to appeal Appeal does not affect operation of Tribunal's decision (1) Subject to this section, the institution of an appeal to the Federal Court of Australia from a decision of the Tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision. Stay orders (2) Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following: (a) the decision of the Tribunal or a part of that decision; and (b) the decision to which the proceeding before the Tribunal related or a part of that decision; as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal. … 26 The consequences of an order of a court setting aside a decision of legal consequence of an administrative decision-maker or of a court will vary, and will be dependent upon the legislative context in which such an order is made. By way of illustration, in Wilde v Australian Trade Equipment Co Ltd [1981] HCA 13; 145 CLR 590 it was held (Stephen, Murphy and Wilson JJ; Aickin J agreeing; Gibbs J dissenting) that a charge over the property of a company that was registered pursuant to an order of a court extending time for registration remained valid notwithstanding that the order extending time had been set aside on appeal. The reasons included the fact that at the time the charge was presented for registration there was an order of a court extending time for doing so that was held to be within jurisdiction. 27 In Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd [2020] FCAFC 81; 276 FCR 172 the Full Court (Flick, Bromberg and Anastassiou JJ) held that the Court in its original jurisdiction had power to make an order nunc pro tunc to revoke interlocutory orders retrospectively from their outset, and thereby deem the interlocutory orders previously made to have never been made with the consequence that there could be no conduct in breach of the orders that were revoked. 28 In Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; 263 CLR 551 at [49], Kiefel CJ, Keane, Nettle and Edelman JJ referred to authorities that demonstrate that there is greater scope to construe statutory provisions as conferring power on courts to make orders nunc pro tunc where there are procedural questions rather than substantive rights in issue. By way of contrast, their Honours referred to the statutory power of the Fair Work Commission under s 603 of the Fair Work Act 2009 (Cth) to make orders varying or revoking its decisions. There is no express provision in s 603 that authorises the variation or revocation of decisions with retrospective operation, but there is a long line of authority that was cited by their Honours that construed cognate powers in earlier industrial legislation as extending to making orders with retrospective operation. 29 In George Hudson Ltd v Australian Timber Workers' Union [1923] HCA 38; 32 CLR 413 at 434, Isaacs J referred to the presumption against retrospectivity as resting on a presumption that the legislature does not intend what is unjust, citing Maxwell on Statutes, 6th ed at 381. However, his Honour observed that the application of the presumption was not sure unless the whole of the circumstances were considered, and that what may seem to be unjust when regarded from the standpoint of one person affected may be absolutely just when a broad view is taken of all who are affected. Isaacs J referred at 436 to the Commonwealth Conciliation and Arbitration Act 1904 (Cth) as a remedial statute and held that the relevant powers under that Act to certify an agreement were not to be read down as if confined to a prospective operation at the expense of the "great public policy" which the Act embodied, namely, that of encouraging and maintaining "industrial peace in the Commonwealth": see 434. 30 The present question is whether the power under s 44A(2) of the AAT Act, to make an order staying or otherwise affecting the operation or implementation of a decision the subject of an appeal to this Court, should be construed so that it is limited to a power that has prospective effect only. 31 In Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246, the Full Court (Davies, Burchett and O'Connor JJ) held that the corresponding power of the Tribunal under s 41(2) of the AAT Act to stay or otherwise affect the operation or implementation of the decision under review empowered the Tribunal in relation to the decision to cancel a pension to restore the pension if that was appropriate for the purposes of securing the effectiveness of the hearing and determination of the application for review. It appears, however, that the Court did not consider the question whether the power under s 41(2) extended to a power to restore the entitlement to receive a pension retrospectively, as the Court's citation of the orders of Bowen CJ that were the subject of appeal in Director-General of Social Services v Chaney (1980) 47 FLR 80 (see Deane J at 98) tends to confirm. 32 In Ooi v Minister for Immigration and Multicultural Affairs [2000] FCA 514; 98 FCR 133, Madgwick J held that the Court's powers under s 482 of the Migration Act 1958 (Cth), as then in force and which was in similar terms to s 44A(2) of the AAT Act, supported an order staying a decision to cancel the applicant's visa with the consequences that the applicant would be reinstated as a "lawful non-citizen" and that his continued detention would not be authorised. However, in the circumstances of the case, his Honour declined to grant the temporary relief that was sought. On the other hand, in Long v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 774; 122 FCR 159, which was decided after the repeal of s 482 of the Migration Act in the terms considered by Madgwick J in Ooi, R D Nicholson J held that absent the statutory authority that had existed under s 482, the Court's general power under s 23 of the Federal Court of Australia Act 1976 (Cth) did not authorise a stay of a decision to cancel a visa to the extent that it had taken effect. 33 Section 60(2) of the Administrative Decisions Review Act 1997 (NSW) is in terms that are similar to s 41(2) of the AAT Act. In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302 (AVS), the respondent revoked various licences that had been granted to the applicants under the Security Industry Act 1997 (NSW). The revocation of the licences took effect when notice of the revocations was served on the applicants. The applicants sought a merits review of the decision by the New South Wales Administrative Decisions Tribunal. The applicants had also applied for, and following an appeal to the Tribunal's Appeal Panel and a subsequent remitter the Tribunal had ordered, a "stay" of the respondent's decision. The Tribunal's order was terse: "Stay granted". At the time the applicants sought a "stay" from the Tribunal, the revocation of the licences had already taken effect. The main issue on the appeal to the New South Wales Court of Appeal was whether an obligation on the Tribunal under s 29(3) of the Security Industry Act 1997 (NSW) not to disclose any criminal intelligence report or other criminal information applied to the hearing of an application for a stay of the decision under review. In the course of considering that question, the Court addressed the nature of the power under s 60(2) of the Administrative Decisions Review Act (then titled Administrative Decisions Tribunal Act 1997). Basten JA, who joined in the orders of the Court, but who gave separate reasons, held at [15] that the respondent's revocation of the licences must be taken to have been valid and effective. At [16], Basten JA then ventured the view that a "stay" was ineffective to allow the applicants to continue their operations, stating – What the applicants required, in order to continue their licensed operations, was an order reinstating their licences. That cannot be achieved in terms by a "stay", a somewhat imprecise term which is usually understood to refer to a future event, which has not yet taken place: see McBride v Walton (Court of Appeal, 27 August 1993, unreported) per Handley JA. 34 Later, at [26], Basten JA referred to a "stay" in the sense of an order designed to prevent an operation which had not yet taken place, and contrasted that type of order with "the retrospective variation of the decision of the Commissioner to undo consequences which had already occurred…". 35 At [18], Basten JA referred to s 60 of the Administrative Decisions Review Act, and stated – It is arguable that the second limb of s 60 (referring to an order "otherwise affecting the operation of the decision under review") would allow the Tribunal to suspend the operation of a revocation of a licence, or reinstate the licence on a temporary basis. That approach may gain support from the scope for a final decision on a review to operate from the date of the original decision: ADT Act, s 66(2)(b). Arguably that could be done by retrospectively varying the date from which the Commissioner's order was to have effect. Although the Tribunal did not make an order otherwise than in terms of a "stay", the question of statutory construction should be addressed having regard to the scope and effect of the orders available under s 60. Indeed, it was assumed by the applicants that the order in fact made allowed them to continue to operate, as if they held valid licences. 36 However, at [32] his Honour stated that the legal effects of the particular orders that had been made to allow the applicants to continue to operate did not need to be determined. 37 The passage from the reasons of Basten JA set out under [35] above, although obiter, gives support to construing this Court's power under s 44A(2) of the AAT Act as extending to making an order that retrospectively varies the date on which the Tribunal's decision was to have effect. In the same domain would be an order that retrospectively suspends the operation of the Tribunal's decision. 38 Campbell JA, with whom Handley JA agreed, also expressed doubts about whether the Tribunal could "stay" an action that had already taken place in the past. His Honour at [105] criticised as inapt the use of the word "stay" by the Tribunal in its order, if what was intended was that the revocation of a licence be treated as though it had not taken place and that the licence remained on foot pending the hearing of the review by the Tribunal, which was the construction which his Honour placed on the Tribunal's order having regard to surrounding context: see [110]. Of relevance to the present case, Campbell JA at [97] expressly left for further argument the question whether s 60(2) of the Administrative Decisions Review Act was wide enough to enable the Tribunal to restore a revoked licence with retrospective effect. 39 In Riverside Nursing Care Pty Ltd v Bishop [2000] FCA 434; 60 ALD 704, an administrative decision was made to revoke the approval of the applicant as a provider of aged care services. The applicant sought an order under s 15(1)(a) of the ADJR Act to suspend the operation of the decision pending the determination of its application under the ADJR Act for judicial review. Sundberg J refused the application on the ground that there was no point of substance to argue or serious question raised by the grounds of review. However, his Honour also addressed an argument raised by the respondents that the power under s 15 of the ADJR Act to "suspend the operation of the decision" and to order "a stay of all or any proceedings under the decision" had no room to operate when the power was spent. The argument was made by reference to an earlier decision of the Court concerning the power under s 37(1) of the Bankruptcy Act 1966 (Cth), as then in force, to suspend the operation of an order made under that Act: Re Wardle; ex parte Widin v Australia and New Zealand Banking Group Ltd (1987) 70 ALR 633 (Neaves J). 40 In Re Wardle, a judge of the Court had made a sequestration order, and had concurrently suspended the operation of the order for 14 days. The question before Neaves J was when the sequestration order came into effect, which his Honour held to be at the expiry of the period of suspension. In the course of his Honour's reasons, Neaves J stated – The legislature, in conferring power on the court to suspend the operation of a sequestration order, must, in my opinion, have intended to enable the court to prevent those statutory consequences ensuing during the period of suspension. Otherwise, suspension of the sequestration order would have no practical effect. That intention will be defeated unless the order of suspension is regarded as having the effect that the sequestration order is not made until the expiration of the period of suspension. So to regard the order made by Beaumont J in this case presents no difficulty as the order for suspension was made at the same time as the announcement of the sequestration order. Difficulty may have arisen if the order for suspension had been made at a later time, being a time between the announcement of the sequestration order and the signing and sealing of that order, for the statutory consequences of the making of the sequestration order would have already taken effect before the order for suspension was made. (Emphasis added.) 41 In Riverside Nursing Care Sundberg J rejected the application of the above observations to an order made under s 15 of the ADJR Act. At [28] his Honour stated – In my view the respondent's argument misapprehends the effect of an order under s 15(1)(a) suspending the operation of a decision. Counsel conceded that if the applicant were successful on the substantive hearing, the decisions would be quashed, the revocation of approved status would be lifted, and the allocation of places would be restored. The effect of the court's order would be to render non-existent decisions that were theretofore effective and binding. If the court has power to grant final relief the effect of which is to annul an earlier decision, it must have power, by a suspension order, to produce that result on a temporary basis: cf Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 at 179; 25 ALD 545; 105 ALR 301 per Beaumont J. The fact that the decision is itself determinative of rights, and that there are no consequences yet to flow from it, is irrelevant. 42 The obiter of Sundberg J in Riverside Nursing Care accords with the views ventured by Basten JA ten years later in AVS to which I referred at [35] above. Sundberg J referred to the power of the Court to grant final relief as a reason for construing the power to suspend as including a power to annul a decision on a temporary basis. In AVS, Basten JA pointed to the scope for a final decision to operate from the date of the original decision as a ground supporting the argument that the power under s 60 of the Administrative Decisions Review Act extended to empower the Tribunal to suspend the operation of a revocation of a licence, or to reinstate the licence on a temporary basis, including retrospectively. 43 Riverside Nursing Care was cited in Azaria Family Day Care Pty Ltd v Secretary, Department of Education and Training [2018] FCA 1640 (Wheelahan J), where the Court rejected a similar argument to that raised before Sundberg J, namely that the power to suspend under s 15 of the ADJR Act did not extend to the suspension of a decision that had already taken effect. At [50] the Court stated – I reject the idea that the respondent's decision to cancel the applicant's provider approval is not now amenable to an order under s 15(1)(a) of the ADJR Act to suspend its operation on the ground that it became effective on 17 October 2018. I consider that I should apply the reasons of Sundberg J in Riverside Nursing Care Pty Ltd v Bishop at [28], which are considered obiter dicta that are directly on point. Section 15 of the ADJR Act is a remedial provision which can be given a beneficial construction. The analysis of Sundberg J in Riverside Nursing Care Pty Ltd v Bishop at [28] gives s 15 of the ADJR Act a construction which is harmonious with powers of the Court under s 16 of the ADJR Act to give final relief, and gives s 15 an interpretation which augments and furthers the purpose of the Act which can be inferred from its operative provisions, such as s 16. In my opinion, the construction adopted by Sundberg J should be preferred over other interpretations: Acts Interpretation Act 1901 (Cth), s 15AA. 44 It is relevant to recognise that in Azaria, the applicant sought a suspension of the decision that was the subject of the application for review on terms that were prospective only: see Azaria at [3]. 45 There are other cases which raise the separate question of the power of a court to make orders pending a final hearing to ameliorate on a temporary basis the consequences of a decision that is the subject of an application for review. In Williment v Federal Commissioner of Taxation [2010] FCA 808; 190 FCR 234, Perram J considered an application for temporary relief in relation to notices issued under the income tax legislation that required the attendance of the applicants before certain officials of the Tax office. Perram J considered that the power to stay under the ADJR Act would extend to staying the decision that led to the issue of the notices, but that it would not necessarily be possible to stay the operation of the notices themselves which operated to require the attendance of the applicants under the threat of penalty. Perram J considered, by way of obiter, that it was within the power of the Court to make an interim order to compel the Commissioner to exercise power under s 33(3) of the Acts Interpretation Act 1901 (Cth) in such a way as to adjourn or prolong the time for compliance with notices that had been issued. 46 In McBride v Walton (Court of Appeal (NSW), Handley JA, 27 August 1993, unrep), it was held that under the relevant provisions of the Medical Practice Act 1992 (NSW), as then in force, the Court's only power pending the hearing of an appeal from an order that a medical practitioner's name be removed from the register of medical practitioners was to stay the order, and that the Court's power did not extend to ordering reinstatement of the medical practitioner on the register on an interim basis. 47 However, in Russo v Legal Services Commissioner [2016] NSWCA 95, Barrett AJA made an interlocutory order staying an order of the New South Wales Civil and Administrative Tribunal that the applicant's name be removed from the local roll of practitioners if it had not already been executed, and made a further order that if the order of the Tribunal had been executed, that the applicant's name be reinstated to the Supreme Court Roll of legal practitioners upon the applicant giving an undertaking to consent to the removal of his name upon request by the Court. 48 In Attia v Health Care Complaints Commission [2017] NSWSC 178 at [28], McCallum J referred to the type of order made by Barrett AJA in Russo as in the nature of a "restorative injunction", and at [39] stated that the decision in Russo turned very much on the inherent jurisdiction and power of the Court with respect to the control and discipline of legal practitioners. 49 The application before the Court in Attia was for temporary relief pending the hearing of an application to appeal a decision of the New South Wales Civil and Administrative Tribunal to cancel the registration of a pharmacist. The decision took effect on the date it was given: Civil and Administrative Tribunal Act 2013 (NSW), s 61. Subsequently, the applicant's name was removed from the register of pharmacists maintained by the Australian Health Practitioner Regulation Agency. The applicant sought orders that, until determination of the appeal, the orders of the Tribunal be stayed, and that the Agency reinstate his registration as a pharmacist. McCallum J stated at [40] that her Honour was not persuaded that the Court did not have the power to grant the relief sought, and stated that the power should be exercised sparingly. The sources of the power to which her Honour referred were s 66(4) of the Supreme Court Act 1970 (NSW), and Schedule 5 of the Civil and Administrative Tribunal Act. In the circumstances of the case, her Honour refused the application for temporary relief, holding at [62] and [67] that considerations going to the balance of convenience afforded compelling reasons to refuse the temporary relief sought. 50 The power under s 44A(2) of the AAT Act that the applicant seeks to have the Court invoke in the present case has two limbs to it. There is the power to stay, and there is the power otherwise to affect the implementation or operation of the Tribunal's decision and the decision under review. In my view, the latter limb of s 44A(2) includes the power to affect the operation or implementation of a decision of the Tribunal or of the primary decision-maker that has already come into operation. Were that not so the latter limb provision, which is expressed in broad terms, would be stripped of much of its utility. I respectfully adopt the analysis of Sundberg J in Riverside Nursing Care, and consider that it is equally applicable to s 44A(2) of the AAT Act. The Court has wide powers under s 44(4) and (5) of the AAT Act to give final relief upon an appeal, which include the power to set aside a Tribunal's decision and to remit the case to be heard again. That is the substance of the relief that the applicant seeks in the present case. Whether in a particular case the exercise of a statutory power to set aside an administrative decision should operate from the date of the order, or ab initio, is a question that may arise for consideration: see, Jadwan Pty Limited v Secretary, Department of Health and Aged Care [2003] FCAFC 288; 145 FCR 1. 51 It is sufficient for present purposes to say that the applicant has made a claim for final relief that the Tribunal's decision be set aside ab initio, which is properly arguable. If the Court has power to grant that relief on a final basis, then applying the analysis of Sundberg J in Riverside Nursing Care, the Court has power to give corresponding relief on a temporary basis. That construction of s 44A(2) should be preferred over other interpretations, because it gives better effect to the purpose of s 44A(2) apparent from its text, namely as a remedial provision to secure the effectiveness of the hearing and determination of an appeal: see, Acts Interpretation Act 1901 (Cth), s 15AA. 52 In AVS at [18] which I set out at [35] above, Basten JA posited the argument that an order that had the effect of reinstating a licence could be achieved by retrospectively varying the date from which the administrative decision was to have effect. Seen in this way, and having regard to the analysis by Sundberg J in Riverside Nursing Care, the power under s 44A(2) authorises orders that have a retrospective element to them. There are, however, different dimensions of retrospectivity which may be assessed by the extent to which orders of the Court affect substantive rights. Consistently with the observations of Kiefel CJ, Keane, Nettle and Edelman JJ in Esso Australia Pty Ltd v Australian Workers' Union at [49]-[50], care must be taken in considering the exercise of any power with retrospective effect, in particular to consider whether there would be any inappropriate or unfair interference with rights. But these considerations go to the exercise of the power, and do not warrant the implication of arbitrary limits on the power itself: FAI General Insurance Company Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at 283-284 (Wilson J). 53 In the present case, I find that until the respondent's solicitors wrote to the applicant's solicitors on 18 February 2021 and questioned the continued effect of the Tribunal's order of 7 January 2021 beyond 8 January 2021, the parties assumed that the Tribunal's order was effective according to its terms such that the applicant did not enter into a default situation for the purposes of Part 5 of the ESOS Act. That is a reason supporting the exercise of the Court's discretion to make an order staying from 7 January 2021 the operation of the Tribunal's decision to the extent that it concerned the renewal of the applicant's registration under the ESOS Act. It is also a reason to think that such an order is unlikely in the special circumstances of this case to have unjust consequences. Should the Court make an order until the determination of the appeal staying the Tribunal's decision? 54 Other than the preliminary matters to which I referred above, on the hearing of the current application, as with the application for the interim stay, there was no substantial dispute as to the principles to be applied. I referred to those principles in the interim decision at [43]-[44], and at [60] I applied like reasoning to that of Tamberlin J in Shi v Migration Institute of Australia Ltd [2003] FCA 1304; 134 FCR 326 at [28]-[29] in holding that the applicant's business as a going concern was a continuum that ought not be interrupted pending a full hearing of the applicant's application for a stay pending the determination of the appeal. 55 Counsel for the respondent accepted in oral argument that by its notice of appeal the applicant had raised grounds of appeal relating to questions of law that were worthy of argument. Counsel for the applicant characterised the argument in relation to one ground of appeal as strong, while counsel for the respondent submitted in writing that there was very little merit in the appeal. Neither submission was developed, so I will act on the accepted position that the grounds of appeal are worthy of argument. 56 The applicant maintained, as it had on the application for an interim stay, that a stay of the Tribunal's decision should be given for the reasons to which I referred in the interim decision at [47]-[55], and which I shall not repeat. 57 I have dealt with the respondent's submissions about the effect of the Tribunal's order of 7 January 2021. Other than that, the strong focus of the submissions of counsel for the respondent was to point to the applicant's non-compliance with applicable statutory requirements as a reason why, in the public interest, the Court should not stay the Tribunal's decision so as to permit the applicant to continue to operate. These submissions had substance to them. In evaluating the respondent's submissions, I shall differentiate between those breaches that were the subject of the Tribunal's findings, and other breaches that were the subject of evidence before the Court. 58 As to the Tribunal's findings, I referred to them in the interim decision at [34]-[37]. There are two features of the Tribunal's findings that are relevant for present purposes. The first is that in relation to the applicant's registration under the NVR Act (which is not a subject of this appeal) the Tribunal found that there had been systemic failures and contraventions of the relevant standards that were "quite fundamental to the scheme of accreditation that has been established by the NVR Act." Yet the Tribunal determined to set aside the respondent's decision refusing renewal of registration under the NVR Act and to substitute a decision by which the applicant's registration was renewed for a period of three years, but subject to conditions. The reason I mention this is that past breaches by the applicant, even of a substantial nature, did not preclude a conditional renewal of registration under the NVR Act. This forms one of the foundations for the applicant's appeal to the Court, in that the applicant claims that the Tribunal unreasonably failed to consider renewing its registration under the ESOS Act in a like manner, that is, subject to conditions. 59 The second feature of the Tribunal's decision is its findings at [204] of its reasons that at the heart of most of the breaches of the ESOS Act lay a lack of proper assessment tools and a lack of monitoring. Significantly, the Tribunal also found that it was satisfied that the applicant had, for the most part, addressed the assessment tools. The reason the Tribunal did not regard this as a sufficient ground to renew the applicant's registration under the ESOS Act was that it was not satisfied that the applicant would comply with the ESOS Act and the relevant code into the future. Relevant to that finding was the Tribunal's assessment of the applicant's history of non-compliance and the scope of work that had to be undertaken by the applicant's consultant, Ms Hodge of RTO Advice Group. On the appeal, the applicant contends that this aspect of the Tribunal's decision was affected by an error or law, in that it is claims that the Tribunal asked itself the wrong question by considering whether the applicant will comply with the ESOS Act and the relevant code, and that the correct question was limited to whether the applicant was complying with the statutory requirements. 60 The point of drawing attention to these features of the Tribunal's reasons is that on the applicant's case, its past contraventions of the legislation should not preclude renewal of its registration by the Tribunal, and that the Tribunal's decision to decide otherwise was affected by an error of law that might be, but does not need to be, characterised as jurisdictional in nature. 61 I shall now turn to the evidence before the Court relating to the applicant's non-compliance with statutory requirements. 62 Before the Court were affidavits filed on behalf of the applicant, being two affidavits of Mr Dhawan, the CEO of the applicant, an affidavit of the applicant's solicitor, and an affidavit of Ms Hodge, an RTO Consultant to whom I have already made reference. At the hearing of the application, pursuant to leave counsel for the respondent cross-examined Mr Dhawan about his evidence in relation to uploading information to the PRISMS system in relation to students who apparently had not paid fees but who were recorded in the PRISMS system as having paid at least part of the tuition fees. That cross-examination occurred on Microsoft Teams, where counsel was present in Court in Melbourne, and the witness was situated in Perth in an informal setting using a laptop computer. I found that the cross-examination of this particular witness using Microsoft Teams was not ideal, but it was the best that could be achieved in the circumstances. 63 The respondent relied on affidavits of Ms Owen, a Stakeholder Coordinator of the respondent, and Mr Mahajan, Director of Tuition Protection Service. By the respondent's evidence, various instances of the applicant's non-compliance with ESOS Act obligations were alleged, some accepted and others disputed by the applicant. It was undisputed between the parties that the applicant gave false or misleading information in two categories, in breach of s 108 of the ESOS Act. 64 First, Ms Owen identified 184 students in respect of whom "misleading" information was entered into PRISMS by the applicant between 10 and 30 December 2020. The applicant caused the students' PRISMS records to be amended as though their details or the details of their studies had changed, when in fact, Ms Owen identified that the students' studies had been terminated. The ESOS Act contains additional reporting obligation upon termination of studies, which obligations, Ms Owen concluded, were not complied with. Mr Dhawan accepted in his affidavit evidence that he decided that the students would be terminated following the Tribunal's decision, and during cross-examination, he accepted that the applicant terminated enrolments between 10 and 30 December 2020, but could not confirm whether there were 184 terminations. In his affidavit dated 19 February 2021, Mr Dhawan sought to explain the entries as having been made in December 2020 in an environment of uncertainty about the future of the applicant's business. I must say that Mr Dhawan's explanation about what the applicant did is not altogether clear to me. At [13] of his affidavit Mr Dhawan concluded his explanation as follows – I am not sure if that was the best way to approach the difficulty I faced in late December last year, having been notified of a negative decision by the Tribunal, not knowing if the Applicant could appeal and being concerned to ensure that the Applicant complied with all its obligations under the Act and to the [Tuition Protection Service], as well as to its students. In acting the way I did, I believe I acted to the detriment of the Applicant in order to ensure it remained compliant with its legal obligations, it assisted the [Tuition Protection Service] and it protected the students it had enrolled. 65 Second, Ms Owen identified 84 students in respect of whom the applicant had recorded in the PRISMS records as having received at least partial payment of tuition fees. Separately, in response to a notice issued to the applicant under s 113 of the ESOS Act requesting information, the applicant stated that it had not received any such money, which was identified in Mr Mahajan's evidence. Ms Owen concluded that the applicant's entries in relation to these 84 students appeared to be false and misleading. Mr Dhawan accepted that the entries were false. During cross-examination, Mr Dhawan also accepted that he had given his PRISMS login details to other staff of the applicant. Counsel for the respondent submitted that doing so contravened the PRISMS User Guide. In relation to those entries Mr Dhawan stated in his affidavit – 19. The students listed in Annexure E are from Karachi in Pakistan, which had also suffered severe flooding and is also suffering from the effects of the Covid-19 pandemic. As a result of the uncertainty caused by all these factors, education agents have been reluctant to make the payment for the prepaid component of the tuition fee until the student received the visa and is confident he or she can come to Australia and commence their qualification with us. 20. As I established with the education agent that the student had the money, I recorded the amount of the prepaid component of the tuition fee as paid because I was satisfied the funds were available and would be paid upon the visa being granted. 21. I did not believe that I was providing false or misleading information in relation to any of the instances referred to in parts 2 or 3 in Ms Owen's affidavit and the students referred to in Annexures D and E. In relation to Annexure D, I thought I was doing the right thing by the students and by the [Tuition Protection Service] in the circumstances in which the Applicant found itself around Christmas last year. In relation to the students referred to in Annexure E, I was noting on PRISMS the proportion of the tuition fee which was the prepaid component and which I was satisfied would be prepaid upon the visa being issued and I did not believe that by completing the PRISMS record as I did amounted to providing false or misleading information. 66 Mr Mahajan identified a course of alleged non-compliance with notices that he caused to be issued to the applicant under s 113 of the ESOS Act, requesting certain information including explanations for the 84 students for whom false payment entries were made in PRISMS. That alleged non-compliance comprised late and deficient responses to the notices, and in some cases failure to respond at all. Mr Dhawan accepted Mr Mahajan's description of the communications. 67 There are other instances of alleged non-compliance which are disputed by the parties. 68 First, Ms Owen's evidence was that the applicant had failed to comply with reporting obligations. Ms Owen analysed data for the period 28 February 2020 to 4 February 2021. Ms Hodge, in response, proposed that Ms Owen's inclusion of data from 28 February to 17 July 2020 in her review negatively skewed the analysis. Ms Hodge claimed to have assisted the applicant from 17 July 2020 to review its PRISMS reporting processes and practices, and concluded that inclusion of data prior to 17 July 2020 overlooked the improvements made by the applicant since that date. 69 Second, Ms Owen alleged that the applicant failed to report students' non-commencement of studies within the acceptable period on 28 occasions between 28 February 2020 and 4 February 2021, in breach of s 19(1)(c) of the ESOS Act. In response, Ms Hodge claimed that between 17 July 2020 and 7 February 2021, there were only four students whose non-commencement of studies was reported late. The applicant provided explanations for this late reporting: in respect of two students, they were not granted visas in the first place and so were offshore; in respect of one student, the last permitted reporting day fell on a Friday but staff of the applicant do not work on Fridays, so the reporting occurred "immediately" on the following Monday; and in respect of one student, it was explained that, by an administrative error, two identical entries existed for one student and the erroneous entry was identified, reported, and the error rectified. 70 Third, Ms Owen alleged that the applicant failed to report termination of students' studies within the acceptable period on three occasions between 28 February 2020 and 4 February 2021, in breach of s 19(1)(d) of the ESOS Act. In response, Ms Hodge identified the same three students between 17 July 2020 and 7 February 2021 whose termination of studies was reported late. Ms Hodge surmised that these late reports were caused by the erroneous entry of the last day of study as the date of termination. She noted that the PRISMS User Guide does not provide guidance on how to determine the date of termination. She also noted that Ms Owen's analysis failed to identify that for at least two of the three students, it should have been clear that the date of termination would not usually be the student's last day of study. With respect to the third student, Ms Hodge explained that the reporting time was justified because the student had requested an extension of time to finish the course, and subsequently requested a release from the applicant. The applicant, according to Ms Hodge's evidence, reported the termination upon finalising the release request. That led Ms Hodge to conclude that, in fact, there had been no breaches in this respect. 71 Fourth, Ms Owen alleged that the applicant failed to report students' breach of visa condition 8202, being unsatisfactory progress, as soon as practicable on 19 occasions between 28 February 2020 and 4 February 2021, in breach of s 19(2) of the ESOS Act. Ms Hodge was critical of Ms Owen's method. Ms Hodge stated that Ms Owen would have required the date of termination of those identified students to calculate the reporting date. Ms Hodge identified five students whose records did not have a termination date and in respect of whom Ms Owen incorrectly used the last day of study to measure the reporting period. Ms Hodge concluded that reporting occurred on or near the date of termination with those students, such that there were "no issues" with the applicant's reporting. 72 In the interim decision at [58] I stated that the question whether an interim stay should be granted, and if so its terms, was not free from difficulty, and it remains the case that the question whether the Court should stay the Tribunal's decision on terms that would permit the applicant to continue to operate its business is not free from difficulty. I am particularly troubled by the evidence of false entries relating to 84 students in the PRISMS system when set against the background of the history of non-compliance detailed in the Tribunal's reasons. However, I consider that the correct approach to these difficulties in the special circumstances of this case is as follows. 73 Upon an application to stay the decision of the Tribunal, the Court may properly take into account the public interest in having the applicant comply with relevant legislative requirements. I am mindful of that consideration. However, in assessing the relevance of the applicant's past non-compliance, and the prospect that there may be non-compliance in the future, there are two important considerations. The first is that this Court is concerned with the legality of the Tribunal's decision, and within certain boundaries the Court is not concerned with the merits of the applicant's application for renewal of its registration under the ESOS Act. As Bromwich J stated in Australian International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097 at [3] in an allied context, "this Court cannot (and will not) conduct a de facto merits review of ASQA's cancellation decisions". The second point flows from the first. The Court does not have all the evidence that the Tribunal had before it, nor the benefit of seeing witnesses who, on a merits review, may give more comprehensive evidence than they have given on this application, and who may be challenged in a more complete way in cross-examination. There is a danger that in an application for a stay of the Tribunal's decision, the fate of the applicant might be determined in a summary way without the benefit of all the evidence and full argument that may occur on a merits review by the Tribunal, which is the body charged with that function. 74 With these observations in mind, I shall address the evidence of the applicant's non-compliance in three categories. The first category is the Tribunal's findings to which I referred at [58]-[60] above. By themselves, I give those findings little weight as a reason for refusing the applicant's application for a stay, because the applicant's claim is that despite those findings the Tribunal made legal errors in arriving at its decision. 75 The second category is the evidence of non-compliance that was not disputed to which I referred at [64]-[66]. Mr Dhawan proffered explanations for these instances of non-compliance. I do not consider that it is appropriate that I should act on what could only be preliminary views about those explanations on an interlocutory application with only brief and limited cross-examination of Mr Dhawan on a Microsoft Teams video link. 76 The third category is the evidence about issues that are the subject of dispute to which I referred at [67]-[71] above. It is not appropriate that I evaluate the competing evidence about those issues on this application. 77 The appeal in this proceeding has been able to be expedited as a result of another matter being re-fixed for hearing, and the date of 19 April 2021 has become available. The short time between the determination of the application for a stay, and the hearing of the appeal is a matter that I take into account as favouring the grant of a stay of some sort. If the applicant succeeds in its appeal on either question of law that it has framed in its notice of appeal, then it would be open to the Court to set aside the Tribunal's decision and to remit the matter for re-hearing by the Tribunal according to law. The terms of any re-hearing would be a matter to be determined. On the assumption that the Tribunal's decision is set aside ab initio for error of law, then there would be the prospect that the applicant will be restored to the position that it was in immediately prior to the Tribunal's decision of 10 December 2020, namely that it could continue to operate its business pursuant to the unconditional stay ordered by the Tribunal on 7 June 2017. That would be subject to any further order that the Tribunal might make pursuant to s 41(3) of the AAT Act varying or revoking the stay. 78 For the above reasons, balanced against the other considerations to which I refer below, I do not consider that the evidence of the applicant's non-compliance with statutory requirements is a matter that should carry such weight as to lead me to refuse the application for a stay of the Tribunal's decision and the underlying decision of the respondent. 79 The next question is the terms on which any stay should be given. Here, there are different interests that should be addressed and balanced. 80 In the interim decision, I referred to the interests of the applicant in maintaining its business as a going concern so that if the appeal were to be allowed and the Tribunal's decision set aside, the effectiveness of the hearing and determination of the appeal is secured. The ability of the applicant to continue its business is the subject matter of the appeal. In the interim decision I referred at [47] to the evidence of the applicant's circumstances. Of particular importance are the following considerations, which for the purposes of this application I am prepared generally to accept, and to which I give weight – (a) if the Court does not stay the Tribunal's decision, then the applicant will cease to be able to operate as a provider of training and education to international students, and will be required to make arrangements under the ESOS Act to transfer all of its students to another provider or to provide refunds of unspent tuition fees; (b) the applicant would then effectively have to cease operating as a business, and will have to lay off staff and it will lose its premises; (c) the applicant does not have any accumulated cash reserves, and has operated under financial "duress" for a number of years pending a decision by the Tribunal, as it was difficult to operate a business without certainty of registration; (d) the applicant spent significant funds in the last 12 months in connection with the review by the Tribunal after the respondent lodged its further evidence; (e) the applicant has experienced additional difficulties in the international student market in the last 12 months as a result of COVID-19 restrictions on international arrivals; and (f) in summary, the applicant would be unable to survive if it was not permitted to operate pending the hearing and determination of the appeal. 81 The respondent was critical of the quality of some of the evidence about the applicant's financial circumstances. However, the main point that I consider to be important is that I accept that there is a connection between the applicant's ability to continue trading as a provider of educational services to international students and the maintenance of the applicant's business as a going concern. This is the "continuum" to which I referred at [60] of the interim decision. 82 The interests of students who are enrolled or who may be enrolled is to be taken into consideration. There are three categories of students that I shall identify. The first is those students who have enrolled and who have already commenced a course offered by the applicant. By the terms of the interim stay order made on 29 January 2021, the applicant was permitted to recommence the delivery of courses to those students. The second group of students is those who have enrolled but who have yet to commence a course. The terms of the interim stay did not permit the applicant to commence teaching those students, and at the time counsel for the applicant informed the Court that there were no students who were due to commence a course during the period of the interim stay. The third group is those students who might enrol for a course. The terms of the interim stay permitted the applicant to continue to accept enrolments. 83 The third interest that is to be accommodated is the public interest that is represented by the respondent, which has sought over a period of years to secure the applicant's compliance with the relevant legislation. 84 The applicant's primary position on this application is that the Court should stay the Tribunal's decision, and the decision of the respondent that was subject to review, without any limitations. The applicant's alternate position was that the stay in the terms ordered on 29 January 2021 should be continued. The applicant pointed to the fact that over a relatively short period of time the applicant has been the subject of stays on three different sets of terms: (1) an unconditional stay that was ordered by the Tribunal on 7 June 2017 that ceased to have effect on 7 January 2021; (2) the Tribunal's conditional stay that was ordered on 7 January 2021; and (3) the limited terms of the interim stay ordered by the Court on an urgent basis on 29 January 2021. 85 The respondent's primary position is that there should now be no stay. For the reasons that I have given above relating to the effect of the Tribunal's order of 7 January 2021, the power of the Court to make an order under s 44A(2) with retrospective operation, and my disinclination to treat the evidence about the applicant's non-compliance as disentitling it to the benefit of a stay, I am not inclined to accept the respondent's primary submission. In the alternative, the respondent submitted that any stay should be the subject of conditions. The conditions that the respondent proposed were as follows – From the date of this order (separate to any other obligations under the Education Services for Overseas Students Act 2000 (ESOS Act)), the applicant must: a. Within 2 days, ensure that all entries relating to students or potential students of the applicant are accurate and complete within the computer system referred to at s 109 of the ESOS Act, known as 'PRISMS'. b. Not enrol or take any steps to enrol any current or potential student in a course or a part of a course under the ESOS Act. c. Not commence any current or potential student enrolled in a course or a part of a course under the ESOS Act. For the avoidance of doubt, students who are in Australia and who have enrolled in, and have commenced a course (or a part of a course) with the applicant on a date prior to the date of this order (current students) may continue to completion of that specific course (or part of a course) only where they commenced prior to the date of this order. However, the applicant may not enrol a current student in any new or further course or allow a current student to commence any new or further course, or part of a course. d. In respect of any student already enrolled, but yet to commence his or her first course with the applicant (subject students): (1) advise subject students in writing that they cannot commence a course or a part of a course with the applicant until further order of the Federal Court of Australia, (2) not demand payment from a subject student (3) provide refunds to subject students when requested, and (4) if a student seeks to transfer to another provider, the applicant must, in accordance with the National Code made under the ESOS Act, release the student seeking the transfer provided that the student owes no outstanding monies (fees) to the applicant for completed units, (5) provide ASQA with copies of all written notifications to students made under (1), clearly identifying each individual student and the date and method by which the communication was sent, (6) within 5 days of the date of this order, amend its Overseas Student Transfer Policy and Procedure (required by Standard 7.2 of the National Code) and provide a copy of the amended policy to ASQA, so that the policy permits students to transfer to another provider where the student owes no outstanding monies (fees) in relation to completed units. 86 I am not attracted to the conditions proposed by the respondent for a number of reasons. First, it would be undesirable that the continuation of a stay be contingent on the applicant complying with the conditions that the respondent proposes. It would mean that the maintenance of a stay ordered by the Court would be contingent on the occurrence of external events which may be the subject of disputation. It is more likely however, that the respondent did not intend that a stay be contingent on the applicant's compliance with conditions, but rather that the conditions simply be imposed, and that if there was evidence of non-compliance, the respondent could approach the Court to have the stay set aside. 87 As to the conditions proposed, I think that there is sense in requiring that the applicant as a condition accompanying any stay attend to the accuracy of its data in the PRISMS system. I am prepared to make an order pursuant to s 44A(4)(a) of the AAT Act that within seven days the applicant 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. 88 The other conditions proposed by the respondent have caused me more concern. After giving the matter careful consideration I have determined that there can be no perfect outcome, and that subject to the condition referred to above, there should be no limitation on the stay, so that the stay granted by the Court under s 44A(2) of the AAT Act which is to be effective from 7 January 2021 is of the same practical effect as the stay given by the Tribunal on 7 June 2017 and which was in force until 7 January 2021. My reasons for coming to this conclusion are as follows – (1) While it might be tempting to impose conditions on the applicant's operations as a response to the evidence of the applicant's contraventions, in the circumstances, I do not consider that to be an appropriate course. Any conditions should have as their purpose protection of the public, while balancing that interest against the applicant's interest in securing the effectiveness of the hearing and determination of the appeal. Punishment of the applicant by the imposition of limitations on its ability to operate should not form part of the discretionary considerations. (2) The conditions proposed by the respondent seek to set up a further regime of compliance which, on the respondent's own submissions, would operate in parallel with the statutory requirements. It is undesirable that the Court becomes the de facto regulator of the applicant's operations, so that what is already a complex regulatory framework is supplemented by further requirements imposed by Court order. (3) The imposition of limitations is liable to influence events that may not be capable of being controlled. The inability of the applicant to deliver courses to particular students who have enrolled for courses may trigger obligations under Part 5 of the ESOS Act. Further, the imposition of the conditions may have consequences in relation to the students' compliance with the conditions of their visas. The Court does not have before it complete information to identify and give consideration to these potential consequences, and I am reluctant to enter a field which introduces these types of problems. (4) The appeal will be fixed for 19 April 2021 and should be able to be determined relatively quickly. The position of all interested parties will then be settled. On balance, I do not think it is desirable to introduce a complex regime to operate between now and the hearing and determination of the appeal. There was much force in the submissions of counsel for the applicant in this respect. (5) There is a symmetry between the unconditional stay orders proposed by the applicant as its primary position, and the stay orders under which the applicant operated for over three and a half years prior to the Tribunal's decision of 10 December 2020. There is therefore also a symmetry between such orders and the final relief that the applicant claims to be entitled in the appeal. (6) The purpose of granting a stay under s 44A(2) of the AAT Act is to secure the effectiveness of the hearing and determination of the appeal. That purpose would be compromised if there were conditions on the stay as proposed by the respondent. The conditions would have a tendency to undermine the continued operation and viability of the applicant's business, including by rendering the applicant incapable of delivering courses to students who have enrolled, and to continue developing a pipeline of new enrolments. (7) I remain satisfied that, if the applicant is unsuccessful in its appeal and ceases to be able to offer courses to its students, then as I stated at [60] of the interim decision there are mechanisms in Parts 3 and 5 of the ESOS Act that are calculated to protect the interests of the students. Conclusions: 89 For the foregoing reasons, subject to further order, until the hearing and determination of this appeal, pursuant to s 44A(2) of the AAT Act the operation of the following decisions shall be stayed, effective from 7 January 2021 – (a) the decision of the Administrative Appeals Tribunal dated 10 December 2020 in matter 2015/6179; and (b) 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 that the registration of the applicant as an approved provider should not be renewed. 90 There will also be an order made substantially to the effect of that referred to in [87] above. 91 Costs shall be costs in the proceeding. I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan. Associate: Dated: 5 March 2021