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Thursday, 22 March 2012
Page: 3952

Mr BOWEN (McMahonMinister for Immigration and Citizenship) (10:11): I move:

That this bill be now read a second time.

The purpose of this bill is to cease the automatic cancellation regime currently in place for student visa holders who breach the academic progress or attendance requirements of their student visa. This responds to the 2011 strategic review of the Student Visa Program and concerns raised in the 2011 Australian National Audit Office (ANAO) report, Management of Student Visas.

In December 2010, the government appointed the Hon. Michael Knight AO to conduct the first strategic review of the student visa program to help enhance the quality, integrity and competitiveness of the student visa program. Mr Knight reported to the government in June 2011 and on 22 September 2011 both the report and the government response were released. The government supports in principle all of Mr Knight's recommendations.

A principal focus of the Knight review report is on improved integrity measures in the student visa program. To this end, the Knight review recommended that the automatic cancellation of student visas be abolished and replaced with a more targeted and strategic analysis of noncompliance.

Student visa holders are subject to a number of visa conditions that reflect the intention of the student visa program. Key to the integrity of the program is visa condition 8202 that requires international students to maintain course progress and attendance in class. The ability of a student visa holder to maintain course progress and attendance is considered an indicator of their genuine engagement in studies. Providers are required to monitor the course progress of their international students and their attendance in class under the provisions of the national code, a legal instrument under the Education Services for Overseas Students Act 2000 (ESOS Act). While providers are required to define their own policies in relation to course progress or attendance, at a minimum they must intervene to assist an international student who has failed more than 50 per cent of the units attempted in any one study period or who is at risk of failing to attend between 70 and 80 per cent of total course contact hours. Where a provider assesses the international student as not achieving satisfactory course progress or attendance, they must report them for a breach of condition 8202.

Under the current regime, an education provider is required under section 19 of the ESOS Act to report breaches of student visa condition 8202 to the Secretary of the Department of Innovation, Industry, Science, Research and Tertiary Education. The provider must give the student 20 working days notice in which to access complaints and appeals processes. The provider is then required to notify the student visa holder of the breach under section 20 of the ESOS Act. It is this notification that triggers the application of the automatic cancellation provisions under the Migration Act 1958 (the Migration Act). The notice requires the student visa holder to attend an office of the Department of Immigration and Citizenship (DIAC) within 28 days of the date of the notice to make any submissions about the breach. If the student visa holder does not comply with the notice, their visa is automatically cancelled under the Migration Act by operation of the law at the end of the 28th day after the date of notice. Consequentially, any family dependent visa holders would also have their visas cancelled. International students whose visas are automatically cancelled are subject to an exclusion period for applying for further visas for up to three years.

Both the Knight review and the ANAO have recommended the abolition of the automatic cancellation regime. The Knight review found that the automatic cancellation regime gives education providers extraordinary power over international students. It argued that the increase in automatic cancellations in recent years has been driven, in part, by the emergence of some providers who will use the automatic cancellation mechanism carelessly or even maliciously. It also found that the process is deleterious for some genuine international students who require help and monitoring rather than having their visas cancelled. Further, it found that the regime was hindering the effective use of compliance resources.

The Knight review also found that the process has attracted continued adverse commentary from the Federal Court, with the majority of automatic cancellations made between May 2001 and December 2009 having been overturned, affecting some 19,000 cases. This factor was echoed in the ANAO report, which noted systematic flaws and vulnerabilities in the regime. The ANAO also shared the views of the Knight Review in respect of the resource-intensive process that the regime requires whereby integrity and compliance units must respond to every education provider report rather that pursue targeted areas of compliance concern.

The Australian community expects there to be consequences if a student visa holder breaches visa conditions. However, the automatic cancellation provision fails to properly account for the severity of the breach, any exceptional circumstances or whether or not a breach actually occurred. The lack of discretion imposes unnecessary administrative costs on international students, education providers and the government. It creates uncertainty and complexity for student visa holders.

For example, while students have the opportunity to stop the automatic cancellation process by attending an office within 28 days of the section 20 notice being sent, where they fail to do so, their visa is automatically cancelled at the end of the 28th day after the date of the notice, regardless of whether or not the breach may have actually occurred. Further, if a student visa holder applies for a revocation of an automatic cancellation, the decision maker can only decide to revoke where it is found that the breach either did not occur or was due to exceptional circumstances. The regime provides no discretion for a decision maker to distinguish between a genuine student visa holder who may be struggling academically and one who deliberately breaches the conditions of their student visa.

Critically, the automatic cancellation regime directs government resources away from pursuing more egregious student visa breaches. In particular, the Knight review found that the automatic cancellation regime was in fact hindering the effective use of student compliance resources within DIAC. It found that up to 80 per cent of DIAC student integrity resources are predominantly allocated to dealing with the automatic cancellation related caseload, including dealing with student visa holders approaching DIAC to stop the automatic cancellation process and managing requests for the revocation of an automatic cancellation. This means that reports for breaches that do not fall within the automatic cancellation regime cannot be prioritised, even though, upon further investigation, some of these reports may be for more serious noncompliance.

This bill would amend the ESOS Act to remove the requirement under section 20 for a registered education provider to send a notice to a student visa holder who breaches condition 8202 of their student visa. It is intended that on or after the day the amendments in this bill commence registered education providers will no longer be required, or able, to send a notice under section 20 of the ESOS Act. As a consequence, student visas will no longer be subject to automatic cancellation under the Migration Act.

Instead, a student visa holder who breaches a visa condition by not achieving satisfactory course progress or not achieving satisfactory course attendance will be considered under the existing discretionary cancellation framework in the Migration Act. Under this framework, the education provider would still be required to report a breach of a prescribed condition of a student visa under section 19 of the ESOS Act. Details of the reported breach would be considered by DIAC for possible compliance action. The absence of automatic cancellation will not mean that such breaches will be taken any less seriously. In addition to following up on breaches of attendance and course progress, DIAC will be able to better prioritise other reports that may indicate serious noncompliance, including where an international student fails to commence their course. DIAC will be working with the Department of Industry, Innovation, Science, Research and Tertiary Education to develop targeted reports to assist in identifying all types of breaches associated with the student visa program and targeting those that represent the highest risk.

This bill would also make necessary consequential amendments to the ESOS Act to require an education provider to give particulars of any change in contact details or other prescribed details of a student visa holder within 14 days after the provider becomes aware of the change. This is broadly consistent with other obligations on education providers under the ESOS Act—for example, for a provider to report any changes in the identity or duration of a student's course within 14 days after the event occurs.

The amendments would ensure the best possible transition from an automatic to a discretionary cancellation regime without compromising immigration integrity. They would maximise the likelihood of student visa holders receiving information and notification affecting their immigration status. It will also assist in the conduct of any subsequent immigration compliance activity.

It is intended that the amendments in the bill would apply to student visas in effect at the time of commencement unless the international student has been sent a notice by an education provider under section 20 of the ESOS Act before the commencement of this bill. Any student visa holder sent a notice under section 20 of the ESOS Act before the date of commencement would still need to attend a DIAC office within 28 days or face the automatic cancellation of their student visa. However, if it is automatically cancelled, the former student visa holder would still be able to apply for a revocation of the cancellation. Revocation applications would be available until the visa would have ceased if not for the cancellation if the former student visa holder remains onshore, or within 28 days of the cancellation if the former student visa holder has left Australia.


Student visa holders will no longer have their visas automatically cancelled. These changes will provide for a fairer, merits based cancellation process and will allow integrity and compliance resources to be more targeted to areas of high risk.

These measures are intended to support the international education sector, which is one of Australia's largest export industries and is important to Australia in supporting bilateral ties with key partner countries, supporting employment in a broad range of occupations throughout the Australian economy, as well as delivering high-value skills to the economy. I commend the bill to the House.

Debate adjourned.