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STUDENT VISA CANCELLATIONS - LAWFUL OR UNLAWFUL?

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:

   (a)  the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
     (i)  section 19 of the Education Services for Overseas Students Act 2000; and
     (ii)  standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;


or

 
   (b)  the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
     (i)  section 19 of the Education Services for Overseas Students Act 2000; and
     (ii)  standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

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.

The choice is yours...   

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