The Migration Act 1958 contains provisions on automatic cancellation of student visas by the Department or the DHA.
Generally, cancellation of student visas arises when Department of Home Affairs cancels a student visa that they had previously granted. This can be due to several reasons, including not complying with your student visa conditions, such as work restrictions, failing to meet course requirements, or cancellation of your Confirmation of Enrolment (CoE).
But what about automatic cancellation of student visas? Division 3, Subdivision GB, Sections 137J-137P of the Migration Act discusses automatic cancellation of student visas. In this article, we will go over these Sections in brief.
Section 137J: Non-complying Students May Have Their Visas Automatically Cancelled
It is crucial to note that the automatic cancellation of student visas under Section 137J effectively ceased from 13 April 2013. The Migration Legislation Amendment (Student Visas) Act 2012 amended the Education Services for Overseas Students Act 2000 (ESOS Act), which ended the "automatic" cancellation of student visas under Section 137J of the Migration Act. This came into force on 12 December 2012.
Before 13 April 2013, Section 20 of the ESOS Act required education providers to send a student a written notice if that student had breached a prescribed condition of a student visa. The Section 20 notice commenced the automatic cancellation process under Section 137J.
Under Section 137J, the DHA will automatically cancel a student visa if the holder did not contact the Department within 28 days of the Section 20 notice. The Minister could then revoke the cancellation upon application, or without an application if exercising the power personally.
However, despite the amendments, issues regarding automatic cancellation of student visas are still prevalent. A 2017 case from the Federal Circuit Court, Kaur v Minister for Immigration & Anor FCCA 3369 12 December 2017 provides an example of this.
This case was related to a notice of a breach sent to the visa holder before these amendments were in effect, and provisions on automatic cancellation of student visas still applied despite the amendments.
Hence, it remains relevant to grasp an understanding of the provisions of automatic cancellation of student visas. This is especially for those whose student visas the DHA automatically cancelled prior tothe amendments.
Section 137K: Applying for Revocation of Cancellation
A person whose visa DHA cancelled under Section 137J may apply in writing for revocation of the cancellation.
Under Section 137K, a person who is in the migration zone cannot apply for revocation at a time when, because of Section 82 (when visas cease to be in effect), the visa would no longer have been in effect anyway had the visa not been cancelled under Section 137J.
In addition, a person in the migration zone who is detained under Section 189 cannot apply for revocation later than:
- 2 working days after the day on which Section 194 was complied with in relation to his or her detention, or
- 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.
A person who is outside the migration zone cannot apply for revocation later than 28 days after the day of the cancellation. In any case, a person cannot apply for revocation if he or she has previously made such an application in respect of the same cancellation.
Section 137L: Dealing With the Application
Upon application under Section 137K, the Minister may revoke the cancellation under Section 137L if the applicant satisfies the Minister:
- that they did not in fact breach the relevant visa condition or conditions,
- that the breach was due to exceptional circumstances beyond the applicant's control, or
- of any other matter prescribed in the regulations.
However, the Minister must not revoke the cancellation on the ground that the person was unaware of the notice or the effect of Section 137J.
Section 137M: Notification of Decision
When the Minister decides whether to revoke a cancellation, he or she must give the applicant a written notice of the decision. Under Section 137M, notice of a decision not to revoke a cancellation must:
- specify the grounds for the decision, and
- state:
- that if the person was in the migration zone when they received the decision, the decision is reviewable under Part 5 of the Act,
- the time in which the application for review may be made,
- who may apply for the review, and
- where the application for review may be made.
In addition to this, failure to notify of a decision whether to revoke a cancellation does not affect the validity of the decision.
Section 137N: Minister May Revoke Cancellation on His or Her Own Initiative
Under Section 137N, the Minister may, on his or her own initiative, revoke the cancellation if the Minister thinks that it is in the public interest to do so. The Minister may do so personally. Additionally, the Minister must give the person concerned a written notice of the decision to revoke a cancellation.
Section 137P: Effect of Revocation
If the authorities revoke the cancellation of a visa, you can consider that the DHA never cancelled the visa in the first place. However, a revocation under Section 137L or Section 137N does not limit or affect any other power to cancel the visa under other provisions of the Migration Act. For instance, a different or later breach of a visa condition can be a ground for cancelling the visa under Section 116.
Seeking Legal Advice from Expert Immigration Lawyers
Cases on automatic cancellation of student visas still arise when Section 20 notices have been given before the amendments. Hence, a person who received such notice on 12 April 2013 must still comply with it, otherwise it results in automatic cancellation of their student visa.
Any eligible student visa holder who has had their visa automatically cancelled can still apply for a revocation of the cancellation, even after 13 April 2013.
Further, it is very important to note that a student visa cancellation can still occur through other provisions of the Migration Act, such as a cancellation under Section 116.
You may be facing a case of student visa cancellation and are in need of legal assistance for the process of revoking such cancellation.
JB Solicitors has a leading team of experienced immigration lawyers that can help with your situation. We offer specific legal advice tailored to your needs as well as legal representation for successfully challenging your visa cancellation. We ensure that we resolve our clients' legal matters. Do you have any more queries on automatic cancellation of student visas?
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.