EXPLANATORY STATEMENT
Issued by the Minister for Immigration and Citizenship
Migration Legislation Amendment (Student Visas) Act 2012
Proclamation
Item 2 of the table in subsection 2(1) of the Migration Legislation Amendment (Student Visas) Act 2012 (the Act) provides that Schedule 1 to the Act is to commence on a single day to be fixed by Proclamation. However, if the provision(s) do not commence within the period of 6 months beginning on the day the Act receives the Royal Assent, they commence on the day after the end of that period. The Act received the Royal Assent on 12 December 2012.
The purpose of the Proclamation is to fix 13 April 2013 as the day on which Schedule 1 to the Act commences.
The Act implements recommendation 24 of the independent Strategic Review of the Student Visa Program, conducted by the Hon. Michael Knight AO, and gives effect to the Government’s policy to abolish the automatic cancellation of student visas for unsatisfactory course attendance or course progress.
Section 20 of the Education Services for Overseas Students Act 2000 (the ESOS Act) requires registered education providers to send an “accepted student” a written notice if the student has breached a prescribed condition of their student visa. The Education Services for Overseas Student Regulations 2001 prescribes condition 8202 (which relates to satisfactory course attendance and course progress), set out in Schedule 8 to the Migration Regulations 1994.
If a notice under section 20 of the ESOS Act is sent to a student visa holder, this engages section 137J of the Migration Act 1958. Section 137J provides for the automatic cancellation of a student visa for non-complying students. Automatic cancellation occurs by operation of law at the end of the 28th day after the day specified as the date of the notice unless the student complies with the notice or the student makes himself or herself available to an office of the Department of Immigration and Citizenship for the purpose of making any submissions about the breach and the circumstances that led to the breach.
Schedule 1 contains the operative provisions of the Act which amends the ESOS Act to provide that a registered education provider must not send a notice under section 20. In effect, student visa holders are no longer subjected to automatic cancellation. It is intended that non-compliance with condition 8202, following amendments to the Migration Regulations 1994, will be considered on a discretionary basis based on the merits of the case.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Migration Legislation Amendment (Student Visas) Act 2012 was enacted to address a gap in the current student visa regulations, particularly concerning the automatic cancellation of student visas for unsatisfactory course attendance or progress. This Act was passed by the Parliament of Australia and received Royal Assent on 12 December 2012. The primary policy objective of this legislation is to align with recommendation 24 from the independent Strategic Review of the Student Visa Program, conducted by the Hon. Michael Knight AO, and to implement the Government’s policy of abolishing automatic cancellation of student visas for non-compliance with course attendance or progress. The changes introduced by this Act aim to prevent the automatic cancellation of student visas, instead mandating that any issues of non-compliance will be assessed on a discretionary basis considering the merits of each case. The Proclamation issued under this Act sets 13 April 2013 as the commencement date for the operative provisions, which primarily amend the Education Services for Overseas Students Act 2000 to prohibit registered education providers from sending notices of visa breaches to student visa holders.
Scope and Application
The Migration Legislation Amendment (Student Visas) Act 2012 applies to overseas students in Australia who hold a student visa, particularly those enrolled in courses with registered education providers as defined under the Education Services for Overseas Students Act 2000. This Act is intended to reform the student visa regime by abolishing the automatic cancellation of student visas for unsatisfactory course attendance or progress, thereby altering the obligations of registered education providers under the ESOS Act. The changes implemented by this Act are meant to address the automatic cancellation of student visas under section 137J of the Migration Act 1958, which was triggered when a student failed to meet the conditions of their student visa, specifically condition 8202 relating to satisfactory course attendance and progress. By amending the ESOS Act, the Act ensures that registered education providers must no longer send notices to students who fail to comply with these conditions, thus preventing automatic cancellation of their student visas. Instead, non-compliance with these conditions will now be assessed on a discretionary basis, taking into account the merits of each case. The Act's commencement was fixed by proclamation to 13 April 2013, following the Royal Assent on 12 December 2012, and it applies nationally across Australia.
Key Provisions
The key provisions of the Migration Legislation Amendment (Student Visas) Act 2012, as detailed in Schedule 1, primarily focus on abolishing the automatic cancellation of student visas for unsatisfactory course attendance or course progress, as previously prescribed under section 20 of the Education Services for Overseas Students Act 2000 (ESOS Act) (Section 1). These changes aim to address recommendation 24 of the independent Strategic Review of the Student Visa Program, conducted by the Hon. Michael Knight AO, and align with the Government’s policy to reform the student visa system. Under the new provisions, registered education providers are prohibited from sending a notice to a student visa holder who has breached the prescribed condition of their student visa, specifically condition 8202 related to satisfactory course attendance and course progress (Section 1(1)(a)). This effectively means that the automatic cancellation of student visas for such breaches will no longer occur by operation of law after the notice period, as previously stipulated in section 137J of the Migration Act 1958 (Section 1(1)(b)).
The Act imposes specific obligations on registered education providers, requiring them to refrain from sending notices to students under section 20 of the ESOS Act for breaches of condition 8202 (Section 1(1)(a)). Instead, non-compliance with this condition will be considered on a discretionary basis, contingent upon the individual circumstances of the case. This change in policy reflects a shift towards a more flexible and case-by-case approach in handling breaches of student visa conditions, as opposed to the previous automatic cancellation mechanism. Additionally, the Act’s implementation is overseen by the Legislative Instruments Act 2003, which ensures that the changes are formally enacted and recognised as valid legislative instruments (Explanatory Statement).
In terms of consequences for breaches, the Act does not explicitly outline specific offences or penalties for non-compliance with the new provisions. However, it is implied that non-compliance with the amended condition 8202 will be assessed on a discretionary basis, potentially leading to outcomes such as visa cancellation or other administrative actions, depending on the individual circumstances. The previous automatic cancellation mechanism, as governed by section 137J of the Migration Act 1958, has been replaced by this discretionary approach, which allows for a more nuanced consideration of each case’s unique factors. While the Act itself does not specify maximum penalties, any subsequent regulatory changes or administrative actions arising from non-compliance would need to be in line with the overarching legislative framework governing student visas and migration matters in Australia.