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Changes to the law dealing with cancellation of student visas which came into
effect on 1 July 2007 have created a great deal of confusion and anxiety
amongst the overseas student population in Australia.
Meanwhile, the Federal Court has declared many, if not all, cancellations under the previous law to be invalid.
Student visas can be cancelled for a number of reasons, including failure to be
enrolled in a course, working more than the permitted number of hours per week
(which, by the way, means Monday to Sunday according to the Full Federal Court
in
Islam v Minister for Immigration [2007] FCAFC 66
), and the two circumstances commonly referred to as "condition 8202(3)
grounds": failure to achieve satisfactory academic results and failure to attend
80% of scheduled contact hours.
On 20 December 2007, the Full Federal Court delivered judgment in the case of Dai v Minister for Immigration [2007] FCAFC 199. The case involved a cancellation on the "failure to achieve satisfactory academic results" ground. The result of this case is that any cancellation based on this ground before 1 July 2007 is invalid. Although the Court did not look at the 80% attendance requirement, similar reasoning could be applied. That would mean that hundreds if not thousands of visas were wrongly cancelled for breach of 8202(3).
It is condition 8202(3) which was completely rewritten in July. A student will now
be in breach of the condition if
either
of the following applies:
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(a)
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the education provider has certified the holder, for a registered course
undertaken by the holder, as not achieving satisfactory course progress for:
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(i)
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section 19 of the Education Services for Overseas Students Act 2000; and
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(ii)
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standard 10 of the National Code of Practice for Registration Authorities and
Providers of Education and Training to Overseas Students 2007;
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or
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(b)
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the education provider has certified the holder, for a registered course
undertaken by the holder, as not achieving satisfactory course attendance for:
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(i)
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section 19 of the Education Services for Overseas Students Act 2000; and
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(ii)
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standard 11 of the National Code of Practice for Registration Authorities
and Providers of Education and Training to Overseas Students 2007.
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The purpose of the change was to transfer responsibility for assessing a
student's compliance from the Department of Immigration to the education
provider. The Minister, through a delegated Departmental officer, still
formally cancels the visa, but the Minister's power to do so is entirely
dependent on the existence of a certificate duly issued by the education
provider. If such a certificate is in existence, then the Minister or delegate
can only decide not to cancel if there exist "exceptional circumstances beyond
the visa holder's control".
Conversely, if there is no certificate, or no
valid
certificate, the Minister has no power to cancel the visa.
Before an education provider can issue a certificate a very precise set of
procedures must be followed. Failure to follow those procedures almost
certainly means any certificate issued by the education provider is invalid.
The procedures are to be found in a document called the
National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007
(also known as the National Code 2007). As mentioned in condition 8202(3),
standard 10 deals with course progress and standard 11 deals with attendance.
The important point is that,
before
any certificate can be issued the education provider must notify the student,
in writing, of its intention to report him or her. The written notice must also
inform the student that he or she is able to access a complaints and appeals
process, and that he or she has 20 working days in which to do so. A working
day is any day which is not a Saturday, Sunday or public holiday, so 20 working
days is a minimum of four weeks.
The basic requirements of this complaints and appeals process are set out in
standard 8 of the National Code. There must be arrangements in place for both
an internal and an external review. There must be a written record kept of the
complaint and a written statement of the outcome and details of the reasons for
the outcome.
Once a certificate is issued, the provider must send the student a written
notice as required by section 20 of the
Education Services for Overseas Students Act 2000
. The student then has 28 days
from the date of the notice
to go in person to the Department of Immigration, failing which the visa is
automatically cancelled. Once again, however, the validity of the "section 20
notice" will depend on whether or not the student has breached the relevant
condition, which in turn depends on whether the education provider has followed
the correct procedures before issuing the certificate.
The validity of a certificate can be challenged with the Minister's delegate,
the Migration Review Tribunal or even in the Courts. Because it involves
questions of law, advice should be sought from a suitably qualified legal
practitioner.
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