Australian Immigration Daily News

It is really amazing, astounding and astonishing how long certain issues can continue to “linger”, even after an amendment has been made to the Migration Act.

A recent case from the Federal Circuit Court, Kaur v Minister for Immigration & Anor (2017) FCCA 3369 (12 December 2017) which just “surfaced” on Austlii provides a prime example!

Readers may recall that the Migration Legislation Amendment (Student Visas) Act 2012, which came into force on 12 December 2012, amended the Education Services for Overseas Students Act 2000 (“ESOS”)to end the “automatic” cancellation of student visas under section 137J of the Migration Act.

This amendment was made to implement a recommendation of the “Strategic Review of the Student Visa Program” that was known as the “Knight Review”.  That recommendation was to abolish the automatic cancellation of student visas based on unsatisfactory course attendance or course progress, and to replace that automatic cancellation regime with a “system in which information conveyed by student course variations is used as an input into more targeted and strategic analysis of non-compliance and for the assessment of individual circumstances of student visa holders”. 

Under section 137J of the Migration Act, a person’s student visa would have been automatically cancelled at the end of the 28^th day after a notice was sent to the holder of a student visa under section 20 of the ESOS unless, before that date, the student either complied with the notice or presented her/himself to the Department of Immigration to make submissions about the breach and the circumstances leading to the breach.

What the 2012 amendments did was to remove the requirement from the ESOS Act that required registered education to send notices to students who breached conditions of their student visas.

Since automatic cancellations of student visas under 137J of the Migration Act were dependent on a notice being issued under the ESOS Act, the effect of the amendment which stopped education providers from sending the notices was to end automatic cancellations under 137J.

So, what happened if notice of a breach was sent to the holder of a student visa before these amendments were made?

Did that mean that, in every circumstance where the visa holder did not comply with the notice or make timely submissions to the Department, their student visa was automatically cancelled?

This was the issue that was dealt with in the recent Kaur decision.

The factual background was that the visa holder had applied for a student visa all the way back in February 2009, in order to take an English course, a Certificate III course in Food Processing, and a Management course.  However, after arriving in Australia, the visa holder ceased studying, because she was “ill, depressed and worried about family problems” which resulted in the deaths of both her father and her sister. 

In 2010, the visa holder found out that she no longer had a student visa even though that visa was not due to expire until 2011.

What had happened was that her education provider had allegedly sent her a notice under the former section 20 of the ESOS Act, certifying that she had not achieved satisfactory progress in the Certificate III course, and that she had thus breach Condition 8202 of her student visa.

What saved the visa holder in Kaur was that she claimed that she had never received the notice from her education provider.  The only documentation concerning the issuance of this notice that the Department was able to produce was a copy of the notice, that did not include an address (!!).

And: the Department was unable to obtain evidence from the education provider that the section 20 notice had actually been sent to the visa holder, concerning the address to which the notice had purportedly been sent to, or even about the education provider’s usual business practices for sending such notices.

So, against this background, Justice Riethmuller of the Federal Circuit Court accepted the visa holder’s claim that she had never received the notice, and therefore made a “declaration” to the effect that in this particular case, section 137J had not resulted in the automatic cancellation of the student visa.

The moral of this case is that one should never assume that a migration case is “hopeless” or that a visa cancellation cannot be successfully challenged.

In fact, it may well be, as happened in this case, that some form of bureaucratic “issue” (to put it politely!) has rendered the decision vulnerable to challenge.