A week ago, I had blogged (see link) on why I felt that the warning letters issued to the students couldn’t be translated to visa cancellations. The reasons were that the regulations were not supporting the warning. The student visa application and the visa grant letters did not differentiate between SVP and non SVP allowing a “benefit of doubt” to the student’s claim that they did not know the difference or the implications of this change.
From one of the comments (of Jag Khairra) on that blog I have learnt that DIBP has agreed to not seek clarifications from the students as long as they moved only between the same sub-class. 573 to 573, SVP or non SVP. I am quoting from the FB page of a Migration Agent (see link)… This is the advise received from DIBP:
As you will recall the department has been directly engaging with students who have arrived under streamlined visa processing (SVP) and then changed to a non-SVP eligible course. These students received an advice letter and have been provided with an opportunity to explain their circumstances.
Over the last few weeks we have received a large number of responses to these advice letters. The department has also received a significant amount of feedback from education providers. From the information provided it is clear that a number of students were unaware of the possible impacts of changing courses, particularly those students who have transferred to another provider or course within the higher education sector (including those students who have transferred to non-SVP eligible courses at a university).
The primary objective of the department’s education campaign is to raise awareness. As such, we consider that it would not be reasonable to penalise students who may have unintentionally breached the conditions of their visa prior to the launch of the campaign. As you will be aware, the department no longer has a mandatory cancellation regime. This provides greater discretion to ensure that we can better target integrity risk but also, deliver fairer outcomes for students.
We are keen to provide as much certainty to affected students as possible. With this in mind and following consideration of the information provided by students and other stakeholders, we have decided that we will not take any further action against students who meet the following characteristics:
• Transferred from a SVP eligible subclass 573 course to a non-SVP eligible 573 course prior to the launch of the 14 January 2014 education campaign (e.g. from a bachelor degree course at a university to a bachelor degree course at a non-university provider); and
• Continue to meet all other requirements and conditions of their visa
We will write to students who meet these characteristics on an individual basis to advise that they will not be subject to cancellation as a result of their course transfer.
We continue to consider whether further action is appropriate for other students who have received an advice letter on an individual basis, this includes students who have transferred from a SVP course to a course in another education sector. We note in this regard that irrespective of SVP such students would likely be in breach of condition 8516. We will provide a further update regarding this cohort at a later stage.
Moving forwards, from a general perspective, students who were granted a visa to study an SVP eligible course will be expected to apply for a new student visa before commencing and transferring to a non-SVP eligible course. We are currently reviewing information provided to students to ensure they are aware of this requirement in future.
While DIBP may be reviewing the information provided to students at the time of visa application and visa grants and may even add a reminder that the student is expected to stay with the SVP provider for the duration of the visa. However, this only addresses the issue in a limited sense. In 2007 the Immigration believed that the change of provider is a educational matter and not immigration matter and that is the reason why they removed the condition 8206. I believe that the insistence that the student stays with the SVP provider is possibly fair to the providers who have done the vetting of the documents prior to the visa. However the current ESOS expectation that the student does not move institutions (even SVP to SVP) till six months of the principle program is faulty. Especially in the case of students who are studying in a packaged program (say 2 year Diploma leading to the final year of Bachelors) and so in such cases even if the student wants to move to another SVP provider for genuine reasons, the student is prohibited from doing so till the six months of the final year is completed and hence only after 2.5 years of the 3 year program. If the same student was not in a diploma to degree packaging and was in the degree itself, the student would have been allowed to move institutions after the six months itself.
As in the recommendations of my earlier blog, the visa applications and visa grants letters should be immediately modified to indicate clearly to the student that they have applied under SVP and they are expected to stay for the duration of the visa under SVP. If they do want to switch, they will need to apply for a fresh student visa. This should be easy to put in place. However, there is a need to reflect on the confusion and reintroduce 8206 condition on the visa. This will be a win-win for all. The students wanting to move within the first year will need a release letter and the term “principle” program can be done away with. No point confusing a clear “immigration matter” as an “education matter”. Now with the SVP, it is indeed an “immigration matter” since some students have it easier to reach Australia.