Rights depend on which side of the line you are on

I got a call from a colleague the other day who told me that a client of his arriving at Sydney airport had seen "about 200" returning overseas students being taken aside at the immigration desk for questioning about their visa status. My informant admitted it was probably an exaggeration, but from my own experience I can confirm that the practice of cancelling the visas of returning students before they are immigration cleared into the country is on the increase. In fact, I can quote verbatim from the transcript of an actual interview between a student and an immigration officer last November: "Immigration has started to interview people on arrival now OK. The people that are in your situation". And what situation was that? The student's college had cancelled his enrolment due to a fee dispute. They had done that in August, and notified Immigration on the computer system that DIAC shares with the Department of Education. Not being enrolled is of course a breach of student visa conditions, but despite the record being placed on the system in August no action was taken by Immigration at the time. The student went overseas in October and flew back several weeks later. On arrival he was taken aside in immigration clearance and, after a brief interview and ten minute opportunity to prepare a reply, his visa was cancelled.

Apparently the computer system is now capable of picking up visa numbers when people check in overseas and "flagging" anyone with a potential breach to the airport authorities who can then take them out of the arrivals line and cancel their visa on the spot.

Well, sure, he had breached a condition of the visa. But he had breached it in August, and Immigration had done nothing about it until his return from overseas in November. What difference does that make? Just this: when a student visa is cancelled in Australia the holder has the opportunity to apply for merits review in the Migration Review Tribunal, unless the cancellation occurs before the student gets across the line at the airport. If the visa is cancelled in immigration clearance, there is no appeal. Unless there is some legal irregularity which the student can get a Court to pick up on, they are on the next flight out.

According to the Tribunal's annual report for 2009-10, 41% of appeals against student visa cancellations were successful in that year. Taking away the right to appeal by cancelling the visa before the student gets across the clearance line, in effect, significantly disadvantages the student by comparison with someone whose visa is cancelled after clearance.

It is no surprise that the rate of successful appeals in these cases is so high. Anyone reading the published decisions would be appalled at the level of incompetency, negligence and plain dishonesty on the part of some education providers. Yet it seems that Immigration's main concern is to save time and expense by punishing the weakest element, the students who have been the victims of this appalling mess right from the start.