By Lorenzo Boccabella, Barrister-at-law and specialist in migration law
Serious issues have arisen when a Registered Training Organisation (RTO) fails or goes into liquidation and students who were given a training qualification have that qualification cancelled.
There have been a number of cases in the Administrative Review Tribunal (ART) where the Australian Skills Quality Authority has cancelled a student’s qualification but there has only been limited success in the ART in overturning that cancellation.
The lessons from these ART decisions is that students need to urgently look elsewhere to find a suitable body to give credit for recognition of prior learning in the event a qualification is cancelled. Or to lawyer up and fight the cancellation in the ART with objective evidence that the person is entitled to the qualification. Obviously when choosing an RTO students should ensure they are confident of RTO being in operation for the during of their course and that its systems and instruction appear to be competent.
There is a right of review to the ART and because of the dire consequences which occur, a student is well advised to obtain to obtain legal representation before the tribunal on review and even earlier.
Under the National Vocational Education and Training Regulator Act 2011 (Cth) the National VET Regulator has the discretion to cancel a student’s a VET qualification or VET statement of attainment issued to a person by an NVR registered training organisation or former registered training organisation (VET of course stands for Vocational Education and Training). However the following grounds have to be established under s56 of that Act:
that:
(a) the organisation did not provide, or arrange for another person to provide, all or part of the assessment necessary for the person to achieve the learning outcomes or competencies required for:
(i) the qualification; or
(ii) the units of competency or modules specified in the statement; or
(b) the qualification or statement was issued by the organisation:
(i) in error; or
(ii) because of a document or representation that was false or misleading, or was obtained or made in any other improper way; or
(c) it was outside the organisation’s scope of registration to issue the qualification or statement to the person; or
(d) it is appropriate, in all the circumstances, because of action the Regulator has taken, or is taking, in relation to:
(i) the VET course, or part of the VET course, to which the qualification relates; or
(ii) the organisation, in respect of the VET course, or part of the VET course, to which the qualification relates; or
(iii) part of the VET course to which the statement relates; or
(iv) the organisation, in respect of part of the VET course to which the statement relates.
An example of qualification cancellation, is Bayahow and Australian Skills Quality Authority [2026] ARTA 702 (23 April 2026) where the ART affirmed a decision to cancel 2 qualifications issued by Gills College namely:
(a) Certificate III in Early Childhood Education and Care, issued on 26 January 2022; and
(b) Diploma of Early Childhood Education and Care, issued on 31 March 2022
The reasons regulator did this, was that the Australian Skills Quality Authority had decided to cancel Gills College’s registration as a VET provider.
The ART was critical of the student’s evidence before the tribunal and the member stated:
“46. In relation to his enrolment with Gills College to undertake the Qualifications, Mr B could not recall:
(a) the date when he enrolled for the Qualifications or whether the enrolment process was in person or on-line.
(b) the documents, other than the certificates relating to his previous qualifications, which he submitted to Gills College as part of his enrolment process.
(c) examples of any past work submitted by him to Gills College
(d) whether he was asked any questions by Gills College at the time of his enrolment, and if he was asked questions, what the content of the questions was
(e) whether he had an interview with Gills College.
(f) how he paid for the enrolment or if he had any record of the payment having been made
(g) whether he received any written confirmation of his enrolment from Gills College.
(h) what steps were involved in the enrolment; and
(i) whether he received any information from Gills College about RPL or an RPL kit from Gills College.”
The tribunal concluded:
“117.It follows from the above that the Tribunal is not persuaded that the evidence before the Tribunal is “equally consistent with lawful assessment having occurred”, but rather it is satisfied that on the balance of probabilities the evidence before it leads to the conclusion that the required assessment did not occur.
118.It is an unfortunate, but unavoidable, consequence of affirming the decision under review that there will” be professional and financial consequences to be endured by Mr B (through no fault of his own), which cannot be directly ameliorated by the Tribunal. Having regard to the Objects of the NVR Act and having weighed the public interest considerations, the Tribunal cannot agree with Mr B that the cancellation of the Qualifications yields no public benefit.
119.The Tribunal agrees with the factors said by ASQA to support the exercise of the discretion….. In particular, the Tribunal is not persuaded that the harm which Mr B will suffer outweighs the public interest protective considerations which favour cancellation of the Qualifications. Further, the Tribunal is satisfied that this case is not in the exceptional category of case which supports the exercise of the discretion not to cancel the Qualifications.”
In contrast in Ye and Australian Skills Quality Authority [2025] ARTA 2512 (24 November 2025), the ART did set aside a cancellation of a Diploma of Early Childhood Education and Care from Gills College.
It is useful to set out in details why the ART found in favour of the student:
“91.”The first feature, relevant to the public interest considerations which inform the exercise of discretion, is that there has been no suggestion that Gills College, Hillsdale Childcare Centre or anyone else had any concern that Ms Ye posed any risk to the children assigned to her care. Indeed… it was because ASQA was comfortable that Ms Ye posed no risk to the children in her care that ASQA, correctly, did not oppose the granting of a stay in this matter.
92.The second feature, relevant to the Tribunal being satisfied as to Ms Ye being able to achieve the skill and competence requirements for the units of competency making up the Qualification, is the successful partial completion by Ms Ye of the same Diploma of Early Childhood Education and Care qualification with TAFE in 2019-2020….
93.The third feature turns on Ms Ye’s profile as a prospective student at Gills College in July 2022. At that time, Ms Ye had been working at Hillsdale Childcare Centre for 5 years, had previously obtained… a Certificate III in Early Childhood Education and Care from TAFE, had previously partially completed the upgrading of her qualifications to Diploma level at TAFE, and was seeking to complete that process by seeking RPL at Gills College. That is a very different student profile to the more usual case of a prospective overseas student, often with limited prior experience in early childhood education applying…”for enrolment at an RTO while still offshore or within weeks or months of arriving in Australia.”
94.The fourth feature is the impressive evidence, strongly supportive of Ms Ye having demonstrated skills and competencies at the required level, given by three senior early childhood educators. Two of these witnesses.. have directly observed and supervised Ms Ye in the classroom for more than 12 months. These three witnesses were able, collectively through their respective evidence, to provide, in effect, a persuasive proxy for an independent skills assessment of the kind that would otherwise be important in enabling the Tribunal to form an accurate picture of whether the level of Ms Ye’s skills and competencies was at the required level to hold the Qualification.”
As can be seen therefore the applicant had so show substantial objective evidence of her skills in order to get the diploma cancellation set aside and restored by the tribunal.