Malek Fahd Islamic School Limited v Non-Government Schools Not-For-Profit Advisory Committee [2020] NSWCATAP 19

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Malek Fahd Islamic School Limited v Non-Government Schools Not-For-Profit Advisory Committee [2020] NSWCATAP 19 Hearing dates: 3 December 2019 Date of orders: 06 February 2020 Decision date: 06 February 2020 Jurisdiction: Appeal Panel Before: Hennessy ADCJ, Deputy President S Westgarth, Deputy President Decision: (1) The appeal is allowed. (2) The following orders of the Tribunal made on 6 September 2019 are set aside:

In accordance with s 108 of the Education Act 1990 the decision under review is confirmed.

(3) In accordance with s 108(1)(b) of the Education Act 1990, the following recommendation is made to the Minister concerning the subject matter of the application:

The advisory committee finds that the School operated for profit in 2014 and 2015 and recommends that a non-compliant declaration be made for each of the years, rather than for profit declarations, because more appropriate action can be taken in respect of the school under section 83E(2) and 83F. The action the Advisory Committee recommends be taken is:

(a) All financial assistance be suspended until the School provides evidence to the Minister that satisfies the Minister that it: (i) has received payment from the Australian Federation of Islamic Councils Inc (AFIC) for all funds loaned by the School to AFEIC and that the loan agreement, in whatever form, is terminated; and (ii) is released from all ongoing financial support provided to AFIC that is beyond reasonable market value, whether by way of direct payment or guarantee, for property, goods or services that are required for the operation of the school; and (iii) is released from all ongoing financial liability to AFIC that is beyond reasonable market value, whether by way of direct payment or guarantee, for property, goods or services that are required for the operation of the school; and (iv) has renegotiated, executed and registered the leases of properties owned or controlled by AFIC at a rental that is a reasonable market value for the unimproved value of the land; (v) has established and implemented governance arrangements to the satisfaction of the NSW Education Standards Authority; and (vi) has established and implemented governance arrangements to ensure that no part of its proprietor's assets (in so far as they related to the school) or its proprietor's income (in so far as it arises from the operation of the school) is used for any purpose other than for the operation of the school; and (vii) has established and implemented governance arrangements that ensure that all payments by the School are only for property, goods or services required for the operation of the School and at no more than reasonable market value. Catchwords: STATUTORY CONSTRUCTION – meaning of s 83F(3) of the Education Act 1990 – whether that provision gives the Non-Government Schools not-for-profit Advisory Committee power to recommend to the Minister that a non-government school recover financial assistance in respect of a period when the school operated for profit or was a non-compliant school - Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Education Act 1990 (NSW) Cases Cited: Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 (AATA) Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 Texts Cited: None cited Category: Principal judgment Parties: Malek Fahd Islamic School Limited (Appellant) Non-Government Schools Not-For-Profit Advisory Committee (Respondent) Representation: Counsel: K Richardson SC (Appellant) H Younan (Respondent)