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STUDENT VISA CANCELLATIONS - LAWFUL OR UNLAWFUL?

Every year, the dreams of hundreds of overseas students in Australia are shattered when their student visa is cancelled. Often, the student doesn't even know about it and only finds out months later when applying for a new visa or leaving on an overseas holiday. Even worse is when the visa is cancelled while the student is overseas and they only learn about it when they are not allowed to board their plane back to Australia.

What is really disturbing is that a very large number of these cancellations should never have happened. The reason for this is the poor drafting of the relevant Regulations and the fact that many of the colleges offering courses to overseas students simply do not follow the rules set out 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). Failure to follow the Code is now the main reason for having cancellations overturned, providing you know how to go about it.

Unfortunately the procedure is not straightforward. Depending on the circumstances, you may be able to sort it out with the Department of Immigration, though you may first have to lodge a complaint with the Department of Education, Employment and Workplace Relations, or you might have to take your case up with the Migration Review Tribunal, or in some cases it may be necessary to go straight to the Federal Magistrates Court. In any event, it will be up to you to show how the college has failed to apply to rules in your case.

Where the cancellation is said to have occurred "automatically" under section 137J of the Migration Act, there has been a very strong argument that all such cancellations, at least between 1 July 2007 and 16 December 2009, are completely invalid. This is because of a drafting error in the legislation that existed during that period. Although lawyers such as myself have been pointing this out for a very long time, we have had to wait until 2 March 2010 for the Federal Court to rule that we were right. See Hossain v MIAC [2010] FCA 161 and Mo v MIAC [2010] FCA 162.

Any overseas student whose visa was "cancelled" automatically because of a so-called "Section 20 Notice" or "Non-Compliance Notification" dated between 1 July 2007 and 16 December 2009 should contact a qualified immigration lawyer immediately for advice.

With the help of a specialist immigration lawyer who is familiar with the requirements of the National Code and knows which is the correct avenue of appeal in each case, you stand a good chance of having the cancellation overturned. You may need to write a formal letter to the college to ask for access to the records involved, or if the matter is in Court you may have to take out subpoenas. Specialist immigration lawyers have the expertise to help.

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