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2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION LEGISLATION AMENDMENT (STUDENT VISAS) BILL 2012
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Citizenship,
the Hon. Chris Bowen MP)
Migration Legislation Amendment (Student Visas) Bill 2012
OUTLINE
The Migration Legislation Amendment (Student Visas) Bill 2012 ("the Bill") amends the Migration
Act 1958 ("the Migration Act") and the Education Services for Overseas Students Act 2000 ("the
ESOS Act") to implement recommendation 24 of the independent Strategic Review of the Student
Visa Program, conducted by the Hon. Michael Knight AO (the "Knight Review").
Recommendation 24 of the Knight Review, announced by the Government on 22 September 2011,
is to abolish automatic cancellation of student visas and for the regime to be replaced by a system in
which information conveyed by student course variations is used as an input into more targeted and
strategic analysis of non-compliance and for the assessment of the individual circumstances of
student visa holders.
The amendments in this Bill give effect to the Government's policy to abolish the automatic
cancellation of student visas for unsatisfactory course attendance or course progress, through
amendments to the ESOS Act.
In particular, the Bill:
· amends section 20 of the ESOS Act to remove the current requirement for registered
providers to send a student who breaches a prescribed condition of their student visa a
notice under that section;
· amends section 5 of the ESOS Act to insert a definition of "contact details" of a person
who becomes or is an accepted student; and
· amends section 19 of the ESOS Act to require a registered provider to give particulars of
any change in the contact details or other prescribed details of an accepted student within
14 days after the provider becomes aware of the change.
The Bill also amends the Migration Act to insert a note that cross references the amendment to
section 20 of the ESOS Act.
Currently under section 137J of the Migration Act, the automatic cancellation of a student visa is
dependent on the student receiving a notice under section 20 of the ESOS Act. The amendments to
be made by the Bill will stop registered providers from sending a notice under section 20 of the
ESOS Act to a student visa holder who breaches a prescribed condition of their student visa;
thereby, effectively ceasing the automatic cancellation of student visas under the Migration Act. It
is intended that reports of non-compliance with a prescribed condition of a student visa will be
assessed and any consideration of cancellation of the student's visa will be under the discretionary
visa cancellation framework in the Migration Act.
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The Bill addresses the findings of the Knight Review, which found that the `automatic cancellation
regime is patently not working as a compliance and integrity tool and is in fact hindering the
effective use of available student compliance resources'. The Bill will allow for consistency in the
treatment of alleged breaches of the student visa condition relating to unsatisfactory course
attendance or course progress, enabling each case to be considered on its merits. This will lead to
fairer outcomes for student visa holders. It will also reduce the administrative burden associated
with students who attend an office of the Department of Immigration and Citizenship to stop the
automatic cancellation process or apply for revocation of a cancellation. This will allow integrity
resources to be more strategically targeted towards risk.
The Bill will also enable relevant government agencies to access up the most up-to-date contact
information held by education providers for accepted students. This will be important in the
absence of notices issued by education providers to a student at their most recent address under
section 20 of the ESOS Act. Requiring contact details to be updated by education providers within
14 days of being notified of a change will better enable contact with students, particularly for the
purposes of resolving their visa status should they be subject to any report of non-compliance.
FINANCIAL IMPACT STATEMENT
There is no financial impact.
REGULATION IMPACT STATEMENT
The Office of Best Practice Regulation has assessed the Regulation Impact Statement (RIS)
prepared by the Department of Immigration and Citizenship as being adequate. A copy of the RIS
is at Attachment A.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the amendments
in this Bill and assesses that the amendments are compatible with Australia's human rights
obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment B.
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MIGRATION LEGISLATION AMENDMENT (STUDENT VISAS) BILL 2012
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. Clause 1 provides that the short title by which this Act may be cited is the Migration
Legislation Amendment (Student Visas) Act 2012.
Clause 2 Commencement
2. Subclause 2(1) provides that each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with column 2 of the table.
Further, any other statement in column 2 has effect according to its terms.
3. Table item 1 provides that sections 1 to 3 of this Act and anything in this Act not elsewhere
covered by the table will commence on the day on which this Act receives the Royal Assent.
4. Table item 2 provides that Schedule 1 will commence on a single day to be fixed by
Proclamation. It also provides that if any provision(s) do not commence within the period of
6 months beginning on the day this Act receives the Royal Assent, they commence on the day
after the end of that period.
5. The note in subclause 2(1) makes clear that the table relates only to the provisions of this Act
as originally enacted. The table will not be amended to deal with any later amendments of
this Act.
6. Subclause 2(2) provides that any information in column 3 of the table is not part of this Act.
It provides that information may be inserted or edited in any published version of this Act.
Clause 3 Schedule(s)
7. This clause provides that each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned. In addition, any other
item in a Schedule to this Act has effect according to its terms.
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SCHEDULE 1 - Amendments
Education Services for Overseas Students Act 2000
Item 1 Section 5
1. This item inserts a new defined term "contact details" in section 5 in Part 1 of the ESOS Act.
2. Section 5 of the ESOS Act provides for definitions in the ESOS Act. This new defined term
provides that contact details of a person who becomes or is an accepted student means: the
person's current residential address; and the person's mobile phone number (if any); and the
person's email address (if any).
3. Section 5 of the ESOS provides that an accepted student of a registered provider means a
student (whether within or outside Australia):
· who is accepted for enrolment, or enrolled, in a course provided by the provider; and
· who is, or will be, required to hold a student visa to undertake or continue the course.
4. The purpose of this amendment is to ensure that contact details of a person who becomes or is
an accepted student covers the person's current residential address, mobile phone number
(if any) and email (if any).
5. This item is a consequential amendment as a result of item 3.
Item 2 Paragraph 19(1)(a)
6. This item inserts ", contact details" after "name" in paragraph 19(1)(a) in Division 1 of Part 3
of the ESOS Act.
7. Paragraph 19(1)(a) of the ESOS Act provides that a registered provider must give the
Secretary the name and any other prescribed details of each person who becomes an accepted
student of that provider within 14 days after that event occurring. Other prescribed details are
set out in regulation 3.01 in Division 3.1 of Part 3 of the Education Services for Overseas
Students Regulations 2001 ("the ESOS Regulations") and includes the student's full name,
gender, date of birth, country of birth, nationality, and certain particulars of the course for
which the student is accepted, amongst other things.
8. The purpose of this amendment is to ensure that a registered provider must give the Secretary
information regarding the contact details, in addition to the name and any other prescribed
details, of each person who becomes an accepted student of that provider.
9. This item is a consequential amendment as a result of item 3.
Item 3 After subsection 19(1)
10. This item inserts new subsection 19(1A) after subsection 19(1) in Division 1 of Part 3 of the
ESOS Act.
11. Section 19 of the ESOS Act deals with information a registered provider must give to the
Secretary about an accepted student.
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12. New subsection 19(1A) of the ESOS Act provides that a registered provider must give the
Secretary particulars of any change in the contact details or other prescribed details of an
accepted student within 14 days after the provider becomes aware of the change.
13. Currently, a student visa holder's address is obtained from the notice that is sent by registered
provider under section 20 of the ESOS Act. As the amendment to section 20 made by item 5
will remove a source of up-to-date contact details for a student visa holder, the purpose of this
amendment is ensure that a student visa holder can be contacted at their most recent address,
or by other means of contact (such as by mobile phone or email, if any). This is particularly
important if a student's visa is being considered for cancellation under the Migration Act and
will assist in the conduct of any subsequent immigration compliance activity.
Item 4 Subsection 20(1)
14. This item omits the words "A registered" and substitutes the words "Subject to
subsection (4A), a registered" in subsection 20(1) in Division 1 of Part 3 of the ESOS Act.
15. This item is a consequential amendment as a result of item 5.
Item 5 After subsection 20(4)
16. This item inserts new subsection 20(4A) after subsection 20(4) in Division 1 of Part 3 of the
ESOS Act.
17. Section 20 of the ESOS Act provides that a registered provider must send an accepted student
of the provider a written notice if the student has breached a prescribed condition of a student
visa. Regulation 3.03A in Division 3.1 of Part 3 of the ESOS Regulations prescribes visa
condition 8202, set out in Schedule 8 to the Migration Regulations 1994.
18. Broadly, visa condition 8202 requires a student visa holder to maintain satisfactory course
progress and course attendance. A student visa holder breaches visa condition 8202 if their
education provider has certified the holder as not achieving satisfactory course progress, or
not achieving satisfactory course attendance, for section 19 of the ESOS Act and standards 10
and 11 of the National Code of Practice for Registration Authorities and Providers of
Education and Training to Overseas Students 2007.
19. If a notice is sent to a student visa holder under section 20 of the ESOS Act, this engages
section 137J in the Migration Act. Section 137J provides for the automatic cancellation of a
student visa for non-complying students.
20. Subsection 137J(2) of the Migration Act provides that a non-citizen's visa is cancelled by the
force of section 137J 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:
· the non-citizen complies with the notice; or
· the non-citizen, while attending in person at an office of Immigration (within the
meaning of the regulations) that is either:
o in Australia; or
o 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 making any
submissions about the breach and the circumstances that led to the breach.
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21. New subsection 20(4A) of the ESOS Act provides that a registered provider must not send a
notice under subsection 20(1) on or after the day this subsection commences.
22. The purpose of this amendment is to stop registered providers from sending any accepted
student a notice under subsection 20(1) on or after the day new subsection 20(4A)
commences.
23. This amendment gives effect to the Government's policy to end the automatic cancellation of
student visas for unsatisfactory course attendance or course progress. It is intended that if a
student has breached visa condition 8202, their visa will be considered for cancellation under
the existing discretionary visa cancellation framework in the Migration Act.
Migration Act 1958
Item 6 Subsection 137J(1) (note)
24. This item omits "Note:" and substitutes "Note 1:" in subsection 137J(1) (note) in
Subdivision GB of Division 3 of Part 2 of the Migration Act.
25. This item is a consequential amendment as a result of item 7.
Item 7 At the end of subsection 137J(1)
26. This item inserts a new note at the end of subsection 137J(1) in Subdivision GB of
Division 3 of Part 2 of the Migration Act.
27. This item inserts "Note 2: Under subsection 20(4A) of that Act, a registered provider must
not send a notice on or after the day that subsection commences." at the end of subsection
137J(1) of the Migration Act.
28. The purpose of this amendment is to alert readers to the existence of new subsection 20(4A)
of the ESOS Act. This is because provisions in the Migration Act relating to automatic
cancellation, which include provisions providing for revocation and review of cancellations
under section 137J, will remain in the Migration Act and continue to apply to students who
receive a section 20 notice that was sent by a registered provider before the commencement
of new subsection 20(4A).