Zhu v Minister for Immigration
[2014] FCCA 2701
•21 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHU v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2701 |
| Catchwords: MIGRATION – Application for review of decision of the Migration Review Tribunal – whether Tribunal misconstrued cl.5A507 of Schedule 5A to the Regulations – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), reg.1.40, Sch. 2, Sch. 5A |
| Sapkota v Minister for Immigration and Citizenship [2012] FMCA 77; (2012) 258 FLR 273 |
| Applicant: | YULONG ZHU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1918 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 10 April 2014 |
| Date of Last Submission: | 10 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | ProActive Legal |
| Solicitors for the Respondents: | Mr R Baird of Clayton Utz |
ORDERS
The application made on 19 August 2013 and amended on 31 January 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $ 6646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1918 of 2013
| YULONG ZHU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 19 August 2013 and amended on 31 January 2014 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 5 August 2013 which affirmed the decision of the Minister’s delegate not to grant a Student (Temporary) (Class TU) visa to Mr Yulong Zhu (“the applicant”).
Before the Court
In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). Also before the Court are written submissions filed by both parties.
Background
The applicant’s written submissions provide a comprehensive outline of relevant background in this case. They are a reasonable representation of the material in the Court Book and for convenience I adopt them for the purposes of this judgment (applicant’s written submissions at [1] – [11]):
“[1] The applicant, Mr Zhu, applied on line for a Student (Temporary) Visa on 14 March 2013 (CB 1-7). This was one day before his then current student visa expired (CB 62). At the time of the application Mr Zhu’s circumstances were as follows;
(a) He had obtained an, “Advanced Diploma in Business Management” from the North Sydney Institute of TAFE in 2010 (CB 15). His academic record is reproduced at
CB 16-17.
(b) He was enrolled in a Bachelor of Business (Management) course at Cambridge International College, which he had commenced on 21 January 2013 and was due for completion on 23 Oct 2015, according to the Confirmation of Enrolment at CB 60.
(c) The Bachelor’s degree was his ‘principal course’ for purposes of ascertaining the English skills requirement necessary pertaining to his visa. This is examined in more detail below.
(d) He had not taken an IELTS test in the past 24 months, although he had completed an English for Academic Purposes course at Deakin University in March 2011 (CB 70). This was an ELICOS course.
[2] The legislation relevant to the matter is set mainly out in the Tribunal’s decision at CB 86-92). The salient features are as follows;
(a) Migration Regulations, Sch 2 Cl. 573.223 states that the Minister must be satisfied that the applicant is a genuine applicant for a student visa because, inter alia, he is an “eligible higher degree student” (Cl. 573.223(1A), or if not, that the applicant gives evidence in accordance with the requirements of Schedule 5A for the “highest assessment level” for the applicant (Cl, 573.223(2)). It should be stated at this point that Mr Zhu was not an “eligible higher degree student” because his Bachelor’s course was not provided by an “eligible education provider” (see para (b) of the definition of “eligible higher degree student” in Cl. 573.311; cf CB 95 [29]). Thus he had to satisfy the Schedule 5A requirement applicable to him.
(b) Assessment levels are provided for in Migration Regulation 1.41, based on the passport carried by the applicant (see Reg 1.40). Assessment levels for eligible passports were specified by gazettal notice based on the risk (presumably of not being a genuine student) posed by people holding passports issued by various countries (Reg 1.41(1), (2) and (3)). In Mr Zhu’s case his “highest assessment level” was Level 3.
(c) The requirements for Assessment Level 3 in Schedule 5A were set out at Cl. 5A507. The various paragraphs of that clause required an applicant to demonstrate English language ability by either achieving a particular IELTS test result or has in some other way demonstrating that he or she has or could be expected to have an acceptable level of English. I delve into the specifics of those requirements with reference to Mr Zhu’s case, below.
[3] The application was rejected on 8 May 2013 (CB 23-30) on the basis that he did not provide evidence of the requisite English language proficiency, and so the delegate could not be satisfied that he met the English language requirement in Cl. 5A507 of Schedule 5A of the Migration Regulations and therefore did not meet Cl.573.223(2) of Schedule 2 of the Regulations (CB 29-30).
THE MATTER BEFORE THE TRIBUNAL
[4] The Tribunal application was lodged on 21 May 2013 (CB 31ff). By the time of the hearing on 26 July 2013 he had completed an IELTS test but had only achieved an overall band score of 5.0 over the four criteria (CB 80). He had also been granted a number of credit exemptions from his degree course, based on previous studies (CB 64, 73).
[5] On 30 July 2013 the Tribunal received an email from Mr Zhu (CB 79) attaching his latest IELTS test result and stating that he had cancelled his enrolment in the Bachelor of Business (Management) course at Cambridge International College, but had re-enrolled. He said that (presumably with his exemptions) he had only six units left to complete his bachelor’s degree.
[6] His old confirmation of enrolment (that is before being granted credit exemptions) appears at CB 76 and refers to a Bachelor’s Degree in Business (Management) with a course date of commencement on 21 January 2013 and a course end date of 23 October 2015. The provider was Cambridge International College. That was replaced by two new confirmations of enrolment as follows;
(i) For a confirmation course in spoken and written English running from 5 to 16 August 2013 (CB 81), and,
(ii) For a Bachelor’s Degree in Business (Management) commencing on 21 January 2013 and ending on 26 September 2014 (CB 77), incorporating the exemptions that he had earned.
[7] A further confirmation of enrolment appears at CB 82 for a Bachelor’s Degree in Business (Management) course, but commencing on 19 August 2013 and ending on 27 July 2014.
[8] The provider of all of the new confirmations of enrolment was Cambridge International College.
THE TRIBUNAL DECISION
[9] The Tribunal records that it noted at Mr Zhu’s hearing that he could not;
(a) Meet 5A507(1)(a) because he had not achieved a band score of 6.0 in an IELTS test conducted less than 2 years prior to the date of his visa application (CB 93[16]).
(b) Meet 5A507(1)(b) because he had not achieved IELTS test with an overall band score of 5.0 before taking an ELICOS course which was itself completed before he commenced his principal course (CB 93 [17]).
(c) Meet 5A507(1)(d) because the course Mr Zhu completed in a Chinese campus of the North Sydney Institute was not completed less than two years before the date of the visa application (CB 93 [18]).
(d) Meet cl. 5A507(1)(d)(iii) because he had not completed, “a substantial part of a course” as the holder of a student visa. The visa has ceased on 15 March 2013, and his credit exemptions appear to have been granted after his visa expired. Apart from a letter and record of exemptions dated 19 July 2013 and the replacement COE dated 28 May, there was no indication of the date that the exemptions were approved and entered onto his record. The Tribunal recorded that at hearing the applicant confirmed that as of 15 March 2013 he had completed 2 of 24 units (CB 93-4 [19]-[20]).
[10] The Tribunal addressed Mr Zhu’s contention that he had a new Confirmation of Enrolment to commence a new course and that he would undertake an ELICOS course before doing so (and would thus meet Cl. 5A507(b)1), by finding that because he had recommenced the same course of study at the same education provider. So, in the Tribunal’s opinion he had already commenced his principal course. On that basis it found that he did not meet Cl. 5A507(b) and so did not meet Cl. 573.223 of Schedule 2.
[11] The decision under review was affirmed.”
[Emphasis in the original.]
Application Before the Court
The sole ground of the amended application pressed before the Court (ground two was not pressed) is in the following terms:
“1. The second respondent erred in finding that the applicant did not satisfy cl.5A507(1)(b)(i) in Schedule 5A to the Migration Regulations 1994 (“the Regulations), and so erred in finding the applicant did not satisfy 573.223(2)(a) in Schedule 2 to the Regulations.
Particulars
(a) In determining whether the applicant satisfy cl.5A507(1)(b)(i), the second respondent misconstrued the words “before commencing” in that clause.
(b) The second respondent should have found that the dates of commencing and concluding the applicant’s “principal course” in terms of Migration Regulation 1.40(3) were governed by his “Confirmation of Enrolment” form issued by the applicant’s education provider on 30 July 2013 (CB 82).
(c) Consequently, the second respondent erred in not accepting the applicant will undertake Certificate IV in Spoken and Written English (ELICOS) (“first enrolled course”) before commencing Bachelor of Business (Management) (“second enrolled course”) on the basis that the applicant was previously studying the same course at the same education institute as the second enrolled course, albeit the previous enrolment was cancelled.”
The Arguments
The applicant’s ground and written submissions (at [10], see above) direct attention to [27] – [28] of the Tribunal’s decision record (at CB 95):
“[27] Paragraph 5A407(b) requires that the applicant will undertake an ELICOS (English Language Intensive Course for Overseas Students) before commencing his principal course. This requirement can only be satisfied by evidence of commitment to a future ELICOS before commencing the principal course (see Sapkota v MIAC [2012] FMCA 77 (Nicholls FM, 16 February 2012) and Singh v MIAC [2010] FMCA 1006
(Lloyd-Jones FM, 21 December 2010)).
[28] The evidence before the Tribunal establishes that the applicant’s principal course is a Bachelor of Business (Management) [072493M] at Cambridge International College, which he commenced on 21 January 2013. Although the applicant recently arranged for the cancellation of his CoE in respect of these studies so as to complete a short ELICOS course in August 2013 prior to recommencing the same registered course of study at the same education provider on 19 August 2013, there is no question in the Tribunal’s mind that he has clearly already commenced his principal course. On that basis, although the applicant will complete an ELICOS prior to recommencing his principal course, he does not meet cl. 5A407(b).”
The Tribunal’s reference there to “Para” or “cl.”5A407(b) is a mistaken reference to “cl.5A507(b)”, and more correctly cl.5A507(1)(b), of the Migration Regulations 1994 (Cth) (“the Migration Regulations”). The applicant agreed this was a typographical error. This is supported by the fact the Tribunal elsewhere in its decision record set out the terms of cl.5A507 of the Migration Regulations.
Clause 5A507 of the Migration Regulations provides for a number of ways by which an applicant, including, relevantly, the current applicant, may for the purposes of the Migration Regulations satisfy the English language proficiency requirements as set out in that clause, and a requirement for the grant of the visa as set out in cl.573.223(2)(a) of Sch.2 to the Migration Regulations.
The following parts of cl.5A507 of the Migration Regulations are relevant:
(1) The applicant must give evidence that one of the following applies:
(a) the applicant:
(i) will not undertake an ELICOS before commencing his or her principal course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 6.0 or the required score in an English language proficiency test that is specified in a Gazette Notice for clause 5A102;
…
(b) the applicant:
(i) will undertake an ELICOS of no more than 30 weeks duration before commencing his or her principal course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0 or the required score in an English language proficiency test that is specified in a Gazette Notice for clause 5A102;
…
(d) the applicant had, less than 2 years before the date of the application:
…
(iii) as the holder of a student visa—successfully completed a substantial part of a course (other than a foundation course) that:
(A) was conducted in English; and
(B) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher…”
In support of his ground, the applicant’s argument relied on part of reg.1.40 of the Migration Regulations (see applicant’s written submissions at [12]):
“1.40 Eligible passport and principal course
(1) ...
(2) In a provision of:
(a) this Division; or
(b) Part 402, 570, 571, 572, 573, 574 or 575 of Schedule 2; or
(c) Schedule 5A;
if an applicant for a student visa proposes to undertake a course of study that is a registered course, ..., the course is the principal course.
(3) For subregulation (2), if:
(a) an applicant for a student visa proposes to undertake 2 or more courses of study that are registered courses, ...; and
(b) either:
(i) one of the courses of study (course A) is a prerequisite to another of the courses (course B); or
(ii) one of the courses of study (course B) may be taken only after the completion of another of the courses (course A); course B, not course A, is the principal course.”
The Issue
The issue between the parties turns on the proper interpretation and understanding of cl.5A507(1)(b)(i) of the Migration Regulations. As set out above, this part of cl.5A507 is one of the ways in which an applicant, for a visa such as the visa applied for by the applicant, can satisfy the English language proficiency requirement for the grant of a visa as set out in cl.573.223(2) of Sch.2 to the Migration Regulations.
The applicant’s argument was that the Tribunal was “correct” to find that the applicant’s principal course was the Bachelor’s Degree in Business (Management) (see [28] at CB 95). The applicant’s complaint with the Tribunal’s reasoning in essence begins with the Tribunal’s finding that that principal course, relevantly, commenced on 21 January 2013 ([28] at CB 95). The applicant said that course actually commenced on 19 August 2013.
The issue between the parties arises from the Tribunal’s conclusion as to when the applicant’s principal course (the Business (Management) Course) commenced. The central elements leading to that finding are as following.
The applicant initially commenced his principal course (Bachelor of Business (Management) at Cambridge College) on 21 January 2013 and he completed “2 units” of study in that course (CB 13). He “cancelled” his enrolment in this course in July 2013 so as to commence a short ELICOS (English Language) course in August 2013 (CB 79). The Tribunal found that the “same registered course of study at the same education provider” would “recommence” on 19 August 2013.
Clause 5A507(1)(b) of the Migration Regulations requires that an ELICOS course be undertaken before commencing the principal course. The Tribunal found in the circumstances, notwithstanding the cancellation and recommencement, that the applicant had commenced the principal course before undertaking the ELICOS and therefore did not meet cl.5A507(1)(b) of the Migration Regulations.
As stated above, the applicant relied on reg.1.40(3) of the Migration Regulations which he said dealt with the definition of a principal course. The applicant relied on reg.1.40(3)(b)(ii) of the Migration Regulations which states that if the application for a student visa proposes to study two or more registered courses, then one of the courses may be taken “only after the completion” of the other course.
The applicant submitted that this meant that if one of the courses may only be taken after the completion of the other course, which applied to the current circumstances, then in the current circumstances the principal course, the “former course”, must start at a date after the ELICOS course (“the first course”) has finished.
In short, the argument was that the principal course cannot start before the preliminary course which in this case is the ELICOS course.
This part of the applicant’s submissions relied on this regulatory interpretation to propose particular findings that should have been made by the Tribunal. In my view, however, it is to that factual scenario that attention must first focus. That is, for example, on what is presented to determine when the principal course commenced, and when the ELICOS was undertaken. It then falls to apply relevant factual findings to the regulatory requirement for the grant of the visa.
In any event, the applicant’s submissions then focused on the confirmation of enrolment for the principal course and proposed that the confirmation of enrolment determined the commencement date and cessation date of the principal course. In this way, the applicant said the ELICOS was undertaken in August 2013, the applicant commenced his principal course after that date and, therefore, met the relevant requirement in cl.573.223 of the Migration Regulations.
In short, the applicant’s argument was that by failing to take into account the definition of “principal course” in reg.1.40 of the Migration Regulations, the Tribunal fell into error in determining that the applicant did not satisfy the relevant criterion for the grant of the visa. This is because the ELICOS course “preceded” the principal course, and, therefore, cl.5A507(1)(b) of the Migration Regulations was met.
To support his argument the applicant relied on part of the EducationServices for Overseas Students Act 2000 (Cth) (“the ESOS Act”) and the Education Services for Overseas Students Regulations 2001 (Cth) (“the ESOS Regulations”).
1)Regulation 1.03 of the ESOS Regulations:
“…
confirmation of enrolment means the information a registered provider must give the Secretary under section 19 of the Act when a person becomes an accepted student of the provider…”
2)Section 19 of the ESOS Act:
“19 Giving information about accepted students
(1) A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:
(a) the name and any other prescribed details of each person who becomes an accepted student of that provider;
(b) for each person who becomes an accepted student—the name, starting day and expected duration of the course for which the student is accepted;
(c) the prescribed information about an accepted student who does not begin his or her course when expected;
(d) any termination of an accepted student’s studies (whether as a result of action by the student or the provider or otherwise) before the student’s course is completed;
(e) any change in the identity or duration of an accepted student’s course;
(f) any other prescribed matter relating to accepted students.
…”
[Emphasis added.]
3)Regulation 3.01 of the ESOS Regulations (with relevance to s.19 of the ESOS Act):
“3.01 Prescribed details about accepted students
…
(g) the agreed starting day of the course;
(h) the day when the student is expected to complete the course;
…”
The applicant relied on this to assert that the confirmation of enrolment was evidence of when a course “starts and finishes”. The applicant referred to the Confirmation of Enrolment Certificate (“COE”) provided by the applicant and reproduced at CB 82 to say that the Bachelor of Business (Management) course was shown to start on 19 August 2013 and end on 27 July 2014.
The applicant also provided to the Tribunal a COE concerning his ELICOS course (CB 81). This showed that that course started on 5 August 2013 and ended on 16 August 2013.
In short, therefore, the principal course was preceded by the ELICOS course and therefore cl.5A507(1)(b) of the Migration Regulations was satisfied. In these circumstances the applicant argued that the Tribunal misunderstood what was meant by the words “before commencing” as they appear in cl.5A507(1)(b)(i) of the Migration Regulations.
That is, that misunderstanding arose in circumstances where the Tribunal failed to understand that the COE was conclusive evidence of when a course starts and finishes. This is because the relevant parts of the ESOS Act and the ESOS Regulations require that the start and finishing dates of the particular course must be specified on the COE.
The applicant explained that reg.1.03 of the Migration Regulations contains the definition of “electronic confirmation of enrolment”:
“electronic confirmation of enrolment, in relation to an applicant for a student visa, means confirmation that:
(a) states that the applicant is enrolled in a registered course; and
(b) is sent by an education provider, through a computer system under the control of the Education Minister, to:
(i) a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia; or
(ii) an office of a visa application agency that is approved in writing by the Minister for the purpose of receiving applications for a student visa; or
(iii) any office of Immigration in Australia.”
He submitted that in light of this the Minister’s knowledge of whether a person is enrolled in a course, and, relevantly, the dates of that enrolment, are governed by the COE.
The Minister’s general position was that in this case, the Tribunal’s understanding of when the applicant commenced his principal course was supported by a number of factors. These were the relevant statutory schemes in both the Act, and the ESOS Act, the relevant college’s understanding of when the course commenced, which in turn was supported by the ordinary usage of the word “commence”, by the policy intention evident in the statutory and regulatory schemes, and by relevant authority.
As set out above, the applicant relied in considerable part on reg.1.40 of the Migration Regulations. However, the Minister noted that reg.1.40 of the Migration Regulations itself says nothing about when a course commences.
I agree with the Minister that the regulatory focus in reg.1.40 of the Migration Regulations is to define a “principal course” (reg.1.40(2) of the Migration Regulations). In my view, further, and relevantly, reg.1.40(3)(b)(ii) of the Migration Regulations provides for the sequence in which the principal course must be taken if the student proposes to take two or more courses and one of these is the principal course. As stated above, the principal course must be taken “after the completion of the other course.
The Minister submitted that in the current circumstances the Bachelor of Business (Management) course (the principal course) must be taken only after the completion of the ELICOS course. I understood the applicant to agree in general with this conclusion. I agree with the Minister that to the extent that the applicant’s argument derives from what is said to be the way to determine the start (and for that matter the end) date of principal course, reg.1.40 of the Migration Regulations, given its relevant silence on this point, does not assist the applicant.
It is important to emphasise that the terms of reg.1.40 of the Migration Regulations and the sequence of what is set out at reg.1.40(2), and then reg.1.40(3), of the Migration Regulations is important. Regulation 1.40(2) of the Migration Regulations establishes what is to be understood as being the principal course.
Relevantly, reg.1.40(3)(b)(ii) of the Migration Regulations provides that in circumstances where one course may only be taken after the completion of another course, which the student also proposes to take, then the principal course is the second of those two courses. This says nothing about the actual commencement date of either course, or how it is to be calculated, other than the relevant sequence.
The Minister’s answer to the applicant’s reliance on the ESOS Act was found in another part of that Act not referred to by the applicant in his submissions.
The Minister referred to s.5 of the ESOS Act, the “definition” section, for the proposition that the definition of “course” says nothing about the commencement date of the course. In my view, to the extent that the applicant’s argument that the ESOS Act and ESOS Regulations provide a basis to link the commencement of a course to the understanding of the meaning of that word in the ESOS Act and ESOS Regulations, then no support is lent to that position by the definition of “course” in the ESOS Act itself.
In this light, the Minister also drew attention to the definition at s.5 of the ESOS Act to “Register means the Register kept under section 14A” to focus on this section of the ESOS Act.
Section 14A(4) of the ESOS Act is, relevantly, in the following terms:
“14A The Register
…
(4) The Secretary must cause the following information to be entered on the Register in relation to each provider’s registration:
…
(e) a unique identifier allocated to each course at each location for which the provider is registered;
…”
The thrust of the Minister’s submission was to draw attention to the need for a “unique identifier” to be allocated to each course of study at the location for which the education provider is located. In the current case, the Bachelor of Business (Management) in which the applicant was enrolled had the same unique identifier in both COEs provided by the applicant in relation to the Bachelor of Business (Management) (CB 76, CB 77 and CB 82 – “072493M”).
The Minister’s submission was that the applicant commenced his course on 21 January 2013 (the Bachelor of Business (Management)), “ceased” his enrolment then re-enrolled in the same course that he had already commenced. That is, that it was the same course. The Minister argued that for the purposes of the legislation, a course can only be commenced once. The Minister submitted that the Tribunal’s relevant findings at [26] and [28] (at CB 95) were consistent with, and reflect, this.
The evidence before the Court provides the probative basis for the Minister’s submission. Nor was there any indication from the applicant before the Court that he had “re-enrolled” in a different course.
It can be taken, therefore, that in enrolling (in the applicant’s submissions) or in re-enrolling (in the Minister’s submissions) in the Bachelor of Business (Management) course, in terms of the subject of the course, its nomenclature and its unique identifier was, as the Tribunal found, “the same” in that sense.
Where the parties differ is how to describe the applicant’s action in relation to the Bachelor of Business (Management). That is, was the applicant’s conduct in August 2013 an “enrolment” in another course or a “re-enrolment” in the same course (as the Tribunal found).
The evidence before the Court in relation to the course identifier, and the like, supports the Minister’s position. I saw the applicant’s argument as asking a “technical” question relying on the fact that the applicant provided two COEs, albeit for the “same” course. His argument, in essence, was that the fact that there were two COEs means that there were two courses. The latter one, the Bachelor of Business (Management) to which the second COE referred, was “taken” after the “completion” of the ELICOS course.
I prefer the Minister’s argument that a course once started, may be interrupted and then re-engaged. Further, where all other indicators show that it was, in substance, the same course, it is a course that must be understood as having commenced at the initial “start” date, and not the date of resumption.
In my view the Minister’s argument gains strength, such that it is to be preferred, from the relevant language used in the Migration Regulations, the focus to which that language is directed, and the context in which the two relevant regulations appear.
What must not be forgotten is that in the circumstances of this case the applicant was required to satisfy the criteria for the grant of the visa as set out at cl.573 of Sch.2 to the Migration Regulations. In particular, the question for the Tribunal was whether the application met the criterion set out at cl.573.223 of the Migration Regulations.
That criterion required the Tribunal to be relevantly satisfied that the applicant was a genuine applicant for entry and stay in Australia as a student. Amongst other matters, that criterion directed attention to Sch.5A to the Migration Regulations (cl.573.223(2)(a)). The Tribunal needed to be satisfied that the applicant met Sch.5A to the Migration Regulations before it could be satisfied that the applicant was a genuine student.
Clause 5A507 of Sch.5A of the Migration Regulations is concerned with English language proficiency. That is, amongst other things, before he could be found to be a “genuine applicant” as a student, the applicant was required to provide evidence of a certain level of English language proficiency. Relevant to his particular circumstances, he was required to provide evidence that he “will undertake an ELICOS…before commencing his principal course” (cl.5A507(1)(b)(i) of the Migration Regulations).
I agree with the Minister that in that regulatory scheme a course commences once. That is, at the time it (first) commences. Enrolment in that course is an element leading to, or involved in, commencement, but the two terms (“enrolment” and “commencement”) are not synonymous.
The Minister drew a distinction, arising from the scheme of the Migration Regulations themselves, between the concepts of “commencing” a course and “enrolling” in a course.
This view is supported, as the Minister submitted, also with reference to, for example, another part of the ESOS Regulations to which the applicant did not refer. At reg.3.02(1) of the ESOS Regulations, reference is made to an applicant who “does not begin his…course when expected”. This follows immediately upon reg.3.01 of the ESOS Regulations, to which the applicant did refer, which deals with “an accepted student of [an education] provider”.
This also illustrates the difficulty for the applicant in seeking to give meaning to the relevant terms in the Migration Regulations from what is said in the ESOS Regulations. Regulation 3.01 of the ESOS Regulations, on which the applicant relied, and reg.3.02 of the ESOS Regulations, are intended to prescribe the details that registered education providers are required to maintain as part of their information records in relation to their overseas students, and which s.19 of the ESOS Act requires the education provider to give to the Secretary to the Department of Immigration and Border Protection.
The ESOS Act is not concerned with providing definitions to the terms used in the Migration Act or the Migration Regulations. Those definitions arise from the Migration Act itself and or its regulations. The objects of the ESOS Act are contained at s.4A:
“4A The principal objects of this Act are:
(a) to provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and
(b) to protect and enhance Australia’s reputation for quality education and training services; and
(c) to complement Australia’s migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas.”
The key word from cl.5A507(1)(b)(i) of the Migration Regulations is “commencing”. That word takes meaning from, amongst other things, the scheme of the Migration Act and the Migration Regulations. In any event, it is important to note that those parts of the ESOS Act and ESOS Regulations, relied on by the applicant now, do not refer to “commencing” or “commencement date”. A different term is used in, for example, s.19(1)(b) of the ESOS Act. That is “starting day”. The applicant assumed, but did not explain, how the two terms had the same meaning for current purposes, in light of the different objects of the two Acts and their unique statutory and regulatory contexts.
In any event, as is clear from the actual language of reg.3.01 of the ESOS Regulations, the purpose of that regulation is to ensure that the education provider provides certain information to the government about students. In particular, that is information that a particular person is studying, the time of the study, and the nature of what is being studied. This view of reg.3.01 of the ESOS Regulations is supported by what is said in s.19 of the ESOS Act.
Thus, in the current case the applicant’s reliance on the COEs must be seen in light of the purpose for which they were created. The COEs are the vehicle through which the education provider discharges the obligation to provide certain information to the government.
In this light, the provision of further COEs (see from CB 76 to CB 77 and CB 81 to CB 82), in the current case, was done to advise the relevant government agency of changes to the information relevant to the applicant’s study as an accepted student. I agree with the Minister that the statutory and regulatory regime which is set out in the ESOS Act and the ESOS Regulations, containing concepts relevant to the purpose of that Act, and focussed on different objects, does not assist in the comprehension of the word “commencing” as it appears in cl.5A507(1)(b)(i) of the Migration Regulations. In my view, that must be understood in the context of the Migration Act and the Migration Regulations, and with reference to the context and actual language surrounding that word at cl.5A507 of the Migration Regulations.
The broader context can be seen from what I relevantly said in Sapkota v Minister for Immigration and Citizenship [2012] FMCA 77; (2012) 258 FLR 273 (“Sapkota”) (see in particular at [41] – [43]). While that case dealt with cl.5A404 of the Migration Regulations, part of the purpose of that regulation, as in the current case, was to “…ensure that the applicant is a genuine applicant for entry and stay as a student…” (with reference here to cl.573.223 of the Migration Regulations).
As set out above, an element of that is that an applicant for a student visa is only granted the visa if they have a requisite level of proficiency, or competency, in the English language. As I said in Sapkota (at [45]) “…the legislative intention behind the ELICOS requirement in cl.5A404(b) is to ensure that applicants are able to fully engage in, and comprehend, their primary course” (noting in the current case the relevant equivalent is cl.5A507(1)(b) of the Migration Regulations).
As stated above, in the current case the principal course was the Bachelor of Business (Management). The intention of cl.5A507 of the Migration Regulations was to ensure that the applicant had English language proficiency as a prerequisite to commencing the course (a part of being able to show that he was a genuine student).
In the applicant’s circumstances that proficiency was to be evidenced by his undertaking an ELICOS course “before commencing” the principal course, such as to be able to properly participate in the principal course. That purpose would be defeated if the applicant had not completed the English language proficiency course “before commencing” his principal course.
In this light, the applicant’s reliance on reg.1.40(3) of the Regulations also does not assist him. The plain purpose of that sub-regulation, consistent with the broader objects described above, is to provide that in circumstances where, relevantly, two courses of study are involved in relation to the student, and where one of the courses may be taken only after the completion of the other course, the “second” course, that is the course in respect of which the “first” course is a prerequisite is the principal course.
In the current circumstances, that is consistent with the English language proficiency requirement that the applicant must complete his ELICOS course before “undertaking” his principal course.
While this is consistent with the relevant regulatory scheme described above, it plainly does not assist in the determination of the actual commencement date of the principal course which is the focus of cl.5A507(1)(b) of the Migration Regulations.
It is important to note that the key words respectively in cl.5A507 and reg.1.03(3) of the Migration Regulations are “commencing” and “completion”. The latter word is focussed not on commencement, but as it says on “completion”. In my view, the first, consistent with its context, is focussed on the commencement, or the start, of each of the two courses. As stated variously above, consistent with the statutory scheme, the meaning of cl.5A507(1)(b)(i) of the Migration Regulations is that the ELICOS course is to be undertaken before starting the principal course.
In the current case it was reasonably open on the evidence before the Tribunal to take the view that the applicant had commenced his principal course before undertaking the ELICOS course. On the evidence the applicant presented, he was enrolled in the principal course and engaged in that course prior to the cancellation of the enrolment in July 2013. As referred to above he completed “2 units” of study in that course (see [13] above). The fact that he cancelled his enrolment and subsequently sought to resume this course did not mean that he had not already commenced the principal course. There is no legal error in the Tribunal finding that this did not meet cl.5A507(1)(b) of the Migration Regulations.
In my view the Tribunal correctly identified that the time of the completion of the ELICOS course, which it acknowledged would occur before the resumption of the principal course, was not relevant to the requirement in cl.5A507(1)(b) or more precisely the effect of that clause on the applicant’s circumstances.
Conclusion
The sole and only pressed ground of the amended application is not made out. It is appropriate to dismiss the application. I will make the order accordingly.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 21 November 2014
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