HAVE YOU EVER HAD YOUR STUDENT VISA CANCELLED

News - Migration Escrito por Administrator Terça, 20 Abril 2010 06:17

HAVE YOU EVER HAD YOUR STUDENT VISA CANCELLED BETWEEN 1 JULY 2007 TO 16 DECEMBER 2009 BASED ON A SECTION 20 NOTICE? THEN READ THIS…

On 2 March 2010, the Full Federal Court handed down a significant decision from 2 cases, which declared invalid the automatic cancellation of student visas based on Section 20 notice (issued under the Education Services for Overseas Students Act 2000 (Cth) “the ESOS Act”). As a result of this decision, all student visas that have been automatically cancelled under section 137J of the Migration Act 1958 (Cth) (“the MA Act”) on the failure to respond to an issued section 20 notice from 1 July 2007 to 16 December 2009, are considered ineffective.

The decision

As a background, the ESOS Act operates in conjunction with certain sections of the MA Act.

In both cases (Hossain v MIAC [2010] FCA 161 (2 March 2010) and Mo v MIAC [2010] FCA 162 (2 March 2010)), Bunchanan J found there were no legislative grounds on which section 20 could operate. Essentially, this section required that there had to be a prescribed visa condition that a student had breached. In these cases, both students had a condition 82021 imposed on their student visas, which were breached. Subsequently, section 20 notices were issued to the students and they failed to respond, leading to an automatic cancellation of their visas.

Condition 8202 is prescribed by section 19 of the ESOS Act according to Regulation 3.03A2. No mention was made in Regulation 3.03A of section 20. Consequently, the court found there was no legislative connection between section 20 and condition 8202. This meant condition 8202 was not a prescribed condition for the purposes of section 20. So if a student breaches this particular condition and is issued a section 20 notice, which they fail to respond to, then it is invalid for the Department of Immigration & Citizenship (“DIAC”) to automatically cancel their visa under section 137J of the MA Act.

Since sections 19 and 20 of the ESOS Act came into effect on 1 July 2007, and subsequent changes to the law occurred on December 2009 expressly prescribing condition 8202 for the purposes of section 20 (obviously in response to these cases), DIAC has decided to reverse all section 137J cancellations occurring as a result of the above mentioned circumstances.

These court decisions will certainly have a significant impact on those who have been unduly affected.

What does this mean for you?

Condition 8202 requires students to achieve a satisfactory course progress and a satisfactory course attendance record in their registered course of studies. 2 Regulation 3.03A comes from the Education Services for Overseas Students Regulations 2001 (Cth).