Student Visa Cancellation





Student visa cancellationStudent Visa Cancellation is highly distressing for people involved. Even worse, it is often very sudden. 

If you receive a NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC), or notice of AUTOMATIC CANCELLATION you need to act fast. Note the  following.

  • Note the time to response. The statutory time frame is usually 28 days.
  • The type of decision to cancel will be MANDATORY or DISCRETIONARY.
  • The decision to cancel is most often due to breach of visa conditions.
  • Conditions such as 8202 are discretionary and can be REVOKED.
  • Other conditions, such as breach of work restrictions, are mandatory and cannot be revoked. (There may be avenues of appeal depending on individual circumstances.)
  • Student visa cancellations can either be revoked or reviewed, such as by merits review (Tribunal) or judicial review (the courts).
  • Revocation is most often easier and the most appropriate response to NOICC.
  • Judicial review needs a clear error in law to succeed. Revocation can take into consideration compassionate grounds that tribunals and courts cannot.
  • Migration law provides for revocation requests to be made whilst the visa holder is off shore, or onshore BUT NOT IN IMMIGRATION CLEARANCE (that is, not once you pass out through customs and prior to departure from Australia).

 

Recent Trends

There has been a sharp increase in the number of student visa cancellation enquiries at VISAFAQ.Trend in student visa cancellations

This fits with departmental statistics which show a growth trend in recent times.

The statistics do not show cancellations that were revoked.

According to Australian immigration law, revocations are as though cancellation never took place. Thus, there is no long term effect on the visa holder.

Our Successful Approach

Our success in assisting many clients to achieve revocation of cancellation is in application of Notice 61 provisions of the Migration Act.

Notice 61 provides for grounds to argue that the breach did not occur, or that it occurred for reasons exceptional or beyond one’s control.

Other grounds for successful revocation are able to be applied under Notice 61, for example, issues with defective monitoring, complaints handling, notification, counselling and appeals.




No two cases are identical, so the key to successful revocation is pin pointing the correct avenue of request.

 

Visa cancellation affecting you? For a quick assessment (within 24 hours), email your information, together with correspondence from the Department as an attachment, to info@visafaq.com.au. 

 

Note also that decision-makers must consider all of the facts in a revocation request.

This makes the process highly subjective.

The subjectivity means that some case officers are easily satisfied that the request has merit.

Others will require considerable convincing with solid arguments, law based appeals to reason and merit, and plenty of objective evidence.

Whichever case officer allocated to your request, is difficult to know whether they are easily satisfied of the merits of the case or not.

It is the luck of the draw.

As a final word of caution, it is better to win at the NOICC stage than to seek a revocation request.

It is better to win at revocation request stage than to seek remedy in the courts. To win in the courts, the error in law by the Department must be demonstrated. In most cases this is impossible.

 




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What is a section 20 Notice of Intention to Cancel my student visa?




Section 20 Notice Student Visa

The Education Services for Overseas Students (ESOS) Regulations 2001 contains section 20 notice student visa.

Visa cancellationThe section 20 notice provides legal guidelines for Immigration officers to following when commencing visa cancellation. The guidelines must be followed to protect the rights of the visa holder.

Australian law provides for fair and proper treatment of students by education providers (schools, colleges, universities, etc) in respect to their visas. Section 20 notice is the formal communication from the school that they are required to inform Department of Immigration and Border Protection (DIBP) of a change in circumstances that should result in a cancellation of a student visa.

The notice should specify

– The reason for the breach of visa conditions (non-payment of fees, poor attendance or academic performance, etc)

– Requirement for the student to attend an interview with a DIBP official within 28 days of receipt of the notice.

How to stop section 20 cancellation?

It is important to act at the time you receive a section notice of intention to cancel you visa.

You need to respond to grounds of cancellation made by the department in the time required to do so. You need to address the specific breach of condition or other alleged misconduct.

You must also bear in mind that not all breaches of condition can be successfully appealed and turned back.

For FREE ADVICE of a general nature, leave a comment in the comment box on the HOME page

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Beware ‘bogus documentation’ when applying for a visa to travel to or remain in Australia (Part 2)

HOW DO DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION CASE OFFICERS ASSESS FOR BOGUS DOCUMENTS?

cancelAs Mentioned in Part 1 of this series, heavy penalties are now being introduced by DIBP for people found to have submitted — knowingly or otherwise — false or misleading documents or proven to have filled in forms with incorrect information. PIC 4020 rules now allow for restrictions on making further visa applications of up to 10 years to be applied to individuals caught out submitting false or fraudulent — and in some cases just plain wrong — information and documentation.

The following are insights into how departmental case officers assess documents and information for falseness.

Documents such as Notice of Intended Marriage (NOIM) and Statutory Declarations are used extensively in partner visa applications in particular. These are legal documents so they need to be treated carefully and with a view to ensuring that no false or misleading information is contained within. Signatures are rigorously checked by assessing officers and cross matched with databases within the DIBP and in some cases cross departmental databases in Australia and overseas.

Forms are also checked for how many different hands have written information into individual questions. Recurring signatories are flagged for further investigation and could be the trigger for an eventual refusal.

Registraiton of notaries are also checked for current status ‘at time of application’. Unregistered notaries, agents or service providers, such as Marriage Celebrants, could render the document INVALID.

Be sure to check the current state of registration of any service provider you engage for your visa application.

If unsure, as always, seek professional migration advice from a MARA registered migration agent.

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Beware of ‘bogus documentation’ when applying for a visa to travel to or remain in Australia (Part 1)

HOW DO DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION CASE OFFICERS ASSESS FOR BOGUS DOCUMENTS?

cancelBogus documentation is dealt with in s97 of the Migration Act (1954). Bogus documents are defined as being false in a material particular, which basically means documentation that is telling a lie or hiding the truth.

The Act defines a bogus document thus

‘in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a) purports to have been, but was not, issued in respect of the person; or

(b) is counterfeit or has been altered by a person who does not have authority to do so; or

(c) was obtained because of a false or misleading statement, whether or not made knowingly’

The Australian government is presently stepping up efforts to crackdown on all types of migration fraud, such as fake passports and personal identification documents. Cutting edge fraud detection technology and data matching across government departments and with international agencies is further assisting the Department with this aim of reducing, if not eliminating, all forms of migration fraud.

Aside from measures to detect fraudulent visa applications, the Australian government also announced recently the increase in penalties for persons found to be submitting bogus documentation (under the PIC 4020 rule) to dis-allow an individual from applying for another substantive visa for 10 years.

It is also important to note, that ignorance is no protection under the law.

Whether you knowingly or unwittingly submitted information or documents that were false, you can still be liable for this 10 year exclusion penalty.

It is therefore CRITICAL that when you are making application for an Australian visa that all documents (including questions you answer on application forms) submitted to the Department in support of applications are true, genuine and accurate.

If you are not sure, consult a professional migration agent or lawyer.

The following are some simple insights into the way DIBP officers deal with supporting documents and evidence when reviewing your application.

NOTE: Recent MSI (Migration Series Instruction) 292 states that there is no power in migration legislation to refuse an application because the applicant ‘may not be who they say they are or may have presented a bogus document’.

1. Rules in preparing and handling official documents – Birth, Death, Marriage Divorce Certificates – There are local ideosyncrasies and peculiarities with uch official documents. When submitting your application it will help to point this out and explain the differences that may exist. This will help to remove doubts about authenticity of documents and avoid suspicion that you are giving ‘a bogus document’.

Think of other corroborating evidence such as baptismal certificates, local religious or government registries. Be aware that the Department is aware that corruption is a problem in many local official offices. There are limits upon case officers over how deeply they can delve into your past, so if you feel the Department is breaching your privacy rights, consult a legal professional.

Like with any type of visa application, and more generally in your dealings with the Department, it is important to think outside the box and to try to pre-empt the moves of the case officer before they make a decision not favorable to you. It is a good idea to consult with a good migration agent or lawyer on this point if you do not already have an appointed representative.

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Common breach of conditions that lead to student visa cancellations?

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Student visas are monitored for compliance by Immigration officials in accordance with Australian Immigration Law.

Schools and colleges are required to keep records of student attendance and performance.

Attendance below 80% or consistent poor performance may result in cancellation of visas.

Most often, cancellations occur because of breaches to

– 8105 Limitations on working hours

– 8202 Unsatisfactory course progress or attendance

– 8533 Failure to notify service provider of address change

Of these conditions, breach of Condition 8105 is considered very serious by the Department.

In such cases there are little or no grounds to seek ‘revocation of the decision’ by the Department. 

When cancellation is proceeding by the Department (and revocation is not possible) the next avenues of appeal are merits review, then judicial review.

Condition 8202 provides avenues of appeal for students notified of intention to cancel their visa (visa holders will have 28 days in which to speak with a Departmental officer to give reasons for revocation of the decision to cancel. Otherwise, automatic cancellation of student visa will result, in accordance with Australian immigration law.




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