Review of Decisions to Issue Prohibition Notice & Cancel Provider Approval

Further to my previous post, the Victorian Civil and Administrative Tribunal in Tran v Secretary to the Department of Education (Review and Regulation) recently handed down its judgment in relation to the issuing of a prohibition notice and cancelling provider approval by the Department. In the proceeding, Ms Huong Vi Thi Tran (who is commonly known as Vi Tran) and Vi and Nhat Pty Ltd (VNPL) (applicants) sought review of decisions of the Secretary to the Department of Education, made under the National Law’), concerning the Smart Learning Early Learning Centre formerly operated by VNPL in Burden Street, Springvale, as well as Ms Tran’s role(s) with the Centre.  Before the Tribunal, there were two main decisions in contention, being the Secretary’s decisions:

• prohibiting Ms Tran from providing education and care to children for any service, from being engaged as an educator or staff member of any education and care service or carrying out any other activity relating to an education and care service (section 182, National Law) and/or a related decision, refusing to cancel the Prohibition Decision; and·

• cancelling VNPL’s approval to operate the Centre (section 33, National Law).

Ms Tran contended that the decisions under review should be set aside on the basis that she and VNPL have always sought to comply with the National Law and, in any event, the Secretary’s decisions are unfair and a result of alleged ‘corruption’ between the Secretary and her sister (who owns the land on which the Centre is situated) and brother-in-law.

The Secretary submitted to the Tribunal that the decisions should be affirmed on the bases that:

• neither Ms Tran nor VNPL are fit and proper persons to carrying on or be involved with an education and care service; and/or

• their operation of, or involvement in, the Centre may or would constitute an unacceptable risk to the safety, health or wellbeing of any child being educated or cared for by the Centre.

The Secretary relied on the following matters to support those submissions:

• Ms Tran’s and VNPL’s ‘flagrant disregard’ of the National Law:  This is based on the contention that VNPL continued to operate the Centre while it was suspended, and Ms Tran continued to provide education and care services and/or engage in other activities at or for the Centre when prohibited from doing so.  Further, the Secretary contended that Ms Tran obstructed authorised officers of the Department of Education who were trying to assess the Centre’s compliance with the National Law during the period of suspension.

• Ms Tran’s dishonesty:  Ms Tran ‘intentionally lied’ in giving evidence before the Tribunal that she believed she was entitled to continue to operate the Centre while it was suspended and/or after the Prohibition Decision, as well as in her evidence as to her reasons for preventing the Department’s authorised officers from entering the Centre.

• The adverse early learning teacher decision relating to Ms Tran:  VCAT’s decision in Tran v Victorian Institute of Teaching affirming the decision of the Victorian Institute of Teaching to refuse to register Ms Tran as an early childhood teacher is consistent with submissions that she is not a fit and proper person for the purposes of the National Law.  The Secretary submitted that the Tribunal can and should take account of the findings made in that case, in the absence of any evidence being put forward by Ms Tran to ‘discount’ the findings.

• VNPL’s failure to comply with the National Law (and associated regulations) in the operation of the Centre:  Contraventions were identified during compliance inspections in January and March 2023, as well as a further instance of non-compliance identified when the authorised officers attempted to enter the Centre in September 2024.

The Tribunal considered whether Ms Tran was a fit and proper person and concluded that she was not because the evidence established: Ms Tran failed to comply with her obligations under the National Law over an extended period; The VIT refused to renew Ms Tran registration as a teacher and refused to register her as an early childhood teacher; Ms Tran lacks the management capability to operate an education and care service; and Ms Tran lied to or misled the Department on at least two occasions. The Tribunal also found that VNPL was not a fit and proper person (paras.87-88):

...the fitness and propriety of a company is to be determined by reference to the conduct, character or reputation of the persons by and through whom it acts.  As VNPL’s sole director and its nominated supervisor for the operation of the Centre, it is Ms Tran’s conduct, character or reputation that is relevant.  For the reasons identified in the preceding section, I am satisfied that these matters establish that VNPL is also not a fit and proper person.

Further, I am comfortably satisfied that the evidence establishes that VNPL, as approved provider, also failed to comply with, and committed offences under, the National Law, including:

- (on Ms Tran’s own evidence) allowing the Centre to operate when Ms Tran, being the only nominated supervisor and person with management and control, was not present (see second bullet point at [17]);- continuing to engage Ms Tran while she was subject to the Prohibition Notice (see [23]); and

 - continuing to operate, during the period from 13 September 2024 to 8 October 2024, while its provider approval was suspended (see [15]),

which individually and collectively serve to confirm that VNPL is not a fit and proper person in its own right.

In relation to the question of would Ms Tran’s or VNPL’s continued provision of education and care services at the Centre constitute an unacceptable risk to the safety, health or wellbeing of any child?, the Tribunal stated (paras.89-92):

As with the assessment of fitness and propriety, when assessing whether the provision by VNPL of education and care service would constitute an unacceptable risk to the safety, health or wellbeing of any child, it is necessary to focus on Ms Tran’s actions and behaviour.  This is because it is clear that she would be the person who would primarily provide the education and care (noting that she has indicated she has reapplied for early childhood teacher registration) and/or supervise the provision of that education and care and be responsible for the management of the Centre at which the education and care is provided (given that there is no one else that is a director of VNPL).

As the panel observed in the VIT decision, the early childhood teaching environment is not a ‘low stress place to work’, rather the environment ‘poses substantial challenges to and stress for those employed, with high expectation from parents concerning their very young children and with respect to ongoing performance, including interactions with colleagues’.[131]  The panel formed the view that, if faced with such pressure, Ms Tran may repeat her volatile behaviour, such as by yelling at students, in the context of any education and care service she provides, supervises and/or manages.[132]

Given the young ages and inherent vulnerability of the children that were cared for at the Centre before its ceased operating (and so likely to be cared for in the future if the Centre reopened), I am comfortably satisfied that if Ms Tran were to engage in volatile behaviour of this nature, it would pose an unacceptable risk to the health and wellbeing of any children who were educated at the Centre.

For similar reasons, if VNPL allowed Ms Tran to be involved in any way with the Centre (including as an educator, its nominated supervisor or person with management and control), this would pose an unacceptable risk to the health and wellbeing of any children who were educated at the Centre.