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‘Prior Cancellation of Visa When Course of
Study Has Not Been Completed’
(by A.J. Aristei,
independent Barrister)
Minister for Immigration and Multicultural
and Indigenous Affairs v Ahmed and Another
[2005] FCAFC 58
Breach of Condition – Migration
Regulations 1994, Schedule 8
Condition 8202(c)
Can a student visa be cancelled under
condition 8202(c) when the course the student is
participating in hasn’t finished?
Key points:
- cancellation
- Whether Minister may act
when breach likely or probable?
- Whether later events may be
taken into account?
Can the Minister act when a breach is likely
or probable?
Any university student can tell you that a grade is not given
out before you finish a semester-long unit! There are many
circumstances where one can find themselves doing very well in
an assignment, but then fail the end of semester exam, hence
failing a unit. The point that I am trying to make is that it is
hard to determine whether a student is going to satisfactorily
complete a course until their course is finished.
This now leads me to the question of whether a student’s visa
can be cancelled when a student has not completed their course.
For instance, what if it looks like the student cannot satisfy
the attendance requirement or academic satisfaction required
under Condition 8202(c) of the E.S.O.S. Act?
The case that deals with this point of law (which seems more
like a puzzle) is M.I.M.I.A. v Ahmed. In this case, the delegate
of the Minister for Immigration and Multicultural and Indigenous
Affairs cancelled Ahmed’s student visa prior to the scheduled
completion of the course in which he was enrolled.
The argument from the academic institution was that the
cancellation was on the grounds that the Respondent could not
satisfy the attendance requirement in the
Migration Regulations 1994 Cth, Sch 8,
item 8202(b) and would
therefore be unable to obtain a certificate from the
education-provider as required by Sch 8,
item 8202(c).
Just to refresh your memory on the above items, Condition
8202(b) stipulates that a student on a visa must attend their
course AT LEAST 80% of the time.
Condition 8202(c) stipulates that if there is no evidence that a
student has attended their course at least 80% of the time, then
they cannot complete their course at a satisfactory level.
When this matter was taken to the Migration Review Tribunal, The
tribunal found that by the time of cancellation, it was clear
that the Respondent would be unable to satisfy
Sch 8,
item 8202(c). The Tribunal proceeded on the basis that
the position was to be judged at the date of cancellation of the
visa, but took into account facts occurring thereafter in
assessing the position.
The decision made by the Courts was that the phrase “for the
course” meant that the course had to be completed.
Therefore, condition 8202(b) could only be breached where it is
impossible for the condition to be achieved by the end of the
course.
In addition, the Court held that there cannot be an anticipatory
breach of condition 8202(c). Rather
there has to be evidence that attendance was not evident before
looking at the satisfactory completion of the course studied.
There can be no such failure prior to the completion of
the course.
Conclusion
To answer the question posed at the start: the answer is no.
Unless there has been completion of the course studied, there
cannot be any anticipation that the requirements of condition
8202 of the Migration Regulations will be breached.
[Please note that this case-summary does not
take account of any actual or pending appeals against the case
analysed. Nor is any assessment (actual or pending) made of
possible changes to legislation that may counter the effect of
this case] |
