Exceptional Circumstances
The law the mandatory cancellation for breach of condition 8202 has not otherwise changed. But Reg 2.43(b)(ii) still contains the exceptional circumstances excuse for breach of 8202. Reg 2.43(b)(ii) provides for mandatory cancellation of a student visa in circumstances:
(ii) that the Minister is satisfied that:
(A) the visa holder has not complied with condition 8202; and
(B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
Therefore even after the education provider has ultimately certified a breach of condition 8202, there remains the residual ability to argue to the Dept & the MRT that the breach was due to, “exceptional circumstances beyond the visa holder’s control.”
There are many cases where the MRT has taken a robust view of what means. A good example is HUANG, Chun Chih [2002] MRTA 1863 (8.4.02). In that decision the MRT noted:
24. While the [MRT] is guided by the policy, it retains a discretion to decide what constitutes `exceptional circumstances’ on a case by case basis. ……
32. The.. applicant is supported financially by his family. He is a genuine student and does not have to work. His English language skills took some time to develop and this delayed his study progress. His English language ability has evidently improved as he obtained good marks in all eight subjects in the course on the second attempt. He has now advanced to a degree course and is committed to his course of study and with family circumstances that mean he can remain a student until he has completed the degree requirements.
33. His evidence is that he has been accepted into the double-degree program of Bachelor of Business/Bachelor of Hotel management commencing in Feb 02.the tribunal accepts this evidence. He has provided a proof of acceptance and enrolment.
34. The review applicant’s submission is that his failure academically was as a result of circumstances beyond his control: that he was inadequately prepared for university preparation course because his English language ability was not good enough. That this was the issue is evidenced by his success when he has persevered with the study, undertaken the course a second time with success and his progress to a degree course in terms of his acceptance by the University into the course. The Tribunal accepts this submission and the submission that there is no evidence that his failure on the first occasion was as a result of circumstances within his control: inadequate effort.
35. The Tribunal notes that but for the cancellation on or about 16 Aug the review applicant had a visa that was valid until 31 Aug and he was taking steps to renew it. This issue is not in dispute.
36. The effect of this sequence however is that the review applicant cannot apply for a new student visa in Australia as even a decision to overturn the cancellation will not provide him with a substantive visa pursuant to…, Reg 571.21.
37. This creates the situation in which the review applicant will be required to return to Taiwan to apply for a student visa, that he is likely to be successful in that application but may well be called to do military service upon his return. This will mean he loses the opportunity to pursue the acceptance and enrolment in the University course of his choice. His English language skills will again diminish. The Tribunal accepts this evidence.
Thus in Huang, it was the student’s inability to complete the course which caused the difficulty.