Australian Immigration Daily News

Suppose a client contacts you and asks for your help in challenging the cancellation of a student visa. 

Are there any good arguments you can make to salvage the student’s situation? 

What if the student visa was cancelled on the basis of alleged non-compliance with the dreaded Condition 8516, which is in the following terms: 

“8516. The holder must continue to be a person who would satisfy the primary or secondary criteria as, as the case requires, for the grant of the visa.” 

Just such a scenario was played out in the case of Singh v Minister for Immigration and Border Protection (2106) FCA 679 that was decided last week (8 June) by Justice Buchanan of the Federal Court. 

In particular, this decision provides a judicial interpretation of what the term “continue” means, as it is used in Condition 8516. 

Specifically, if a student initially satisfies the criteria for grant of a student visas, and then for a period of time does not meet the criteria, but then at a later time again satisfies the criteria, can it be said that the student has “continued” to satisfy the criteria?  

In other words, can there be a period to time when the student does not meet the criteria, so long as the student at a later time does again meet the criteria? 

Or to put it another way, in order to comply with Condition 8516, must one be able to satisfy the criteria in an “uninterrupted” or “continuous” way? 

Or can there be a “break”, or a period when the student doesn’t satisfy the eligibility criteria? 

Is this an issue that is clear as a bell, or clear as mud? 

Well, a clue is that the student went down in flames 4 times, before the delegate who initially cancelled his student visa, then before the Tribunal, which affirmed the cancellation decision, then before the Federal Circuit Court, and then before the Federal Court. 

That is four strikes.  That’s one more than you get in baseball! 

So what was the story here? 

The student originally was granted a student visa  (Subclass 573) in 2013. He enrolled in a Bachelor of Information Technology at the University of Ballarat. However, he failed the course units he was undertaking. His enrolment was cancelled at his request in April 2014. 

Then, on 12 September 2014, he was advised by letter from the Department that consideration was being given to cancellation of his student visa because he was no longer a person who would satisfy the criteria for grant of a Higher Education student visa. 

What happened next?   On the same day of the notice that the Department was considering cancellation of his visa, the student obtained an offer of enrollments for a Bachelor of Business, with the course scheduled to begin in March 2017. 

So there was a “gap”, the period between April 2014 and September 2014, when the student did not hold a confirmation of enrollment. 

Was it good enough that the student had then gotten a new offer of enrollment? 

Had he continued to comply with Condition 8516? Was he therefore “safe” from cancellation of his student visa? 

Nope!! 

The student’s lawyers valiantly attempted to rely on case law that relates to a different aspect of the migration law framework, namely the time of application and time and decision requirements for the grant of a visa. 

Some of that case law suggests that for the purposes of visa grant,  it is possible for a person to satisfy the time of application criteria, then for a period of time not satisfy the criteria but then at the time of decision be again able to meet the criteria, and thus be considered a person who “continues” to meet the criteria.  (It should be noted that there are conflicting decisions on this issue). 

However, it was Justice Buchanan’s view that the decisions that were handed down in the context of deciding whether an applicant “continues” to meet the time of decision criteria for the purposes of determination of visa grant are not applicable to the question of whether a student has continued to meet the criteria for the grant of a visa for the purposes of Condition 8516. 

In Sing, Justice Buchanan held that: 

“…..once the discretion to cancel a visa has been engaged that discretion is not removed by the fact that a breach is not ongoing, or by the fact that new arrangements have been put in place which attempt to substitute the original foundation for the grant of a visa”. 

In other words, what Justice Buchanan held was that, for the purposes of Condition 8516, the term “continues” means that the student must, at all times,  be enrolled in a registered course. 

If there is an interval during which the student has not been enrolled or held a confirmation of enrollment, the student may be vulnerable to having her/his student visa cancelled for breaching Condition 8516. 

And that will be the case even if the student takes steps to “cure” any temporary non-compliance  caused by ceasing to be enrolled in an original course of study by enrolling in a new course. 

At the Federal Circuit Court level, Justice Smith had characterized the student’s arguments in the following terms: 

“On the applicant’s construction, a student could, without breaching the condition of his or her visa,  (namely Condition 8516) immediately cease studying, give up enrolment and simply earn money so long as, at some point prior to the determination of whether there  has been a breach, re-enrol in a relevant course. That would not be consistent with the type of permission given to the visa holder”. 

In short, this case tells us that for the purposes of Condition 8516, a student must continuously maintain enrolment in a relevant course of study – there can’t be any breaks or interruptions!

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