CHANGE TO THE STUDENT VISA PROGRAM AN OVERVIEW

On 27 March 2000, Senator Patterson, the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs announced a number of changes to Australias Student Visa Program aimed at better targeting those markets which attract genuine overseas students. At the same time, it was announced that the Government intended to strengthen the action the Government could take against students who abuse their visa conditions. The changes are outlined below.

The New Student Visa Sub-Classes

The current single student visa class will be broken down into separate visa classes to address the needs of each education sector. Individual criteria and visa conditions will be developed to allow for relevant variations between education sectors.

The new arrangements will see visa criteria modified to reflect the fact that some categories of applicants in some countries require closer scrutiny than others. They will replace the current gazetted/non-gazetted country regime and the Special Entry Arrangements for students from the PRC. Objective and measurable indicators of risk posed by students from individual markets who commonly fail to comply with their visa conditions have been developed in close consultation with the international education industry. The objective of the re-structured student visa program is to have a more flexible and responsive process which provides for greater transparency, certainty and consistency in student visa decision-making.

Notification of non-compliance

The visa cancellation processes for students who do not abide by the conditions of their visa will also be streamlined. When a student fails to satisfy course requirements (ie. Is in breach of student visa condition 8202 relating to attendance and academic performance), the education provider will be required to notify both the student and DIMA of this in writing. The student will be advised that they have 28 days in which to attend a specified DIMA office to resolve the matter. Failure to report will result in automatic visa cancellation and the student will be subject to removal from Australia unless cancellation is reversed. Automatic student visa cancellation will be prevented if the student reports to DIMA as required.

Pre Qualified Institution (PQI) Concept

The concept of the Pre-Qualified Institutions (PQI) has been continued. This allows selected education providers with a proven ability to attract and retain genuine overseas students to have students proposed by them or their agents to receive streamlined processing of their student visa applications.

PQI providers currently participating in the PQI pilot have been allocated a new quota of students for 2000 the same number of places as they had in 1999. 2001 will see a preferred processing regime in which students proceeding to study with providers who meet particular benchmarks will receive accelerated visa processing. Students wishing to study with other providers will have their applications more closely scrutinised.

The benchmarks against which providers and their agents will be measured for this purpose will be developed in consultation with industry. Providers will also receive training on the visa application process directed at assisting their performance in emerging markets.

The Student Pack

A detailed booklet is being developed as a comprehensive guide to the new student visa application process. Initially, from July 2001, this will only be available on DIMAs student website but hard copies will probably be available from November 2001 at a cost of $10.00. The packs will be market specific and will be made available over the Internet and at DIMA offices in Australia and at overseas posts.

Other measures

Other measures announced by the Government include changes to the Education Services to Overseas Students (ESOS) Act aimed at improving services offered to international students. The measures will also, hopefully, curtail the activities of unscrupulous education providers. The measures include:

Electronic Confirmation of Enrolment (eCoE)

The Electronic Confirmation of Enrolment (eCoE) will improve the integrity of the recruitment of international students to study in Australia. It will enable the Government to maintain information which tracks students progress from enrolment to course completion, with appropriate links between visa application, visa grant, arrival in Australia, commencement of the course, course completion or other outcome, and departure from Australia. The eCoE will also enable analytical data to be collected to monitor the compliance of particular cohorts of students and the relative performance of agents and providers.

Minister for Immigration and Multicultural Affairs power to suspend visa grants to a provider

The Minister for Immigration and Multicultural Affairs, following consultation with the Minister for Education, Training and Youth Affairs, will also be able to suspend, for a period of 6 months, the processing and grant of visas to students who propose to study with a provider identified under particular performance benchmarks as not meeting appropriate performance standards. The decision will be made personally by the Minister and will not be subject to merits review.

Students Address

All overseas students will be obliged to ensure that their education provider is advised of their current residential address and of any subsequent change of address.

The ESOS Act will be amended to require providers to maintain a record of students addresses. This record must be made available to DIMA or DETYA on request.

Information Links

Amendments to relevant DETYA and DIMA legislation permits information about students and providers to be shared between agencies with an interest in education services for overseas students.

Timing

The complexity of the changes and the need for ongoing consultations with industry has resulted in a staggered implementation of the changes:

. The extension of the PQI program commenced for most participating providers in about November 2000 to give providers time to plan for the first semester 2001;

. New visa subclasses, replacement of the PRC special entry requirements and the new student packs will be in place from 1 July 2001.

. The electronic Confirmation of Enrolment will be implemented in two stages: Stage 1 commenced in July 2000 and Stage 2 is expected to commence in about April or May 2001 information seminars for providers have been delivered by officers of DETYA.

. Work is also ongoing to achieve the lawful transfer of data between agencies to better monitor the performance of students agents and providers.

. The Minister for Immigration and Multicultural Affairs power to suspend visa grants, automatic visa cancellation and data transfer are all measures set out in primary legislation which received the Royal Assent on 21 December 2000. There will be various commencement dates for the provisions of the enactments staggered from commencement on date of Royal Assent to about 4 June 2001 in the case of most of the DETYA sponsored provisions.

. The requirement for students to notify providers of their address and the new procedures for notification of non-compliance with the requirement to satisfy course requirements commenced on 1 November 2000.

Current as at 25 January 2001

SUMMARY OF DIMA ASPECTS OF OVERSEAS STUDENTS LEGISLATION

All Acts listed below were passed by the Parliament of Australia in December 2000 and were assented to by the Governor General on 21 December 2000.

Migration Legislation Amendment (Overseas Students) Act 2000 - DIMA

This Act will amend the Migration Act 1958 to:

enable the automatic cancellation of student visas where the student does not comply with their visa conditions, and to provide for discretionary reversal of this cancellation in some circumstances (Schedule 1);

enable DIMA officers to require the production of, or to search for and inspect, relevant records of overseas students held by institutions (Schedule 2);

enable the Migration Regulations 1994 to provide for further, modified "no further stay" conditions, allowing application for limited categories of temporary visas in addition to applications for protection visas or bridging visas (Schedule 3);

impose on all overseas students a new student visa condition requiring them to satisfy their course attendance and academic performance requirements.

Education Services for Overseas Students Act 2000 - DETYA

This Act replaces the former Education Services for Overseas Students (Financial Administration and Regulation) Act 1991, to regulate education services for overseas students, and for other matters. Most of the provisions relate to DETYA's regulation of education providers and to the implementation of a new Electronic Confirmation of Enrolment System (owned by DETYA). However the Act also includes:

a personal discretionary power for the Minister for Immigration and Multicultural Affairs to issue a certificate in respect of an education provider, preventing, for a period of six months, recruitment/enrolment of further overseas students by the provider (Part 6, Division 2 of the Act). [Complementary amendments to the Migration Regulations 1994 will prevent valid application for and/or grant of visas to students proposing to enrol with a provider in respect of whom such a certificate is in force].

Education Services for Overseas Students (Consequential and Transitional) Act 2000 - DETYA

This Bill will amend the Migration Act 1958 to:

allow appropriate disclosure of immigration movement records for ESOS Act purposes (s 488) [Part 1 of Schedule 3]; and

permit appropriate exchange of information between DETYA, DIMA and the states for the purposes of monitoring compliance with student visa conditions and of assisting with the regulation of education providers (s 488A) [Part 1 of Schedule 3];

allow the Migration Regulations 1994 to provide for certain matters for the purposes of the ESOS Act to allow for further grounds for the initiation of the Ministers suspension certificate power to be prescribed, as required (s 504) [Part 2 of Schedule 3].

Other DETYA Acts forming part of the same package but not amending the Migration Act or affecting the portfolio:

Education Services for Overseas Students (Assurance Fund Contributions) Act 2000

Education Services for Overseas Students (Registration Charges) Amendment Act 2000

LINKAGES BETWEEN THE ACTS AS THEY AFFECT DIMA

Student Information - from provider to DETYA and DIMA

Section 19 of the Education Services for Overseas Students Act 2000 ('the ESOS Act') requires providers to input into DETYA's Electronic Confirmation of Enrolment System the following:

information about enrolments such as name details, course details, and information about students who do not begin studies when expected or who change courses or terminate courses early. The education provider is subject to a strict liability offence for failing to input any of this information within 14 days (section 104).

information about breaches by students of student visa conditions relating to attendance or satisfactory academic performance. The education provider is subject to an offence for failing to input this information as soon as practicable after the breach occurs (section 104).

DETYA will then make this information available to DIMA under section 175 of the Act. It will also be an offence for a person to give false or misleading information in complying or purporting to comply with the above requirements (Clause 108).

Student non-compliance notice and automatic student visa cancellation

Section 20 of the ESOS Act requires an education provider to send a notice to a student who has breached student visa conditions relating to attendance or satisfactory academic performance. This notice acts as the trigger for the automatic student visa cancellation provisions inserted into the Migration Act 1958 by the Migration Legislation Amendment (Overseas Students) Act 2000 ('the Overseas Students Act') (Schedule 1) [ss 137J - 137P].

The notice must tell the student to attend at a specified DIMA office in person for the purposes of explaining the breach, within 28 days (subclause 20(4) of the ESOS Bill). If the student fails to do so, and is not otherwise located by DIMA within the 28 day period, automatic cancellation of the student's visa will take place by operation of law on the 29th day (new section 137J of the Migration Act, inserted by Schedule 1 to the Overseas Students Act). The cancellation will however be subject to discretionary revocation in specified circumstances (new sections 137K - 137N).

Search and entry of education provider premises

Both the DETYA ESOS Act and the DIMA Overseas Students Act introduce new powers for Commonwealth officers to enter and search provider premises and otherwise obtain information from providers.

Both Acts provide for magistrate-issued monitoring warrants (the DIMA Act provides for monitoring warrants to be issued by an AAT member also). These warrants will be issued to enable DIMA officers to monitor compliance with student visa conditions, and DETYA officers to monitor compliance with the new ESOS Act and the new National Code of Practice.

The DETYA Act also provides for magistrate issued search warrants to investigate offences against the new ESOS Act.

The schemes introduced by the two bills complement each other. Other provisions in the two bills (Section 175 of the ESOS Act; new s 488A of the Migration Act outlined immediately below) allow exchange of information, so that matters of interest are brought to the attention of the appropriate agency for further investigation.

Information from DIMA to DETYA

The ESOS (Consequential and Transitional) Act (Schedule 3) makes amendments to enable DIMA to give information as appropriate to DETYA and the States. In particular, it:

amends section 488 of the Migration Act to allow information in DIMA's movements database to be disclosed to DETYA to identify whether overseas students have arrived in or have left Australia;

inserts new section 488A to permit the appropriate disclosure of other information obtained or received under the Migration Act (such as student complaints, or information discovered during DIMA search and entry of provider premises under the new monitoring warrant provisions inserted by Schedule 2 of the DIMA Overseas Students Act) to DETYA, the States and other relevant agencies.

These information-sharing provisions are vital to the operation of the Electronic Confirmation of Enrolment System introduced by the new ESOS Act, which is why they appear in the ESOS (Consequential and Transitional) Act rather than in a DIMA Act.

LINKAGES TO MIGRATION REGULATIONS 1994

Complementary amendments to the Migration Regulations 1994 will:

prevent valid application for and/or grant of visas to students proposing to enrol with a provider in respect of whom a special Immigration Minister's suspension certificate is in force;

provide for additional matters as necessary to implement the Immigration Minister's suspension certificate, automatic student visa cancellation; and student compliance search and entry schemes;

provide for modified "no further stay" visa conditions as necessary, including modified "no further stay" conditions to be imposed on student visas in certain circumstances.