After denying for a year that students switching from SVP to non-SVP as a major issue, finally Aussie immigration realises and issues warning letters siting all-embracing condition 8516. My recommendations…
Almost nine months ago, I raised this as a possibility and a rising concern. The institutions had begun seeing numbers of students from India and Nepal (primarily) seeking releases and where denied, were still going ahead with the switch. When I wrote on the issue of various concerns related to compliance with SVP and when The Australian quoted me on this, the rebuttal from the Immigration at that time was…
However a DIAC spokesman indicated that the department was satisfied with the SVP to date, and was taking a “business as usual” approach to compliance issues.
Around the same time, The Australian carried another article quoting another agent and indicated precisely that the students had been entering Australia using the SVP but then switching. I don’t blame the Immigration for not finding it as a major concern then as often they refer to data, which tends to have a slight lag… However it will always help to keep an ear to the ground and some of us tend to sniff things earlier than when the datas emerge.
Over the last month, over a thousand students (newspapers say 1416) who switched from SVP to non-SVP institutions have received a letter from the Department of Immigration “warning” them that they are in breach of the condition 8516. Students who switched over a year ago and were allowed to change at that time also received these letters. Some are closer to completion of the programs too.
The natural reaction from such letters was as intended. The students panicked and rushed to local migration agents who were foxed too. Some of these “onshore” agents were actually involved in the switch for these students and had pocketed a fee too. They had read the migration act to find that…
- That the migration act did not prohibit a student from switching institutions especially if it was in the same category. Say subclass 573 to subclass 573.
- It was an ESOS condition that the student should stick to the same “principle” provider for at-least six “calendar” months. Not a condition for the student visa as such.
- The migration agents quickly point out that a student was concerned with the student visa and not whether it was SVP or not. Further, there is no way for the student to choose whether his visa should be SVP or non-SVP and even the institutions cannot choose whether they can apply the SVP for some students and not for others.
- The migration agents point out that the student visa application for SVP or non-SVP did not differentiate. And the visa grant letter for student visas too was identical without any indication that the visa had been processed under SVP and so the student can claim “not to know that his visa is different”. The visa fee is also the same.
- And the letter received by the students too was not NOICC that is the formal notice for visa cancellation. Hence was merely a kind of warning letters in absence of any real ground for cancellation of the visa. A cancellation, if at all, under this condition for the act of switching institutions, the migration agents believe can be successfully challenged.
But then the Immigration’s official migration blog on this topic has several comments (see link) where students are seeking solutions. Some students appear genuinely to have erred in the switch and were not aware that they were violating any condition of the visa. The advise to such students by the Immigration, as can be seen in the comments is that the students must now depart Australia and apply for a fresh student visa. Is this an appropriate advice? Does the student have no other option but to depart Australia and reapply for a student visa? Migration experts believe that Immigration has not given a comprehensive advise to the student here and the student will possibly make a mistake by departing Australia and applying for a new student visa offshore. In reality, there is a good chance that once they depart and apply for a fresh visa, that visa may be denied and the student is left with no option to appeal. They state the reasons as…
- Why should the student depart Australia? The warning letter is not an NOICC and further the student can give his/her reasons that can be anything ranging from a more suitable program at the non-SVP institution to being ignorant on how his/her visa differed from other student visas and be still acceptable. Honestly, looking at the visas, one cannot say that one visa is different from the other.
- Even if the visa is to be cancelled, why can’t the student apply for a fresh student visa “onshore” for the non-SVP institution? Possibly he can.
In reality however, the students who apply to SVP institutions and get visas do have it a little easier and it is not fair for them to arrive onshore based on the status of the first institution and then make a switch.
- Immigration should edit visa application form and indicate in that the application is with lower fiscal checks as the institution is under SVP.
- Immigration should edit the visa grant letter too to indicate that the visa has been granted under SVP and so if the student switches from SVP to non-SVP at any time during the visa tenure, the student may be required to apply for a fresh student visa and the current visa will automatically terminate.
However it is also not right that the students who got visa under SVP had no hope to be granted a visa under non-SVP. The student has no choice to apply under SVP or non-SVP and it depends solely on the status of the institution. See today’s article from The Australian titled STUDENTS WHO JUMP UNIS HIT BY VISA RULES.
There is one other thing to fix too for the Government. The important fix required is the ownership to the condition related to “change of provider”. Prior to 1st July 2007, there existed a condition 8206 on the student visas. This prohibited students from changing providers for one year. However on this date, the condition was removed. Lets look at the rationale for the removal of the condition as indicated on the immigration site…
Condition 8206 limits the ability of student visa holders to change education providers during their course of study. As a result of this change, it will no longer be necessary for students to apply for a new student visa in order to change Education providers.
The removal of condition 8206 and related provisions from the Regulations has been done to reflect changes to the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code 2007). In particular, the obligations set out in condition 8206 have been transferred from the Regulations to become a standard of the National Code 2007. The rationale for this is that the change of education provider is essentially an educational, not an immigration matter.
But since this, “change of education provider” is not an immigration matter, the ESOS provision has been toothless. In-fact, the ESOS condition has shortcomings…
- From one year under the Immigration’s condition 8206, it became six months under ESOS. This was to protect the student’s interest but failed to do so as the “calendar” six months means that the student has to lose out on some money paid for the second semester of studies at institutions if he or she has to move institutions.
- The ESOS requirement mentions that if a student desired to move institutions before six months of a “principle” program, then they needed a release letter from the “principle” provider. This has become quite chaotic since students in packaged programs of a pathway leading to a University often has to get a release letter from the University even if the University is to start after two years of his or her being in Australia. Hence the change to protect student’s customer rights works in contradiction.
- In fact it talks of principal course and not principal provider. Hence if the student is undertaking one year of Graduate Diploma leading to second year of Masters, then the student can only change institution after one and half years (after he has studied six months of the principle program which is Masters) even if he is at the same institution. This too works against the basic arguments for the reduction of the time for changing provider from one year to six months.
- The ESOS also doesn’t differentiate between SVP and non-SVP providers and hence while Immigration has relinquished its condition 8206 giving rationale that the change of provider is essentially an educational matter and not immigration matter, the situation demands once again that change of provider becomes an immigration matter.
So what am I recommending?
Recommendation 1: Times have changed since 2007 and now that some institutions are under SVP and have easier visas, it is important to understand for the Immigration that earlier rationale for removal of 8206 doesn’t stand now. Change of provider is an “immigration matter” now and hence the earlier condition 8206 that stated that a student could not change providers for at-least one year should be reinstated. If a student has a reason to switch that is genuine, he or she may compulsorily require a release letter from the first institution. There is just no space to complicate this change of provider regulations giving any other rationale as was given in 2007.
Recommendation 2: Look at the recently introduced SVP by Immigration NZ and take its improvements. INZ calls it IPP (Industry Partner Programme) and one massive superiority over SVP is that it allows the institution to choose which applications can be processed under SVP and which may not. Hence two students for the same program may have differing visa requirements subject to the institution’s ability to take the onus on the fiscal background of the candidate. Secondly, it is not linked to only degree programs but more to the status of the institution. While in the Australian model of SVP, a degree student of one institution gets the advantage while another student at the same institution who may be applying with say Post Graduate Diploma doesnot get the advantage. Crazy.
Recommendation 3: Please give comprehensive advise on the migration blog and one that can be backed up with regulations. Otherwise it leads to panic. Remember that the students are already “onshore” and have more access to appeals and solutions than students “offshore” who can simply be denied visas. The immigration department’s migration blog is as official as its website. (Unlike my blog)
And lastly, when some of us with interests in the right places give out warning signals, do take note of them well in advance.
DISCLAIMER: THE ABOVE IS ONLY MY OPINION AND IT IS NOT A MIGRATION ADVICE OR AN INTENDED ADVICE TO A STUDENT WHO MAY HAVE RECEIVED ONE SUCH LETTER. THE STUDENT MAY APPROACH A LICENSED MIGRATION ADVISER. I AM NOT ONE. THE PURPOSE OF THIS BLOG IS TO PLUG THE LOOPHOLE THAT MIGHT EXIST. REFER TO MY RECOMMENDATIONS.