Turner Coulson Immigration Lawyers - Australian Immigration Articles
Student Visa Cancellation Australia – An unfair system
Automatic Student Visa Cancellation Australia is one of the unfair ways in which the current Australian Immigration system operates.
Under current legislation, if the student’s registered education provider is of the view that the student is not attending classes or achieving satisfactory performance they have the power, and an obligation, to report the student to the Department. If this occurs, the student will be invited to an interview to explain why they have or if they believe they haven’t, have not breached condition 8202.
Condition 8202 attaches to all student visas and creates an obligation on all student visa holders to achieve satisfactory attendance (80% of classes as a general rule on subclass 572 student visas) and achieve satisfactory class performance.
If the student fails to attend the interview, whether they have actually been notified or not or whether they have actually breached the condition or not, their visa is cancelled automatically by operation of law: This is an example of why it is so important to advise the Department of any change in your contact details.
The student then must apply in writing to the Minister for Immigration asking the automatic cancellation be revoked and this application must be made before the date the visa would otherwise have expired. To successfully achieve revocation, an intimate knowledge of the relevant legislation and case law on the point is essential.
If the student attends and the following the interview the Department officer is of the view the student has breached with condition 8202, the officer can cancel the student’s visa on the spot. The student then has 28 days to appeal the decision to the Migration Review Tribunal or face being forced to leave Australia.
We are aware of examples where a teacher is alleged to have used this provision to target students they don’t like or wish to cause harm. Also, in another example a student had her student visa cancelled without being sent a request to attend an interview and after having been certified by her college as having completed receiving her certificates of completion. We are also aware of education providers using this provision as a mechanism to force students to either pay course fees or be reported. This is how unfairly this provision of the Migration Act can operate.
Australian Student Visas and Work Rights - What Rights do I Have to Work in Australia as an International Student?
Condition 8105 / Condition 8104 - 20 Hour Work Limitation Attached to Australian Student Visas
It is important to understand the difference between the work rights of a primary student visa holder and those work rights of the dependent student visa holder, that is their spouse or de facto partner.
Condition 8105 allows the primary student visa holder (the student rolled in a registered course of study - see CRICOS course registration) to work 20 hours per week during semester and full time during course breaks.
CONDITION 8104 DOES NOT ALLOW THE DEPENDENT VISA HOLDER TO WORK FULL TIME DURING COURSE BREAKS EXCEPT IN VERY LIMITED CIRCUMSTANCES.
If you are a dependent student visa holder on a subclass 572 visa you cannot work more than 20 hours per week at any time while in Australia with condition 8104 attached to your Australian student visa.
Students holding subclass 573 and subclass 574 visas generally do have full time work rights if the primary student visa holder is enrolled in a course for the award of a masters or doctorate that is CRICOS registered.
If your partner who is enrolled as an international student in Australia is enrolled in course other than the above courses, for example holds a subclass 573 visa but is studying a bachelors programme, you do not have full time work rights.
Breaching your work rights limitation condition 8104 may prove fatal to your study goals in Australia and lead to your dependent student visa being canceled.
Please be aware that breaching condition 8104 / 8105 are 'strict liability' breaches and cannot be argued against by stating that you thought you were complying, could work full time during course breaks or other 'compelling or compassionate' reasons to excuse the break.
Once breached, cancellation processes will begin if you are detected and ultimately, any appeal to the Migration Review Tribunal (MRT) against the cancellation will not get your visa reinstated.
If you are faced with cancellation of your Australian student visa due to breach of condition 8104 / 8105 and are an international student studying in Australia, you should contact Turner Coulson Immigration Lawyers to see if there is a legal challenge that can made against your student visa cancellation.
It is important to contact us BEFORE you appeal the Migration Review Tribunal (MRT) to avoid losing any legal avenues for successfully re-instating your Australian student visa.
If you receive a request from the Department to attend and interview or feel you are at risk of being reported for breach, ensure you contact Ray or myself at Turner Coulson Immigration Lawyers before attending any interviews with the Department of Immigration and Citizenship (DIAC), or after the interview with DIAC if you have already attended, to ensure your chances of avoiding cancellation are maximised.
Call us on +61 2 9264 4654 or email sc@tcilawyers.com.au ; info@tcilawyers.com.au