Xamerg P/L v Department of Education Training and the Arts
[2010] QMC 30
•30 July 2010
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Xamerg P/L v Department of Education Training and the Arts [2010] QMC 30
PARTIES:
XAMERG PTY LTD CAN 095436034 (TRADING AS THE EAGLE ACADEMY)
(appellant)
v
CHIEF EXECUTIVE, DEPARTMENT OF EDUCATION TRAINING AND THE ARTS
(respondent)
FILE NO/S:
M999/09
DIVISION:
Magistrates Courts
PROCEEDING:
Appeal against a decision under the Education (Overseas Students) Act 1996 (Qld)
ORIGINATING COURT:
Magistrates Court at Cleveland
DELIVERED ON:
30 July 2010
DELIVERED AT:
Cleveland
HEARING DATE:
10 March 2010
MAGISTRATE:
Sarra Z
ORDER:
The appeal pursuant to section 19 of the Education (Overseas Students) Act 1996 (Qld) is incompetent.
CATCHWORDS:
ADMINISTRATIVE LAW – APPEALS FROM ADMINISTRATIVE AUTHORITIES – decision on international student capacity – whether decision is made as a Designated Authority – whether decision is made under Commonwealth or State legislation
Education (Overseas Students) Act 1996 (Qld)
Education Services for Overseas Students Act 2000 (Cth)
COUNSEL:
SOLICITORS:
On 24 November 2009, the Applicant filed a Notice of Appeal pursuant to Section 19 of the Education (Overseas Students) Act 1996 (Qld). It is an Appeal against a decision by Mr Ian Hawke, the Assistant Director-General Tertiary and Non-State Education, Department of Education, Training and the Arts, made on 9 November 2009.
In essence, the applicant is aggrieved due to the decision maker determining that:
1. The total international student capacity for Xamerg Pty Ltd trading as The Eagle Academy should not be increased to 5oo students. (The applicant does not appeal that part of the decision approving an increase in international student capacity from 210 to 425 students).
2. The distribution of international student capacity for Xamerg Pty Ltd trading as The Eagle Academy be as follows:
(a) Super Sports Centre, Runnaway Bay: 210
(b) Clem Jones Centre, Carina: 190
(c) Gainsborough Greens Golf Course, Pimpampa: 25[1]
[1]See Notice of Appeal filed 24 November 2009 at page 1
The applicant’s notice sought the following orders namely;
1. Appeal allowed
2. Decision of Ian Hawke, Assistant Director-General Tertiary and Non-State Education Department of Education, Training and the Arts dated 9 November 2009 be varied.
3. The total international student capacity for Xamerg Pty Ltd trading as The Eagle Academy be increased to from 425 to 500 students.
4. The distribution of international student capacity for Xamerg Pty Ltd trading as The Eagle Academy be as follows:
(a) Super Sports Centre, Runnaway Bay: 250
(b) Clem Jones Centre, Carina: 200
(c) Gainsborough Greens Golf Course, Pimpampa: 50[2]
[2]See Notice of Appeal filed 24 November 2009 at page 2
Preliminary Issue
The Respondent asserts the Appeal cannot proceed in the Magistrates Court as the determination of Mr Hawke in his 9 November 2009 correspondence is not a decision appealable under Section 19 of the Education (Overseas Students) Act 1996 (Qld)[3].
[3] See annexure NGG3 of Goodwin Affidavit filed at Cleveland on 26 February 2010
A distinction should be drawn between a decision made under the Education (Overseas Students) Act 1996 (State Act) and a decision made pursuant the Commonwealth scheme established under the Education for Overseas Students Act 2000 (Commonwealth Act) and its associated Federal instruments namely; the National Code of Practice for Registration Authorities and the Providers of Education and Training to Overseas Students 2007.
Central to this issue is whether or not the authority vested in the Designated Authority to determine capacity as to the number of students to whom a provider may provide courses emanates from authority under the State Act or under the Federal regime.
Counsel for the Respondent succinctly framed the issue in the following terms:
“...there’s one fundamental question for determination...is the decision of the Chief Executive made as the designated authority to approve the maximum number of overseas students to whom a provider may provide courses, reviewable under an appeal pursuant to section 19 of the state Act.[4]”
[4] Mr Horneman-Wren Transcript at pp1-2
Background Information
The Applicant, Xamerg Pty Ltd is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) as an approved provider. The Academy operates a number of training facilities for overseas students in Queensland. These facilities are also registered under the State Act; the Education (Overseas Students) Act 1996, and the Education for Overseas Students Act 2000 (Commonwealth Act).
In 2009, the Applicant sought to register additional training facilities and a consequential increase of international student capacity on the CRICOS. The Applicant was informed through correspondence under the hand of Mr Ian Hawke that the application was assessed against the:
“National Code of Practice for Registration Authorities and Providers of education and training to overseas Students 2007 (C’th) (the “National Code”), made under the Education Services for Overseas Students Act 2000 (C’th)[5] .
[5] See annexure NGG2 of Goodwin Affidavit filed at Cleveland on 26 February 2010
Curiously, Mr Hawke’s letter had also informed the Applicant that:
“An applicant’s rights of appeal against the decision to not approve the application are set out in the Education (Overseas Students) Act 1996 (Qld[6]).
You are reminded that it is a condition of registration on CRICOS that enrolments remain within the approved international student capacity”
[6] See annexure NGG2 of Goodwin Affidavit filed at Cleveland on 26 February 2010
On 9 November 2009, Mr Hawke reaffirmed the application was assessed in accordance with the National Code and the Education Services for Overseas Students Act 2000 (Cth) and determined that:
“Approval has been granted for an increase of 215 students to your existing international student capacity, based on the resources and qualified staff available at all training locations.
The total capacity for the Eagle Academy has therefore been increased from 210 to 425 international students distributed as follows:
· Super Sports Centre, Runnaway Bay: 210
· Clem Jones Centre, Carina: 190
· Gainsborough Greens Golf Course, Pimpampa: 25
You are reminded that it is a condition of registration on CRICOS that enrolments remain within the approved international student capacity[7]”
[7]See annexure NGG3 of Goodwin Affidavit filed at Cleveland on 26 February 2010
The State Framework
The Education (Overseas Students) Act 1996 and Education (Overseas Students) Regulations 1998, provide for the registration of persons offering courses to overseas students and for registration of the courses and related purposes. Primarily the Act prescribes various principles seeking to ensure that the education and training for overseas students is provided in an orderly and appropriate way[8].
[8] Section 4 Education (Overseas Students) Act 1996
Consideration is given inter alia to, appropriate Queensland accreditation with stated and demonstrable educational outcomes, staffing and resources of adequate quality and quantity to achieve stated outcomes, courses should be suitable having regard to qualifications, abilities and aspirations of overseas students and further, management policies and practices designed and operated to protect educational interests of students, reputation of other course providers, financial interests of overseas students, access to timely and appropriate dispute resolution and finally appropriate informed information for prospective overseas students[9].
[9] Section 4 Education (Overseas Students) Act 1996
Such focus on the provider’s staffing, resources and related issues, suggest the Act is concerned with matters pertaining to the infrastructure within the provider’s education facility and its ability to deliver these accredited registered programs.
Underpinning the Act is the requirement for registration of both the provider and the courses on offer to overseas students. The Chief Executive must apply the registration criteria that are prescribed under a regulation[10] when deciding applications for registration and the conditions of the registration. [11] Once an application is approved, the Chief Executive must issue a Registration Certificate which discloses the particulars of the registered provider and the details and duration of the registered courses.[12] The Chief Executive must keep a register containing the prescribed information[13] of registered providers and registered courses.[14]
[10] Reg (5) (2) & (3) Education (Overseas Students) Regulations 1998
[11] Part 2: Section 7 Education (Overseas Students) Act 1996
[12] Part 2: Section 9 Education (Overseas Students) Act 1996
[13] Part 3 Education (Overseas Students) Regulations 1998
[14] Section 26 Education (Overseas Students) Act 1996
The intention of the Act is to ensure that overseas students seeking education in Australia are enrolled in accredited registered courses provided by reputable registered providers.
State Act Appeals Process[15]
[15] Part 3: Education (Overseas Students) Act 1996
At the time of filing the appeal[16], a person whose interests are affected by a decision under this Act may appeal against it to a Magistrates Court.[17] Section 18 defines a decision to mean;
“(a) a direction, order or action of the chief executive, including the suspension (whether immediate or not or cancellation of a registration or;
(b) a failure (including a refusal) of the chief executive to give direction, make an order or do an action[18].”
[16] Under the current State Act “Decision” remains unchanged however section 19 provides that a person whose interests are affected by a decision under this Act may apply, as provided under the QCAT Act, to QCAT for a review of the decision.
[17] Section 19 : Education (Overseas Students) Act 1996
[18] Part 3 Education (Overseas Students) Act 1996
The powers vested in the Magistrates Courts appellant jurisdiction are prescribed in section 23.[19] The Magistrate has the powers of the Chief Executive, and is not bound by the rules of evidence. The Court may confirm, set aside and substitute an appropriate decision or set aside the decision and remit the matter back to the Chief Executive with appropriate directions. An appeal is open to the District Court but only on questions of Law.[20]
[19]Education (Overseas Students) Act 1996
[20] Section 25 Education (Overseas Students) Act 1996
The Commonwealth Scheme
The Education Services for Overseas Students Act 2000 (the ESOS Act), the Education Services for Overseas Students Regulations 2001, the Education Services for Overseas Students (Registration Charges) Act 1997, galvanized by the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007[21] and complemented by the Migration Act 1958 and relevant State and Territory legislation forms the foundation upon which the Commonwealth can regulate education services in Australia for overseas students[22]. It is collaboration between the respective stakeholders to ensure Australia’s international reputation as a destination for high quality education and training for overseas students is maintained.[23]
[21] Part 4 Education for Overseas Students Act 2000 establishes the statutory framework for the National Code.
[22] See Para 7.1 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students
[23] See Para 9.1 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students
Section 9[24] provides for the registration of approved providers. The Designated Authority for a State may recommend an approved provider from that State for registration under the Commonwealth Act. The Designated Authority must certify the provider is among other things, compliant with the National Code, and fit and proper to be registered. The Secretary must not register a provider in any other circumstances.[25] Both the Designated Authority and the Secretary are defined under the Commonwealth Act.
[24]Education for Overseas Students Act 2000
[25] Section 9 Education for Overseas Students Act 2000
The positions are defined thus:
designated authority for a State means the person responsible under the law of the State for approving providers to provide courses to overseas students for the State
whereas;
Secretary means the Secretary of the Department[26].
The reference to Department in this context relates to the Commonwealth.
[26] Section 5 Education for Overseas Students Act 2000
The National Code[27]
[27] See Part 4 Education for Overseas Students Act 2000
The Minister for Education, Science and Training is responsible for establishing a National Code to be called the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students and must ensure as far as practicable that there is a National Code in force at all times. The current Code commenced on 1 July 2007 following consultation between representatives of the Commonwealth, State, Territory and relevant stakeholders[28].
[28] See Para 2.1 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students
The Commonwealth purpose is to ensure there exists:
“a nationally consistent standards for the registration and conduct of registered providers and the conduct of persons who deliver educational services on behalf of registered providers[29].
[29] Section 34 Education for Overseas Students Act 2000; See Also Para 7.2 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students
The national code contains standards and procedures that inform the Designated Authorities and registered providers in the discharge of their obligations and responsibilities and to assist them in giving effect to the purpose of the National Code.[30] Prior to registration of an approved provider, the Designated Authority from the respective States is required to furnish to the Secretary a certificate that certifies the provider’s has complied with the National Code.[31] Paragraph 4 in the National Code’s preamble sets out the structure in four separate parts:
This framework (Part A) broadly outlines the principles and guidelines that underpin the National Code. Part B describes the roles and responsibilities of the Australian Government and state and territory governments in administering the ESOS regulatory framework. Part C outlines the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registration requirements and Part D provides standards that set out obligations on and procedures for registered providers of education and training to overseas students.[32]
[30] Section 38 Education for Overseas Students Act 2000
[31] Section 9(2)(c)(i) Education for Overseas Students Act 2000; See also Para 1.1 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students
[32] See Part A, Para 4.1 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students
Part B empowers the Commonwealth through its Department of Education, Science and Training to:
“administer the ESOS Act and its associated instruments. This includes managing CRICOS and supporting national consistency and policy development to assist the consistent interpretation and application of the ESOS framework, and the National Code in particular[33].”
[33] See Part B, Para 3 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students
The national code acknowledges the:
pivotal role of State and Territory governments and minimises the regulatory burden on registered providers by applying existing registration, accreditation and compliance systems to underpin regulation of the education and training for overseas students studying in Australia.[34]
[34] See Part B, Para 6 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students
and further:
Under the ESOS framework, the designated authority in each state and territory assesses the registration and re-registration of courses on CRICOS and monitors compliance with the National Code[35].
[35] See Part B, Para 7 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students
The Register[36]
[36] Section 10 Education for Overseas Students Act 2000
The Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) is maintained by the Secretary for the purpose of the Commonwealth Act. Information pertaining to the registered details of the approved provider for example, the State where the education facility is located and the approved courses are entered onto CRICOS.
Part C of the National Code relates to registration on CRICOS. It provides a general description of the registration process under the ESOS legislative framework and confirms Part C must be read in conjunction with the ESOS Act, the ESOS Regulations, and Part D of the National Code.[37]
[37] See Part C, Para 1 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students
Registration involves a two stage process whereby the Designated Authority in the respective States approves a provider’s application after being satisfied the applicant has complied with the National Code requirements and the requirements under the relevant State or Territory legislation and section 9 and section 9A of the ESOS Act[38].
[38] See Part C, Para 3 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students
Maximum Numbers
To assist the Designated Authority and the prospective provider in completing the first stage of the registration process the national code contemplates the issue of capacity[39];
[39] See Part C, Para 6.1 & 12.1 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students
6.1 In addition to meeting the general requirements for registration set out in this part, providers must submit applications for registration and re-registration in a form to be determined by each designated authority that contains at least the following information:
(b) proposed maximum number of overseas students having regard to the appropriateness of the resources and facilities for the delivery of the course
12.1 As part of the registration approval process, the designated authority will decide whether to approve the maximum number of students that a provider can enrol. In making this decision, the designated authority will consider the capacity of the provider in terms of its premises, approved arrangements with other providers, facilities, resources, equipment, materials and ratio of staff to student numbers.
Of particular note, subsection 10(4)(d) of the Commonwealth Act includes any other matters prescribed by the regulations to be entered onto the Register. Regulation 2.01 has regard to the maximum numbers of students listed in the approved provider’s application prior to entry on the Register:
“the maximum number of overseas students, approved by the designated authority, to whom the provider may provide the course or courses[40].”
[40] Reg 2.01 (h) Education Services for Overseas Students Regulations 2001
The second stage of registration compels the Secretary to enter the details of the approved provider onto CRICOS.
The Commonwealth Act Appeal Process
The starting point in considering the source of the Commonwealth’s prescribed judicial power one looks in Chapter 111 of the Australian Constitution. It establishes the High Court of Australia and enables the Commonwealth Parliament to create Federal Courts as well as to vest Commonwealth judicial powers in State Courts.[41] The Federal Courts have inherent appellant jurisdiction and powers to review questions of law of certain administrative decisions[42].
[41]Australian Constitution Chapter 111 Section 71- 80
[42] See Administrative Decisions (Judicial Review) Act 1977
In the present case ESOS expressly provides that an application for review may be made to the Administrative Appeals Tribunal[43]. Despite the Tribunal not having a general power to review decisions made under Commonwealth legislation, it can review a decision if an Act or other legislative instrument provides specifically that the decision is subject to review by the Tribunal.
[43] See section 176 Education for Overseas Students Act 2000
Section 176 provides:
“(1) An application may be made to the Administrative Appeals Tribunal for the review of:
(a) a decision that an approved provider should not be registered under section 9 or re‑registered under section 9A; or
(aa) a decision to impose a condition on a provider’s registration under section 14A; or
(ab) a decision not to notify a registered provider under subsection 27(1A); or
(b) a decision to take any action under section 83 or 88; or
(c) a decision not to give a notice under subsection 89(2) or 89A(2); or
(d) a decision not to give a notice under subsection 95(3).
(2) If such a decision is made and a written notice of the decision is given to a person whose interests are affected by the decision, the notice must include:
(a) a statement to the effect that application may be made to the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 for review of the decision; and
(b) if the person is entitled to reasons for the decision under section 28 of that Act—a statement to the effect that the person may request, under that section, a statement that includes reasons for the decision.
(3) A breach of subsection (2) does not affect the validity of the decision concerned.[44]”
[44]Education for Overseas Students Act 2000
Analysis
Xamerg Pty Ltd has been a registered provider of approved registered courses for overseas students since 2003. In 2004, the Academy successfully applied for and was granted an increase of courses that it could offer. A further application seeking approval for additional premises coupled with a consequential increase in overseas student capacity was lodged with the Chief Executive in June 2009.
On or about 1 October 2009, the Chief Executive informed the Applicant that its application was successful, but only insofar as approval would be granted for the additional training facilities. In late October 2009, the Applicant resubmitted an application to increase its overseas student capacity from 210 to 500 international students.
On 9 November 2009, the Chief Executive through its delegate Mr Hawke advised the Applicant that approval was granted for 215 students, allowing the Applicant to increase its capacity from 210 to a total of 425 international students.
The powers vested in the State Act focuses primarily on registration of persons and the actual courses offered by the registered providers to overseas students. The State Act ensures that the education and training for overseas students is provided in an orderly and appropriate way. The emphasis is on appropriate accreditation, quality staff, adequate resources, management policies and practices.
On another level, the State Act requires the Designated Authority to consider whether or not these registered courses meet the needs of the overseas student. Will they impact adversely on Australia’s reputation in delivering such courses?
Central to the Designated Authority purpose is the power to register both the providers and the courses. This is achieved by applying the registration criteria prescribed under Part 2 of the State Act and the associated State Regulations. Once approved, the Designated Authority must issue a Registration Certificate disclosing the registered provider details and the courses particulars and duration.
The State Act is silent in regard to the Designated Authority power to consider or approve the specific numbers of students and/or contemplation of student capacity for a registered course provider. These matters are considered in the Federal sphere.
The Commonwealth framework requires the Designated Authority to certify the provider is compliant with the National Code and fit and proper to be registered. The Secretary will not register a provider in any other circumstances. The National Code empowers the Designated Authorities to assess the registration and re-registration of courses on CRICOS and to monitor compliance with the National Code prior to completing the final stage of registration by the Secretary onto CRICOS.
In summary, registration involves a two stage process whereby the Designated Authority approves a provider’s application after being satisfied the applicant has complied with the National Code and the requirements under the relevant State or Territory legislation and read in conjunction with section 9 and section 9A of the ESOS Act.
It is in the first stage of the registration process that the Designated Authority is required to turn his or her mind to the issue of capacity and yet it is the Commonwealth Act read in conjunction with its Regulation and the National code that is the font of power which enlivens the Designated Authority to consider the maximum number of students as a precondition to entry on the CRICOS. The final stage is completed when the Secretary enters the registered provider and registered courses details onto CRICOS.
The advice in Hawke’s correspondence of 9 November 2009 stating the applicants rights of appeal being under the State Act is deficient insofar as despite there being certain grounds upon which the decision of the Designated Authority could be reviewed under the State Act, his advice fell short of informing the Applicant of their right of review against decisions made under the Commonwealth framework.
It is under the Commonwealth authority the decision was made and for these reasons the appropriate forum for review is the Administrative Appeals Tribunal in accordance with Section 176 Education for Overseas Students Act 2000.
The Appeal is therefore incompetent.
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