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Migration Legislation Amendment (Overseas Students) Bill 2000

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1998 - 1999 - 2000

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT (OVERSEAS STUDENTS) BILL 2000

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

(Government)

 

 

 

 

 

 

 

 

(Circulated by authority of

Senator the Hon. Kay Patterson, Parliamentary Secretary

 to the Minister for Immigration and Multicultural Affairs,

the Hon. Philip Ruddock MP)

 



MIGRATION LEGISLATION AMENDMENT (OVERSEAS STUDENTS) BILL 2000

 

 

OUTLINE

 

1.         The Migration Legislation Amendment (Overseas Students) Bill 2000 (“the Bill”) is one of a package of Bills implementing the Government’s decisions on the Overseas Student Visa Program.

 

2.                   The proposed amendments will insert a fourth schedule into the Bill which will have the following effect:

 

·               impose a new version of visa condition 8202 on all student visas which are in effect at the commencement date and all student visas granted after commencement but before 1 July 2001; and

 

·               establish a general power in subsection 116(1) of the Migration Act 1958 (“the Act”) for the Minister to cancel student visas where the holder is no longer a genuine or continuing student.

 

3.                   The amendments are a direct Government response to the decision of the Federal Court in the recent case of Nong v Minister for Immigration and Multicultural Affairs (6 November 2000).   In that decision, the Court set aside a decision of the Migration Review Tribunal to cancel a student visa on the basis that it had erred in the construction it gave to paragraph (b) of condition 8202.

 

4.                   The effect of the Court’s decision is that non-compliance with condition 8202 can only be used as a basis for the cancellation of a student visa after the completion of the student’s course not during the student’s course. 

 

5.                   The Court’s finding has implications for over 138,000 student visa holders presently in Australia which are subject to this version of condition 8202 (the condition was amended on 1 November 2000 and visas granted since that date are not directly affected by the decision).

 

6.                   Of these 138,000 or so visa holders, the Government expects that a significant proportion may fail to progress or their attendance will prove not to be satisfactory.   Without a visa condition along the lines of what condition 8202 was intended to achieve there is no effective power to cancel the visas of these unsatisfactory students.

 

 

FINANCIAL IMPACT STATEMENT

 

7.         The amendments will have no significant financial impact.



 

MIGRATION LEGISLATION AMENDMENT (OVERSEAS STUDENTS) BILL 2000

 

 

NOTES ON AMENDMENTS

 

Amendment (1)

 

1          This amendment makes a consequential amendment to clause 2 of the Bill to provide that new Schedule 4 to the Bill also commences on the day on which the Bill receives the Royal Assent.

 

Amendment (2)

 

2                     This amendment inserts new item 1A into Schedule 2 to the Bill.  Under subclause 2(2) of the Bill, item 1A will commence on a day fixed by Proclamation and will repeal new subsection 116(1B) of the Act as inserted into the Act by item 2 of new Schedule 4 to the Bill. 

 

3          The effect of item 1A is that it will remove from the Act the definition of “student visa” contained in subsection 116(1B) of the Act.  An alternative definition of “student visa” will be inserted into subsection 5(1) of the Act by item 1 of Schedule 2 to the Bill.

 

Amendment (3)

 

4          This amendment adds new Schedule 4 to the end of the Bill. 

 

SCHEDULE 4 - Satisfactory attendance and performance by students

 

Migration Act 1958

 

Item 1 - After paragraph 116(1)(f)

 

5          This item inserts new paragraph 116(1)(fa) after paragraph 116(1)(f) of the Act.

 

6          Under new paragraph 116(1)(fa), the Minister may cancel a student visa if he or she is satisfied that the student visa holder:

 

·                      is not, or is likely not to be, a genuine student; or

 

·                      has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

 

 

 

7          Examples of the circumstances in which this new cancellation power may be used include:

 

·                      where there has not been an actual breach of a student visa condition but the decision-maker is nevertheless satisfied that the student is not genuine; or

 

·                      where the first academic year of the course in which the student is enrolled has not yet commenced, but the decision-maker is satisfied that the visa holder is not a genuine student; or 

 

·                      where a semester for the course has not yet finished but the decision-maker is satisfied that the student is not attending the scheduled contact hours for the course in which he or she is enrolled.

 

8                     As this new student visa cancellation power will be contained in section 116 of the Act, its exercise will be subject to Subdivision E of Part 2 of the Act.  Subdivision E sets out a code of procedure for cancelling a visa under section 116.

 

Item 2 - After subsection 116(1)

 

9          This item inserts new subsections 116(1A) and 116(1B) into section 116 of the Act. 

 

10        New subsection 116(1A) provides that the matters to which the Minister may have regard in determining whether or not he or she is satisfied of either of the matters in new paragraph 116(1)(fa) may be prescribed in the Migration Regulations 1994 (“the Regulations”).  However, this does not limit the matters to which the Minister may have regard for that purpose. 

 

11        New subsection 116(1B) sets out a definition of “student visa” for the purposes of new paragraph 116(1)(fa).    “Student visa” is defined to mean a visa described in the Regulations as a Student (Temporary) (Class TU) visa.

 

Item 3 - Application of amendment

 

12        This item provides that items 1 and 2 of this Schedule apply in relation to all student visas, whether granted before or after the commencement of this item.

 

Item 4 - Special condition on certain student visas

 

13        This item provides for a special condition to be imposed on certain student visas as a result of the recent Federal Court decision in Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575 (6 November 2000) (“the Nong Case ”).

 

14        Visas granted under the Act may be subject to certain conditions.  Pursuant to section 41 of the Act, visa conditions are contained in the Regulations.

 

15        An overseas student is granted a temporary visa which is subject to a visa condition relating to the student’s continued enrolment, attendance and academic performance.  This is known as condition 8202 and is contained in Schedule 8 to the Regulations.  A breach of condition 8202 leads to the cancellation of the student visa pursuant to section 116 of the Act.

 

16        In the Nong Case , the Federal Court set aside a decision of the Migration Review Tribunal to cancel a student visa on the basis that it had erred in the construction it gave to paragraph (b) of condition 8202.

 

17        The relevant part of paragraph (b) of condition 8202, as considered by the Federal Court, required that the student visa holder “attend at least 80% of the classes and tutorials scheduled for the course ”. 

 

18        Amongst other things, the Federal Court held that non-compliance with paragraph (b) of condition 8202 can only be used as a basis for the cancellation of a student visa after the completion of the student’s course not during the student’s course.

 

19        Condition 8202 was intended to enable the progressive assessment of a student visa holder’s attendance and academic performance and to provide grounds for the cancellation of a student visa at any time during the course if satisfactory attendance and progress are not maintained. 

 

20        The effect of the Federal Court’s decision in the Nong Case is that it effectively deprives paragraph (b) of condition 8202 of all utility.  This item addresses the problem created by the Nong Case .

 

21        Subitem 4(1) provides that this item applies only to the following visas:

 

·                      all student visas that are in effect on commencement of item 4; and

 

·                      all student visas granted after the commencement of item 4 but before 1 July 2001.

 

22        In other words, item 4 applies, subject to the above qualifications, to all existing and future student visas.  However, it does not apply in relation to an application for a student visa:

 

·                      made on or after 1 July 2001; or

 

·                      made prior to 1 July 2001, but not finally determined (within the meaning of subsection 5(9) of the Act) by that date.

 

23        It is intended to amend condition 8202, as contained in Schedule 8 to the Regulations, so that all student visas granted on or after 1 July 2000 will be subject to a revised version of condition 8202. 

 

24        Subitem 4(2) clarifies that condition 8202 of each student visa to which item 4 applies is taken to be as set out in subitem 4(3) rather than as set out in the Regulations made for the purposes of section 41 of the Act.   In other words, a student visa to which item 4 applies will no longer be subject to condition 8202 in the form that it appears in Schedule 8 to the Regulations.

 

25        Subitem 4(3) sets out the details of condition 8202 that will apply to a student visa to which item 4 applies.  The condition is very similar to the current form of condition 8202 in  Schedule 8 to the Regulations. 

 

26        Condition 8202, as contained in subitem 4(3), requires:

 

·                      In the case of the holder of a Subclass 560 student visa who is an AusAID or secondary school exchange student - the student visa holder to be enrolled in a full-time course of study; and

 

·                      In any other case - the student visa holder to be enrolled in a registered course; and

 

·                      In the case of a student visa holder whose education provider keeps attendance records - the Minister to be satisfied that the holder attends at least 80% of the contact hours scheduled:

 

-                      for a course that runs for less than a semester - for the course; or

-                      for a course that runs for at least a semester - for each term and semester of the course; and

 

·                  In any case - the student holder to achieve an academic result that is certified by the education provider to be at least satisfactory:

 

-                      for a course that runs for less than a semester - for the course; or

-                      for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course.

 

27        The new version of condition 8202 above allows for the progressive assessment of a student visa holder’s attendance and academic performance.   As a result, it will provide grounds for the cancellation of a student visa at the end of a term or semester of the course if the student visa holder is not meeting the requirements as to attendance and academic performance.

 

28        Subitem 4(4) sets out a definition of “student visa” for the purposes of item 4 of this Schedule.  “Student visa” is defined to mean a visa described in the Regulations as a Student (Temporary) (Class TU) visa.

 

29        Subitem 4(5) clarifies that any other expressions used in condition 8202, as set out in subitem 4(3), that are defined in the Regulations have the same meaning as in those Regulations, as in force from time to time.

 

30        Subitem 4(6) makes it clear that the Minister may cancel a visa under section 116 of the Act if he or she is satisfied that condition 8202, as set out in subitem 4(3), has not been complied with.  This is so even if some, or all, of the non-compliance happened before the commencement of item 4.