Australian Immigration Daily News

Is there anything that you can do to help a client to challenge the cancellation of his/her student visa? 

What if the client’s Confirmation of Enrolment (COE) has been cancelled? 

And what if the cancellation of the COE has caused the client to breach Condition 8202 of the visa, which requires that a student visa holder be enrolled in a registered course? 

Is your client’s case “doomed to failure”? 

A recent decision from the Federal Circuit Court, handed down last Friday, 20 March, Molla v Minister for Immigration & Anor (2016) FCCA 761 tells us: “it ain’t necessarily so”!  Yes, there may be room for hope! If you drill down into the “granular details” of the student visa framework, you might, just might, find that a procedural error (or even two!) has occurred that might enable you to save your client’s situation! 

So what happened in the Molla case? 

The background was that the visa holder was a national of Bangladesh. He was originally granted a student visa in August of 2011. After completing diploma level courses in accounting, in March 2012 he enrolled in a bachelor of business degree, also in accounting. However, during the first trimester of the bachelor’s degree course, he approached the deputy dean at the education provider and told the dean that he was too ill to sit his exams or to attend classes in the following trimester. 

The education provider then proceeded to cancel the student’s COE in the bachelor’s degree program (in July 2013). 

The student did not find out that his COE had been cancelled until November of 2013, when he attended the education provider’s campus and attempted to enroll in classes. 

The next thing that occurred was that the Department sent the student a Notice of Intention to Consider Cancellation (NOICC) of his student visa on the basis that he had breached Condition 8202 by failing to remain enrolled. 

After receiving the NOICC, the student immediately lodged a complaint with the Overseas Students Ombudsman in regard to the cancellation of his COE. 

The education provider then agreed to allow the student to pursue an “internal appeal” against the cancellation of his COE.  Unfortunately for the student, though, his internal appeal failed, and the education provider confirmed its decision to cancel his COE. 

Upon being notified that the cancellation of the student’s COE had been upheld after the internal appeal process, the Department went forward with the cancellation of the student’s visa.  And then, the Tribunal affirmed the cancellation. 

Critical to the Tribunal’s determination was its finding that the student had not been enrolled in a registered course from the time that the education provider had originally cancelled his COE (in July 2013) and August 2014, when he had enrolled in another bachelor’s degree program in accounting with a different education provider.  The Tribunal found that the student could have been enrolled in the second course from October 2013. It therefore determined that the student’s breach of Condition 8202 had been significant because there had been a “lengthy” period of time when the student had not been enrolled in any course. The Tribunal also found that the visa holder’s failure to engage in any study for the period from October 2013 (when he could have enrolled at the second education provider) until August 2014 (when he actually enrolled) suggested that he was “not a genuine student”. 

End of case? Down in flames, crash and burn? 

Nope!  The Federal Circuit Court found that the Tribunal’s decision to affirm the cancellation of the visa had been “infected” by jurisdictional error. 

How? 

First of all, the original education provider had failed to notify the student of its intention to cancel his COE

This was important! 

Under the National Code of Practice for Providers of Education and Training to Overseas Students (the National Code), registered course providers are required to give students notice of their intention to cancel a COE.  The notice must state that the student has 20 working days to access the education provider’s internal complaints and appeals process. And if the student does access the education provider’s internal appeals process, the National Code provides that the cancellation of the student’s COE will not take effect until after the appeals process has been completed. 

What else? Well, the Tribunal fell into jurisdictional error by failing to consider the visa holder’s claim that the education provider had failed to comply with the National Code by failing to notify him of its intention to cancel his COE. In fact, the Tribunal had apparently misunderstood the student’s claim, and had believed it to be a claim that the education provider had failed to notify him of the cancellation of his COE. 

Why did that matter? On such small things the fate of individuals and the world sometimes turns! 

It mattered because a key factor in the Tribunal’s decision was the fact that the student had not been enrolled in a registered course for a lengthy period of time, and again, on the basis of that circumstance, the Tribunal had concluded that the visa holder was not a genuine student. 

Judge Driver concluded that if the Tribunal had considered the student’s actual claim, that he had not been notified by the education provider of its intention to cancel his COE, it would have realized that the student would have exercised his right to pursue an internal appeal (which he ultimately did do after learning that his COE had actually been cancelled), and that had he done so, his COE would have remained in force until the appeals process had run its course, and that the period during which the student  did not hold a COE would have actually been much shorter than the Tribunal determined it had been. 

So there was literally a chain reaction, leading from the education provider’s failure to notify of the intention to cancel the COE to the Tribunal’s misunderstanding of the visa holder’s claim and its consequent failure to consider the claim, to the ultimate (flawed) finding by the Tribunal concerning the length of time that the student had not held a COE and had failed to study. 

It was all about of a labyrinth, wasn’t it? But the case shows that distinctions matter, and that the Tribunal can commit jurisdictional error when it fails to understand a review applicant’s claim, and as a result fails to give the claim proper consideration. 

It all goes to show that if you follow the sometimes complicated thread, you can often find your way out of the labyrinth and help your client escape the devouring Minotaur of student visa cancellation!!! 

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.