Londono v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 119
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Londono v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 119
File number: PEG 11 of 2021 Judgment of: JUDGE LADHAMS Date of judgment: 28 February 2022 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision – refusal to grant Student (Subclass 500) visa – interpretation and construction of cl 500.211(a) of the Migration Regulations 1994 – whether Tribunal misapplied cl 500.211(a) – whether the Tribunal decision was unreasonable, illogical or irrational – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 359AA, 476, 477(1)
Migration Regulations 1994 (Cth) sch 2 cll 500.211, 500.212(a), 500.311, reg 1.15F
Education Services for Overseas Students Act 2000 (Cth) s 19(1)(b)
Migration Legislation Amendment (No 2) Regulation 2014 (Cth) sch 4 item 10, repealing Migration Regulations 1994 (Cth) cl 572.231(a)
Cases cited: Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1311
Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Puri v Minister for Immigration [2017] FCCA 2860
Puri v Minister for Immigration and Border Protection [2018] FCA 1266
Sapkota v Minister for Immigration and Citizenship [2012] FCA 981
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
Venkatesan v Minister for Immigration (2008) 216 FLR 356; [2008] FMCA 409
Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 28 October 2021 Place: Perth Counsel for the Applicants: Mr D Blades Solicitor for the Applicants: Chisholm Law Counsel for the Respondents: Ms C Taggart Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 11 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARCELLA ALEGRIA LONDONO
First Applicant
PAULA ANDREA JARAMILLIO GOMEZ
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
28 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 16 December 2020. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicants a Student (Subclass 500) visa (visa).
For the reasons explained below, I find that there is no jurisdictional error in the Tribunal decision and I dismiss the application for judicial review.
BACKGROUND
The applicants are non-citizens who arrived in Australia in August 2018 as holders of a student visa. The applicants are in a de facto relationship.
The applicants applied for the visa on 20 August 2019. The first applicant was the primary visa applicant and the second applicant was included in the application as a member of the same family unit.
On 20 September 2019 a delegate of the Minister refused to grant the visa. The delegate was not satisfied that the first applicant was a genuine applicant for entry and stay as a student pursuant to cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate was not satisfied that the second applicant was a member of the family unit of a person who holds a student visa, as required by cl 500.311.
On 10 October 2019 the applicants applied to the Tribunal for review of the delegate’s decision.
On 29 October 2020 the Tribunal invited the applicants to provide further information. The letter advised that a requirement of the visa was that the first applicant be:
(a)enrolled in a registered course of study; and
(b)a genuine applicant for entry and stay as a student,
and invited them to provide sufficient information to satisfy the Tribunal that they meet each of those requirements. The applicants provided a number of documents to the Tribunal both before and after the Tribunal’s correspondence of 29 October 2020.
On 16 December 2020 the applicants appeared at a hearing before the Tribunal to give evidence and present arguments. At the conclusion of the hearing, the Tribunal affirmed the delegate’s decision and delivered an oral statement of reasons. A written statement of reasons was subsequently published on 23 December 2020.
TRIBUNAL DECISION
The Tribunal identified that the primary determinative issue that arose at the hearing was the first applicant’s lack of current enrolment in a registered course of study.
After identifying that the first applicant had successfully completed a General English Beginner to Advanced course between 27 August 2018 and 12 July 2019 and a course called Beginner to Proficiency English between 9 September 2019 and 3 April 2020, the Tribunal continued at [9]:
There was a Diploma of Human Resources Management you were enrolled to study between 27 April 2020 and 25 September 2020. That enrolment was cancelled by you and there was also a course that you are currently awaiting results on which is the Diploma of Project Management that you studied between 4 May 2020 and 1 November 2020. The record – the PRISMS record – indicates that as finished. You tell me that you are still waiting for the results of tests or assignments. I accept that is so. So, when it says “finished” that may not necessarily be the case but in any event, there is no evidence before me that you are, as of today, currently enrolled in a registered course of study. As I have said, that is an essential requirement of the visa.
The Tribunal acknowledged the first applicant’s evidence that she finished the Diploma of Project Management on 1 November 2020, but had not at the time of the hearing received the results of her assignments. The first applicant indicated that if the visa were granted, she intended to enrol in the Advanced Diploma of Project Management.
The Tribunal employed the process in s 359AA of the Migration Act to inform the applicants that the information that the first applicant was not enrolled in a registered course of study would be the reason, or part of the reason, for affirming the decision under review. The Tribunal indicated that it invited the applicants to comment and advised them that they may seek more time to respond, after which the Tribunal adjourned the matter for about 40 minutes. The Tribunal summarised the first applicant’s comments after the adjournment at [23] of its reasons:
You told me that your course had finished on 1 November 2020, they are still marking your assessments, you said you cannot enrol in the Advanced Diploma until you get the results from the current course. The new college actually requires those results and they will require a few further weeks. Your initial study was to learn English. You have enjoyed your time and your studies here in Australia. You have complied with the visa requirements. You would like to do the Advanced Diploma. You then said that the new college need to see the actual diploma. You told me that you have passed all your units and you expect to pass. I have no reason to doubt that is the case.
The Tribunal found that there was no evidence of the first applicant being enrolled in a registered course of study at the time of making its decision. The Tribunal held that the first applicant did not satisfy the requirement under cl 500.211(a) of Schedule 2 to the Regulations and affirmed the decision of the delegate.
PROCEEDINGS BEFORE THIS COURT
The originating application to this Court was filed on 13 January 2021, within 35 days of the date of the Tribunal decision as required by s 477(1) of the Migration Act.
By an amended application filed on 9 April 2021, the applicants raise three grounds of review:
1.The Tribunal misapplied the criterion in clause 500.211(a) of the Migration Regulations 1994 (“Regulations”) in finding that the first named applicant was not “enrolled in a course of study”, in circumstances where the first named applicant was still waiting for the results of tests or assignments for the Diploma of Project Management studied between 4 May 2020 and 1 November 2020.
Particulars
a.Cl. 500.211(a) of the Regulations required the applicant to be “enrolled in a course of study”;
b.Cl. 500.111 of the Regulations relevantly defines “course of study” as “a full-time registered course” (paragraph (d)).
c.Reg. 1.03 defines “registered course” to mean “a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.”
d.The Tribunal accepted at [9] (CB 123) that the applicant was “still waiting for the results of tests or assignments”.
e.Where, at the time of the Tribunal’s decision, the first named applicant was still waiting for the results of tests or assignments for the Diploma of Project Management studied between 4 May 2020 and 1 November 2020 (CB 68, 87), she remained “enrolled in a course of study” for the purposes of cl. 511.211(a).
2.The Tribunal’s decision that the first named applicant was not “enrolled in a course of study” was unreasonable, illogical or irrational, in particular when the Tribunal, at [9], accepted that the Diploma of Project Management course ‘may not necessarily’ be finished.
Particulars
a.The Tribunal stated that the first named applicant was currently awaiting results on the Diploma of Project Management that she studied between 4 May 2020 and 1 November 2020 (CB 123 at [9]).
b.The Tribunal noted, in relation to the Diploma of Project Management course, that the PRISMS record, at CB 108, “indicates that as finished”.
c.The Tribunal accepted that when the PRISMS record said that the course had “finished”, that “that may not necessarily be the case”.
d.The Tribunal’s decision that the first named applicant was not “enrolled in a course of study” was unreasonable, illogical or irrational.
3.The Tribunal made a jurisdictional error by finding at [9] that there was “no evidence before me that you are, as of today, currently enrolled in a registered course of study”, when the evidence before the Tribunal was that the Diploma of Project Management course had not yet finished as the first named applicant was still waiting for the results of tests or assignments undertaken in that course.
Particulars
The Particulars to Grounds 1 and 2 are repeated.
The applicants filed written submissions on 30 September 2021 and the Minister filed written submissions on 14 October 2021. The matter came before me for hearing on 28 October 2021. The applicants were represented by Mr David Blades and the Minister was represented by
Ms Cobey Taggart.
At the hearing the court book was tendered and marked as Exhibit 1 and the applicants read two affidavits sworn by the first applicant. The first affidavit was sworn on 13 January 2021 and annexed a copy of the Tribunal decision. The second affidavit was sworn on 8 April 2021 and was relied on for the purpose of materiality only. In this affidavit, the first applicant deposed that she received her results for her Diploma of Project Management and a certificate certifying that she had fulfilled the requirements of the course on 18 January 2021 and that she commenced an Advanced Diploma of Project Management on 28 January 2021.
RELEVANT LEGISATION
The Tribunal’s decision in this matter turned on its finding that the first applicant did not meet the enrolment criteria in cl 500.211(a) of Schedule 2 to the Regulations.
Clause 500.211 provides:
One of the following applies:
(a)the applicant is enrolled in a course of study;
(b)if the application is made in Australia – the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant requires the applicant to do so during the marking of the applicant’s post-graduate thesis;
(c)if the applicant is a Foreign Affairs student – the applicant has the support of the Foreign Minister for the grant of the visa;
(d)if the applicant is a Defence student – the applicant has the support of the Defence Minister for the grant of the visa.
GROUND 1
Applicants’ submissions
The applicants submitted that the Tribunal misapplied the criteria in cl 500.211(a) of the Regulations in finding that the first applicant was not ‘enrolled in a course of study’. The applicants acknowledged that the word ‘enrolled’ is not defined in the Migration Act. The applicants submitted that there is nothing in the Migration Act or Regulations, or the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) which limits the concept of enrolment to the period of instruction in the course and excludes any additional time that may be required for marking, reviewing assessments and other necessities associated with the completion of the course. It is logical, the applicants submitted, that the concept of being enrolled in a course should extend at least to the time when the institution has completed the assessment of submitted work and notified the final results to the students. It follows that, in the present case, in circumstances where the first applicant was still waiting for the results of tests or assignments for the Diploma of Project Management studied between 4 May 2020 and 1 November 2020 at the time of the Tribunal hearing and decision, the Tribunal should have found that she remained ‘enrolled in a course of study’ for the purposes of cl 500.211(a) of the Regulations.
The applicants referred in their submissions to the Tribunal’s reference to the first applicant’s Provider Registration and International Student Management System (PRISMS) record which recorded that she finished her course on 1 November 2020 and her oral evidence that she was still waiting for the final results to become available. The applicants relied on Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 (Wei) to explain the relationship between the Migration Act and Regulations and the ESOS Act. The applicants also referred to the following comments of Nettle J in Wei at [45]:
Neither the ESOS Act, however, nor the Migration Act, nor any regulation made under those Acts required the Minister's delegate, when deciding whether to cancel the student visa under s 116(1)(b) of the Migration Act, to have regard to PRISMS alone; still less to base the decision on PRISMS. The legislative scheme did not expressly or impliedly accord any presumptive correctness or weight to information in PRISMS.
The applicants submitted that the information required to be collected under s 19(1)(b) of the ESOS Act, which was obtained by the Tribunal by accessing the first applicant’s PRISMS record, is simply an expected completion time, and that the PRISMS record should not be treated as conclusive proof of enrolment.
In oral submissions, in response to the Minister’s submission that the applicants’ preferred construction of cl 500.211(a) would leave no work for cl 500.211(b), Mr Blades submitted that in the case of most courses, the marking period is short, whereas the marking period for a postgraduate thesis may take several months and that is why cl 500.211(b) is included. In reply submissions, he also submitted that the opening words of paragraph (b), which show that the paragraph only applies to people who apply for the visa in Australia, are significant.
Mr Blades referred to the judgment of McKerracher J in Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1311 (Ali), which had been delivered the day before the hearing in the present matter. Justice McKerracher approved the formulation of ‘completion’ of a course expounded by Burchardt FM in Venkatesan v Minister for Immigration (2008) 216 FLR 356; [2008] FMCA 409 (Venkatesan) at [15] and [17], to the effect that a course is completed when there is no further academic effort required by a person, or evaluation of that effort by the education provider. Although those cases focused on ‘completion’, they were said to be relevant here as Mr Blades submitted that once a person is enrolled in a course, they remain enrolled until they withdraw from the course, their enrolment is cancelled or the course is completed. Given that completion of a course does not take place until the education provider has evaluated the academic efforts of the student, it follows that the period of enrolment must encompass the period that is needed for marking.
Minister’s submissions
The Minister submitted that whether a person is or is not enrolled in a registered course of study is a question of fact.
The Minister submitted that the applicants have not established as a matter of construction, that enrolment does and must include the provision of results for three main reasons:
(a)If enrolment in a registered course of study necessarily included the period of marking or finalising a student’s results, there would be no apparent purpose to, or work for, cl 500.211(b) of the Regulations, which provides that a student visa applicant who is required by their educational institution to remain in Australia during the marking of their postgraduate thesis may be eligible for a student visa (subject to the satisfaction of other criteria). Such a construction is to be avoided.
(b)Where the executive has determined that completion of a course by satisfaction of its academic requirements is a relevant condition, it has been prescribed as much. An example is the definition of the term ‘Australian study requirement’ in reg 1.15F of the Regulations. This requirement is met when a person satisfies the Minister that the person has ‘completed’ one or more degrees for award by an Australian institution as a result of courses. A person will have completed a course when they have ‘met the academic requirements for its award’, which, pursuant to a legislative note, does not include the formal conferral of the degree, diploma or trade qualification. The Minister submitted that completion of a course is not an essential and necessary condition for the purposes of construing cl 500.211(a).
(c)The applicants’ reliance on Wei is misplaced because the present matter is factually distinct.
In oral submissions, in response to Mr Blades’ submission that cl 500.211(b) would still have work to do on his construction of cl 500.211(a), Ms Taggart submitted that there is no evidence regarding the relevant marking periods in relation to postgraduate and undergraduate courses and it is not something that I should take judicial notice of. In any event, those matters do not support the applicants’ construction. If, as Mr Blades submitted, the period of enrolment continues until the applicant withdraws, the enrolment is cancelled or the course is complete, and a course is not complete until all assessments are marked, that would apply equally to both graduate and postgraduate students and would leave cl 500.211(b) with no work to do.
In response to Mr Blades’ submissions based on Ali, Ms Taggart submitted that the height of the Tribunal’s findings in relation to the marking of the first applicant’s assessment was that the first applicant was unaware or had not been apprised of her results. This is relevant because Ali does not stand for the proposition that a student’s course of study will be completed upon publication of the results. Rather, the relevant time for completion was when the academic supervisor considered that the final unit of study was satisfactorily completed.
Ms Taggart submitted that the Tribunal did not consider the PRISMS record to be determinative. Instead, the Tribunal was open to the idea that the PRISMS record may not be accurate and raised this issue with the first applicant. The first applicant’s submissions to the Tribunal confirmed that what was identified in the PRISMS record – that she was no longer enrolled as at 1 November 2020 – was correct.
Resolution
The issue for the Court’s determination in relation to ground 1 is whether the Tribunal misapplied cl 500.211(a) in finding that the first applicant was not enrolled in a course of study when she had completed all the course work and was awaiting the results of her tests and assignments. Both parties accept that whether the first applicant was enrolled in a course of study is a matter of fact for the Tribunal to determine. Whether the Tribunal has misapplied cl 500.211(a), in the circumstances of this case, will turn largely on the meaning of the term ‘enrolled’, which is not defined in the Migration Act or Regulations.
In my view, the term ‘enrolled’ does not need to be interpreted in a way that includes a period when an applicant is simply awaiting results. The Tribunal in this case has not misapplied cl 500.211(a).
While, at a practical level, there is considerable merit in the applicants’ preferred construction that a person is ‘enrolled’ in a course until their assessments are marked, I am ultimately persuaded by the Minister’s submission that this construction cannot be the preferred construction as it would leave no work for cl 500.211(b).
If the proper construction of cl 500.211(a) were that an applicant remains ‘enrolled’ in a course of study until such time as their assessments had been marked, this would apply to postgraduate and other students alike. There is nothing in the text of cl 500.211 that would exclude post-graduate students from the ambit of cl 500.211(a). It follows that if the proper interpretation of cl 500.211(a) is that a student remains enrolled until their final assessments have been marked, a postgraduate student would remain enrolled until their thesis had been marked, no matter how many months that marking might take, and irrespective of whether the applicant is in Australia or offshore, or whether the educational institution required the applicant to be available in Australia during the marking process. Clause 500.211(b) appears to be directed to providing a basis for an applicant to be granted a further student visa in circumstances where the applicant is still in Australia and is required by their university to be present in Australia while their thesis is assessed. This provision would be unnecessary and would have no work to do if the alternative criteria for a student visa of being ‘enrolled in a course of study’ were interpreted as being met in circumstances where a student has submitted all assessments and is simply waiting for their assessment to be marked. Any construction of cl 500.211(a) that leaves cl 500.211(b) with no work to do and no apparent purpose should be avoided: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71] endorsing the proposition cited by Griffith CJ in Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 that in the interpretation of statutes ‘such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.
I have considered the submissions based on Ali and when a course is said to have been completed. Ali and the line of cases that came before it, including Venkatesan and Sapkota v Minister for Immigration and Citizenship [2012] FCA 981, address when an applicant has ‘completed’ their studies and met the ‘Australian study requirement’. That is a different concept to enrolment and is relevant to the criteria for a different type of visa. I accept that there is again merit, at a practical level, to the applicants’ submission that a person is enrolled until they withdraw from their course, the enrolment is cancelled or they complete their course, and completion takes place when an education provider assesses an applicant’s final assessment as satisfactory. However, this construction would still leave cl 500.211(b) with no work to do. I cannot prefer a construction of the term ‘enrolled’ in cl 500.211(a) on the basis that it is supported by a different regulation, which addresses the separate concept of ‘completion’ of a course, and which is relevant to the criteria for an entirely separate type of visa, when such a construction would render cl 500.211(b) obsolete. Sub-clause 500.211(b) is in the same clause as the relevant criteria in cl 500.211(a), and is presented as an alternative to the criteria in cl 500.211(a).
I have also considered whether the applicants’ preferred construction is otherwise supported by case law. A submission that a person remained enrolled in a course of study while they were awaiting results was considered and rejected by the Federal Circuit Court (Judge Wilson) in Puri v Minister for Immigration [2017] FCCA 2860 (Puri). That case involved consideration of the now repealed cl 572.231, which contained a paragraph sufficiently similar in its terms to cl 500.211(a) to make the Court’s finding in Puri persuasive in the present case. While it is possible that the submissions in Puri were not advanced in the same way, or in the same level of detail as they were in the present matter, there was still a clear finding of the Court that the Tribunal did not err in finding that the first applicant was not enrolled in a course of study in circumstances where the period of instruction of the course had concluded and the first applicant was awaiting her results: see Puri at [3]-[4], [15]-[16]. An appeal from this judgment was dismissed: Puri v Minister for Immigration and Border Protection [2018] FCA 1266. This case lends support to the conclusion that I have reached.
Ground 1 is dismissed.
GROUND 2
Applicants’ submissions
The applicants submitted that the Tribunal’s finding that the first applicant was not enrolled in a course of study was unreasonable, irrational or illogical.
The basis of the applicants’ submission on ground 2 was the Tribunal’s acceptance that the first applicant’s Diploma of Project Management course ‘may not necessarily’ be finished, and the Tribunal repeating the first applicant’s statement that she cannot enrol in the Advanced Diploma until she gets the results from the ‘current course’.
Minister’s submissions
The Minister submitted that, when the Tribunal’s reasons are read fairly and as a whole, the finding that the first applicant was not enrolled in a course of study was not illogical or irrational. The Minister submitted that while the Tribunal accepted that it may have been the case that the first applicant’s course of study was not finished, there was no evidence before the Tribunal that the first applicant was still enrolled in a course of study. The height of the finding at [9] of the Tribunal’s reasons was that the first applicant was awaiting her academic results.
The Minister further submitted that the evidence before the Tribunal included a letter from Keystone College stating that the period of enrolment was scheduled to end on
1 November 2020, and the first applicant’s own concession that she was not enrolled in a course of study. The first applicant’s ‘case’ was that she was not enrolled in a course of study, including because she was awaiting her academic results. The Tribunal was required to refuse the visa if it was not affirmatively satisfied that the criteria for the student visa were met. It was not illogical or irrational for the Tribunal to conclude that the first applicant failed to establish that she had met the criteria under cl 500.211 of the Regulations.
Resolution
The applicants’ submissions in relation to ground 2 were largely based on the premise that I would accept their submissions in relation to ground 1. I did not. In circumstances where I have found that the Tribunal was not required, as a matter of construction of cl 500.211(a), to find that the first applicant was enrolled in a course of study when she had finished the course but was awaiting her results, it follows that it was not unreasonable, illogical or irrational for the Tribunal to find that the first applicant was not enrolled in a course of study. All documentary evidence before the Tribunal suggested that the first applicant’s course finished on
1 November 2020, including a letter from her college dated two days earlier on
30 October 2020. Further, the first applicant confirmed in her oral evidence to the Tribunal that she had completed her course and was simply awaiting her results to be made available to her. There was ample evidence before the Tribunal, and referred to in its reasons, to support the conclusion that the first applicant was not enrolled in a course of study at the time of the Tribunal decision.
This ground also separately asserts that the Tribunal’s finding that the first applicant was not enrolled in a course of study was unreasonable, illogical or irrational because the Tribunal had accepted that the first applicant was still waiting for her results and had acknowledged that the indication on the first applicant’s PRISMS record that the course has finished ‘may not necessarily be the case’.
The Tribunal could only set aside the delegate’s decision to allow the student visa to be granted if it was affirmatively satisfied that the applicant met the criteria for the student visa: see SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]. The Tribunal’s suggestion that the first applicant’s Diploma in Project Management ‘may not necessarily’ be finished, as recorded in PRISMS, because there was still some marking to be done, does not represent a state of affirmative satisfaction by the Tribunal that the first applicant is currently enrolled in a course of study. Given the evidence before it, including documentary evidence and the first applicant’s oral evidence that she was not enrolled in a course, it was open to the Tribunal to find that the first applicant was not enrolled in a course of study at the time of the Tribunal decision.
Ground 2 is not established.
GROUND 3
Applicants’ submissions
The applicants submitted that the Tribunal made a jurisdictional error in finding that there was no evidence that the first applicant was currently enrolled in a registered course of study. The applicants submitted that there was evidence that the first applicant’s Diploma of Project Management course was not yet finished as the first applicant was awaiting test or assignment results, and was therefore currently enrolled in a course of study.
Minister’s submissions
The Minister submitted that the Tribunal did not overlook the first applicant’s explanation that she was awaiting her results and that meant she had not finished or completed her course. It was expressly referred to at [9] of the Tribunal’s reasons. The Minister submitted that, logically, the Tribunal is to be taken to have recognised that explanation and the possibility that the course may not have been finished, but to have ultimately concluded that so much did not amount to evidence of the fact of ongoing enrolment. It was for the Tribunal to consider and assess the information before it in order to reach relevant findings.
Resolution
This ground cannot succeed in circumstances where ground 1 has not succeeded. If being ‘enrolled’ in a course of study does not extend to the time after an applicant has completed all of their academic efforts and is simply waiting for their tests and assignments to be assessed, there is no error in the Tribunal finding that there was no evidence that the first applicant was, at the time of the Tribunal decision, enrolled in a course of study. As indicated above, the first applicant acknowledged that she had completed her course and was not enrolled in any course at the time of the Tribunal decision, and the documentary evidence available to the Tribunal suggested that the first applicant’s period of enrolment ended on 1 November 2020.
Ground 3 is not established.
CONCLUSION
I have found that there is no jurisdictional error in the Tribunal decision. It follows that the application to this Court is dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 28 February 2022
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