Have you received notification that the Department of Home Affairs is considering cancelling your Student visa? Or, has your Student visa already been cancelled by the Department?
If you find yourself in this situation, crucially, you need to act quickly. Given the complexity and potentially serious nature of a student visa cancellation, we highly recommend that you seek professional advice from a migration professional as soon as possible to discuss your particular circumstances in detail and to map out a pathway going forward.
A Student visa cancellation can occur due to several reasons, including non-compliance with your student visa conditions, being found not to be a genuine student or engaging in conduct not contemplated by a Student visa.
If you are onshore in Australia and you have been issued with a Notice of Intention to Cancel (NOIC) by the Department, there may be options available to you to prevent that cancellation from taking place, but each situation needs to be assessed on its merits.
If your Student visa has already been cancelled, you may have the option to have the decision reviewed by the Administrative Appeals Tribunal (AAT). If you decide to take this course of action, you need to do so quickly as strict deadlines apply. Failure to lodge your appeal within the accepted timeframe will mean that you lose your right to have your case reviewed by the AAT, in which case you will need to consider if you have any other options, apart from departing Australia. If there are no other options available to you and you fail to leave Australia by the deadline, further negative consequences may result. This can include an exclusion period being imposed, which means a period during which you cannot be granted another visa if you apply for it, thereby affecting your ability to be granted a visa in the future.
In this article, we explore some of the more common reasons for a student visa cancellation, possible student visa cancellation Australia consequences, as well as the potential options that may be available to you. We also provide links to further information so that you can learn more about what you can do if you have a student visa cancellation.
Possible Reasons For Student Visa Cancellation
Failing To Comply With Visa Conditions
One common reason for student visa cancellation is failing to comply with visa condition 8202, which relates to meeting course requirements.
Condition 8202 requires a student visa holder to adhere to certain course enrolment, attendance and academic progress requirements.
To be compliant with visa condition 8202 as a student visa holder, you must:
- remain enrolled in a registered course;
- maintain enrolment in a registered course that is the same Australian Qualifications Framework (AQF) level or higher for which your Student visa was granted (unless changing from AQF level 10 to level 9); and
- maintain satisfactory attendance in your course and course progress for each study period as required by your education provider.
What About Gaps Between Courses?
Course gaps are generally acceptable if the gap is no more than two months.
A course gap can be for more than two months where:
- it is the end of the academic year study break;
- you are affected by education provider default; or
- you have completed your course and you are applying for a new visa.
What Can Happen If You Are No Longer Enrolled In A Registered Course?
The Department of Home Affairs may cancel your Student visa if you are no longer enrolled in a registered course.
Your enrolment ends when you complete the course, even if this is earlier than the end date on your Confirmation of Enrolment (CoE).
What you must do after you complete your course depends on your enrolment arrangement.
If you complete the course associated with your student visa, you will have three months to depart Australia, or apply for another visa.
Home Affairs may cancel your Student visa if:
- you complete the course for which your Student visa was granted and you do not depart Australia or apply for a new visa within three months;
- you have changed courses since your Student visa was granted and your new Confirmation of Enrolment for your principal course has an earlier end date and you do not leave Australia or apply for a new visa within 28 days of completing the course;
- you are studying more than one course on your visa (course packaging) and you finish a course early and have a gap between courses of more than two months (except if this gap occurs between the end of an academic year and the beginning of a new academic year).
Before the Department will cancel your Student visa, it will consider your situation. This includes if:
- you legitimately finished the course early;
- you have a good academic record; and
- it is reasonable to expect you to enrol in another course during the course gap.
Home Affairs may also cancel your visa if you are non-compliant with any other student visa conditions
It is therefore critical that you have a full understanding of your Student visa conditions and abide by them to prevent a potential cancellation.
If you are notified by your education provider that your CoE has been cancelled, you will have 28 calendar days from the date of CoE cancellation to either leave Australia, obtain a new CoE, or apply for a new visa. It is unlawful to remain in Australia on a Student visa without an active CoE any longer than the 28-day period. The penalties for remaining in Australia unlawfully may include the imposition of a three-year ban on returning to Australia.
A student visa cancellation based on failing to comply with a visa condition may occur when you are onshore or outside Australia.
Can You Appeal A Student Visa Cancellation Decision To The AAT?
If your student visa has been cancelled on the basis that course enrolment requirements have not been met, you may be able to have the decision reviewed by the AAT.
If you do proceed with a review, the AAT will need to decide whether:
- you have continuing enrolment in a full-time registered course; or
- your education provider has certified that you have not achieved satisfactory course progression or attendance.
If there is a student visa cancellation on the basis that you have not met these requirements, the AAT will need to decide whether or not you have complied with visa condition 8202.
How Will The AAT Decide If Your Visa Should Be Cancelled?
Step 1 of the AAT decision process is to decide whether you have breached condition 8202.
Next, the AAT needs to decide whether to cancel your Student visa. If the AAT is satisfied that you have breached the condition, it must consider whether the visa should be cancelled. In deciding whether the visa should be cancelled, the types of matters the AAT will look at include:
- why you came to Australia and whether there is a need for you to stay in Australia;
- your compliance with visa conditions in the past;
- what problems you or your family may face if your visa is cancelled;
- reasons for the breach and, in particular, anything outside of your control;
- your past and present behaviour towards the Department;
- whether another Student visa holder’s visa may be cancelled as a result of your visa being cancelled (for example, a secondary visa holder);
- the consequences of the cancellation (such as whether you will be detained or become unlawful);
- whether Australia has international obligations that would be breached as a result of your visa being cancelled; and
- any other relevant matters (for example, any reasons that you raise as to why the visa should not be cancelled).
What Information Should You Provide To The AAT In Support Of Your Review Application?
You can provide any information to the AAT that supports your case.
Examples of information to provide in relation to meeting the requirements of condition 8202 may include:
- confirmation of your enrolment in a registered course; and
- evidence that explains why specific information in the Department decision is incorrect.
You can also provide the following information in relation to whether to cancel your visa:
- a signed statement explaining your circumstances;
- academic timeline, transcripts, attendance records and information that explains any gaps in your study history (such as medical reports to evidence that you have been unwell);
- any documents from your education provider that confirm you have sought a deferment of your studies;
- any evidence to support your claims (such as medical reports and/official documents);
- information about any defects in the process leading to your education provider certifying your academic progress or result as unsatisfactory;
- statements from other people who can confirm or support your case; and
- any other information or documents that support your claims as to why the visa should not be cancelled, by addressing the relevant factors the AAT will look at in the second stage of the decision process.
When Should You Provide The Information To The AAT?
You should provide all relevant supporting information and documents as soon as possible after lodging your application for review by the AAT. If the AAT is satisfied with the information you provide, a favourable decision might be possible without the need for a hearing. This means you may be able to get an outcome to your application sooner.
Providing Evidence At A Hearing
If you are required to attend a hearing, an AAT Member will ask you about your application and consider all of the information that you present. Generally, this will include the documents you have provided to the AAT about your case. You should provide to the AAT with any information no later than seven days before the hearing, or earlier if you are requested to do so by the AAT.
Any information you present to the AAT Member is important evidence. Preparing this evidence well in advance of the hearing can assist you to present your case and help the AAT Member to make a decision.
Non-Genuine Student And Conduct Not Contemplated By The Visa
Another potentially less common but student visa-related cancellation that can occur is where you are assessed as being a non-genuine student or you have engaged in conduct that is not contemplated by a Student visa. Let us take a look at what this actually means.
Your Student visa may be cancelled if Immigration has determined that you:
- are not (or are likely not to be) a genuine student; or
- have engaged (are engaging, or are likely to engage) while in Australia, in conduct (including omissions) not contemplated by a student visa.
To determine whether the above applies, Immigration may have regard to any relevant matter, including where your education provider has deferred or temporarily suspended your studies due to:
- your conduct;
- your circumstances (other than compassionate or compelling circumstances);
- your circumstances are compassionate or compelling, and Immigration is satisfied that the circumstances have ceased to exist; or
- evidence or a document given to your education provider about your circumstances, if Immigration is satisfied that the evidence or document is fraudulent or misrepresents your circumstances.
What Is A ‘Genuine Student’?
A student visa holder may be considered a ‘non-genuine student’ if it appears that their primary intention is not, or is not likely to be, to undertake study.
Under immigration policy, the following circumstances may indicate that a student visa holder is not a genuine student:
- the visa holder is not attending their course;
- the visa holder is enrolled but has extensive periods without actual study;
- the visa holder is unaware of the details of their course or the location of their education provider;
- the visa holder has arranged for another person to attend many classes or exams on their behalf;
- the visa holder has been in Australia for a significant period but has not completed any course of study and is not demonstrating a pathway to an educational qualification or outcome; or
- a deferral was granted by an education provider for non-genuine reasons.
What Conduct Is Not Contemplated By A Student Visa?
‘Conduct not contemplated by the visa’ means ongoing or serious academic misconduct.
Examples of conduct that may result in cancellation of your Student visa in this scenario includes where you are:
- found to be selling essays on campus;
- engaging in academic misconduct such as repeatedly cheating in exams;
- involved in serious plagiarism;
- receiving payment to attend classes or exams on another student’s behalf; or
- using your education provider’s resources for private or business purposes.
Cancellation of a Student visa based on being found to be a non-genuine student or to have engaged in conduct not contemplated by a Student visa may occur when you are onshore or outside Australia.
Will You Receive Notice From Home Affairs Before It Cancels Your Student Visa?
Yes, if you are onshore in Australia, before proceeding with cancelling your visa based on any of the above grounds, the Department of Home Affairs must notify you in writing of its intention to cancel your visa. This is called a Notice of Intention to Consider Cancellation (NOICC).
In the NOICC, the Department must:
- give particulars of the grounds for cancellation and the information which lead to that conclusion; and
- invite you to show within a specified time that those grounds do not exist, or that there is a reason why your visa should not be cancelled.
This allows you to present your argument/s and documentation in support of your claims that your visa should not be cancelled.
The Department must consider your response and decide whether grounds exist for cancellation to occur. It must then notify you in writing of its decision.
In the Decision record, the Department must:
- specify the ground for the cancellation; and
- state whether the decision is reviewable by the AAT. If this is the case, the letter will specify the deadline for applying for a review to the AAT.
Possible Student Visa Cancellation Australia Consequences
Will You Be Subject To An Exclusion Period If Your Student Visa Is Cancelled?
A possible student visa cancellation Australia consequence which may prevent you from being granted a further visa to Australia is through the operation of the below Public Interest Criteria (PIC).
Public Interest Criteria
One student visa cancellation Australia consequence is that may result in you being restricted from applying for another visa for three years, unless the Department is satisfied that one of the following is satisfied:
- compelling circumstances that affect the interests of Australia exist; or
- compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen exist.
The three-year exclusion period commences on the date when your visa was cancelled.
This means that you will need to wait for three years to pass before being able to apply for another visa, unless PIC 4013 is waived.
Another potential student visa cancellation Australia consequence that may arise is if you depart Australia in one of the following circumstances, you cannot be granted a further visa for three years (this can be waived in certain limited circumstances, as outlined above for PIC 4013):
- as an unlawful non-citizen (meaning you do not hold a valid visa); or
- as the holder of a Bridging Visa C (BVC), Bridging Visa D (BVD) or BVE.
However, PIC 4014 does not apply if you left Australia:
- within 28 days of your substantive visa ceasing; or
- as the holder of a BVC, BVD or BVE which was granted:
- within 28 days of your substantive visa ceasing; or
- whilst you held another Bridging Visa (which itself was granted while you held a substantive visa, or within 28 days of it expiring).
The three-year exclusion period commences on the date when you left Australia.
Can You Apply For Another Visa After A Student Visa Cancellation?
If your visa is cancelled on one of the grounds outlined above in this article, you may only be eligible to be granted a limited list of prescribed visa subclasses whilst you remain in Australia. This includes certain Skilled Visas, a Partner Visa and a Bridging Visa. But take note of the Public Interest Criteria (PIC) above.
Other Potential Options After A Student Visa Cancellation
If you take the AAT review pathway and it is unsuccessful, you may consider:
- applying to the Minister to personally intervene in your case (referred to as Ministerial Intervention); or
- having your case heard by the Federal Circuit and Family Court of Australia.
Given the potentially serious student visa cancellation Australia consequences that can result, you may like to consider whether having the decision reconsidered by an appeal body could be a worthwhile pathway for you to take (provided this option is available to you). Whether it is worth taking this action will depend on the individual circumstances of your case and whether you can put forward a strong argument and evidence to support your position.
If you do not appeal the decision, another option may be to apply to the Department to waive the relevant PIC as they apply to the visa for which you seek to apply. Again, you must have a strong reason/argument to have any chance of success in this regard (see discussion above about waivers as they apply to the PIC).
In Closing … Consider Your Options Carefully
As demonstrated, if you do not proceed with a review of your Student visa cancellation by the AAT, your options may be significantly limited. Therefore, it might be worth seriously considering whether to take this step (if this is available to you), after being fully informed of the potential benefits and disadvantages of proceeding with a review of your case. In deciding whether to do so, you will need to carefully consider whether you can present a persuasive argument as to why the Department made the incorrect decision in cancelling your visa.
It is important to consider the likelihood of a successful outcome as a result of proceeding with the review, balanced against other factors such as cost and significant delays involved when applying for a review to the AAT; what the appeal means for you whilst you await a decision (for example, what rights, if any, you will have to work in Australia during this period); and how taking this action compares with alternative option/s (such as applying for another visa).
As you can see, there are multiple factors you will need to take into account in making your decision, and given the complexity of the issues involved, we highly recommend that you consult with a migration expert before making a decision.
Get More Information
We have prepared a series of detailed guides which provide further information about potential options that may be available to you after your visa has been cancelled, including a student visa cancellation, with further information about possible reasons for student visa cancellation, potential student visa cancellation Australia consequences, the AAT review process, other potential options after AAT refusal as well as your options if there is no right of review for the student visa cancellation decision. You can access them by clicking on the links below.
In particular, please see our Reasons For Student Visa Cancellation Or Student Visa Rejection to learn more about the potential reasons for student visa cancellation and what you can do.
In addition, other articles which may be of interest relating to student visa refusals are listed below. In particular, we recommend our Reasons For Student Visa Cancellation Or Student Visa Rejection article.
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Contact us to book a no-obligation consultation to find out more about your potential options after a student visa cancellation, including possible reasons for student visa cancellation and potential student visa cancellation Australia consequences.
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Australia’s migration laws are complex, and each case is different. There are also several terms which are defined in the migration provisions (and whose meanings may differ from their ordinary usage). We recommend that you seek professional advice if you are affected by a student visa cancellation, as being fully informed will give you the best chance of achieving a successful resolution to your case. A migration professional can help you to do this.
For up-to-date advice on student visa cancellation and what you should do if your visa is cancelled, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.