02 March 2010

Federal Court rules automatic cancellations of student visas invalid

On 2 March 2010 the Federal Court of Australia handed down two decisions that have created a potential nightmare for the Department of Immigration.

The background:  since 2000 the Migration Act has contained a provision (section 137J) for the "automatic" cancellation of visas held by overseas students who were reported by their colleges for unsatisfactory attendance or performance and who failed to report as directed to the Department of Immigration within 28 days to explain themselves. By a technical amendment effective 1 July 2007, the circumstances leading to cancellation were to be prescribed in Regulations (a common method of giving the executive flexibility to determine the details of the law without having to go through the complicated procedures of amending an Act of Parliament).

But the drafters got it wrong. They left out a crucial reference to a particular section of the legislation which meant that the legal mechanism just didn't work. At first, nobody noticed. I didn't pick up on it for over a year, but when I first raised it with government lawyers in about September 2008, expecting a quick amendment to correct the error, they went into denial instead. For two and half years the official position of the government was that the error everyone else could see (once it was pointed out to them) just wasn't there. In December 2009 they finally corrected it, but they still kept saying the correction wasn't really necessary until Justice Buchanan of the Federal Court put the matter to rest in two cases handed down on 2 March 2010: Hossain v MIAC [2010] FCA 161 and Mo v MIAC [2010] FCA 162.

The result: all "automatic" student visa cancellations under s 137J based on notices to students dated between 1 July 2007 and 16 December 2009 simply didn't happen. I have no idea how many cases this covers, but every one of them is someone who was told their visa had been cancelled when, as a matter of law, it hadn't. Some would have left the country, others would have been overseas and couldn't get back. Some would have given up their studies. Some would have spent thousands of dollars on appeals.

Just a technicality, you might say. Just another example of the massive unpardonable bureaucratic bungling that has characterised the 15 billion dollar cash cow that the student visa industry has become.