'Unsatisfactory Results Due to Exceptional Circumstances - Beware of Notices Sent To You'

(by A.J. Aristei, independent Barrister)

Zhou v Minister for Immigration (No.1) – BC200511835

What is the best step to take when you have unsatisfactory results due to exceptional circumstances?

It may be difficult for international students to achieve satisfactory grades in a foreign country, where everything is different and they have few friends and family to rely on for support. If your education institution has certified that your results are not satisfactory, that means that you have breached one of the conditions of your visa and accordingly, your visa may be cancelled.

Normally, the DIMIA (Department for Immigration and Indigenous Affairs) will send you a letter, saying that if you report to them with an explanation of the breach, the automatic cancellation of your student visa will not proceed. Instead, a decision will be made as to whether or not to cancel your visa. However, beware of this notice! It may be misleading!

This was the case in Zhou v Minister for Immigration (No.1). Zhou, a Chinese girl, was the holder of an Australian student visa. Halfway through her stay, MIBT (where she was enrolled) sent her a letter notifying her that her grades were well below minimum standards, and that she had breached DIMIA visa conditions. Soon after, DIMIA also sent Zhou a notice similar to the one described in the previous paragraph.

Zhou diligently followed the notice and reported to the DIMIA, believing that, if she explained her situation, they may not cancel her visa. In fact, around the time of her unsatisfactory results, she was suffering from a depressive illness. During the interview, Zhou explained that this illness affected her ability to study. Nevertheless, the delegate of the DIMIA cancelled her visa.

Zhou appealed to the Migration Review Tribunal (MRT). However, because Condition 8202 is a mandatory provision, the MRT held that they could not overrule the delegate’s decision.

Zhou then appealed to the Federal Magistrates Court, hoping for some good news – but the Federal Magistrates Court agreed with the MRT! Luckily, Zhou was given another chance after the hearing to present further arguments arising from the Court’s decision.

Zhou’s lawyers argued that the DIMIA’s notice was defective. The law says that if a visa-holder has breached Condition 8202, the Minister ‘must’ cancel the visa (s116(1)). If a student is sent a notice (after breaching) and complies with the notice by going to the DIMIA to explain, his/her visa will not be ‘automatically cancelled’ (s137J). This creates an utterly confusing contradiction! In effect, the student receives a notice and tries to explain (rather than deny) their breach to the DIMIA, but the Minister must then cancel the visa, because the student has admitted to breaching! That is, once a student goes to explain their situation, their visa will not be ‘automatically’ cancelled, but it will be cancelled eventually. So what can one do when they want the visa reinstated? There seems to be no way out!

Luckily, s137J allows for revocation of the visa. This may be granted if the cancellation was due to exceptional circumstances beyond the control of the visa-holder. However, you are only allowed to apply for revocation if your visa is ‘automatically cancelled’ (and the only way your visa is automatically cancelled is if you did not comply with the notice!). If the revocation is granted, then the original breach (here, the achievement of unsatisfactory results) cannot be a reason for cancelling the visa. Therefore, it seems that in Zhou’s case, the best way out for her was not to have complied with the notice in the first place, and then applying for a revocation of her visa! If this revocation had been granted to Zhou, her breach could not then be used as a ground for having her visa cancelled. The judge himself even admitted that this was the best step to take!

Conclusion

For visa holders who have breached Condition 8202 due to exceptional circumstances, such notice may be like a trap. Sometimes, not complying means you may have the chance to revoke your visa, leading to much better results. If you are unsure of what course of action to take, it is recommended that you obtain legal advice as soon as practicable.

As a side issue, the Court in Zhou’s case ordered the MRT to review the decision to cancel Zhou’s visa on the basis that the notice was misleading.