CITATION: Sydney Institute of Tertiary Education Pty Ltd v Vocational Education and Training Accreditation Board [2010] NSWADT 209 DIVISION: General Division APPLICANT Sydney Institute of Tertiary Education Pty Ltd PARTIES: RESPONDENT Vocational Education and Training Accreditation Board FILE NUMBER: 093289 HEARING DATES: 22 and 26 July 2010 SUBMISSIONS CLOSED: 26 July 2010 DATE OF DECISION: 24 August 2010 BEFORE: Hennessy N - Magistrate (Deputy President); Burke T - Non-Judicial Member CATCHWORDS: Review of student cap decision – maximum class sizes LEGISLATION CITED : Vocational Education and Training Act 2005 Administrative Decisions Tribunal Act 1997 CASES CITED: AT v Commissioner of Police [2010] NSWCA 131 APPLICANT P Singleton, barrister REPRESENTATION: RESPONDENT P Cribb, solicitor 1. By consent, the decision of the respondent to refuse the applicant's application for approval to provide for overseas students the following courses BSB40207 Certificate of IV in Business BSB51107 Diploma of Management BSB60407 Advanced Diploma of Management BSB41307 Certificate IV in Marketing BSB51207 Diploma of Marketing BSB60507 Advanced Diploma of Marketingis set aside and in substitution for that decision a decision is made to grant to the applicant approval to provide for overseas students the following courses:BSB40207 Certificate of IV in Business BSB51107 Diploma of Management BSB60407 Advanced Diploma of Management BSB41307 Certificate IV in Marketing BSB51207 Diploma of Marketing 2. By consent, the decision of the respondent purportedly to refuse what was said to have been the applicant's application for approval to amend its scope of registration is set aside and in substitution for that decision a decision is made to remove from the applicant's scope of registration as a registered training organisation the BSB60507 Advanced Diploma of Marketing ORDERS: 3. The decision of the respondent to refuse the applicant's application for a variation of the following condition of its registration as a registered training organisation, namelyThe maximum number of overseas students enrolled and studying does not exceed 150. This total capacity relates to all premises and all courses being delivered to overseas students in NSW by this provideris set aside and in substitution for that condition the following condition is imposed:The maximum number of overseas students enrolled and studying does not exceed 570. This total capacity relates to all premises and all courses being delivered to overseas students in NSW by this provider 4. By consent, the decision of the respondent to impose on the applicant's approval to provide courses for overseas students a condition that prevented it from doing anything for the purpose of recruiting or enrolling students and from soliciting or accepting any money from any student or intending student (other than from students who had begun their courses on or before the date on which the applicant was notified of the decision) is set aside 5. The applicant's application for costs is refused. REASONS FOR DECISION Introduction 1 The applicant in these proceedings, the Sydney Institute of Tertiary Education Pty Ltd, conducts a College called Uniworld Business College (the College). The College is one of three Uniworld Colleges that operate from four floors at premises at 55 Regent Street Chippendale, NSW. It provides business and hospitality courses to overseas students. The applicant was first registered as a Registered Training Organisation (RTO) under the Vocational Education and Training Act 2005 (the VET Act) in March 2007. The respondent is the Vocational Education and Training Board (VETAB). It has functions including the registration of RTOs, the accreditation of vocational courses and the approval of persons to provide courses for overseas students: VET Act, s 6. 2 The applicant applied to the Tribunal for a review of four decisions made by VETAB. Only one of those decisions, the decision not to increase the maximum number of overseas students that could be enrolled from 150 to 570, is still in issue. We refer to this decision as the 'student cap decision'. The other three decisions are the subject of consent orders. The broad issue in these proceedings is whether the student cap decision is the 'correct and preferable' decisions: Administrative Decisions Tribunal Act 1997 (ADT Act), s 63. The Tribunal may affirm, vary or set aside this decision. Legislative provisions 3 VETAB "may impose such conditions on the registration of a training organisation as the Board thinks appropriate": VET Act, s 13(2). Such conditions may be imposed when VETAB decides to register the training organisation or at any later time. Those conditions may include a cap on the number of overseas students that can be enrolled and studying at any one time. 4 The VET Act has the following objects: (a) to establish a registration and accreditation framework for vocational education and training, in particular by applying nationally agreed standards, (b) to ensure the quality and integrity of vocational education and training in this State, (c) to provide for the approval by the Board of persons (other than official universities) to provide courses for overseas students (such approval forming the basis for registration under the Education Services for Overseas Students Act 2000 of the Commonwealth), (d) to promote consistency of standards in vocational education and training, (e) to encourage the recognition of vocational courses that are accredited under this Act: s 3. Background 5 Every course, which is approved to be provided to overseas students, is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). Only CRICOS courses can be offered to international students studying in Australia on a student visa. When the College was registered in March 2007, VETAB imposed several conditions on its registration including that "the maximum number of overseas students enrolled and studying does not exceed 150". On 10 November 2008 the applicant applied to VETAB for approval to provide a further six courses (the BSB07 courses) and to increase the number of students to 570. The BSB07 courses replaced BSB01 courses. VETAB conducted a desk audit of the College and produced an audit report dated 22 April 2009. 6 On 4 March 2010 the applicant provided further material. VETAB made four decisions which were unfavourable to the applicant including a decision to refuse the applicant's application for an increase in the student cap. The reason given for that decision was that: It is not clear how an additional 300 BSB07 students can be accommodated in addition to the numbers already studying and pending. 7 On the 10 November 2009 the applicant filed an application in the Tribunal for review of all four decisions. Ms Turner, the principal executive officer of the applicant, filed a statement dated 16 June 2010. Attached to that statement was a table setting out the courses the College was proposing to teach, the rooms available to the College to teach those courses (including the periods of time during which those rooms were available), the teacher allocated to teach each course and the area in square metres of each room. The last two columns of the table are headed "Max students 918" and "Based on 570 students" respectively. The total of the figures in the second last column is 918. According to the applicant, that figure represents the total student capacity based on the accommodation available to the College at the Chippendale premises. The figure of 918 assumes that each room will be used to full capacity throughout the day in two sessions, one from 8.30 am to 3.10 pm and the other from 3.20 pm to 10 pm. The number of students in each room ranges from 23 to 62, depending on its size. 8 The total of the figures in the last column, headed "Based on 570 students" is 567. There was no explanation as to why approval should be granted for an extra three students to be enrolled. Both 567 and 570 are significantly less than the maximum capacity figure of 918 because the applicant indicated that it was not going to teach all of the 24 courses it had been approved to teach, at least for an initial period. That fact was indicated in the table by the words 'no allocation'. According to the applicant, the table demonstrates that the College has a capacity to teach 918 students even though it is only requesting approval for 570 students. 9 On 19 July 2010, after receiving Ms Turner's statement which attached the table, VETAB wrote to the applicant. In that letter VETAB's legal representative, Mr Cribb said that he was instructed to set aside VETAB's student cap decision and to substitute it for a decision that increases the student capacity to 319. The letter went on to say that the figure of 319 had been calculated by reference to Ms Turner's table subject to: (i) reducing the student capacity so that each student has two square metres of floor space (having regard to such figure as used in the former "National Code 2001"); and (ii) there not being more than 25 students in any one class. 10 The letter did not provide any reasons for the decision in (ii) above. 11 Applying these criteria, the maximum number of students in any one room is equal to half the floor space in square metres or 25, whichever is the fewer. On that basis, the maximum number of students in each room ranged from 18 to 25. At the end of the hearing Mr Cribb revised the figure to 501. That figure was calculated using the figures in the second last column, that is on the basis of all the available rooms being used throughout the day, regardless of whether the applicant was intending to offer every course for which it had sought approval. That change in approach was consistent with Mr Singleton's submission on behalf of the applicant, that if the two square metre standard was applied, it should be applied to all the available rooms, not just to the rooms in which classes had been scheduled. We accept that the calculation of student capacity should be based on the capacity of all the available rooms. 12 Mr Cribb reached a figure of 501 by applying the 2 square metre standard and a maximum of 25 students in each class and subtracting 37 students (19 plus 18) from the total. The reason for subtracting 37 students was that that number of students was listed as being trained by Ms Susan Stack and Mr Ray Georghiou. According to VETAB, neither Ms Stack nor Mr Georghiou has the necessary qualifications to teach the courses listed next to their name and the student cap should be reduced on that basis. In particular VETAB said that Susan Stack has no relevant vocational competencies to deliver BSB40207, Certificate IV in Business or BSB51107, Diploma of Management. Mr Ray Georghiou was said to have no vocational competencies to deliver BSB41307 Certificate IV in Marketing or BSB51207, Diploma of Marketing. 13 Ms Turner gave evidence that Susan Stack and Ray Georghiou are available to teach but are not employed by the applicant at the moment. She said she would have to look at their curriculum vitas again but her advice is that they are qualified to teach the courses to which they have been allocated in the table. 14 Ms Stack and Mr Georghiou are not employed by the applicant, nor have they been nominated to teach a course that the applicant intends to deliver at this stage. In those circumstances, their qualifications are not relevant to the issue of the student cap. If the applicant decides to offer the Advanced Diploma of Business Management (BSB60201) or the Diploma of Marketing (BSB51207) it will have to recruit suitably qualified trainers. If 37 students are included in the calculation, VETAB's student cap decision would be 538, based on the 2 square metre rule and a limit of 25 in each class. 15 The Tribunal viewed the applicant's premises at Chippendale in the company of the parties' representatives. We looked at each classroom where the applicant proposes to deliver the business courses. Issues 16 The issue is whether a condition should be imposed on the applicant that the maximum class size be calculated on the basis of each student having two square metres of floor space with a maximum of 25 students in any one class, regardless of the size of the room. Two square metre standard 17 One basis for VETAB's new student cap decision of 501 (now 538) was that each student should have no less than two square metres of floor space. That standard was said to be imposed having regard to the figure used in the former National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2001 (the 2001 Code). Clause 18 of Part C of the 2001Code stated that: The premises in which the registered provider delivers its CRICOS- registered courses must be adequate for the courses to be provided, in terms of space and facilities. Floor areas in general purpose classrooms must not be less than 2 square metres per student if brought into use after 1 July 2001. If brought into use before that date, floor areas in general purpose classrooms must not be less than 1.6 square metres per student. Floor areas in specialist teaching spaces, including lecture theatres, must be appropriate to their function. 18 The 2001 Code has been superseded by the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the 2007 Code). The 2007 Code does not prescribe a particular area per student. Standard 14.2 of the 2007 Code requires a registered provider to have "adequate education resources, including facilities, equipment, learning and library resources and premises". 19 The Codes are a set of nationally consistent standards that protect overseas students. Dr Tweedie, a compliance officer with VETAB, did not refer to the two square metre standard in any of the documents she prepared on behalf of VETAB. The first time that the standard was mentioned was in Mr Cribb's letter to the applicant in July 2010. Nevertheless, Ms Tweedie gave evidence that 2 square metres per student is appropriate, notwithstanding that that figure is no longer prescribed. VETAB submitted that it could have regard to historical material such as the 2 square metre standard in deciding whether or not to increase the student cap. Mr Cribb said that if each of the rooms contained the number of students that the applicant said they could accommodate, the conditions would be very cramped. Mr Singleton pointed out that Mr Cribb had not put that proposition to Ms Turner. 20 The College's chief executive officer, Ms Turner, gave evidence that, based on the 2001 Code, 1.6 square metres was adequate for existing Colleges. Mr Singleton, representing the applicant, submitted that since VETAB was imposing a square metre standard on an existing College, it should be afforded the same leniency as existing Colleges were afforded when the 2001 National Code commenced operation. If 1.6 square metres were the standard, the student cap would be 963 leaving aside any consideration of whether there should be a maximum of 25 students in each class room. The applicant submitted that there was no evidence demonstrating the merits of the 2 square metre standard and nothing in the relevant training packages, the Australian Quality Training Framework (AQTF) Essential Standards for Registration or the 2007 Code which prescribed a particular standard. Findings 21 The current requirement under the 2007 Code is that RTOs must have "adequate" facilities and premises. In determining what is adequate, VETAB (and now the Tribunal) must keep in mind that two of the objects of the VET Act are 'to ensure the quality' of vocational eduction and 'to promote consistency of standards'. 22 Based on Dr Tweedie's evidence, our own observations and the 2001 Code, if the 2 square metre standard was applied, the premises would be adequate. That proposition was not in dispute. The proposed timetable does not presently comply with that standard. For example, the applicant has allocated 62 students to room 406 which has an area of 94 square metres. That number of students means that each student has an average of 1.5 square metres of space. Rooms 109/110 and 403/403A have an area of 70 square metres with 46 students allocated to those rooms. The standard for those rooms is also 1.5. An area of 1.5 square metres per student is below even the lower standard of 1.6 square metres per person permitted to Colleges operating prior to 2001 and is not 'adequate'. 23 A standard of 1.6 square metres was considered adequate for Colleges operating prior to 1 July 2001. The evidence, together with the objects of the VET Act, satisfies us that while 2 square metres per person is desirable, 1.6 square metres per student is the minimum area the College should provide for each student studying the business courses. If that figure is applied to every room, and a maximum of 25 students allocated to each room, the student capacity would be 590. That figure is in excess of the figure of 570 that the applicant is seeking. Maximum of 25 students per class 24 The second basis for VETAB's new student cap decision of 501 (now 538) was that there should be a maximum number of 25 students in each class. The table prepared by Ms Turner to justify a student cap of 570 students indicates that class sizes would be between 23 and 62 students depending on the size of the room. 25 Class sizes for primary and secondary school students in New South Wales are the subject of an Agreement between the New South Wales Department of Education and Training and the New South Wales Teachers Federation ("Agreement Between the New South Wales Department of Education and Training and the New South Wales Teachers Federation on the Staffing of New South Wales Public Schools 2009 – 2012"). This Agreement states that the statewide average class sizes are 20 for kindergarten, 22 for year 1 and 24 for year 2. In years 3-6, no class need exceed 30 students. In years 7-10, for non-practical subjects, no class need exceed 30 students. For years 11–12, no class need exceed 24 students. 26 Dr Tweedie did not refer to a maximum number of students in any one class in the documents she prepared on behalf of VETAB. The first time that a maximum of 25 students was mentioned was in Mr Cribb's letter to the applicant in July 2010. Nevertheless, Dr Tweedie agreed that the number of students in the class room makes a difference in terms of how much time the teacher can devote to individual students. When giving evidence in chief she said that a class size of 25 would allow the teacher to give more individual attention to students. She said that teachers should be able to present in a tutorial, rather than lecture, style where the characteristics of the students or the nature of the subject matter suggests that such a style would be more appropriate. During cross examination she conceded that she did not know what arrangements had been made for students to receive individual attention outside class time. On the basis that she did not know precisely what was proposed for the delivery of the business courses, she withdrew her evidence that there should be a cap of 25 students in every class. 27 Mr Cribb submitted that although there is no formal limit on class sizes for vocational education students, the Agreement between the Department of Education and Training and the NSW Teachers Federation provides a guide for the vocational education sector. That Agreement states that class sizes for years 11 and 12 should not exceed 24 and class sizes for students in years 7-10 undertaking practical courses should be smaller. Mr Cribb submitted that because the College's students were close in age to students in years 11 and 12, class sizes should not exceed 25. 28 Ms Turner's evidence was that all the students enrolled in the business courses were over 18 and most were between 20 and 25. She said that teachers consult with students outside class hours usually before or after class or during breaks. Ms Turner did not agree that all courses were delivered using a lecture style. She said that students were encouraged to ask questions and were required, in certain circumstances, to participate in group work. 29 Mr Singleton submitted that the Agreement in relation to primary and high school students demonstrates that, in general, the older the student, the larger the class size could be. For example, adults are expected to be able to learn effectively in a larger class than a 6 year old. Another factor is whether the subject matter is predominantly theoretical or practical. According to Mr Singleton, the evidence demonstrates that business courses are, in general terms, theoretical courses. He queried the justification for VETAB imposing a limit of 25 students when studying vocational courses when the government's policy in relation to students in years 7 to 10 was that class sizes should not exceed 30. Furthermore, imposing a maximum of 25 students on the applicant would put it at a competitive disadvantage compared with other Colleges teaching the same courses. Findings 30 Students enrolled at the College are required by legislation to attend classes for 20 hours a week. The timetable proposed by the applicant has students studying in the same classroom with the same teacher for six hours, including breaks, three days a week. Class sizes range from 23 to 62. In particular, the proposed timetable provides for 3 classes of 62 students, 3 classes of 46 students and one class of 53 students. The remaining class sizes range from 23 to 35 students. The students are all overseas students over the age of 18. If everything else is equal, such students will require more individual attention because of cultural and language issues. The courses being taught are predominantly theoretical notwithstanding the need for access to technology for some subjects. We find that while the classes are taught in what may be generally described as a lecture style, there is some opportunity for students to ask questions during class as well as outside class time. There was no evidence of a systematic provision for tutorials. 31 We are satisfied in these circumstances that the proposed classes catering for between 23 and 35 students (subject to the 1.6 square metre standard) are appropriate. Proposed classes of 53, 46 and 62 students are unlikely to allow education and training of sufficient quality. Conclusion 32 If the 2 square metre rule were relaxed to 1.6 square metre and the 37 students are included, the student cap would be 590, even with a cap of 25 students in each classroom. That figure is in excess of the College's application for a cap of 570 students. In our view, a condition should be placed on the applicant's registration as a registered training organisation in the following terms: The maximum number of overseas students enrolled and studying does not exceed 570. This total capacity relates to all premises and all courses being delivered to overseas students in NSW by this provider 33 This condition is imposed on the understanding that the 1.6 square metre standard is the minimum standard for the number of students in a room and class size should not exceed 35 students. This decision is made in relation to the applicant's particular circumstances and is not intended to be a precedent for every RTO that provides the same or similar courses. Costs 34 The applicant applied for costs. VETAB opposed that application. The relevant provision is s 88 of the ADT Act: (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. 35 In AT v Commissioner of Police [2010] NSWCA 131, Basten JA, referred at [33] to 'the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel'. He then said: Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the [ADT Act]. 36 The basis for the applicant's application was that it has been successful in relation to each decision under review and that the College has been put to considerable expense in having to litigate those decisions. While it ultimately did not press its application to add the Advanced Diploma of Marketing to its list of approved courses, that is the only matter which it withdrew from the Tribunal's consideration. 37 The four decisions that were initially before the Tribunal for review were: a) the decision to impose on the College's approval to provide courses to overseas students the condition that no steps be taken to recruit or enrol more students; ( the no new business decision ) b) the decision to reject the College's application to add six BSB07 courses to the list of courses it is approved to provide to overseas students; ( the CRICOS decision ) c) the decision to reject the College's application to amend one of the conditions of its registration as a registered training organisation so as to increase the maximum number of overseas students it may have enrolled; ( the student cap decision ) and d) the purported decision to reject the College's application for an amendment of its scope of registration so as to include the six BSB07 courses; ( the scope decision ). 38 The no new business decision. On 2 September 2009, VETAB imposed the "no new business" condition on the applicant. The reason for that condition being imposed was that on 17 August 2009 the applicant had 519 overseas students studying with a further 750 pending enrolments. VETAB noted that this was a serious breach of the condition that the maximum number of overseas students the applicant was authorised to have studying at any one time was 150. The applicant complied with the condition but included that decision in the application for review filed on 10 November 2009. By 9 July 2010 fewer than 150 students were enrolled at the College and VETAB agreed to set aside the condition. Mr Singleton conceded that there is no basis for an award of costs in relation to this decision and none is made. 39 The CRICOS decision. In November 2008 the applicant applied for approval to provide overseas students the six new BSB07 courses. The application was made under section 34 of the VET Act. VETAB refused that application. After Ms Turner filed further material attached to her statement of 20 July 2010 (LT 3-8), VETAB decided to approve the applicant to provide five of the six BSB07 courses. The applicant subsequently withdrew its application to provide the sixth course, the Advanced Diploma of Marketing. Mr Cribb's submission is that VETAB should not have to pay the applicant's costs in circumstances where the applicant's late provision of material was the basis for the decision being varied. 40 VETAB has the power to approve a person to provide courses for overseas students: VET Act, s 34(1). Section 34(7) provides that VETAB "must not refuse an application for approval except on one or more of the following grounds: (a) that the applicant has not furnished such further information in relation to the application as the Board requires, (b) that the applicant does not have the resources to provide the courses to which the approval relates competently, (c) that the applicant's financial arrangements or ethical standards do not warrant the approval of the applicant, (d) in the case of a course that includes matter the subject of proprietary rights (such as copyright)-that the applicant is not lawfully entitled to the benefit of those rights, (e) that the applicant or the applicant's resources do not comply with the approval guidelines." 41 In its statement of grounds, VETAB relied on the grounds in s 34(7)(b) and (e) as well as on grounds under s 35(3)(d), (g) and (h), for refusing the applicant's application for approval. Section 35 relates to decisions to suspend or cancel an approval, not to decisions refusing an application for approval. Mr Singleton conceded that there is an overlap between the matters listed in section 34(7)(b) and (e) and the matters VETAB relied on under s 35. The College provided evidence from Ms Turner addressing the alleged to nonconformity with standards 14.1 and 14.2 of the 2007 Code. Ms Tweedie's evidence is as follows: Nonconformity with standard 14.1 because a) the College has not provided a timetable that adequately shows certain matters; and b) the College has not established that it has sufficient qualified trainers and assessors and Nonconformity with standard 14.2 because the College has not established that it has adequate education resources. 42 Mr Singleton's submission in relation to this decision is that if VETAB had correctly understood the statutory basis on which it was entitled to refuse approval it would never have refused it. That submission is based on a submission that VETAB has the 'onus' of establishing one of the grounds in s 34(7) of the VET Act before refusing approval. According to Mr Singleton, it cannot discharge that onus by pointing out that the applicant has not provided certain material or has not established certain matters. 43 The Tribunal's role is to decide what the correct and preferable decision is having regard to the material then before it: ADT Act, s 63. In determining that issue, we must have regard to the material before us including any relevant factual material and any applicable written or unwritten law: s 63(1). Regardless of the basis on which VETAB made its decision, but subject to the rules of procedural fairness, it is for the Tribunal to decide whether the decision itself (as distinct from the reasons given for the decision) is correct and preferable. The grounds on which the Tribunal comes to that view do not have to be the same grounds as those on which VETAB initially relied. Whether or not the decision is the correct decision will depend, to some extent, on the material that the College provides in evidence. VETAB does not have any legal burden of proving certain matters. While it may have an evidential burden, this is not a case where VETAB's decision had no tenable basis in fact or law, nor is there any other ground in s 88A that makes it fair to award costs in relation to this decision. 44 The student cap decision. The student cap decision was the only decision that the Tribunal needed to review. The other three decisions are the subject of consent orders. The history and reasons for this decision are set out above. Mr Cribb submitted that the applicant's application was initially refused because it was not compliant in relation to the six new BSB07 courses that it sought approval to teach. Because those courses had not been approved, there was no justification for increasing the student capacity. 45 Mr Singleton submitted that, as late as 19 July 2010, VETAB varied its decision to give approval for a cap of 319 students. That decision was varied again to 501 at the end of the hearing. As we have set aside VETAB's decision and agreed to approve a student capacity of 570 students, Mr Singleton submits that it is fair to order that VETAB pay his client's costs. 46 The variations in VETAB's decision are explicable on the basis that the applicant provided further material to support their application. Furthermore, while the applicant has been successful in its application for a capacity of 570 students, we have found that the area that was to be allocated to each student (approximately 1.5 square metres in some cases) is inadequate and that class sizes in excess of 35 students would, as the evidence stands, compromise the quality of the education and training being provided. Those findings will mean that while the applicant will be able to enrol 570 students, it will not be able to implement the timetable it proposed in relation to the delivery of its business courses. This is not a case where VETAB's decision had no tenable basis in fact or law, nor is there any other ground in s 88A that makes it fair to award costs in relation to this decision. 47 The scope decision. The scope decision was a purported decision by VETAB to reject the College's application to amend its scope of registration so as to include the six new BSB07 courses. It is now agreed that the College did not make such an application so there was nothing for VETAB to reject. Indeed VETAB had already made a decision to amend the College's scope so as to include the six BSB07 courses. Both parties agree that the purported decision should be set aside. VETAB initially contended that the Tribunal should make a new decision in substitution for the decision that had been set aside namely a decision to amend the College's scope of registration by removing the BSB 07 courses. However, after receiving Ms Turner's new material on 20 July 2010, VETAB consented to the Tribunal setting aside the purported decision and, in substitution for that decision, making a decision to remove from the applicant's scope of registration as a registered training organisation only the BSB60507 Advanced Diploma of Marketing. 48 Mr Singleton submitted that because VETAB rejected an application that had never been made, and overlooked that mistake on internal review, it should pay the applicant's costs in relation to that decision. Mr Cribb acknowledged VETAB's error but said that the applicant was not disadvantaged by its purported decision because it involved similar reasoning and considerations to the CRICOS decision. 49 Mr Cribb has conceded, in effect, that the scope decision was a decision which had no tenable basis in law or in fact. That is one of the grounds in s 88(1A) to which the Tribunal is to have regard in deciding whether it is fair to award costs. In our view, while VETAB misunderstood its statutory powers, the intent of its actions was clear. VETAB intended to make a decision preventing the applicant from delivering the BSB07 courses. The applicant understood that that was VETAB's intention and that it needed to address VETAB's concerns about the delivery of the new business courses before it would be permitted to deliver them. In those circumstances, it is not 'fair' to order VETAB to pay the applicant's costs in relation to this decision. Orders 1. By consent, the decision of the respondent to refuse the applicant's application for approval to provide for overseas students the following courses BSB40207 Certificate of IV in Business BSB51107 Diploma of Management BSB60407 Advanced Diploma of Management BSB41307 Certificate IV in Marketing BSB51207 Diploma of Marketing BSB60507 Advanced Diploma of Marketing is set aside and in substitution for that decision a decision is made to grant to the applicant approval to provide for overseas students the following courses: BSB40207 Certificate of IV in Business BSB51107 Diploma of Management BSB60407 Advanced Diploma of Management BSB41307 Certificate IV in Marketing BSB51207 Diploma of Marketing 2. By consent, the decision of the respondent purportedly to refuse what was said to have been the applicant's application for approval to amend its scope of registration is set aside and in substitution for that decision a decision is made to remove from the applicant's scope of registration as a registered training organisation the BSB60507 Advanced Diploma of Marketing 3. The decision of the respondent to refuse the applicant's application for a variation of the following condition of its registration as a registered training organisation, namely The maximum number of overseas students enrolled and studying does not exceed 150. This total capacity relates to all premises and all courses being delivered to overseas students in NSW by this provider is set aside and in substitution for that condition the following condition is imposed: The maximum number of overseas students enrolled and studying does not exceed 570. This total capacity relates to all premises and all courses being delivered to overseas students in NSW by this provider 4. By consent, the decision of the respondent to impose on the applicant's approval to provide courses for overseas students a condition that prevented it from doing anything for the purpose of recruiting or enrolling students and from soliciting or accepting any money from any student or intending student (other than from students who had begun their courses on or before the date on which the applicant was notified of the decision) is set aside. 5. The applicant's application for costs is refused. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.