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Migration Legislation Amendment (Overseas Students) Bill 2000



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Dep a rtmen t o f th e

P a rlia men ta ry Lib ra ry

I N F O R M A T IO N A N D R E S E A R C H S E R V IC E S

Bills Digest

No. 66 2000-01

Migration Legislation Amendment (Overseas Students) Bill 2000

ISSN 1328-8091

 Copyright Commonwealth of Australia 2000

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, without the prior written consent of the Department of the Parliamentary Library, other than by Senators and Members of the Australian Parliament in the course of their official duties.

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document. IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

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Published by the Department of the Parliamentary Library, 2000

I N F O R M A T I O N A N D R E S E A R C H S E R V I C E S

Bills Digest

No. 66 2000-01

Migration Legislation Amendment (Overseas Students) Bill 2000

Nathan Hancock Law and Bills Digest Group 31 October 2000

Contents

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Package Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

This Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Main Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Automatic Cancellation of Visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Enforcement Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Appendix: Comparative Table of Main Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Migration Legislation Amendment (Overseas Students) Bill 2000

Date Introduced: 30 August 2000

House: House of Representatives

Portfolio: Immigration and Multicultural Affairs

Commencement: Sections 1 and 2 commence on Royal Assent. The remaining provisions commence on proclamation or six months after Royal Assent, which ever occurs first.

Purpose

Package Overview

This Bill is associated with a number of related Bills. The whole package is as follows:

• 'the Principal Bill' Education Services for Overseas Students Bill 2000

• 'the Assurance Fund Bill' Education Services for Overseas Students (Assurance Fund Contributions) Bill 2000

• 'the Consequential Bill' Education Services for Overseas Students (Consequential and Transitional) Bill 2000

• 'the Registration Charges Bill' Education Services for Overseas Students (Registration Charges) Amendment Bill 2000

• 'the Migration Bill' Migration Legislation Amendment (Overseas Students) Bill 2000

A complete background to the context surround this legislative package is provided in the Bills Digest to the Education Services for Overseas Students Bill 2000.

This Bill

The purpose of this Bill is to amend the Migration Act 1958 to provide for automatic cancellation where overseas students breach conditions of student visas and to create an enforcement regime which mirrors the regime established in the Principal Bill.

2 Migration Legislation Amendment (Overseas Students) Bill 2000

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Background

The Migration Act 1958 provides for cancellation of visas on various grounds (section 116). For example, visas may be cancelled if any circumstances which gave rise to the visa cease to exist, if a condition of the visa has not been met or if a prescribed ground exists for cancelling the visa. Ordinarily, a visa is cancelled by the Minister 'causing a record of [the cancellation] to be made' (section 138). This allows cancellation to occur immediately following the exercise of an administrative function by the Minister or his delegate.1 There do not appear to be any existing provisions for automatic cancellation.

Division 3 of the Act contains various provisions which govern the grant of visas and additional visas. For example, the regulations may impose special conditions on visas, including a condition so that the visa holder may not be granted a substantive visa while they are in Australia (paragraph 41(2)(a)). Where the holder of a prescribed visa applies for a substantive visa, rather than a temporary visa such as a protection visa or a bridging visa, the application will be invalid (paragraph 46(1)(e)). The Minister is not to consider an invalid visa application (sub-section 47(3)).

Main Provisions

Automatic Cancellation of Visas

Item 2 inserts proposed new Subdivision GB in Division 3, Part 2.

Under the Principal Bill, registered providers must notify 'accepted students' as soon as practicable of any breaches of student visa conditions related to attendance or satisfactory academic performance. The notice must require the student to attend an interview with an immigration officer for the purposes of the Migration Act 1958 (proposed section 20).

Automatic Cancellation

Under this Bill, where a notice is sent, although not necessarily received, and the student either does not attend the interview or otherwise explain the alleged breach2 within 28 days, the visa is automatically cancelled (proposed section 137J). Section 138 will not

apply to cancellation under proposed section 137J (item 3). A cancelled visa ceases to be in effect (section 82).3 The student may apply in writing to have the visa reinstated unless:

• the visa would otherwise have ceased to be in effect4

• the student is outside the migration zone and has not applied within 28 days

• the student has been detained and has not applied within 2 days (or has not indicated an intention in writing to apply within 2 days and applied within a further 5 days),5 or

Migration Legislation Amendment (Overseas Students) Bill 2000 3

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

• the student has made a previous unsuccessful application (proposed section 137K).

(Significantly, where the student has been detained there is provision to ensure that the student is made aware of the provisions of proposed section 137K (item 7).)

On application, the Minister may reinstate the visa if he or she is satisfied that there was no breach or that it was due to exceptional circumstances beyond the student's control. He or she must not reinstate the visa on the basis that the student was unaware of the notice or its effect. Other conditions for reinstatement may be prescribed (proposed section 137L).

The effect of reinstatement is that the cancellation is taken never to have occurred. However, any detention occurring during the cancellation period, whether or not as a result of the cancellation, is deemed to be lawful and the student is not entitled to take any legal action (for example, for false imprisonment) (proposed section 137P).

The decision to reject an application may be reviewed by the Migration Review Tribunal (item 11). Where the application is rejected, the student must be notified in writing of the grounds for the decision and the opportunity for merits review (proposed section 137M).

If all else fails, the student may, subject to the regulations, apply for another visa, but only a visa of a class prescribed in the regulations (item 1).6 If a student is detained he or she must be removed as soon as reasonably practicable if he or she does not apply to have the visa reinstated or another visa issued (item 8) or if the application for reinstatement (or another visa)7 is refused or cannot be granted (item 9).

Discretionary Cancellation

On his or her own initiative, the Minister may reinstate the visa if he or she is satisfied that it is in the public interest to do so (proposed section 137N). The Minister must exercise this discretion personally but may not be compelled to consider the issue.

Other Discretionary Cancellation

Despite section 116, if a visa is cancelled under proposed section 137J,8 and reinstated under proposed paragraphs 137L(1)(a) or (b), the specific breach or alleged breach may not be used as a ground for cancellation under section 116. But, this does not limit the power to cancel for any of the other grounds listed in section 116. Nor does it limit the power to cancel where a visa has been reinstated under proposed paragraph 137L(1)(c). Thus, a visa might be cancelled and reinstated for a matter prescribed in the regulations. But it may be subsequently cancelled under section 116 even though, in theory, the subsequent cancellation might relate back to the matters prescribed in regulations.

Miscellaneous

Where the student visa is cancelled, any visa which is held by another person and contingent on the student visa is also cancelled (items 4 and 5). Likewise where the student visa is reinstated, the contingent visa is reinstated (item 6).

4 Migration Legislation Amendment (Overseas Students) Bill 2000

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Enforcement Regime

Schedule 2 seeks to establish an enforcement regime which substantially mirrors the enforcement regime in the Principal Bill. As in that Bill, Schedule 2 deals with production and attendance notices and searching education provider's premises. Largely these provisions have the same structure and operation as those in the Principal Bill. (Appendix 1 contains a comparative table showing the corresponding main provisions.)

It is worth noting that the enforcement powers in the Bills address different purposes. The powers in the Principal Bill are referenced according to 'monitoring purposes'. These are directed at compliance with the proposed Education Services for Overseas Students Act 2000 and the National Code. By contrast, the regime in the Migration Bill are referenced according to 'visa monitoring purposes'. These are directed at compliance with visa conditions under the Migration Act 1958 (proposed section 268AA).

Miscellaneous

Schedule 3 amends the Migration Act 1958 to change the framework for applications for additional visas.

Item 1 proposes to enable the regulations to extend the prohibition in paragraph 41(2)(a). Thus, the regulations may provide that the holder of a prescribed visa may be not be granted a substantive visa or 'a temporary visa of a specified kind'. This amendment applies to visas granted after the commencement of Schedule 3 (item 7).

Item 5 repeals and replaces paragraph 46(1)(e) to include, in more clear and general language, the extension in item 1 of the prohibition to specified temporary visas. Items 2 to 4 make the necessary consequential amendments.

Concluding Comments

It should be noted that while the bulk of this Bill deals with overseas students, Schedule 3 is of more general application. Specifically, the extended prohibition is not limited in its application to student visas. Thus, the regulations may prohibit access to specified temporary visas where a person already has a prescribed visa, thereby limiting the options available to visa holders in certain prescribed situations.

Migration Legislation Amendment (Overseas Students) Bill 2000 5

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Appendix: Comparative Table of Main Provisions

Proposed Section

Matter

Migration Bill Principal Bill

Notices

production notices 268BA 113

contents of production notices 268BB 114

serving production notices 268BC 115

attendance notices 268BD 116

contents of attendance notices 268BE 117

Compensation

scales of expenses 268BF 118

reasonable compensation 268BG 119

Offences

failure to comply with notice 268BH 120

giving false or misleading information 268BI 121

giving false or misleading document 268BJ 122

incriminating information 268BK 123

Use of Documents

copies of documents 268BL 124

officer may retain documents 268BM 125

owner must be given copy 268BN 126

retaining documents 268BO 127

application for extension of retention period 268BP 128

order for extension of retention period 268BQ 129

Searching and Warrants

entering premises for visa monitoring purpose 268CA 130

being on premises with occupier's consent 268CB 156

consent of occupier 268CC 157

application for warrant 268CD 137

issue of warrant by magistrate, etc 268CE 138

request for further information by magistrate, etc 268CF 139

6 Migration Legislation Amendment (Overseas Students) Bill 2000

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

contents of warrant 268CG 140

use of reasonable force and assistance 268CH 147

monitoring powers 268CI 131

asking questions by consent 268CJ 132

asking questions under warrant 268CK 133

Offences

failure to answer question 268CL 134

giving false or misleading information 268CM 135

giving false or misleading documents 268CN 136

use of electronic equipment 268CO 143

use of electronic equipment by experts 268CP 149

extension of period for use by experts 268CQ 150

Emergency Situations

powers without warrant in emergency situations 268CR 151

Use of Documents

retaining seized things 268CS 152

application for extension of retention period 268CT 153

order for extension of retention period 268CU 154

Miscellaneous

occupier to facilitate and assist 268CV 155

announcement before entry 268CW 158

copy of warrant to occupier 268CX 159

damage to electronic equipment or data 268CY 160

occupier entitled to be present 268CZ 161

identity cards 268CZA 162

requirement to wear identity cards 268CZB 163

application for telephone warrant 268CZC 164

issue of telephone warrant by magistrate, etc 268CZD 165

procedure for issue of telephone warrant 268CZE 166

procedure after telephone warrant ends 268CZF 167

presumption against validity of telephone warrant 268CZH 169

Migration Legislation Amendment (Overseas Students) Bill 2000 7

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Endnotes

1 When section 138 was introduced (as proposed section 50E), the rationale was that it 'fixes the time that cancellation of a visa, or revocation of cancellation occurs'. The provision chose the time when the Minister 'causes a record of the cancellation or revocation [to be] made'. It could have chosen a later time, such as the time when a notice was sent to the visa holder, etc: Migration Reform Bill 1992, Explanatory Memorandum, p. 41.

2 The student must explain the alleged breach in person to an officer in an 'office of Immigration': proposed sub-section 137J(2).

3 Section 82.

4 For example, because another substantive visa had been issued or the visa period expired: ibid.

5 This provision mirrors a more general provision in section 195.

6 Item 1 adds student visas to the class of visas referred to in sub-paragraph 48(1)(b)(ii). Where these visas are cancelled, a person may, while in the 'migration zone', apply for a prescribed visa.

7 This is already dealt within section 198.

8 Proposed section 137L does not refer to proposed section 137J .Strictly proposed section 137L should read '[o]n an application under section 137K, the Minister may revoke the cancellation under section 137J if, and only if, the applicant satisfies the Minister …'