Can cl 101.213(1)(c) be satisfied if course has not started?

Federal Court. Can cl 101.213(1)(c) be satisfied even if the course it refers to has not commenced, so long as a reasonable time to commence such study has not yet expired? Does cl 101.213(1)(c) allow the penumbra of study (such as enrolment or other preliminary steps) to commence since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system?

Clause 101.213(1)(c) of Schedule 2 to the Migration Regulations 1994 (Cth) was one of the criteria which had to be satisfied at the time of application and provided:

(1)    If the applicant has turned 18:

...

(c)    subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

Clause 101.221(2)(b) was one of the criteria which had to be satisfied at the time of decision and provided: "the applicant continues to satisfy the criterion in clause 101.213".

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Can cl 101.213(1)(c) be satisfied even if the course it refers to has not commenced, so long as a reasonable time to commence such study has not yet expired?

Question 2: Does cl 101.213(1)(c) allow the penumbra of study (such as enrolment or other preliminary steps) to commence since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system?

Question 3: Does cl 101.213(1)(c) require the study to be ongoing at the time the visa application is made?

Question 4: Does cl 101.221(2)(b) require the study to be ongoing at the time the visa application is decided?

Question 5: Are visa applicants required to have been continuously involved in study without pause from the time they commenced that study until the time of decision?

Question 6: If a visa applicant has enrolled in a course which meets the requirement of cl 101.213(1)(c) but the course start date has not yet arisen, would that still constitute the person as “undertaking” a course of study?

Question 7: Must care be taken with identifying a purpose from a departmental policy and then using that to drive the construction of a legislative provision?

The FCA answered those questions as follows:

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