Advice to Education Providers Regarding Federal Court Decision
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This is advice about a decision of the Federal Magistrates Court regarding the automatic cancellation of student visas as a result of breaches of visa conditions reported to the Department of Immigration and Multicultural Affairs (DIMA) by education providers. The decision is not expected to impact on providers - it is about the interpretation of the wording of section 20 notices, rather than provider compliance. It relates to a Mr Uddin, who was a student covered by the Education Services for Overseas Students Act 2000.
Uddin v Minister for Immigration and Multicultural and Indigenous Affairs
On 7 June 2005, the Federal Magistrates Court (Scarlett FM) declared the provider's notice under section 20 of the Education Services for Overseas Students Act 2000 to be defective. The decision made is not about provider compliance. The decision relates to the wording of notices that providers send to students who are believed to have breached a condition of their student visa. The notices are approved by the Secretary of Immigration, but are generated through PRISMS.
Essentially, the Magistrate found that the section 20 Notice issued to Mr Uddin did not advise the client that he could attend any office of DIMA to explain the breach as permitted by section 137J of the Migration Act 1958 - instead, it directed him to attend a specific office. The court decided that the information in the section 20 Notice was not in accordance with the legal requirements, and was therefore invalid, with the consequence that the automatic cancellation of Mr Uddin's visa did not occur.
The effect of the decision is that student visa cancellations under section 137J of the Migration Act 1958, which were thought to have flowed from a section 20 notice in the same form as sent to Mr Uddin, may not be effective.
Impact on Education Providers
We will not be requiring all students affected by the decision to be re-notified by education providers under section 20 of the Education Services for Overseas Students Act 2000 (ESOS Act). Providers have met their reporting responsibilities under the ESOS Act through their initial reporting of students.
DIMA / DEST Action
Urgent liaison between DIMA and the Department of Education, Science and Training (DEST) is being undertaken to determine what, if any, the implications for PRISMS and providers' responsibilities under the ESOS Act may be.
As the Uddin decision may affect all section 137J cancellations between 1 May 2001 and 16 August 2005 it was decided that the most efficient way of dealing with this situation was to reverse all section 137J cancellations recorded in this period. This reversal occurred on the morning of 17 August 2005. This reversal means that anybody whose visa was recorded as cancelled under section 137J in the system between the relevant dates has now had their lawful status reinstated (unless their 'resurrected' visa has expired due to time). Data on these cancellation reversals has been provided to DEST, which is currently assessing the data. There has been no effect on CoE status to date.
A new section 20 notice was uploaded in PRISMS on 18 July 2005. Any automatic cancellation that occurred up to 16 August 2005 was as a result of the previous section 20 notice, which the Uddin judgement found to be defective. This is why cancellations up to 17 August 2005 have been reversed.
Some 8,000 automatic visa cancellations, which occurred between 1 May 2001 and 16 August 2005, have now been reversed.
Categories of Affected Students
The reversal of automatic visa cancellations between 1 May 2001 and 16 August 2005 has resulted in the following categories of affected students:
- Over 5200 of those affected are outside Australia and no longer hold a valid student visa because their reinstated visa's expiry date has already passed.
- Around 700 are still in Australia or overseas who now hold another substantive or bridging visa - ie they are no longer students but have applied for another visa.
- Around 650 are in Australia and who, as a result of the cancellation reversal, now hold a valid student visa again.
- Some of these may still have current enrolments, and they will be entitled to continue studying unless they are reported again by their current provider.
- Others will not be enrolled, and therefore will be in breach of their student visa conditions. This is the group we are most eager to contact, to advise them of their current status. All situations will be considered on a case-by-case basis - genuine students may be given the opportunity to seek a CoE before DIMA takes any further action.
- Around 450 are in Australia and who do not hold a current visa, because although the cancellation has been reversed, their original student visa has expired and they have not applied for or been granted any other visa. This group would be subject to the normal compliance action for all unlawful non-citizens.
- Around 1360 are overseas and who, as a result of the cancellation reversal, now hold a valid student visa again. They would need to have a CoE in order to return to Australia to study.
DIMA is providing guidance to its offices in States, Territories and overseas to assist in management of the last three groups.
DEST will provide further advice to providers shortly.
Reporting Students
A new section 20 form was uploaded into PRISMS on 18 July 2005. Any notice issued from that date is not affected by this decision.
Enquiries
All enquiries relating to this matter should be made to the Student Policy Section.
Email: studentvisa@immi.gov.au
Enquiries regarding PRISMS matters should be directed to Department of Education, Science and Training (DEST).
Email: prisms@dest.gov.au
Related Links
Additional information is available on the DIMA website.
See: Recent Court case May Affect Some Student Visa Holders