‘Sufficient Cancellation of a Student VISA’

(by A.J. Aristei, independent Barrister)

Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1934

Any overseas student that is studying in Australia must do their best in their studies. This means making sure they attend their classes at least 80% of the time or participate at least to a satisfactory level in their classes. If this is not maintained they could find themselves in the position of Chen.

As you are most probably aware you are subject to the Education Services for Overseas Students Act 2000 (ESOS).  In this Act there are many conditions as to the conduct of student visas, but most importantly the requirements for the cancellation of a student visa.

In the case Chen v Minister for Immigration and Multicultural and Indigenous Affairs, the issue of revoking a cancellation of a student visa arose.

In this case Chen was a student from the People’s Republic of China and was in Australia studying Business on a temporary student visa.

During this time, Chen was studying at Curtin University and unfortunately became ill and stressed. As a result he was not able to attend many classes and handed in work that was unsatisfactory. This became a problem for Chen as it meant that he had breached the conditions set out in the ESOS Act.

Chen breached two conditions:

1. Condition 8202 (3) (a). This condition stated that the holder of a student visa must attend for at least 80% of the contact hours scheduled.
2. Condition 8202 (3) (c) stipulated that the holder of a student visa must achieve an academic result that is at least satisfactory.

Curtin University notified Chen advising him that he had breached a condition of his student visa, and that his performance and attendance was poor. He was further notified that his student visa would cease on the 28^th day after the date of the notice unless he reported to the DIMIA by that date. Due to Chen’s circumstances, he did not respond to the notification within the prescribed period, and therefore his visa was cancelled. Chen proceeded to apply to the Minister for a revocation to the cancellation of his student visa (this is found in section 137K of the Migration Act) however he was unsuccessful.

Chen’s argument was that he did attend at least 80% of his contact hours and that he was not given the notice from DIMIA that he was expecting. In addition, Chen had medical certificates excusing himself from attendance to Curtin.

Chen took this matter to the Migration Review Tribunal, where they determined that Chen’s illness and stress was not an emergency.

Chen proceeded to take the matter further to the Federal Court of Australia where it was held that the Migration Review Tribunal made an error in jurisdiction. This is because a finding had to be made as to Chen’s failure to achieve a satisfactory academic performance was a result of his medical condition. This meant that his medical condition had to amount from exceptional circumstances beyond his control NOT whether the emergency circumstances were beyond his control. In plain terms this means that the Migration Review Tribunal asked itself the wrong question and because of that fell into Jurisdictional error.

In conclusion Chen was successful in his claim and the matter was referred back to the Migration Review Tribunal.

What is important to note about this case is if a student visa is cancelled because attendance was less than 80% or if your academic performance is less than satisfactory then a good excuse is needed when applying to the Minister for a revocation of the cancellation. This excuse must satisfy the requirements of whether achieving a less than satisfactory performance was a result of your medical condition, which amounted to exceptional circumstances beyond your control. This means that the circumstance must be unusual and beyond your own doing. In addition, you should also note that it is not enough to use the excuse that you were unaware of the notice for cancellation. This is because the minister is not entitled to revoke the cancellation just because you were not aware of the notice or the effect of s137 (J).