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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.
Click here for more information about different levels of accreditation amongst immigration advisers.
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