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Zhang v Minister for Immigration & Anor [2010] FMCA 809 (25 October 2010)

Last Updated: 27 October 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Application to review decision of Migration Review Tribunal – student visa – whether applicant had complied substantially with a requirement that he be enrolled in a registered course – meaning of “enrolled” in condition 8202(2)(a) in Schedule 8 to the Migration Regulations.

Education Services for Overseas Students Act 2000 (Cth), ss.19, 20, 21, 27, 29
Migration Act 1958 (Cth), ss.359A, 359AA
Migration Regulations 1994 (Cth), cl.572.235 of Schedule 2, condition 8202 of Schedule 8

Cheng v Minister for Immigration & Multicultural & Indigenous Affairs (2007) FCAFC 71
Kim v Witton and Another (1995) 59 FCR 258; [1995] FCA 1508
Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170
MAAN v Minister for Immigration and Citizenship and Another (2009) 179 FCR 581; [2009] FCAFC 150
Minister for Immigration and Multicultural and Indigenous Affairs v Zhou and Another (2006) 152 FCR 115; [2006] FCAFC 96

Applicant:
KAILONG ZHANG

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 597 of 2010

Judgment of:
Barnes FM

Hearing date:
16 September 2010

Delivered at:
Sydney

Delivered on:
25 October 2010

REPRESENTATION

Counsel for the Applicant:
Mr J R Young

Solicitors for the Applicant:
Lam Partners Lawyers

Counsel for the Respondents:
Ms A Mitchelmore

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) The application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 597 of 2010

KAILONG ZHANG

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Background

  1. This is an application for review of a decision of the Migration Review Tribunal dated 18 February 2010 affirming a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa. The delegate found that the applicant had not met the criterion in cl.572.235 of Schedule 2 to the Migration Regulations 1994 (Cth) that he comply substantially with the conditions that applied to the last substantive visa held by him.
  2. At the time that the applicant applied for the visa in question on 11 August 2008 he was the holder of a Subclass 572 Student visa which had been granted on 21 November 2007 and was valid until 13 August 2008. That visa was subject to condition 8202 of Schedule 8 to the Migration Regulations which is as follows:
  3. Subclause (3) of condition 8202 is not in issue in this case. It provides that the holder satisfies the requirements of that subclause if there is no certification by the education provider that the holder had not achieved either satisfactory course progress or satisfactory course attendance.
  4. In connection with his visa application the applicant provided the Department with a copy of a Confirmation of Enrolment form relating to his enrolment in an Advanced Diploma of Business Management course at Lamart College of Technology (Lamart) which started on 13 June 2006 and was to end on 13 June 2008. It appears that this was the course in which he was enrolled when granted his previous student visa.
  5. In addition, he provided a document described as a Letter of Offer issued on 25 March 2008 by the Illawarra Business College (IBC) that stated that he had been offered a place in a one year Certificate III course in Hospitality (Commercial Cookery) scheduled to commence on 1 April 2008 and an “Offer Letter” of 15 July 2008 with a provisional offer of a place in a one year Diploma of Accounting course at Australian Nationwide College (ANC) subject to matters including payment of fees and Confirmation of Enrolment form dated 7 August 2008 relating to enrolment in that course, which was scheduled to commence on 18 August 2008.
  6. Mr Zhang also wrote an undated letter to the Department explaining the absence of any study records from 9 March 2008 to 18 August 2008 and recounting the letters of offer and confirmation of enrolment forms provided. He claimed that after he returned from China on 8 March 2008 (which appears to be a reference to the fact that he was outside Australia between 4 February 2008 and 8 March 2008), his parents decided that he should study Commercial Cookery and that therefore he “informed Lamart College of Technology to withdraw my current course, Advanced Diploma of Business Management at 9 March 2008 in order allow myself to apply the [Commercial Cookery] course in Illawarra Businese (sic) College”.
  7. He stated that he had authorised EDU Australia as his education agent to apply for the cookery course and that he had received an IBC letter of offer of 25 March 2008 for a course commencing 1 April 2008. He claimed that he was then informed by IBC that “due to space limitation” he had been moved to the course commencing 1 July 2008. However he claimed that he did not receive any Certificate of Enrolment or other response from IBC and that after 1 July 2008 he became concerned and looked for an alternative course. He claimed that on 15 July 2008 he had received an Offer Letter for the Diploma of Accounting at the ANC to commence on 18 August 2008. He claimed that after he paid tuition fees he received his Certificate of Enrolment on 7 August 2008.
  8. Mr Zhang’s letter to the Department continued:
  9. He claimed that these were the “main reasons” he did not have study records for 9 March 2008 to 18 August 2008 and that there were “compassionate or compelling circumstances beyond [his] control”.
  10. In a decision of 24 September 2008 a delegate of the first respondent found that as Mr Zhang had been enrolled in the type of course to which the visa Subclass 572 applied he had been primarily assessed against the criteria for the grant of that subclass, but that he did not satisfy cl.572.235 which required him to have “substantially complied” with the conditions applicable to his last substantive visa and to any subsequent bridging visa.
  11. The delegate found that Mr Zhang had been granted a visa to study an Advanced Diploma of Business course, that he went overseas on 4 February 2008 after advising the college he was leaving to do another course, returned to Australia on 9 March 2008 but did not commence any further study until 18 August 2008. The delegate found that Mr Zhang’s explanation for the “period of over five months of non-study was not adequate” and that he had “not substantially complied with condition 8202 of his last substantive visa”. As he did not satisfy the criteria for any of the subclasses of visa within Class TU the delegate refused to grant him such a visa.

The Tribunal Review

  1. The applicant sought review by the Tribunal. The Tribunal made inquiries of the education providers to which the applicant had referred in the information he had provided to the delegate. The Tribunal also invited the applicant to attend a hearing, which he did. The Tribunal affirmed the decision under review, in essence, on the basis that the applicant had not complied substantially with the conditions that applied to his last substantive visa. The only condition in issue was condition 8202 and the only relevant part of that condition was cl.8202(2)(a) which requires that the visa holder “is enrolled in a registered course”.
  2. In the course of its review the Tribunal wrote to the education providers referred to in the material before the delegate requesting information about Mr Zhang’s enrolment. It asked Lamart for information regarding the applicant’s enrolment in the Advanced Diploma in Business Management course; in particular when the course was due to end, when Mr Zhang made a “request to withdraw”, whether he continued to study after requesting to withdraw and when his enrolment ceased. The Tribunal also asked for copies of Mr Zhang’s attendance records (if applicable), details of his academic results and whether he achieved the qualification.
  3. The Tribunal asked IBC about the letter of offer for the Commercial Cookery course commencing 1 April 2008, whether the offer was withdrawn, replaced or accepted, whether a Confirmation of Enrolment was issued and if Mr Zhang ever enrolled.
  4. Finally the Tribunal wrote to ANC on 13 November 2009 asking if Mr Zhang had enrolled in and completed the Diploma of Accounting Course starting in 2008 and for his academic results.
  5. On 8 December 2009 Lamart replied as follows:
  6. Lamart provided the Tribunal with an interim academic transcript for Mr Zhang which showed that he had studied seven subjects, had achieved competence in four subjects but that he was “not yet competent” in three subjects for each of which his result was 0%.
  7. After several telephone communications from the Tribunal, IBC advised the Tribunal on 8 January 2010 that no record could be found of Mr Zhang ever studying at IBC. The Tribunal then asked IBC whether Mr Zhang had ever been offered a place at IBC or issued with a Confirmation of Enrolment. On 18 January 2010 IBC advised that there was no record of any offer to Mr Zhang for a course commencing 1 April 2008 or 1 July 2008 but that Mr Zhang did receive an offer letter for a place in the Certificate III in Hospitality (Commercial Cookery) course commencing on 7 October 2008. This letter of offer had been issued by Edu Australia, an educational agent the college no longer dealt with, on 10 September 2008. A copy of this letter of offer was provided to the Tribunal. IBC advised that it appeared that no further progress was made in relation to this letter of offer.
  8. In the meantime, ANC had advised the Tribunal on 16 November 2009 that Mr Zhang “did not enrol in and commence [the] Diploma of Accounting” course at ANC.
  9. The applicant’s migration agent provided the Tribunal with a submission dated 21 January 2010 to the effect that Mr Zhang had complied with condition 8202 because he was enrolled in a registered course (being the ANC Diploma of Accounting) and that he had complied with course attendance and academic result requirements as there was no certification from an education provider to prove that he did not have satisfactory course attendance and academic results.
  10. In a written statement provided to the Tribunal dated 21 January 2010 Mr Zhang stated that when he returned to China in February 2008 his parents wanted him to undertake a Commercial Cookery course, so when he came back to Australia in March 2008 he “advised Lamart...that I considered enrolment of commercial cookery course in another education provider and I may need to withdraw Advanced Diploma of Business Management course...at Lamart”. He claimed that although he was considering this alternative, he “still wanted to complete the course and...did not want Lamart cancelling my CoE, neither did I inform Lamart that I wanted Lamart to cancel my CoE of the course”.
  11. He gave a number of reasons for this, including that he did not want to study Commercial Cookery, but wanted to finish the Business Management Course at Lamart in June 2008. He claimed that given that he had commenced this course in June 2006 and had paid the course fees and there was no reason to waste his money by not completing the remaining three months of the Lamart course. He claimed that he had received an IBC letter of offer in March 2008 but that later in March was informed that due to space limitations the commencement date of the Commercial Cookery course would be 1 July 2008 instead of 1 April 2008. He claimed that he “continued studying the course and completed it at Lamart in June 2008. I did not discontinue study of the course at Lamart during 9 March 2008 until 13 June 2008”.
  12. Mr Zhang claimed that after finishing the course at Lamart, he had still not received any confirmation about the cookery course, so after 1 July 2008 he asked his agent to enrol him in another course. His friends referred him to the Diploma of Accounting course at ANC commencing 18 August 2008 which he enrolled in.
  13. On 21 January 2010 (the date on which the Tribunal received the applicant’s written statement) a Tribunal officer sent an email to the registrar at Lamart advising that further information had been received from the applicant which prompted the Tribunal to request additional information consisting of the applicant’s attendance records which showed that he last attended on 18 February 2008 and copies of his notification of discontinuance. The email noted that the Department records showed that Mr Zhang was not in Australia for almost all of February 2008.
  14. Mr Zhang attended a Tribunal hearing on 22 January 2010. As discussed below, the Tribunal recorded that in the hearing it put the information from Lamart, IBC and ANC to Mr Zhang for comment and gave him time after the hearing to provide further information and to respond in writing.
  15. By facsimile dated 13 February 2010, Lamart sent a number of documents to the Tribunal, including a letter dated 12 February 2010 stating that the Advanced Diploma of Business Management course was “on holidays” from 7 December 2007 until 2 February 2008, that Mr Zhang did not return to college on the scheduled date of 4 February 2008 to resume his studies and that the “college was later presented with an application to discontinue his study through his agent”. The letter also advised that the date of Mr Zhang’s last attendance was “incorrectly recorded by the trainer at the time”. Enclosed with the letter was a copy of attendance records for the period in issue and the completed Student Discontinuation of Studies Form which contained Mr Zhang’s name and student number. Under the heading “Reason for Discontinuation”, the box “Transfer to other provider” was ticked. The expected last date of study at the College was said to be 18 February 2008. The form was signed in what appears to be the first name of Mr Zhang. It appears to be dated 10 February 2008.
  16. In addition, in that part of the form marked “Office Use Only”, boxes are ticked to indicate “Yes” in relation to each of: CEO/Principal approval; Registrar change of status in SMS; Registrar notify DEST; Registrar alters manual student file; Registrar alters attendance sheet; and Registrar alters results roll. The form bears a handwritten notation: “Reported to DEST on 10/03/2008” and is initialled.

The Tribunal decision

  1. In its reasons for decision the Tribunal set out the evidence before it, including the last-mentioned information from Lamart and the Discontinuation of Studies Form.
  2. It also outlined the evidence given at the Tribunal hearing on 22 January 2010. The Tribunal reasons for decisions constitute the only evidence of the Tribunal hearing before the court. The Tribunal recorded that it had put to Mr Zhang critical issues in the case, in particular whether he was enrolled in a registered course, as well as the provisions of s.359AA of the Migration Act 1958 (Cth) and information from the education providers.
  3. In particular, the Tribunal put to the applicant the inconsistency between the information provided to the Department (including his statement that he withdrew from his Lamart course on 9 March 2008) and his later claim that despite officially withdrawing he continued to attend the Lamart college and completed the course. It recorded that “[t]he applicant said he had not withdrawn from the course at Lamart” that he claimed “he had only told Lamart that he might need to withdraw”, that he told Lamart “in late March 2008 that he was not withdrawing” and that “he may have expressed himself poorly in [the] letter” to the Department.
  4. In response to questions as to whether he had a copy of any communication with Lamart regarding the question of withdrawal from the course or confirming his intention to continue after March 2008, Mr Zhang said “he had not written any letters to Lamart but had simply told the receptionist of his intentions”. The Tribunal recorded that when asked whether he had any evidence to confirm that he continued to attend and finished his Lamart course on 13 June 2008, Mr Zhang said he did not, but that he “could obtain it from Lamart” and that “he had not been issued with a diploma”. The Tribunal raised its concerns about the absence of such evidence.
  5. The Tribunal put to the applicant information from Lamart which seemed to be inconsistent with what he had told the Tribunal (in particular the information that he had withdrawn from the course on 18 February 2008, that he had not attended college after that date, had not completed his studies and that he had not achieved competency in the last three subjects studied in 2007). The Tribunal explained that “if it were to conclude that he did not remain enrolled at Lamart up until June 2008... it might conclude that [the applicant] had not substantially complied with condition 8202”. The Tribunal also put to the applicant the information obtained from IBC and ANC and its concerns in that respect.
  6. The Tribunal gave the applicant the opportunity to respond to the information put to him and gave him copies of the relevant documents. When he sought additional time the Tribunal agreed that he could have two weeks after the hearing in which to make further inquiries and to respond to the Tribunal in writing.
  7. After the hearing the applicant’s agent requested and was granted an extension of time until 12 February 2010 to provide a response. No response was received by the Tribunal. A Tribunal officer contacted the applicant’s agent on 15 February 2010. The agent advised that she had not been able to contact the applicant. Nor was she able to do so on that day. The Tribunal officer advised the agent that the Tribunal would proceed to make its decision, but would consider all information received prior to the decision being made.
  8. On 17 February 2010 the agent advised that she had “not received any instructions from the applicant in relation to the matters raised at the hearing”. The Tribunal did not receive any post-hearing submissions or a further request for an extension of time.
  9. In the findings and reasons part of its decision the Tribunal found that it was not satisfied that the applicant had complied substantially with condition 8202 to which his last-held Subclass 572 visa was subject.
  10. The Tribunal found, on the basis of the evidence the applicant had submitted to the Department, that he “enrolled in an Advanced Diploma of Business Management course at Lamart which started on 13 June 2006 and was scheduled to end two years later”. The Tribunal had regard to the fact the applicant had told the Department that he had “withdrawn” from that course and that he had “advised Lamart of his withdrawal on 9 March 2008” and also to the Lamart information put to the applicant at the hearing to the effect that he had withdrawn from the course with effect from 18 February 2008, had not attended the course thereafter, had not achieved competency in the last three courses studied and had not completed the course.
  11. The Tribunal noted that subsequently Lamart had “indicated that it had made a mistake in saying that the applicant’s last day of attendance was 18 February 2008” and that in fact he had not returned to the course after the December/February break. This was said to be consistent with the applicant’s passport, which indicated that he was absent from Australia from 4 February to 8 March 2008. The Tribunal found that the error in Lamart’s original advice was “of no practical consequence”, as what was of importance was that, as discussed at the hearing, “Lamart’s records indicated that the applicant had not studied in the course after he withdrew and did not complete the course”.
  12. The Tribunal addressed the fact that at the hearing “the applicant disputed that he had withdrawn from the [Lamart] course... notwithstanding his advice to the Department that he had withdrawn” and the fact that he claimed that he “had only told Lamart that he might need to withdraw” and that he had “completed the course of study”. It recorded that while it had given Mr Zhang the opportunity to respond to the Lamart information and he said he would be in a position to obtain evidence from Lamart that he had completed the course, he had made “no substantive response” in the almost four weeks that had elapsed since the hearing. The Tribunal stated that had the applicant returned to his studies after his return to Australia, it would have expected him to have been in a position to demonstrate that fact, particularly if he had completed the course. It “would have expected him to have sought and obtained evidence of completion [of the course] for subsequent use as evidence of his qualification”.
  13. The Tribunal found that the applicant travelled to China on 4 March 2008 (this is clearly a typographical error and should be a reference to 4 February 2008) instead of returning to his studies on that date. It noted that in his statement of 21 January 2010 he had said that while in China “his parents had required him to change to a cookery course”. The Tribunal found:
  14. The Tribunal continued at paragraph 58:
  15. The Tribunal found, on the basis of information from IBC and its view of a purported letter of offer dated 25 March 2008 submitted by Mr Zhang, that this letter of offer was “not a document genuinely issued by IBC or on behalf of IBC” and that Mr Zhang “was not actively seeking to enrol at IBC in the days and weeks immediately following his return to Australia on 8 March 2008”.
  16. In relation to Mr Zhang’s claims about his attempted enrolment at ANC, the Tribunal found a direct contradiction between his evidence and the advice from ANC that he had never actually commenced the course to which the confirmation of enrolment related. As that course was due to commence after the applicant’s last substantive visa had expired, the Tribunal did not regard the issue of enrolment at ANC as of “great significance in relation to the question of whether or not [the applicant] had substantially complied with the requirement of [the last] substantive visa to be enrolled in a registered course”. However in the absence of any further response from the applicant to confirm his claim at the hearing that he had enrolled in and actually completed the course in August 2009, the Tribunal accepted the information provided by ANC and found that the applicant never formally enrolled at ANC after receiving his confirmation of enrolment.
  17. The Tribunal concluded:
  18. For these reasons the Tribunal was not satisfied the applicant satisfied cl.572.235 of Schedule 2 to the Migration Regulations. It affirmed the decision of the delegate not to grant Mr Zhang a Student (Temporary) (Class TU) visa.

This application

  1. The applicant filed an application for review in this court on 18 March 2010. The application contains three grounds. Counsel for the applicant advised that ground three was not pressed. The two grounds relied on are as follows:
  2. The essence of the applicant’s contention is that the Tribunal erred in finding that because there was no evidence he returned to the course and completed it he was not enrolled in a registered course at Lamart from 9 March 2008 at the latest. Reference was made to the Tribunal’s mention of these factors in the findings and reasons part of its decision. It was submitted that such reasoning involved an error of law in relation to the meaning of “enrolled in a registered course” in condition 8202(2)(a) on the basis that these issues were irrelevant to the question posed by condition 8202(2)(a). It was submitted that where a person was enrolled in a course, cessation of enrolment must occur as a result of some identifiable act undertaken or accepted by the enrolling authority (in this instance Lamart). The express or implied attitude of the applicant towards his studies was said to be irrelevant to the issue of enrolment.
  3. Counsel for the applicant pointed out that, in contrast to subparagraph (3) of condition 8202 (which involves certification from the education provider that the visa holder had not achieved satisfactory course progress or has not achieved satisfactory course attendance), the condition in clause 8202(2)(a) is concerned with the formal status of enrolment (and not non-attendance). It was contended that the concept of enrolment was the placing of the name on a list or register.
  4. Hence it was submitted that where a confirmation of enrolment had been provided, only actual evidence of cancellation or cessation of enrolment would suffice to establish a failure to comply with this condition.
  5. In support of these propositions, reference was made to the provisions of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) which provides in s.19 for a registered education provider to give the Secretary of the Department of Education, Science and Technology (DEST) information such as the name of each accepted student, the starting date and duration of the course and the termination of studies by any accepted student, as well as particulars of any breach of a visa condition relating to attendance or academic performance. This legislation also provides in s.20 for registered providers to send accepted students written notice if they have breached prescribed conditions of a student visa.
  6. It was pointed out for the applicant that there was no evidence before the Court or suggestion in this case that particulars were given to him under s.19 or written notice under s.20 of the ESOS Act. Counsel for the applicant also referred to the fact that under the ESOS Act registered providers must keep records of each accepted student who is enrolled (s.21). Sections 27 and 29 provide that students who withdraw from a course are able to claim refunds. It was suggested that there was no evidence of any claim for any refund or any refund being paid.
  7. The contention that the Tribunal made an error of law was said to be consistent with the fact that when the Tribunal wrote to Lamart on 12 November 2009 asking it to provide certain information in writing, it included a specific question as to when Mr Zhang’s enrolment ceased. It was suggested that Lamart had not answered this question, either initially or when contacted further in February 2010.
  8. Counsel for the applicant also took issue with the Student Discontinuation of Studies Form in a number of respects. First, it was contended that while the form was marked “Reported to DEST on 10/03/2008”, there was no record of this appearing on the Departmental file. It was also submitted that no copy of this document was provided to the applicant. Nor were particulars provided or discussed at the hearing.
  9. It was said that the Tribunal treated enrolment as in effect constructive attendance or constructive completion of the course, when that was not the meaning of “enrolment”. Reference was made to part of the Tribunal’s finding in paragraph 58 as follows:
  10. It was submitted that this was not a mere factual finding within the Tribunal’s jurisdiction, but that it equated non-attendance and/or withdrawal with cessation of enrolment and that there was no evidence on which this could be based.
  11. The applicant contended that a person did not cease to be enrolled in a course merely because he or she failed to attend, albeit if failure to attend led to consequences such as expulsion or a notice under s.20 of the ESOS Act this could indicate that enrolment had ceased. It was said to be a legal error to assume that non-attendance or the indication of a state of mind per se amounted to cessation of enrolment where the enrolment was for a particular course over a particular period and fees had to be paid for enrolment for that period.
  12. On this basis counsel for the applicant submitted that the Tribunal made an error of law in the sense that it considered enrolment could be demonstrated by the conduct of the applicant without any corresponding action taken in relation to the enrolment by the education provider.
  13. It was acknowledged for the applicant that the second ground (that there was no evidence to support a finding that the applicant was not enrolled in a registered course from 9 March 2008 at the latest to 13 June 2008), was heavily dependant on success in his first ground. There was evidence before the Tribunal of the applicant not attending the Lamart course, but it was contended that this was not the proper interpretation of “enrolment”. It was contended that if enrolment went to the actual list or register maintained by the education provider, then there was no evidence in support of the Tribunal finding.
  14. Counsel for the first respondent pointed to the absence of any definition of enrolment in the Migration Act and Regulations and referred to what was said to be the Macquarie Dictionary definition of “enrolled” (although in fact it is the definition of “enrol”) as meaning inter alia:

I note that such definition also includes “to enrol oneself”.

  1. It was submitted that in finding that the applicant did not return to his studies at Lamart following his return to Australia in March 2008 the Tribunal had relied on material provided to it by Lamart to that effect, in particular that on 18 February 2008 the applicant had informed the college that he would no longer continue his studies and that he withdrew his enrolment before the completion of the course. This information was said to be consistent with the Student Discontinuation of Studies Form which Lamart stated it had received through the applicant’s agent and which indicated that the DEST was notified of the applicant’s discontinuance on 10 March 2008.
  2. It was submitted that the Tribunal’s conclusion that the applicant was not enrolled in the Diploma course at Lamart from 9 March 2008 (at the latest) was open to it on the evidence before it and was a conclusion of fact which did not involve a misconstruction of condition 8202(2)(a) in Schedule 8 to the Migration Regulations.
  3. It was said to be open to the Tribunal to prefer the applicant’s evidence to the Department and the information it had received from the education provider which was put to him in the course of the hearing and in respect of which he had an opportunity to comment after the hearing (an opportunity of which he did not avail himself), in preference to the applicant’s evidence at the Tribunal hearing to the effect that he told Lamart only that he might need to withdraw and also claimed that he in fact continued the course and completed it.
  4. Thus, the first respondent submitted that the second ground was not made out because the Tribunal had before it material from Lamart and the applicant’s own letter to the Department which indicated that he had formally withdrawn from the Lamart course by 9 March 2008 at the latest. It was also said to be open to the Tribunal not to accept Mr Zhang’s claim that he had completed the Diploma course in the absence of any documentary evidence which the Tribunal reasonably would expect to exist.
  5. It was pointed out that although the applicant said he was offered a place in the course at IBC in late March 2008, the Tribunal had rejected that evidence, preferring evidence before it consisting of information it received from IBC to the effect that the only letter of offer issued for the applicant was in September 2008 and related to a course commencing in October 2008 and on this basis had found that the applicant was not actively seeking to enrol in IBC in the period immediately after his return to Australia. The first respondent contended that in the absence of any other evidence from the applicant as to his enrolment status during this period, there was evidence before the Tribunal on which it was open to find that the applicant was not enrolled in a registered course in the period between 9 March 2008 and 13 June 2008.
  6. Counsel for the first respondent also took issue generally with any suggestion that the Tribunal had not put to the applicant at the hearing information it had obtained from Lamart prior to the hearing.

Reasoning

  1. I note first that no issue is taken in relation to the Tribunal’s consideration of the concept of substantial compliance. It was also confirmed in oral submissions that no issue was taken by the applicant with the Tribunal findings in relation to IBC or ANC. However it was contended that the Tribunal made an error of law in relation to the meaning of “enrolled in a registered course” in finding that the applicant was not enrolled in a registered course at Lamart from 9 March 2008 (at the latest) to 13 June 2008 (the date that the Lamart course in which he had enrolled in 2006 was due to end).
  2. The question was not whether the applicant had at some point become enrolled in a course, but rather whether during the time his last substantive visa was in effect the applicant had complied substantially with the requirement that he “is enrolled in a registered course”. The applicant contended that the Tribunal had erred in equating failure to attend a course or a withdrawal by an applicant with a cessation of enrolment and that where a person was enrolled in a course, cessation of enrolment must occur as a result of some identifiable act undertaken or accepted by the enrolling authority. The issue before the Tribunal in this case was whether Mr Zhang had complied substantially with a condition imposed on the visa granted to him on 21 November 2007 to expire on 13 August 2008. There is no definition of enrolment in a course in the Migration Act or Regulations. I accept that it is relevant to have regard to the Dictionary definition which both of the parties relied on in relation to the meaning of “enrolment”. It should be borne in mind however, that as Cooper J stated in Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170 at [19] – [20]:
  3. While the question of whether there has been substantial compliance with such a continuing requirement “is a question of fact to be determined having regard to the particular circumstances of the case” (see Kim v Witton and Another (1995) 59 FCR 258; [1995] FCA 1508 per Sackville J) a misunderstanding of the meaning of “enrolled” could give rise to a jurisdictional error.
  4. It is relevant to have regard to the distinction drawn in condition 8202 between enrolment and an absence of certification of unsatisfactory course attendance or certification of unsatisfactory course progress. Unlike condition 8202(3), condition 8202(2)(a) does not refer to certification (or an absence of certification) by an education provider. As counsel for the applicant submitted and as the Minister did not dispute, a failure to attend a course or to achieve satisfactory results is not of itself such as to establish that a person is not enrolled in a course within condition 8202(2)(a).
  5. While mere non-attendance does not equate to cessation or termination of enrolment, it is important not to conflate the meaning of “enrolled” and the evidence that may satisfy a decision-maker in respect of compliance (or substantial compliance) with condition 8202(2)(a).
  6. I accept that there must be an identifiable act by the student, such as notification to the education provider of withdrawal or discontinuance from a course. However, in the context of condition 8202(2)(a) it is consistent with the ordinary meaning of “enrolment” that a cessation of enrolment may be established not only by evidence of termination of enrolment by the education provider, but also by evidence of withdrawal from a course or discontinuance by a student communicated to the education provider. Consistent with this view, s.19(1)(d) of the ESOS Act imposes an obligation on an education provider to give to the Secretary of DEST information about “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” within 14 days of this occurring.
  7. In other words, enrolment could be brought to an end either by the act of an education provider or by the act of a student. In my view it is not essential that any such act of a student be accepted by the education provider for there to be a cessation of enrolment. Nor would it be necessary in all cases (as a matter of law) for a student to complete some particular form for it to be open to a decision maker to conclude that the student is not “enrolled” in a course.
  8. However, even if I am wrong and an act of a student must be accepted by the education provider to amount to cessation of enrolment, there was evidence of such an act and of acceptance by the education provider in this case. First, Mr Zhang told the Department he had “informed Lamart...to withdraw my current course...at 9 March 2008” and that he withdrew his Confirmation of Enrolment “[s]ince 9 March 2009”, albeit he claimed he still attended the school and completed his study. Lamart clearly acknowledged to the Tribunal that Mr Zhang had informed it that he would no longer continue his studies.
  9. Moreover, if that act was not sufficient to terminate Mr Zhang’s enrolment, there was also evidence before the Tribunal of the Student Discontinuation of Studies Form apparently annotated by the education provider which could be regarded as an acceptance of the student’s discontinuance as well as Lamart’s responses to its queries. The information provided to the Tribunal by Lamart is consistent with the Discontinuation of Studies Form it later provided to the Tribunal (albeit this was submitted to Lamart through an agent). Further, consistent with the applicant’s claim to the Department that he informed Lamart that he withdrew from the course on 9 March 2008, that Form is endorsed with a notation that the discontinuance was reported to DEST on 10 March 2008 (as would be required under s.19(1)(d) of the ESOS Act).
  10. Thus, even if cessation or termination of enrolment requires evidence not only of communication to but also of acceptance by the education provider, it was open to the Tribunal to find that the applicant had formally withdrawn from the Lamart course on or before 9 March 2008 (as he had told the Department and as was consistent with the information from Lamart). It was also open to the Tribunal on the evidence before it to find that the applicant was not enrolled in a registered course at Lamart from 9 March 2008 at the latest. I note that this finding gave the benefit of the doubt to the applicant as to whether his enrolment had formally ceased before that date.
  11. The fact that the Tribunal initially left open the possibility that the applicant may have been able to establish that he nonetheless returned to the course and completed it does not mean that it equated non-enrolment with non-attendance, having regard to the fact that it was considering the question of substantial compliance with condition 8202(2)(a).
  12. The Tribunal did not proceed on the basis of equating non-attendance and/or the applicant’s attitude to his studies with cessation of enrolment. Nor did it make its finding simply on the basis of the applicant’s failure to attend the Lamart course after he returned from China or to complete it. Rather, in considering whether there had been substantial compliance by the applicant with the requirement that he be enrolled in a registered course, it found that on or before 9 March 2008 (the date on which the applicant claimed that he advised Lamart of his withdrawal in his submission to the Department), the applicant formally withdrew from the Advanced Diploma course at Lamart.
  13. Such a formal withdrawal, communicated to the education provider (which in this case was evidenced by what the applicant told the Department had occurred), was sufficient to bring his enrolment to an end. Even if it was not, the Tribunal also had before it evidence of acceptance by Lamart, consisting of its confirmation that the student had discontinued his studies as well as the subsequent record of a report to DEST by Lamart.
  14. Insofar as reliance was placed by the applicant on the Tribunal’s findings in paragraph 58 of the reasons for decision in that paragraph (which is set out in full at [41] above) the Tribunal referred not only to the applicant’s failure to attend or to return to his studies at Lamart, but also to the information from Lamart to the effect that he had withdrawn from the course and did not attend thereafter that was consistent with the applicant’s advice to the Department to that effect. Further, in the concluding part of its reasons for decision the Tribunal drew a clear distinction between the fact that the applicant had chosen to absent himself from his course for the first month of study in 2008 and the fact that he “then withdrew from the course” (emphasis added). It was that withdrawal communicated to Lamart which brought the enrolment to an end.
  15. The Tribunal did not make an error of law in interpreting “enrolled in a registered course”. It was open to the Tribunal to consider any attempted attendance or completion of a course (or any other attempted enrolment) in the context of considering whether there had been substantial compliance with condition 8202(2)(a). Ground one is not made out.
  16. In ground two it was contended that there was no evidence before the Tribunal to support its finding that the applicant was not enrolled in a registered course from 9 March 2008 (at the latest) to 13 June 2008.
  17. However, while the Tribunal had before it conflicting evidence from the applicant as to whether or not he had in fact actually withdrawn from the Lamart course, in light of the information from Lamart that the applicant had withdrawn and did not attend thereafter, the absence of any evidence (other than the applicant’s assertions) that he returned to the course and completed it and his failure to provide any documentary evidence to that effect (notwithstanding that he had said that he could provide such information and sought time to do so after the Tribunal hearing) it was open to the Tribunal to prefer the evidence the applicant gave to the Department and to find that he was not enrolled in a registered course from 9 March 2008 (the date he told the Department he had withdrawn) to 13 June 2008.
  18. Further, even if it is necessary for enrolment to be brought to an end by an action constituting acceptance by the education provider, there was evidence before the Tribunal (which it referred to in its reasons for decision) on which it would be open to find that Lamart had accepted Mr Zhang’s withdrawal, consisting of the Student Discontinuation of Studies Form submitted on behalf of the applicant by his agent which bore a notation “Reported to DEST on 10/03/2008”. Rather than bringing about a cessation of enrolment, a report to DEST is an act that is to occur after a termination of a student’s studies under s.19 of the ESOS Act. Notification to DEST is not a matter required under the Migration Act and should not be determinative of the meaning of “enrolment” under the Migration Act. The material in question is, however, evidence on which it could be found that Lamart accepted Mr Zhang’s withdrawal and that he was not enrolled in a registered course from 9 March 2008, together with the acknowledgment by Lamart in its initial response to the Tribunal that Mr Zhang had informed it that he would not continue his studies at Lamart.
  19. Contrary to the applicant’s contention, the absence of evidence of particulars under s.19 (apart from the notation on the Student Discontinuation of Studies Form) or a notice under s.20 of the ESOS Act is not of significance. This is not a case of a visa cancellation, in which it might be necessary to consider any interaction between the ESOS Act and the Migration Act (see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v Zhou and Another (2006) 152 FCR 115; [2006] FCAFC 96, and Cheng v Minister for Immigration & Multicultural & Indigenous Affairs (2007) FCAFC 71 at [25]. Nor is it determinative that there is no evidence of any claim for a refund of fees under the ESOS Act. Such evidence is not a prerequisite to a decision-maker’s satisfaction about a cessation of enrolment. In any event, any refund would be a matter between the education provider and an applicant.
  20. Further, the fact that in its response to the Tribunal inquiries Lamart did not refer in specific terms to a cessation of Mr Zhang’s enrolment does not mean that it was not open to the Tribunal to reach the conclusion it did on the evidence before it. On 7 December 2009 Lamart advised the Tribunal that Mr Zhang had enrolled in the course for two years, “start date 13/06/06 – 13/06/08”. This does not mean that the applicant remained enrolled for this period, but rather sets out the duration of the course in which he had been enrolled, consistent with the subsequent advice:

Lamart went on to state that Mr Zhang “did not continue to study” and that his last date of attendance was 18 February 2008, and that he “did not achieve the qualification [withdrew] before the end date” and that he was “still not yet competent in subjects”.

  1. As the Tribunal officer explained to Lamart, the further contact was prompted by the Tribunal’s receipt of further information from the applicant, not by Lamart’s failure to provide an adequate response to the Tribunal’s request for information. It would appear that reference to further information was a reference to the statement and submission from the applicant dated 21 January 2010. This prompted the Tribunal’s request to Lamart for attendance records which showed that the applicant last attended on 18 February 2008 (given that he was overseas on that date) and also the request for a copy of his notification of discontinuance.
  2. Contrary to the applicant’s contention, it is not apparent that this request for further information was because Lamart had not satisfactorily answered the questions of the Tribunal and that this in some way reflected a misunderstanding by the Tribunal as to the concept of enrolment in a registered course. In contrast, on 18 January 2010 the Tribunal wrote to the IBC explaining that its response had not addressed all the questions raised in the Tribunal’s original letter.
  3. The applicant also appeared to take issue with the Tribunal’s failure to raise the Student Discontinuation of Studies Form at the Tribunal hearing. As receipt of that document by the Tribunal occurred after the hearing it could not have been discussed at the hearing. I raised with counsel for the applicant whether it was intended to submit that there had been jurisdictional error in this respect, such as an alleged failure to comply with s.359A of the Migration Act, arising out of the failure by the Tribunal to put to the applicant particulars of the Student Discontinuation of Studies Form.
  4. However counsel for the applicant specifically disavowed any reliance on s.359A of the Act. Rather, it was contended that it was clear from the Tribunal reasons for decision that the information in this Form was no part of the decision of the Tribunal and that the Tribunal did not rely on it in its decision, but rather relied on the fact that Mr Zhang did not return to the Lamart course after his return to Australia from China and did not complete the course.
  5. Contrary to the applicant’s contention, it is not clear that the Tribunal had no regard to this information in its decision, but as no breach of s.359A is alleged it is not necessary to consider whether it was information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review.
  6. Insofar as counsel for the applicant otherwise appeared to suggest that the Tribunal had not put to the applicant information it had previously received from Lamart during the course of the Tribunal hearing, as counsel for the first respondent pointed out, it is apparent from the Tribunal’s account of the hearing (the only evidence of what occurred in that hearing that is before the court) that the Tribunal was in possession of the applicant’s statement of 21 January 2010 which contradicted the evidence that he had given to the Department (in that it said that he had not withdrawn from the course at Lamart, but had only told Lamart that he might need to withdraw). In that context, the Tribunal raised with the applicant the fact that he had been absent from his course for the first five weeks of the semester and asked him if he had a copy of any communication with Lamart regarding the question of him withdrawing or confirming his intention to continue (in response to which he said he had simply told the receptionist). It also asked if he had any evidence to confirm his claim that he continued to attend and finish the course on 13 June 2008, to which the applicant responded that he could obtain such information from Lamart.
  7. Importantly, the Tribunal asked the applicant about any evidence he had to confirm that he had not withdrawn from the course and had completed it and put to him that it had obtained information from Lamart which seemed to be inconsistent with what the applicant had told the Tribunal. The Tribunal put to the applicant that Lamart had advised that he had withdrawn from the course on 18 February 2008 and that he had not attended the college after that date and not completed his studies and, in light of this, that if it was “to conclude that he did not remain enrolled at Lamart up until June 2008... it might conclude he had not substantially complied with condition 8202”. The Tribunal recorded that it gave the applicant “copies of relevant documents” and invited him to comment on or respond to the information. He asked for further time after the hearing to respond and to make further inquiries. The Tribunal gave him time to respond, as it did in relation to information obtained from IBC and ANC.
  8. On the material before it, it was open to the Tribunal to prefer the applicant’s evidence given to the Department that he had withdrawn his enrolment from the Lamart course “[s]ince 9 March 2008” to his claims to the Tribunal. It has not been established that there was “no evidence” to support the Tribunal’s finding that the applicant was not enrolled in a registered course from 9 March 2008 (at the latest) to 13 June 2008. Ground two is not made out.
  9. No issue was taken by the applicant with the Tribunal’s findings that it did not accept that he had made any attempts to enrol in any other course until just before his visa was due to expire.
  10. As no jurisdictional error has been established on either of the bases contended for by the applicant, the application must be dismissed.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Barnes FM


Date: 25 October 2010

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