Chapter 10 - Student visas
10.1
This chapter will consider specific issues raised during
the committee's inquiry about the operation and administration of the Migration
Act in relation to overseas students, including:
-
key legislation relating to overseas students;
-
the importance of overseas students to
Australia;
-
student awareness of migration law and policy;
-
the cancellation of student visas;
-
student visa administration and enforcement
issues; and
-
detention of students.
Relevant legislation
10.2
Under the Migration Act and Regulations, people who are
not Australian citizens or Australian permanent residents can be granted a visa
to study in Australia.
There are currently seven student visa subclasses for overseas students
enrolled in registered courses. The subclasses generally relate to specific
education sectors, such as 'schools' (subclass 571) or 'higher education' (subclass
573).[1027] A range of conditions can
be imposed on student visas under the Migration Regulations, such as work
limits, and performance and attendance requirements. Some of these conditions will
be considered further where relevant below.
10.3
The Department of Education, Science and Training
(DEST) also regulates education and training services to overseas students in
Australia through the Education Services
for Overseas Students Act 2000 (ESOS Act) and associated legislation.
According to the DEST website:
The purpose of the [ESOS Act and associated] legislation is to
protect the interests of people coming to Australia
on student visas, by providing tuition and financial assurance and by ensuring
a nationally consistent approach to provider registration. The legislation also
seeks to ensure the integrity of the industry through visa-related reporting
requirements.[1028]
Review of the ESOS Act
10.4
The ESOS Act was recently reviewed, and the report, Evaluation of the Education Services for
Overseas Students Act 2000 (ESOS Evaluation Report), was published in June
2005.[1029] The ESOS Evaluation Report
made a number of recommendations, mostly relating to amendments to the ESOS Act
and the associated National Code of
Practice for Registration Authorities and Providers of Education and Training
to Overseas Students (the National Code). However, some recommendations were
also made in relation to migration legislation and policy, including:
-
that the National Code, Migration Regulations
and student visa conditions be amended to reflect basic principles in relation
to issues such as full-time study, completion of course requirements, and
student attendance and performance; and to remove 'outmoded assumptions about
educational practice that inhibit providers' ability to support visa
integrity';[1030]
-
that restrictions on students changing their
education provider be transferred from the Migration Regulations to the
Regulations under the ESOS Act;[1031] and
-
that DIMIA consult with DEST with a view to amending
the Migration Regulations to enable the three-year exclusion period (against a
student whose visa has been cancelled for not meeting course requirements) to
be waived under certain circumstances.[1032]
10.5
In response to the Committee's Questions on Notice,
DIMIA noted that it was currently considering the implications of the
recommendations made in the ESOS Evaluation Report. DIMIA observed that, if
implemented, the recommendations may require amendments to the Migration
Regulations and DIMIA systems, policies and procedures. DIMIA noted that it was
consulting closely with DEST on progressing the recommendations relating to the
ESOS Act, Regulations and National Code. DIMIA advised:
When the DEST response is more fully articulated, DIMIA will
need to take the necessary steps to implement the required changes in our
Regulations.[1033]
10.6
Other findings and recommendations of the ESOS
Evaluation Report are considered where relevant throughout this chapter.
Importance of overseas students to Australia
10.7
Some submissions pointed out the importance of overseas
students and the 'education export industry' to Australia.[1034] Similarly, the ESOS Evaluation Report
declared that education is now Australia's
third largest service export industry, and pointed to recent studies which:
...estimate that incoming international students spent $5.2
billion in 2002 on tuition fees, goods and services, and that the economic
activity this generated had an employment impact of about 42,650 jobs.[1035]
10.8
DIMIA provided statistics indicating that, in the last
three years, around 170,000 student visas have been granted each year. The
majority of these student visas grants were for the higher education sector.[1036] Indeed, the Law Institute of
Victoria (LIV) suggested:
...Australian tertiary education providers have also become
substantially reliant upon income generated through full fee paying overseas
students.[1037]
10.9
Ms Jockel
of the Law Council of Australia (LCA) observed that Australia
is competing globally for students, and as a result, we need to consider how
our immigration law and policies may affect our international reputation:
We are competing with the US, Canada
and England for
the same international students, and we are competing with the offshore campuses
which are now being developed in Asia. If we lose this
source of revenue, we are going to suffer as a nation.[1038]
10.10
Ms Michaela
Rost, whose submission focussed on the issue
of student visas and detention of international students, expressed concern
that, under Australia's
migration system:
...despite students' significant payment for education services
and their economic contribution to Australia's sixth largest export industry,
as trading partners, they seem to receive little understanding, assistance or compassion
in exchange, and have instead been subject to harsh, uncompromising and unjust
treatment.[1039]
Student awareness of migration law and policy
10.11
The committee heard evidence of the need to ensure
international students are made sufficiently aware of Australia's
immigration system, and that education agents need to be better regulated in
this context. For example, Ms Michaela
Rost argued that education agents:
...may not be adequately and correctly informing prospective
students about the complexities and implications of Australian immigration laws
pertaining to visas and extensions. Students may also be lured to study in Australia
under misleading information about education providers. These agents, well paid
by Australian universities (up to $900 per student they enrol), are not
accountable to any Australian regulatory body.[1040]
10.12
The Migration Institute of Australia (MIA) expressed
similar concerns about the lack of regulation of education agents operating
overseas:
Unregistered agents including education agents soliciting
students from overseas for universities continue to provide visa assistance ... and
continue to have unfettered access to DIMIA at all levels.[1041]
10.13
The MIA told the committee
that it has:
...repeatedly sought with DIMIA and successive Ministers to enforce
the provisions of the Act where such practices are occurring. Some of the
unethical behaviour and exploitation of clients by such unregistered people has
been well documented across a wide range of the media.[1042]
10.14
The MIA reported to the committee
its understanding that:
Current DIMIA plans are to give these people [education agents] a
new ID number which will is similar to that given to Registered Migration
Agents, so that they may access DIMIA for their clients. Yet there is still no
regulation of unregistered agents, no legally enforceable code of conduct for
them, and no fees to pay DIMIA. An Australian Registered Migration Agent spends
up to $6000 per year in direct costs including statutory fees to MARA
[Migration Agents Registration Authority], insurance and compulsory continuing
education costs, just to remain registered. An Australian registered agent is
subject to a well developed and serious complaints handling system where
serious misbehaviour may cause them to have their registration (practicing
license) cancelled.[1043]
10.15
The MIA continued:
Unregistered overseas agents and domestic education agents face
none of these requirements, yet DIMIA intends to allow them to continue to
operate alongside Australian registered agents. We put the obvious questions to
this inquiry: Where is the justice and equity in allowing this situation to
continue? And in doing so, how can DIMIA be said to be acting in the interests
of all Australians?[1044]
10.16
Ms Rost
was further concerned that:
...in the huge marketing campaigns and expos by universities prior
to arriving here, prospective students are never told by education recruitment
agents that students may be ‘detained’ on cancellation of visa, and what
‘detained’ really means...It is unlikely that they even know about detention. Such
information would not enhance a university’s marketing strategy. [1045]
10.17
Ms Rost
concluded that the Australian Government has a:
...duty of care to ensure that prior to arrival, overseas students
are thoroughly informed about all details of immigration and visa laws through
its embassies, as well as by its universities and education providers.[1046]
10.18
The committee questioned DIMIA as to the measures it
has put in place to ensure that overseas students are aware of the requirements
of their visa and the consequences of not meeting such requirements. DIMIA
replied that it has a range of measures in place, including:
-
the visa approval letter sent to students which
provides information about their visa, and the conditions that have been
imposed on the visa;
-
regular outreach activities by DIMIA's state and
territory offices, including information sessions for international students at
universities and other institutions during student orientation periods. Visa
conditions, particularly those relating to study and work, are a central focus
of these sessions;
-
training for education agents, conducted by DIMIA
migration officers based in Australian missions overseas, to assist agents in
advising clients about student visa requirements; and
-
information about visa conditions on DIMIA's
website.[1047]
10.19
In relation to the regulation of education agents, a
representative of DIMIA explained that, where they are playing an immigration
advisory role, education agents are required to be registered if they are
within Australia.
However, the representative also acknowledged that offshore education agents
are not required to be registered.[1048]
10.20
The representative further told the committee that this
issue was being examined, and that DIMIA would:
... work with the education industry onshore to encourage more
education agents to become MARA [Migration Agents Registration Authority] registered
... Offshore, we are consulting with the industry on the possibility of a
legislative change that will remove the requirement for a migration agent to be
either an Australian citizen or a permanent resident. That would enable
overseas education agents to at least have the option of becoming MARA
registered, and thereby to come within that framework. [1049]
10.21
The representative explained that DIMIA was also trying
to train and encourage education agents to enter into administrative contracts
with DIMIA. The representative told the committee that this would mean the
agents are:
...committed to abiding, at least administratively, by a code of
conduct and a code of behaviour associated with the lodgment of electronic
student visa applications...we believe it is the most practical way of going
forward in the interests of Australia’s education industry, the interests of
the overseas students and the interests of the agents themselves.[1050]
10.22
The committee notes that the ESOS Evaluation Report
recommended that the National Code and the Migration Regulations be revised to
require DIMIA and education providers to inform each other of concerns with an
education agent in relation to immigration and visa-related matters.[1051]
Student visa cancellations
10.23
A key concern raised during the committee's inquiry was
the problem of the cancellation of student visas, and in particular, the
inflexible provisions of the migration legislation in this area.
10.24
A number of conditions can be imposed on student visas
under the migration legislation.[1052]
One of the key conditions raised during the committee's inquiry related to the
work limits imposed on student visas.[1053]
First-time grants of student visas initially have a condition that the visa
holder is not permitted to work.[1054]
However, once in Australia,
a student can apply for permission to work. If granted permission, that student
must not work for more than 20 hours a week during any week when their course
is in session (under 'Condition 8105').[1055]
Importantly, a breach of this condition is grounds for mandatory cancellation
of a student's visa. That is, where the grounds for cancellation are
established, the visa must be
cancelled.[1056]
10.25
Another key condition raised during the committee's
inquiry was 'Condition 8202', which requires the visa holder to satisfy certain
enrolment, attendance and course requirements (such as academic results).[1057] Again, breach of this condition is
grounds for mandatory cancellation of a student's visa.[1058] However, DIMIA informed the committee
that the Migration Regulations were amended on 8 October 2005 to allow for 'exceptional
circumstances beyond the student's control to be taken into consideration prior
to cancelling a student visa for a breach of condition 8202'.[1059]
10.26
Ms Michaela
Rost was highly critical of these mandatory
cancellation provisions. Ms Rost
recognised that the relevant provisions were 'designed to guard against a
minority of non-genuine students from abusing Australia's
immigration laws',[1060] but still considered
the migration legislation to be 'unforgiving'.[1061] For example, Ms
Rost described the work limits in condition
8105 as 'draconian' because:
A student can have worked two hours more and then have the
entire visa cancelled and be sent back, even if they are one subject off a
master’s degree.[1062]
10.27
Ms Rost
further argued that:
The conditions of the visa are just totally unrealistic for the
needs of students because a lot of them need to work here to pay for living
costs ... They should be allowed to work for longer. There should not be blanket
cancellation of the visa and then possible detention.[1063]
10.28
The LIV recognised that visa conditions, such as the
work limits and attendance requirements, are based on genuine concerns that
student visas should not be misused for other purposes, such as obtaining work
in Australia.
At the same time, the LIV expressed concern about DIMIA's enforcement of those
conditions.[1064] This is discussed
further later in this chapter.
10.29
A representative of DIMIA acknowledged that the work limit
conditions under the Migration Regulations 'do not provide a significant degree
of flexibility', and that this is something that the DIMIA was 'looking at'.[1065] However, the representative
maintained that the work limit itself of 20 hours was quite generous.[1066]
10.30
More generally, Ms
Rost pointed out the high financial and
personal impact of a student visa cancellations on those students:
... because they now do not have a student visa, they are no
longer considered to be a student, despite having paid fees in advance, having
study materials in their possession, and their parents owing vast sums of money
for their Australian education.[1067]
10.31
Indeed, Ms Rost
gave the committee a number of unfortunate and distressing examples of students
who had found themselves in this situation.[1068]
Ms Rost
argued that automatic cancellation for breach of a student visa is too harsh a
penalty:
... for the seemingly minor offences that constitute a breach of
the student visa, a draconian punishment is meted out – the visa is cancelled,
the student is immediately relegated to “unlawful non-citizen” status must
leave the country within 28 days – unless he/she appeals against the decision,
a process taking up to 6 months and [which] prohibits study.[1069]
10.32
Ms Rost
suggested that a system of fines for breaching visa conditions may be more
appropriate.[1070]
10.33
The ESOS Evaluation Report also expressed concern about
the lack of flexibility in relation to non-compliance with student visas:
The 'all or nothing' nature of present requirements for
providers to report students for breach of their visa conditions has brought
the full weight of DIMIA's compliance processes into play too early and the
provider has insufficient flexibility to make educational judgements.[1071]
10.34
The ESOS Evaluation Report concluded that this inflexibility
was part of the reason for the high number of student visa cancellations.[1072] Indeed, the figures provided by
DIMIA indicated that, for the last three years, around 8,000 student visas have
been cancelled each year.[1073] Although
the ESOS Evaluation Report noted that in 2003 the actual number of student visa
cancellations (8,243) represented a small proportion of the total number of
international students in Australia
(303,324), it considered that the overall level of student visa cancellation
was 'too high'.[1074] Ms
Rost pointed out that student visa
cancellations represented around one-third of total visa cancellations.[1075]
10.35
Nevertheless, DIMIA's 2004-05 Annual Report noted that
'since the student visa reforms of 2001 there has been a steady improvement in
compliance levels against all key indicators.'[1076] In particular, DIMIA reported that
'the number of student visa holders who became unlawful in 2004-05 was 1,514, a
33 per cent decrease on the 2003-04'.[1077]
10.36
A representative of DIMIA explained to the committee that
DIMIA was working to ensure that it got the 'balance right' in relation to
student visa cancellations. The representative noted that DIMIA was consulting
with industry, DEST and other government agencies (particularly state
government agencies) with a view to making improvements in this area. The
representative was hopeful that:
...as a result of those consultations, a set of arrangements will
emerge which is both suitable to the industry and also suitable to ensuring
immigration integrity.[1078]
Appeals of student visa
cancellations
99.1
The committee heard that a related problem is the high,
and growing, levels of appeals of student visas. For example, Ms
Rost estimated that 12% of all students with
visa cancellations appeal to the MRT.[1079]
The ESOS Evaluation Report noted that there has been a growth in the number of
appeals to the MRT in relation to cancellations of student visas.[1080] The ESOS Evaluation Report commented
on the high proportion of visa cancellations set aside by the MRT — 'averaging
39 per cent over the last three years.'[1081]
The committee notes that this effectively means that over one in three
cancellation decisions by DIMIA which are appealed in the MRT are overturned. The
committee considers that this rate is unacceptably high, particularly given the
consequences suffered by students whose visas are wrongly cancelled. These
consequences include personal and financial hardship for both the student and
their family, not to mention the possibility of ending up in immigration detention.
10.37
These problems are exacerbated by the delays in
finalising appeals in relation to those cancellations. For example, the ESOS
Evaluation Report found that:
This high rate [of visa cancellations being set aside] is
compounded by the lengthy time taken to finalise appeals, which in 2003–04
averaged five and a half months.[1082]
10.38
DIMIA responded to these concerns by telling the committee
that:
All student visa cancellation cases are allocated Priority 1
(highest priority) status, and the Tribunal aims to finalise student visa
cancellation cases within 90 calendar days... In 2004-05, the average processing
time for all student visa cancellation cases was 152 calendar days. For
applicants in detention, the average processing time was 91 calendar days.[1083]
10.39
DIMIA also noted that applicants can contribute to
delays:
In individual cases, there may be requests from applicants for
hearings to be rescheduled or for applicants to be given more time to present
submissions or further evidence.[1084]
10.40
Nevertheless, the ESOS Evaluation Report found that the
rates and timeliness of appeals:
... imposes financial and emotional burdens on students, costs on
DIMIA and providers dealing with visa cancellation issues, and unnecessary
administrative complexities for those managing international student
programmes.[1085]
10.41
Ms Rost
also told the Committee that students with cancelled visas can end up resorting
to other avenues, such as applications for refugee status, which are unlikely
to be successful, and merely result in further appeals and time in detention.[1086]
Administration and enforcement issues – recent cases
10.42
The committee was also told of two recent Federal Court
cases which have highlighted concerns about DIMIA's approach to administration
and enforcement of student visas.
10.43
The first case, Uddin
v Minister for Immigration and Multicultural and Indigenous Affairs,[1087]
related to notices given to student visa holders. According to DIMIA, the
court in this case found that:
... a defective form was used to advise some students that they
had breached their conditions. The court found the form did not meet mandatory
legislative requirements setting out to whom and where students need to report
to DIMIA after being notified that they had breached their conditions (the form
indicated students should report to a compliance officer when it should have
said to any DIMIA officer and it also indicated the nearest specific DIMIA
office when it should have said any DIMIA office).[1088]
10.44
DIMIA explained that the relevant form was revised in
July 2005, but that the case affected all cancellations of student visas under
section 137J of the Migration Act between May 2001 and 16 August 2005. DIMIA told the committee that
it had:
...decided that the best way to deal with this situation was to
reverse on DIMIA systems all section 137J cancellations recorded in this period.[1089]
10.45
DIMIA continued:
Some 8,450 section 137J cancellations were reversed. Most such
visas would have in any case expired and some people have other visas. As at 4 October 2005, there are 625
people in Australia
with a current resurrected student visa.[1090]
10.46
DIMIA also told the committee that DIMIA would be
seeking a single blanket debt waiver for students found to be affected by the Uddin decision.[1091] Finally, DIMIA noted that it had developed
a 'comprehensive information campaign to advise students who may be affected by
the decision' and its consequences.[1092]
10.47
However, the committee understands that most of the 8,450
students affected by DIMIA's actions have left Australia
and returned home, presumably after some
considerable cost to themselves and their families. The Committee also
understands that those affected students located by DIMIA would be advised that
they could return to study if their institutions would have them. If not, or if
their visas had expired, they would be offered bridging visas, while they applied
for a regular visa.[1093]
10.48
More troubling to the committee was the recent case of Minister for Immigration & Multicultural
& Indigenous Affairs v Alam,[1094]
where the Federal Court considered the work limits condition on student visas. This
case highlighted considerable concerns in relation to DIMIA's approach to compliance
and enforcement of student visa conditions. For example, the LIV suggested that
the case:
... dentified alarming concerns about DIMIA's 'manner of its
enforcement' of student visa conditions which 'go beyond the terms of the
regulation'.[1095]
10.49
The case concerned Mr
Alam, whose student visa was cancelled after
DIMIA officers came to his home, looking for someone else, and subsequently
searched Mr Alam's
room and belongings.[1096] During that
search, the officers found payslips and then cancelled Mr
Alam's student visa on the basis of their
interpretation that he had breached condition 8105 of his visa by working 22¼
hours in a week, rather than the permitted 20 hours.[1097]
10.50
The main issue in question in this case related to the
definition of a 'week'. However, in coming to its decision (to dismiss the
Minister's appeal), the Federal Court was very critical of the treatment of Mr
Alam and the conduct of DIMIA officers. In
particular, Justice Wilcox felt the case raised 'disturbing questions.'[1098] He described the relevant
migration regulation as providing a 'drastic, non-discretionary penalty'.[1099] However, Justice Wilcox further commented
that:
Concerns about this case go beyond the terms of the regulation.
They extend to the manner of its enforcement. By what right did the DIMIA
officers enter and search Mr Alam's
home and take away his payslips? They had no search warrant. Nothing in the Migration Act 1958 (Cth) confers on
DIMIA officers such extraordinary powers. Counsel for the Minister was unable
to point us to any legislative provision authorising such conduct.[1100]
10.51
Justice Wilcox
continued:
Even if the DIMIA officers had power to do what they did, why
did they act in such a heavy handed fashion? Mr
Alam's request to be allowed to put on a
shirt before he was taken to Lee Street was entirely reasonable. Unless it was
to humiliate him, what reason could the DIMIA officers have had to refuse this
request? After his interrogation, Mr Alam
was informed he would be detained unless he could put up a $10,000 bond. It was
unlikely in the extreme that he was carrying that amount of money on his
person, yet he was refused the opportunity of telephoning his sister for
assistance. What reason could there have been for that refusal? [1101]
10.52
Finally, Justice Wilcox
observed:
[Visa] control should be firm, but it should be exercised in a
fair and courteous manner. Inappropriate regulatory provisions and heavy-handed
enforcement are likely adversely to affect our international reputation and
ultimately to undermine the overseas student program itself. [1102]
10.53
DIMIA acknowledged that the Full Federal Court in this
case was 'highly critical of alleged conduct by departmental officers', and
told the committee that the allegations 'are taken seriously by the Department',
as detailed in Chapter 2.[1103] DIMIA
told the Committee that as a response to criticisms about its compliance
actions, $50.3 million would be spent to establish a College
of Immigration Border Security and Compliance
in 2006. DIMIA explained:
This college will provide new compliance and detention staff
with a 15 week induction program and existing staff in border security and
compliance areas will complete regular refresher training each year.[1104]
10.54
DIMIA further explained that 'there will also be
enhanced training for compliance and detention staff in the period leading up
to the establishment of the college,' and that 'DIMIA is also reviewing its
procedures and policy to enhance openness and accountability, and improve its
service to clients.'[1105]
Detention of students
10.55
Another concern raised with the committee was that some
international students, whose visas are cancelled, end up in immigration
detention. Ms Michaela
Rost was concerned the consequences can be
quite severe for a student whose visa is cancelled:
...they become unlawful citizens and may be detained before being
required to leave the country. If they then decide to contest the alternative
of deportation but cannot afford a bond of up to $10,000 for the granting of a
bridging visa, some overseas students have continued a nightmarish journey in
detention rather than returning home to face disgrace for their family, huge
education debts incurred, a totally ruined reputation and great mental stress.[1106]
10.56
Ms Rost
acknowledged that only a minority of students end up in longer-term detention –
usually those who decide to contest their visa cancellation and deportation.[1107] Nevertheless, Ms
Rost suggested that very few Australians,
including those in educational institutions, are aware that international
students have been, and are being, detained under Australia's
immigration detention system.[1108] Mr
Rost claimed that: 'Australia's
unique mandatory detention policy makes this the only country in the world to
incarcerate some of its full fee paying international students'[1109] and that:
Students detained for both short and long terms have been
severely punished for the relatively very minor offences constituting a breach
and are held strictly accountable.[1110]
10.57
However, Ms Rost
noted that it has been difficult to establish how many students with cancelled
visas have been detained in immigration detention facilities, and the length of
the detention of those students.[1111]
10.58
The committee notes that DIMIA has previously advised
that:
Generally overseas students are only detained for short periods
and are often granted bridging visas or if appropriate they are removed within
a short time of becoming lawful. If a former student visa holder is detained
for anything more than a matter of days, it is usually because of issues which
are not directly relevant to their stay as a student.[1112]
10.59
Further, DIMIA also informed the committee that 'most
persons who have had a student visa cancelled are granted a bridging visa
pending the outcome of the MRT's review'.[1113]
10.60
In terms of the time spent in detention, DIMIA reported
to the committee that between September 2002 and 21 October 2005, 1,375 people were detained 'as a direct
result of overstaying their student visa or having their student visa
cancelled.'[1114]
10.61
DIMIA provided information on the length of time spent
in detention by these 1,375 people (see Table 10.1 below). The committee notes
that other evidence provided by DIMIA indicated that one former student visa
holder (who was subsequently released on a Bridging Visa E) spent 2 years and 4
months in detention.[1115]
Table 10.1: Periods of detention – former student visa
holders
|
Period of detention |
Number of People Detained |
|
Less than a day |
34 |
|
1 to 7 days |
596 |
|
1 to 4 weeks |
514 |
|
1 – 3 months |
168 |
|
3 – 6 months |
32 |
|
6 – 12 months |
24 |
|
1 year or more |
7 |
Source: DIMIA answers to Questions on Notice, 5 December 2005, p. 104.
10.62
As both Ms Rost and DIMIA pointed out, there have been
a wide range of outcomes in the cases of former student visa holders held in
detention, including: the grant of a bridging visa; the cancellation being overturned;
a criminal justice visa grant; departure from Australia; or the grant of a temporary
or permanent substantive visa. For example, according to DIMIA, during 2004-05:
-
155 former student visa holders who had been
detained subsequently departed at their own expense;
-
244 former student visa holders were recorded as
having been removed (some of these may have departed voluntarily); and
-
153 former student visa holders were released
from detention on a Bridging Visa E.[1116]
10.63
However, Ms Rost
argued that former student visas holders who are released on a Bridging Visa E
will still have considerable problems completing their studies, because this
visa 'prohibits work, study or Medicare'.[1117]
10.64
Further, the committee also heard that many students
who have been held in immigration detention have accrued detention debts. For
example, Ms Rost
gave the example of a former student visa holder who was detained for two
years, and who accrued a detention debt of $97,000.[1118] In answers to Questions on Notice,
DIMIA reported that, as at 7 October
2005, there were 17 students in detention who had accrued a debt.
The total amount of debt accrued by these students was $394,447. However, DIMIA
declined to provide the details of the individual amounts accrued by each
student 'because it would enable the identification of individuals'.[1119].
Committee view
10.65
The committee acknowledges concerns raised in evidence
in relation to the treatment of overseas students under the Migration Act and
Regulations.
10.66
In particular, the committee is concerned by the levels
of student visa cancellations, and the fact that a number of students are
finding themselves in immigration detention. The committee considers that this
has negative consequences both in terms of the personal impacts on overseas
students, as well as the negative impacts on the wider 'education export
industry'.
10.67
The committee recognises the importance of compliance
with student visa conditions – particularly academic performance and attendance
requirements. However, the committee believes that there are considerable
problems with the restrictive and inflexible nature of the legislative
provisions relating to student visas. In particular, the committee is concerned
that the mandatory visa cancellation provisions under the Migration Regulations
allow for no discretion and little consideration of the circumstances
surrounding an alleged breach of a student visa.
10.68
The committee is pleased to note that the Migration
Regulations were amended on 8 October 2005 to allow for 'exceptional
circumstances beyond the student's control to be taken into consideration prior
to cancelling a student visa for a breach of condition 8202' (which relates to
academic and performance requirements). However, the Committee considers that
such changes could have gone further.
10.69
For example, in
relation to the work limits conditions (Conditions 8104 and 8105), the Committee
is satisfied that the policy of imposing work limits on students is
appropriate. However, the Committee agrees with the evidence that the mandatory
cancellation provisions for an alleged breach of such work limits are draconian
and heavy-handed. The Committee notes that DIMIA acknowledged that the lack of
flexibility in the regulations in this area could be addressed.[1120]
10.70
The committee considers that a more flexible and
compassionate approach should be taken in relation to the cancellation of
student visas. The committee also believes that this may help to reduce the
high levels of student visa cancellations and, in turn, reduce the number of appeals
of such cancellations and the rates of detention of international students. In
particular, the committee recommends that the Migration Act and Regulations be
amended to allow for greater flexibility and discretion in dealing with
breaches of conditions of student visas.
10.71
Specifically, the committee recommends that
consideration be given to replacing the current provisions requiring mandatory
cancellation, with a rebuttable presumption in favour of cancellation. This
would satisfy the legitimate policy objectives of creating an incentive for
compliance and thereby help to prevent abuse of the student visa system. It
would however, introduce an element of flexibilitiy in cases where a student
can show, in all the circumstances, that the visa should not be cancelled.
Recommendation 61
10.72
The committee recommends that the Migration Act and Regulations
be amended to allow for greater flexibility and discretion in dealing with
breaches of the conditions of student visas.
10.73
In the committee's opinion, another key problem with
the student visa regime relates to the inappropriate administration and
enforcement of the Migration Act and Regulations. Indeed, the committee
considers that the issues raised in relation to the treatment of student visa
holders are a good example of the wider cultural problems within DIMIA. The committee
notes DIMIA's evidence that it is working to address these issues and
encourages DIMIA to continue its efforts in this area.
10.74
Finally, the committee notes that the recommendations
of the ESOS Evaluation Report may also assist in addressing many of the issues
and concerns raised in relation to student visas. The committee therefore
recommends that the recommendations of the ESOS Evaluation Report continue to
be implemented as a high priority.
Recommendation 62
10.75
The committee recommends that the recommendations of
the Evaluation of the Education Services
for Overseas Students Act 2000 continue to be implemented as a high
priority.
Senator
Patricia Crossin
Chair
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