The Commissioners decided to:
- Cancel, under the NVR Act s 36(2)(f) and s 39, the RTO’s registration
with effect 35 calendar days after the date the RTO is given written notice of the decision.
On 3 June 2020, following AAT review, the parties reached an agreement.
The Tribunal decided that the cancellation decision is set aside and in substitution, the Tribunal imposes a written direction under s 35A of the Act for the applicant to remedy the issues identified in the respondent's evidence analysis dated 7 October 2019 where they have not already been remedied, and keep and retain evidence of this to be available for inspection at a future regulatory activity of ASQA.
Further, the following conditions are imposed on the applicant's registration under section 29 of the NVR Act for a period of 18 months from 3 June 2020:
- Mr Fahim Kherkhah must not take part in the management of the operations of the RTO;
- the RTO must securely retain, and provide to ASQA on request, copies of all completed student assessment items for each student (per the definition in ASQA's General Direction – Retention requirements for completed student assessment items and clearly identifiable as to which student and units each item relates to) and copies of the master assessment tools used for each assessment, for a period of 2 years from the date on which the judgement of competence for each relevant unit of competency is made;
- within 12 weeks, and then every 12 months, from the date of the imposition of this condition, in addition to complying with the requirements of clause 1.9 of the Standards for RTOs, the RTO must:
- engage a suitably qualified independent person(s) (who has vocational currency in the training product being validated and the training and assessment qualification or assessor skill set at least to the level being validated) to conduct validation, and the production of a report of that validation, of assessment practices and judgements for each training product, if the product is being currently delivered;
- that validation must be of a representative sample of all students enrolled in the product and any report must detail how the sample was determined;
- as a part of that validation the independent person(s) must observe, in person, the RTO's assessor/s conducting the practical assessment of a unit of competency for at least 3 students per course, to determine whether assessment is being conducted in a manner consistent with the RTO's training and assessment strategies and assessment system, and the Standards for RTOs;
- the independent person(s) must produce a report detailing their findings of the validation activity and any recommendations for the RTO to improve its training and assessment system or practice and annex copies of any assessment records relating to the validation and include how any observed assessment practice was conducted;
- the RTO must retain records in relation to 3 and provide to ASQA for consideration at the next regulatory activity pertaining to the RTO.
Note: On 19 August 2019, the decision was stayed by the AAT subject to the following conditions:
- the Applicant shall not enrol or commence any students in a course or courses subject to these proceedings;
- the Applicant shall not provide training to a student or students except:
- such as is necessary to allow any existing student or students to complete the unit or units of competency in respect of which they are presently receiving training;
- such as is necessary to complete any remedial instruction presently being provided by the Applicant;
- the Applicant shall not issue any diploma or statement of attainment to any student or students other than to such student or students who qualify for the issue of a diploma or statement of attainment in accordance with this Order or who have qualified for such prior to the date of this Order;
- within 5 business days of the date of this Order, the Applicant shall advise in writing each member of staff and each student presently enrolled of the following:
- that, on 2 July 2019, the Applicant was advised of the Respondent's decision to cancel the Applicant's registration under the National Vocational Education and Training Regulator Act 2011 (Cth);
- that a copy of the letter giving notice of the cancellation may be inspected at the Applicant's business premises within normal business hours;
- that the Applicant has applied to the Tribunal to review the Respondent's decision;
- that it is expected that the application to the Tribunal will be heard in October 2019;
- the terms of this Order;
- by close of business on 26 August 2019, the Applicant must provide to the Respondent an unprotected .xls spreadsheet containing the following data for its enrolled students:
- contact number(s);
- email address;
- student ID;
- course enrolled;
- date enrolled;
- units of competency that have been completed;
- units of competency currently being undertaken;
- units of competency not yet completed and not yet commenced;
- name, address and contact number of day-care placement;
- the Applicant must not advertise or cause to be advertised any nationally accredited vocational education and training regulated by the Respondent.