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Migration Legislation Amendment (Overseas Students) Bill 2000
Schedule 1 Automatic student visa cancellation

   

Migration Act 1958

1  Subparagraph 48(1)(b)(ii)

Omit “or 134 (business visas)”, substitute “, 134 (business visas) or 137J (student visas)”.

2  After Subdivision GA of Division 3 of Part 2

Insert:

Subdivision GB Automatic cancellation of student visas

137J   Non-complying students may have their visas automatically cancelled

             (1)  This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice).

Note:          Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen’s visa relating to attendance or satisfactory academic performance. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of explaining the breach.

             (2)  The non-citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:

                     (a)  the non-citizen complies with the notice; or

                     (b)  the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:

                              (i)  in Australia; or

                             (ii)  approved for the purposes of this paragraph by the Minister by notice in the Gazette ;

                            makes himself or herself available to an officer for the stated purpose of explaining the breach alleged in the notice.

137K   Applying for revocation of cancellation

             (1)  A non-citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation.

             (2)  A non-citizen who is in the migration zone cannot apply for revocation at a time when, because of section 82, the visa would no longer have been in effect anyway had the visa not been cancelled under section 137J.

             (3)  In addition to the restriction in subsection (2), a non-citizen who is in the migration zone and who has been detained under section 189 cannot apply for revocation later than:

                     (a)  2 working days after the day on which section 194 was complied with in relation to his or her detention; or

                     (b)  if he or she informs an officer in writing within those 2 days of his or her intention to so apply—within the next 5 working days after those 2 working days.

             (4)  A non-citizen who is outside the migration zone cannot apply for revocation later than 28 days after the day of the cancellation.

             (5)  In any case, a non-citizen cannot apply for revocation if he or she has previously made such an application in respect of the same cancellation.

137L   Dealing with the application

             (1)  On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:

                     (a)  that the non-citizen did not in fact breach the relevant visa condition or conditions; or

                     (b)  that the breach was due to exceptional circumstances beyond the non-citizen’s control; or

                     (c)  of any other matter prescribed in the regulations.

             (2)  However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J.

             (3)  A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.

137M   Notification of decision

             (1)  When the Minister decides whether to revoke a cancellation under section 137L, he or she must give the non-citizen written notice of the decision.

             (2)  Notice of a decision not to revoke a cancellation must:

                     (a)  specify the grounds for the decision; and

                     (b)  state:

                              (i)  that if the non-citizen was in the migration zone when the decision was made, the decision is reviewable under Part 5; and

                             (ii)  the time in which the application for review may be made; and

                            (iii)  who may apply for the review; and

                            (iv)  where the application for review may be made.

             (3)  Failure to notify of a decision whether to revoke a cancellation does not affect the validity of the decision.

137N   Minister may revoke cancellation on his or her own initiative

             (1)  The Minister may, on his or her own initiative, revoke the cancellation under section 137J of a particular non-citizen’s visa, if the Minister thinks that it is in the public interest to do so.

             (2)  The Minister must give the relevant non-citizen written notice of a decision under subsection (1) to revoke a cancellation.

             (3)  The power in subsection (1) may only be exercised by the Minister personally.

             (4)  The Minister does not have a duty to consider whether to exercise the power in subsection (1), whether or not the non-citizen or anyone else requests him or her to do so, or in any other circumstances.

             (5)  A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.

137P   Effect of revocation

             (1)  If the cancellation of a visa is revoked under section 137L or 137N, the visa is taken never to have been cancelled under section 137J.

             (2)  If the revocation is under section 137L and the decision is made wholly or partly on the ground that paragraph 137L(1)(a) or (b) applies to the breach that was alleged in the notice mentioned in section 137J, then that breach cannot be a ground for cancelling the visa under section 116.

             (3)  However, a revocation under section 137L or 137N does not otherwise limit or affect any other power to cancel the visa under this Act.

             (4)  In particular, a different or later breach of a condition of the visa can be a ground for cancelling the visa under section 116.

             (5)  Despite subsection (1), any detention of the non-citizen that occurred during any part of the period:

                     (a)  beginning when the visa was cancelled under section 137J; and

                     (b)  ending at the time of the revocation of the cancellation;

is lawful and the non-citizen is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

3  After subsection 138(1)

Insert:

          (1A)  Subsection (1) does not apply to a cancellation under section 137J.

4  Subsection 140(1)

Before “, a visa held”, insert “or 137J (student visas)”.

5  Paragraph 140(2)(a)

Before “; and”, insert “or 137J (student visas)”.

6  Paragraph 140(4)(b)

After “section 131”, insert “, 137L or 137N”.

7  Section 194

Repeal the section, substitute:

194   Detainee to be told of consequences of detention

                   As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of:

                     (a)  the provisions of sections 195 and 196; and

                     (b)  if a visa held by the person has been cancelled under section 137J—the provisions of section 137K.

8  Paragraph 198(5)(b)

Omit “section 195 but did not do so”, substitute “section 195, to apply under section 137K for revocation of the cancellation of a visa, or both, but did neither”.

9  At the end of section 198

Add:

           (10)  For the purposes of subsections (6) to (9), a valid application under section 137K for revocation of the cancellation of a visa is treated as though it were a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

10  Section 275 (definition of cancellation review applicant )

Repeal the definition, substitute:

cancellation review applicant means an applicant for:

                     (a)  review of a decision to cancel a visa held by the applicant; or

                     (b)  revocation under section 137L of the cancellation of a visa held by the applicant; or

                     (c)  review of a decision under that section not to revoke such a cancellation.

11  After subsection 338(3)

Insert:

          (3A)  A decision under section 137L not to revoke the cancellation of a non-citizen’s visa is an MRT-reviewable decision if the non-citizen was in the migration zone when the decision was made.

12  Subparagraph 347(1)(b)(i)

After “(3)”, insert “, (3A)”.

13  Paragraph 347(2)(a)

After “(3)”, insert “, (3A)”.

14  Subsection 347(3)

After “(3)”, insert “, (3A)”.