Migration Act 1958 Direction under section 499 Guidelines for considering cancellations of student visas for breach of Condition 8202 (Direction No. 37 of 2007) (Cth)

 DIRECTION NO. 37

MIGRATION ACT 1958

DIRECTION UNDER SECTION 499

Guidelines for considering cancellations of student visas for breach of Condition 8202

PREAMBLE:

The Australian Government operates an Overseas Student Programme that enables people who are not Australian citizens or Australian permanent residents to study in Australia.  A person who wants to study under the programme must obtain a student visa before they can commence a course of study in Australia.

To be eligible for a student visa, all applicants must satisfy the decision-maker that they are seeking to enter Australia for the purpose of study and that they will abide by the conditions of their student visa. 

Under the Migration Regulations 1994 (‘the Regulations’), visa condition 8202 is imposed on all overseas student visas.  This condition requires a student to maintain enrolment in a registered course, and satisfy attendance and course progress requirements. 

The ability of a student to make satisfactory course progress and maintain attendance is a measure of the student’s bona fides as it shows that the student is genuinely engaged in undertaking the course and that the course is appropriate to the student’s educational background and ability.

From 1 July 2007 the Department of Education, Science and Training implemented the National Code 2007. The effect of the National Code 2007 is to require education providers to take responsibility for determining and monitoring the attendance and course progress requirements of overseas students. The National Code requires Education Providers to monitor a student’s attendance and course progress and implement intervention strategies to assist students at risk of failing these requirements. Education Providers must also offer students access to an internal and external appeals process to consider whether there are any compelling or compassionate circumstances that prevented the student from maintaining satisfactory attendance and/or course progress.

Under section 20 of the Education Services for Overseas Students Act 2000 (‘ESOS Act’), an education provider must notify the Department of Immigration and Citizenship (‘DIAC’) when a student has not met requirements relating to attendance or course progress. To comply with the section 20 notice, a student must report to DIAC within 28 days from the date of the notice. The student is required to make submissions about the breach and any exceptional circumstances that led to the breach. Students who fail to report to DIAC have their visas automatically cancelled pursuant to section 137J of the Migration Act 1958 (‘the Act’).  Students may be able to apply for revocation of the automatic visa cancellation.

Where a student visa has not been auto-cancelled for breach of 8202 under section 137J, decision makers must consider cancellation of the student’s visa under section 116 of the Act. A student is deemed to have breached condition 8202 when a notice is issued under section 20 of the ESOS Act. Under paragraph 2.43(2)(b) of the Regulations decision makers must determine if there were any exceptional circumstances beyond the control of the student which led to the breach.

THEREFORE:

I, Teresa Gambaro, Assistant Minister for Immigration and Citizenship, hereby give the following Direction pursuant to section 499 of the Act:

1.This Direction may be cited as Direction No. 37 – Guidelines for considering cancellations of student visas for breach of Condition 8202.

2.Decision makers may take into consideration the following factors when deciding whether to cancel, or to revoke the cancellation of, a students visa for breach of condition 8202:

·a critical incident;

·a section 20 notice issued in error;

·a section 20 notice that is defective.

3.      For the purposes of this direction, critical incident includes but is not limited to:

·Circumstances where there is a major political upheaval or natural disaster in a student’s home country that has been determined by Compliance Operational Support Section as exceptional and requires a student to undertake emergency travel or prevents a student from studying;

4.      Any circumstances beyond those required to be considered by the education provider (as outlined below) that a decision maker wishes to be considered as grounds not to cancel a student’s visa must be referred to the Director of Compliance Operational Support Section who will provide policy advice as to whether that particular circumstance is grounds for not pursuing cancellation action.

5.      Education providers are required to consider the following compelling or compassionate circumstances as part of the appeals process and therefore these circumstances should not be re-considered by decision makers in the cancellation process:

·an illness, where a medical certificate states that the student was unable to attend classes, such as colds, flu’s etc.

·bereavement of close family members such as parents or grandparents

·a traumatic experience which has impacted on the student

·inability of the student to begin studying on the course commencement date due to delay in receiving a student visa.

6.      For the purposes of this direction the following would not be considered compelling or compassionate circumstances or a critical incident:

·difficulties in adjusting to living in Australia or academic life

·relationship problems

·financial difficulties

·generally feeling “depressed” about circumstances i.e. where the depression is not clinically diagnosed by a qualified professional (if diagnosed it would have been considered by the education provider under compelling or compassionate circumstances) or

·inability to begin studying on the course commencement date due to not organising travel in sufficient time.

7.      For the purposes of this direction, a section 20 notice is issued in error where the provider or DEST confirms in writing that the student was reported in error. In most instances this would mean that the provider confirms that the student was mistakenly reported because the notice was issued to the wrong student or because the provider failed to accurately assess attendance or course progress.

8.      For the purposes of this direction, a defective section 20 notice arises:

·Where a section 20 notice has not been sent to the visa holder’s most recent residential address, despite the student informing the education provider of their current address.

·Where the section 20 notice has been subsequently deemed defective by a court or tribunal or, the department, based on advice from the Australian Government Solicitors, concedes that the notice is invalid. In such cases separate policy advice will be sent to decision makers on how such cases should be handled.

9.      This Direction is to take effect from 1 July 2007.

Dated this fourteenth     day of   June  2007

TERESA GAMBARO

Assistant Minister for Immigration and Citizenship