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Departmental Information

Amendments to Student visa assessment level requirements and insertion of new Student visa cancellation provisions

Commencement: 27 March 2010

Client summary

From 27 March 2010, the Migration Regulations 1994 ('the Regulations') are amended to specify:

  • that Student visa applicants seeking to package two or more courses will be assessed against the highest assessment level which applies to any of the courses in their package (with the exception of ELICOS courses in a package);
  • under Section 116(1A) of the Migration Act 1958 ('the Migration Act'), if an education provider defers or suspends the studies of a Student visa holder because of the student’s conduct, or on the basis of fraudulent/misleading evidence, or for reasons other than genuine compassionate or compelling circumstances, or these circumstances have ceased to exist, then these would be matters to which the Minister would have regard in considering visa cancellation under Section 116(1)(fa) of the Migration Act.

Affected legislation

The following provisions of the Regulations are amended:

Division 1.2:

  • Regulation 1.03, definition of assessment level
  • Regulation 1.03, definition of student visa.

Division 1.8:

  • subregulation 1.40 (2)
  • subregulation 1.40 (3)
  • subregulation 1.40A
  • subregulation 1.42 (1)
  • subregulation 1.44 (1).

Schedule 2:

  • paragraph 570.227(b)
  • paragraph 571.227(b)
  • paragraph 572.227(b)
  • paragraph 573.227(b)
  • paragraph 574.227(b)
  • paragraph 575.227(b)
  • paragraph 571.223 (2)(a)
  • paragraph 572.223 (2)(a)
  • paragraph 573.223 (2)(a)
  • paragraph 574.223 (2)(a)
  • paragraph 575.223 (2)(a).

The following provisions of the Regulations are inserted:

Division 1.2:

  • Regulation 1.03, definition of eligible passport
  • Regulation 1.03, definition of highest assessment level
  • Regulation 1.03, definition of relevant course of study.

Division 2.9:

  • subregulation 2.43 (1C)
  • subregulation 2.43 (1D).

Schedule 2:

  • paragraph 570.227A
  • paragraph 571.227A
  • paragraph 572.227A
  • paragraph 573.227A
  • paragraph 574.227A
  • paragraph 575.227A.

The following provisions of the Regulations are omitted:

Division 1.2:

  • Regulation 1.03, definition of education sector.

Additional information

Applicants for a Student visa, who seek to undertake a package of courses (that is, two or more courses) on the one visa, will continue to apply for the visa subclass that corresponds to their principal course of study. However, from 27 March 2010 Student visa applicants must provide the English language, financial, academic and other requirements for this visa subclass at the assessment level which relates to the highest assessment level applicable to any of the courses of study within their package of courses.

Where a Student visa applicant is packaging a preliminary English language (ELICOS) course with one or more other courses, the assessment level that would apply to the ELICOS course will not be factored into to the determination of the overall assessment level for the Student visa application.

Under the Education Services for Overseas Students Act 2000 National Code of Practice 2007, education providers may allow a Student visa holder to defer or suspend their studies in compassionate or compelling circumstances, or misbehaviour by the student.  New subregulation 2.43(1C) will specify that where an education provider defers or suspends the course of study of a Student visa holder:

  • because of the student’s conduct, or
  • on the basis of fraudulent/misleading evidence, or
  • for reasons other than compassionate or compelling circumstances, or
  • these circumstances have ceased to exist,

and the Student visa holder remains in Australia for purposes that are not consistent with their visa, consideration of cancelling the visa may be made under Section 116(1)(fa) of the Migration Act.

Transitional provisions

New Regulation 2.43 (1C) and 2.43 (1D) applies in relation to a Student visa, if the Minister is considering cancelling the visa under section 116 of the Migration Act on or before 27 March 2010.

All other amendments and insertions apply in relation to an application for a visa made on or after 27 March 2010.

Forms

Nil.  

Instructions

PAM3 will be amended to reflect these changes by 27 March 2010.