Justine Elliot (Richmond, Australian Labor Party, Parliamentary Secretary for Trade) Share this | Hansard source

The current bill before the House is the Migration Legislation Amendment (Student Visas) Bill 2012. The main purpose of this bill is to cease the current arrangement whereby student visas can be cancelled by education providers. The situation the way it is has been giving education providers quite extraordinary powers in relation to international students. This bill responds to the Strategic review of the student visa program 2011 by the Hon. Michael Knight and it also responds to many concerns that were raised in the 2011 ANAO report Management of student visas.

The Knight review was commissioned by this government in 2010, and a principal focus of the review is on improved integrity measures in the student visa program. The review recommended that the automatic cancellation of student visas be abolished and that a 'more targeted and strategic analysis of noncompliance' be designed to replace it.

Student visa holders are subject to a number of visa conditions. One of these conditions, condition 8202, is that international students maintain course progress and class attendance. This condition is of course seen as evidence of the students' genuine engagement in their study programs. It is currently the responsibility of the course providers to monitor progress and attendance in class under the provisions of the national code, a legal instrument under the Education Services for Overseas Students Act. Providers are, at a minimum, required to intervene to assist an international student who has failed more than 50 per cent of the units attempted in any one study period or who is at risk of failing between 70 and 80 per cent of total course contact hours.

Under the current regime, students not achieving satisfactory course progress must be reported by the provider to the Department of Industry, Innovation, Science Research and Tertiary Education as having breached condition 8202. A provider must give a student 20 working days notice of the breach so that they can access complaints or appeals processes. The provider must then notify the student visa holder of the breach under section 20 of the ESOS Act. It is this notification that triggers the application of the automatic cancellation provisions under the Migration Act. The student is then required to attend an office of the Department of Immigration and Citizenship within 28 days of the date of the notice to make any submissions in relation to the breach.

Should the student not comply, their student visa is automatically cancelled under the Migration Act by operation of the law at the end of the 28th day of notice. Also, any family dependent visa holders also have their visas cancelled. Once cancelled, a student visa cannot be reapplied for for up to three years. So this current regime gives the education providers a great deal of power and say over international students, and in fact their dependents, in the role that they play in this reporting regime.

The Knight review and the ANAO have recommended the abolition of the automatic cancellation processes, arguing that increases over recent years have been driven in part by the emergence of some providers who implement automatic cancellation mechanisms, sometimes carelessly and sometimes, unfortunately, maliciously. Moreover, the automatic cancellation regime can of course be very detrimental to international students who are genuinely struggling and require assistance and monitoring rather than a cancellation of their visa.

In addition, it is important to note there has been some adverse commentary from the Federal Court, with the majority of automatic cancellations made between May 2001 and December 2009 having been overturned, affecting some 19,000 cases. This clearly indicates, according to both the ANAO and the Knight review, some systematic flaws and vulnerabilities. Australians quite rightly expect that there should be consequences, and there should, for those who do not abide by the conditions of their visas, but the automatic cancellation provision makes no allowance for the severity of the breach or the exceptional circumstances of the individual student. This lack of discretion also often imposes somewhat unnecessary administrative costs upon the government, the students and the education providers. It is also very resource intensive, directing the resources away from investigation and the pursuing of more serious student visa breaches. And the current regime creates a great deal of uncertainty and complexity for student-visaholders. There is no discretion for a decision maker to distinguish between a genuine student who may be struggling academically and a student who is clearly and deliberately in breach of their conditions when indeed action needs to be taken.

This bill would amend the Education Services for Overseas Students Act to remove the requirement section 20 for a registered education provider to se nd a notice to a student visa- holder who breaches condition 8202 of their student visa. It is intended that on the day the amendments in this bill commence, registered education providers will no longer be required or be able to send a notice under section 20 of the ESOS Act. As a consequence, student visas will no longer be subject to automatic cancellation under the Migration Act.

Th is bill proposes that a student- visa holder who is in breach of a visa condition by not achieving satisfactory course progress or attendance will no w be considered under the existing discretionary cancellation framework within the Migration Act. A provider will still be required to report a breach of a prescribed condition of the student visa under section 19 of the ESOS Act, and then the breach will be considered by the department for investment and possible compliance action. The bill will also make the necessary consequential amendments to the ESOS Act to require an education provider to give particulars of any change in contact details of a student - visa holder within 14 days after the provider becomes aware of the change.

T hese amendments would ensure a smooth transition from the automatic system that we have in place now to a far more discretionary system —a discretionary cancellation regime. Of course, it will occur without compromising the integrity of our immigration system in relation to student visas. The bill will maxim ise the likelihood that student- visa holders will receive information and notification about their immigration status and assist in the conduct of any subsequent immigration compliance activity. So it is very beneficial.

International students will no longer have their visas automatically cancelled, should these amendments be passed, providing a much fairer, merits based cancellation process. Integrity and compliance resources can then be put to much more targeted activities in high-risk areas. These measures are designed, of course, not only from an immigration perspective but also to support our international education sector, which is vitally important. Indeed, we have great educational resources here within Australia. The education industry is one of our leading export industries—one that we are very proud of—because of the great educational resources we can offer. It is also very important in supporting our bilateral ties with many key partner countries. Under this government we have made many advances in supporting the international education sector. Indeed, this bill is one of the many positive moves that we have made to ensure that we have a very strong and robust international education sector. The student-visa changes that we have made support that whilst maintaining strength in the regulation of our immigration system. In conclusion, I commend the bill to the House.

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