Barque Institute Pty Ltd v Tertiary Education Quality and Standards Agency [2021] FCA 39

Federal Court of Australia

Barque Institute Pty Ltd v Tertiary Education Quality and Standards Agency [2021] FCA 39 Appeal from: Barque Institute Pty Ltd and Tertiary Education Quality and Standards Agency [2020] AATA 70 Related decision: Barque Institute Pty Ltd and Tertiary Education Quality and Standards Agency [2018] AATA 314

File number: NSD 171 of 2020

Judgment of: BROMWICH J

Date of judgment: 29 January 2021

Catchwords: EDUCATION – application for review of a decision of the Administrative Appeals Tribunal to affirm a refusal by the Tertiary Education Quality and Standards Agency (TEQSA) of the applicant's application for registration as a higher education provider and for course accreditation – where refusal deemed to have taken place upon basis that TEQSA did not make a decision within the statutory time limit – held: the Tribunal did not deny the applicant procedural fairness by concluding that the applicant failed to satisfy Provider Registration Standards 2.1 and 2.2 of the Higher Education Standards Framework (Threshold Standards) 2011 (Cth) (Standards) despite TEQSA accepting that if the applicant met those standards it would also meet Provider Course Accreditation Standard 1.2 of the Standards – the Tribunal did not deny the applicant procedural fairness or make a finding unsupported by any evidence and thereby make a legal error by failing to reflect TEQSA's rectification of a typographical error – the Tribunal did not deny the applicant procedural fairness or make a finding unsupported by any evidence and thereby make a legal error by concluding that it was unclear how the applicant's board could argue that there is a properly constituted academic senate – the Tribunal did not deny the applicant procedural fairness and thereby make a legal error by concluding that the applicant failed to satisfy Provider Registration Standard 3.7 of the Standards despite the respondent not disputing that the applicant satisfied related Provider Registration Standards 4.2 and 4.3 – the Tribunal did not fail to comply with the principles identified in s 13 of the Tertiary Education Quality and Standards Agency Act 2011 (Cth) and so the question of whether the Tribunal failed to apply the correct legal test by doing so does not arise – the Tribunal did not err in its interpretation and application of the expression "properly constituted academic board" in Provider Registration Standard 3.7 of the Standards – appeal dismissed