Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills & Employment (No 2)

Mohamed, trading as Billan Family Day Care, brought an application for judicial review of a decision by the Secretary of the Department of Education, Skills and Employment to cancel the applicant’s provider approval for the purposes of administering child care subsidies. The applicant sought orders setting aside the decision to cancel the approval and staying that decision pending the outcome of the application. The Court found that the Secretary had failed to have regard to relevant considerations when making the decision, and had regard to irrelevant considerations. However, the Court found that the error was not material to the decision. The Court dismissed the applicant’s application.

The Court considered the relevant statutory provisions governing the approval of child care service providers and the imposition of sanctions on approved providers who fail to comply with the conditions for continued approval. The Court considered whether the Secretary had failed to have regard to relevant considerations, had regard to irrelevant considerations, misconstrued a mandatory statutory consideration, and whether any such errors were material to the decision. The Court found that the Secretary had failed to have regard to relevant considerations, and had regard to irrelevant considerations. However, the Court found that these errors were not material to the decision.

The Court found that the Secretary had not had regard to the relevant consideration of the applicant’s compliance with the Administration Act, and had regard to irrelevant considerations, including the applicant’s compliance with the National Law. The Court found that the Secretary had misconstrued the meaning of the word “reckless” in s 52 of the Child Care Subsidy Minister’s Rules 2017. However, the Court found that these errors were not material to the decision because the Secretary would have made the same decision even if those errors had not been made.

The Court made orders dismissing the applicant’s application, lifting the stay of the cancellation decision 14 days after the date of the orders, and granting the parties liberty to apply to vary the date of the lifting of the stay and for further orders.