Is there anything you can do if your client has a student visa cancelled at the airport (in other words, while in immigration clearance) and is then taken into immigration pending immediate removal from Australia?

This is obviously a timely question given how much coverage there has been in the news media about people being detained at airports on the United States thanks to the Executive Order that was signed by the Grand Orange Bogeyman who now occupies the White House.

And it’s not a totally unheard of situation. There was a case with this situation that came before the Federal Courts last year. And there was a case like this in Australia right before Christmas last year, Kaur v Minister for Immigration and Border Protection (2016) FCA 3289 (22 December 2016).

These were the facts. The visa holder was a 21 year old citizen of India who had been granted a student visa in May 2014.  At the beginning of 2016 she enrolled in a diploma of hospitality course that was scheduled to continue through to the end of the year.  However, at some point in 2016, the visa holder had cancelled her enrollment.

When she was interviewed at the airport, the visa holder admitted that she had worked during the months of August and September 2016 (after she had cancelled her enrollment in the hospitality course) five days a week between the hours of 12:30 p.m. to 10 p.m.  And information found on her phone also confirmed that she had worked for more than 40 hours per fortnight in August and September 2016.

Is it time to stop reading and conclude that this visa holder’s case was fried? Well keep reading because there are some surprises at the end of this story!

The officer at immigration clearance had based the cancellation of the visa on an alleged breach of Condition 8105(1).

This condition provides:

“8105….(1)….the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session”.

When the case was before the Federal Circuit Court, one of the issues that was in contention was whether Condition 8105 should be interpreted to refer to the whole period of the course of study to which the applicant had committed, or rather only to periods when she was required to attend classes or to complete course work requirements.

However, when the case was appealed to the Federal Court, that Court (Judge Pagone) concluded that it was not necessary to decide the question.

Rather Judge Pagone concluded that the case could be decided on a fairly straightforward basis.

It was as follows: Because the applicant was not enrolled in a course of study at the time that she worked for more than 40 hours per fortnight, Condition 8105 did not apply to her at all. In other words, this Condition does not apply if the visa holder is no longer enrolled in a course!  And consequently, the visa cancellation that was premised on an alleged breach of Condition 8105 was therefore defective and was overturned in the Federal Court.

There was a second problem with the visa cancellation which provided a separate and independent grounds on which it was overturned.

In the Notice of Intention to Consider Cancellation, the officer at immigration clearance had referred not just to an alleged breach of Condition 8105, which was the formal grounds relied on for cancellation of the visa, but also to an alleged breach of Condition 8202 (which was not formally relied on as a ground for cancellation).

The NOICC was written in the following terms:

“…you have not complied with Condition 8105 of your visa because you have engaged in work in Australia for more than 40 hours a fortnight and also because you worked whilst not holding a certificate of enrolment and were not enrolled in any further course of study. These activities are not within the scope of activities allowed under Condition 8105.”

The problem here, as found by Judge Pagone, was that this NOICC referred to the fact that the applicant did not hold a current certificate of enrolment as grounds for finding an alleged breach of Condition  8105, when in fact the failure to have a current certificate of enrolment is not a breach of Condition 8105, but only of Condition 8202.

Due to the fact that the NOICC had “conflated”, or mixed together, two separate grounds for cancellation, and had actually misstated the grounds upon which a breach of Condition 8105 could be found  (incorrectly stating that failure to hold a current certificate of enrollment amounted to a breach of Condition 8105, when in actuality only Condition 8202 was conceivably breached), Judge Pagone found that the Department had failed to give the visa holder proper particulars of the grounds for the proposed cancellation (contrary to the requirements of sections 119 and 120 of the Migration Act,

And because the NOCC was defective, the visa cancellation premised on the defective NOICC was also defective.

So here are the morals of the story: Just because your client’s visa has been cancelled it is not the end of the story, they don’t need to pack their bags necessarily and there’s a chance you can spring them from detention.  There may be defects in the NOICC or the grounds relied on by the Department  that renders the cancellation void. It is essential to read the documents relied on by the Department with a close and careful eye because they may simply be wrong.


Courtesy of Migration Alliance
Posted by Michael Arch