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Visa and Migration

Visa and Migration

Business Migration
Cancellation of Study Visa
Working while Studying

Migrating to Australia using the Business Skills Visa

The migration rules changed on 1st July 2012.

Updates are being prepared.

 

Prior Cancellation of Visa When Course of Study Has Not Been Completed (by A.J. Aristei, independent Barrister)

Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed and Another [2005] FCAFC 58
Breach of Condition – Migration Regulations 1994, Schedule 8 Condition 8202(c)Can a student visa be cancelled under condition 8202(c) when the course the student is participating in hasn’t finished?

Key points:

  • cancellation
  • Whether Minister may act when breach likely or probable?
  • Whether later events may be taken into account?

Can the Minister act when a breach is likely or probable?

Any university student can tell you that a grade is not given out before you finish a semester-long unit! There are many circumstances where one can find themselves doing very well in an assignment, but then fail the end of semester exam, hence failing a unit. The point that I am trying to make is that it is hard to determine whether a student is going to satisfactorily complete a course until their course is finished.

This now leads me to the question of whether a student’s visa can be cancelled when a student has not completed their course. For instance, what if it looks like the student cannot satisfy the attendance requirement or academic satisfaction required under Condition 8202(c) of the E.S.O.S. Act?

The case that deals with this point of law (which seems more like a puzzle) is M.I.M.I.A. v Ahmed. In this case, the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs cancelled Ahmed’s student visa prior to the scheduled completion of the course in which he was enrolled.

The argument from the academic institution was that the cancellation was on the grounds that the Respondent could not satisfy the attendance requirement in the Migration Regulations 1994 Cth, Sch 8, item 8202(b) and would therefore be unable to obtain a certificate from the education-provider as required by Sch 8, item 8202(c).

Just to refresh your memory on the above items, Condition 8202(b) stipulates that a student on a visa must attend their course AT LEAST 80% of the time.

Condition 8202(c) stipulates that if there is no evidence that a student has attended their course at least 80% of the time, then they cannot complete their course at a satisfactory level.

When this matter was taken to the Migration Review Tribunal, The tribunal found that by the time of cancellation, it was clear that the Respondent would be unable to satisfy Sch 8, item 8202(c). The Tribunal proceeded on the basis that the position was to be judged at the date of cancellation of the visa, but took into account facts occurring thereafter in assessing the position.

The decision made by the Courts was that the phrase “for the course” meant that the course had to be completed. Therefore, condition 8202(b) could only be breached where it is impossible for the condition to be achieved by the end of the course.

In addition, the Court held that there cannot be an anticipatory breach of condition 8202(c). Rather there has to be evidence that attendance was not evident before looking at the satisfactory completion of the course studied. There can be no such failure prior to the completion of the course.

Conclusion

To answer the question posed at the start: the answer is no. Unless there has been completion of the course studied, there cannot be any anticipation that the requirements of condition 8202 of the Migration Regulations will be breached.

[Please note that this case-summary does not take account of any actual or pending appeals against the case analysed. Nor is any assessment (actual or pending) made of possible changes to legislation that may counter the effect of this case]

Working while Studying – An Opportunity Fraught with Danger for International Students
(by A.J. Aristei, independent Barrister)

Minister for Immigration and Multicultural and Indigenous Affairs v Alam [2005] FCAFC 132
Breach of Condition – Migration Regulations 1994, Schedule 8 C ondition 8105 – exceeding 20 hours work in a weekDefinition: “week”

Studying in Australia can be a tough bargain for international students; there are a myriad of conditions and restriction that they must comply with to avoid breaching their visa and ‘shattering their dreams’.

One of the most treacherous is the requirement not to work for more than 20 hours a week whilst the selected study course is in session. However, many students do not know what this means and can either unknowingly breach this condition or, even worse, be accused of breaching it when they are entirely innocent. The following case defines what condition 8105 of the Migration Regulations 1994, Schedule 8, actually means and is essential reading.

In this case, Mahabub Alam was a young man from Bangladesh who held a student visa from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). He arrived in Australia on 17 April 2001. Mr Alam was a very enterprising student, who not only undertook an intensive English language course, but also (in just seven months) completed a high distinction average in a Diploma of Information Technology (Network Engineering). (This course usually takes two full years!!!).

Mr Alam then embarked upon a degree at Central Queensland University in Information Technology. This highly successful student had no problems with either attendance or marks, and it was not until September 2002 that things began to go wrong!

Mr Alam had renewed his visa from time to time as it was required by law. At the time, he had been issued with a Higher Education Sector visa (subclass 573) – valid until 15 March 2004. Mr Alam’s study in Australia was financed by his father (back in Bangladesh), but he also supplemented his income by undertaking casual work.

Condition 8105 of Mr Alam’s visa stipulated that he was prohibited from working more than 20 hours “during any week when the holder’s course of study or training is in session”. Mr Alam had dutifully complied with this condition throughout his stay in Australia.

On a Friday night in October 2002, Mr Alam was working in a Sydney hotel when the duty manager, having realized that another staff member could not attend work, asked him to work overtime until the hotel closed that night. Dutifully and diligently, Mr Alam complied. The hotel, also in good faith, noted Mr Alam’s extra work on his pay slips and timesheet – he had worked 22.5 hours from Tuesday to Monday. Thinking nothing more of the incident, Mr Alam continued to study hard and achieve well.

Ten weeks later, DIMIA officers came to speak with one of his flatmates. The officers were seemingly abrasive and, without warrant or reason, undertook a search of Mr Alam’s room and belongings. The officers saw the payslips from October and interpreted them to mean that Mr Alam had worked more than 20 hours in a single week.

Mr Alam appealed against this interpretation. DIMIA claimed that a ‘week’ for the purposes of condition 8105 was any consecutive seven day period and therefore the payslips were indicative of Mr Alam’s breach. Mr Alam believed that a “week” for the purposes of the Migration Regulations 1994 meant a university calendar week, beginning from either Sunday or Monday. Upon this interpretation, Mr. Alam had not exceeded his visa conditions and was entitled to remain the holder of a valid student visa. The Migration Review Tribunal agreed with Mr. Alam and, upon appeal, the Federal Court of Australia (Full Court) confirmed this view.

Conclusion

A ‘week’ for the purposes of condition 8105 of the Migration Regulations 1994, Schedule 8, runs from either Sunday or, more likely, Monday depending on the context. This means that a student holding a visa subject to this condition can work up to 20 hours at any time in this period, regardless of the pay period given by the employer, and without concern that these hours will adversely affect their availability early in the following week.

Any student who feels that they have suffered under similar circumstances would do well to consider obtaining legal advice as soon as practicable.