If once a visa is cancelled, can we apply again? Can I work in Australia without a student visa?
If your student visa is cancelled, you may be able to apply for another visa, but you might need to depart Australia and apply from offshore. You may also be subject to an exclusion period, which means that you will only be eligible for grant of a new visa once a specified period has passed (this can be waived by the Department in certain circumstances). In the most serious cases, such as where your student visa has been cancelled on character grounds, you might be subject to a permanent re-entry ban, meaning you will not be able to be granted a further visa to Australia. In such a case, only the Minister can personally grant to you a permanent residence visa.
An important factor to consider in determining what your options may be is whether your student visa has been cancelled on character grounds. This would occur where the Minister:
- reasonably suspects that you do not pass the character test; and
- you are unable to satisfy the Minister that you do pass the character test.
What is the character test?
You will not satisfy the character test if:
- you have a substantial criminal record;
- you have been convicted of an offence that was committed whilst you were in immigration detention, during an escape, or after escape and before being placed into immigration detention again;
- you have been convicted of escaping from immigration detention;
- the Minister reasonably suspects that you have been, or you are, a member of a group or organisation, or an association with a group, organisation or person which has been, or is involved in, criminal conduct;
- the Minister reasonably suspects that you have been, or are, involved in conduct constituting one or more of the following (irrespective of whether there has been a conviction of an offence):
- a people smuggling offence;
- a trafficking of persons offence; or
- the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
- having regard to either, or both, your past and present criminal and general conduct, you are not of good character;
- you are allowed to enter or remain in Australia, there is a risk that you would:
- engage in criminal conduct in Australia;
- harass, molest, intimidate or stalk another person in Australia;
- vilify a segment of the Australian community;
- incite discord in the Australian community or in a segment of that community; or
- represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way;
- a court in Australia or in another country has:
- convicted you of one or more sexually based offences involving a child;
- found you guilty of such an offence, or found a charge against you proved for such an offence, even if you were discharged without a conviction;
- you have been, in Australia or in another country, been charged with or indicted for (one or more of) the crime of genocide, humanity, a war crime, a crime involving torture or slavery, or a crime that is otherwise of serious international concern;
- you have been assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security; or
- an Interpol notice in relation to you, from which it is reasonable to infer that you would present a risk to the Australian community or a segment of that community, is in force.
What is a substantial criminal record?
You will be deemed to have a substantial criminal record if you have been:
- sentenced to death;
- sentenced to imprisonment for life;
- sentenced to a term of imprisonment of 12 months or more;
- sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
- acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result, have been detained in a facility or institution; or
- found by a court to not be fit to plead, in relation to an offence and the court has, nonetheless, found that on the evidence available, you have committed the offence and, as a result, you have been detained in a facility or institution.
If you have been sentenced to 2 or more terms of imprisonment to be served concurrently, the whole of each term is to be counted in working out the total of the terms. So, for example, if you have been sentenced to 2 terms of 3 months imprisonment to be served at the same time, for the purposes of the character test, the total of these terms is 6 months.
If your conviction has been quashed or otherwise nullified, or if you have been pardoned in relation to the conviction and the effect of that pardon is that you are taken never to have been convicted of the offence, any sentence imposed, or the conviction for an offence, is to be disregarded for the purposes of the character test.
A court order to participate in either a residential drug rehabilitation scheme or a residential program for the mentally ill constitutes imprisonment for the purposes of the character test.
What are your options if your student visa is cancelled on character grounds?
If your student visa is cancelled because you fail to meet the character test and you are onshore, you cannot apply for another visa whilst you remain in Australia. Furthermore, even when you leave Australia. you will only be able to be granted a further visa which is not subject to Special Return Criteria (SRC) 5001. This requirement cannot be waived by the Department. In this case, you could only re-enter Australia if:
- you apply for, and are granted, a visa for which SRC 5001 is not a visa grant requirement; or
- the Minister personally grants you a permanent visa.
If either of the above does not apply, you will be permanently excluded from Australia.
What about if your student visa is cancelled on non-character grounds?
If your student visa is cancelled on non-character grounds and you are onshore, you will be restricted in being able to apply for a limited list of prescribed visa subclasses whilst you remain in Australia. If you do not qualify for any one of these visa options, you will be required to depart the country and consider your options from offshore.
The list of prescribed visas which you may apply for are as follows:
- an onshore partner visa;
- a protection visa;
- Medical Treatment (Visitor) Visa;
- Territorial Asylum (Residence) Visa;
- Border (Temporary) Visa;
- Special Category (Temporary) Visa;
- Bridging Visa A (BVA);
- Bridging Visa B (BVB);
- Bridging Visa C (BVC),
- Bridging Visa D (BVD);
- Bridging Visa E (BVE);
- Bridging Visa F (BVF);
- Bridging Visa R (BVR);
- Resolution of Status Visa;
- Child (Residence) Visa;
- Retirement (Temporary) Visa; or
- Investor Retirement Visa.
If your student visa is cancelled on non-character grounds, you may also be subject to an exclusion period under Public Interest Criteria (PIC) 4013. This means you cannot be granted a further visa to Australia for 3 years (from the date of the cancellation) if it is subject to PIC 4013, unless the Department is satisfied that you meet one of the following waivers:
- 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.
What do non-character grounds mean?
The Department can cancel your student visa on one of several prescribed grounds. Please refer to our Visa cancellation Australia and Student Visa cancellation articles, which explain some of the reasons why your student visa may be cancelled.
Another important factor to be mindful of is once your student visa is cancelled, you need to ensure that you maintain your status as a lawful non-citizen. This means that you must hold a valid visa that allows you to remain in Australia. If the Department cancels your student visa, you will need to apply for a BVE. This visa will enable you to make the necessary arrangements for your departure from Australia, or to apply for another visa. You can apply for a BVE either by email or in person at the Department. There is no lodgement fee payable when applying for a BVE.
If you fail to maintain your lawful status whilst you remain in Australia, you could also be subject to an exclusion period through the operation of the following PIC and SRC, which may prevent you from being granted a further visa to Australia.
If you leave Australia in one of the circumstances outlined below, you cannot be granted a further visa for 3 years (from the date when you left Australia). This can be waived in certain limited circumstances, as outlined above for PIC 4013):
- as an unlawful non-citizen; or
- as the holder of a BVC, 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 whilst you held a substantive visa, or within 28 days of it expiring).
If you leave Australia due to a deportation order (or if your student visa is cancelled on character grounds, as discussed above), you may be permanently excluded from Australia, unless the Minister personally grants you a permanent visa. This requirement cannot be waived by the Department.
If you are removed from Australia (as an unlawful non-citizen), you will be prevented from being granted a further visa to Australia for 12 months (from the date of your removal from the country). This can be waived in certain limited circumstances (as outlined for the PIC referred to above).
In concluding our discussion on the question of once a student visa is cancelled, can you apply again? As we have outlined in this article, the answer is, potentially yes, depending on the reason why your student visa was cancelled and whether you are subject to any relevant exclusion periods. But it is likely that you will have more options (or less restrictions) if your student visa has been cancelled on non-character grounds.
We recommend that you refer to our article on the cancellation of a student visa where we discuss the options that may be available to you if you find yourself in this situation.
Another article which we have prepared on visa cancellations also talks about how to apply for a further visa to Australia if your visa has been cancelled.
Can you work in Australia without a student visa?
We now turn our attention to the next question, that is, can you work in Australia without a student visa?
It is important to firstly point out that a student visa is designed for visa applicants whose purpose in travelling to Australia is to complete a course of study. It is not aimed for applicants who seek to work in Australia, for whom a skilled visa would be the most appropriate type of visa to apply for. If you are interested in applying for a skilled visa, we recommend that you refer to our series of articles on the visa options available to applicants who are skilled in a range of occupations, including medical practitioners and engineers. The first article in this series provides an overview of the possible skilled visa options that may be available to prospective applicants, with links to further detailed information about each skilled visa subclass. We also raise some important points that prospective applicants should be aware of when embarking on this process.
You might also consider a Working Holiday Visa (WHV) if your principal purpose in travelling to Australia is to spend a holiday in the country. As a WHV holder, you will be granted limited work rights (one such restriction being a limit of 6 months’ work for the same employer, although there are exceptions in certain circumstances).
In regard to a student visa, a key criterion that must be met by prospective visa applicants is a Genuine Temporary Entrant (GTE) requirement, which requires you to demonstrate that you intend to reside in Australia temporarily as a student and to comply with the conditions on your student visa. One such visa condition, which provides limited work rights, is visa condition 8105. This condition would restrict you to working a maximum of 40 hours per fortnight whilst your course is in session. Additionally, you would not be permitted to work until your course has commenced. Only during period/s when your course is not in session are you allowed to work unlimited hours. An exception applies if you have commenced a Masters by Research or a Doctorate course, in which case you may work unlimited hours after commencing your postgraduate research course.
Another important requirement to be met by student visa applicants is a financial capacity criterion. Here you need to demonstrate that you have genuine access to sufficient funds to pay for your living expenses and course fees for the first 12 months of your stay in Australia, and for your travel costs to Australia (minimum amounts are prescribed by the Department). This requirement extends to your accompanying family members. How much evidence you need to provide to demonstrate that you meet this criterion depends on your passport country and your proposed course of study.
As you can see from the above discussion, a student visa is not designed for applicants whose aim is to perform work in Australia. Therefore, in answering our second question, can you work in Australia without a student visa, the answer is, you can work in Australia if the visa which you hold at any given time allows you to do so. If your purpose in applying for a visa to Australia is to work, then you should consider a skilled visa, rather than a student visa.
Australia’s migrations 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 visa cancellation, as being fully informed will give you the best chance of achieving a successful outcome to your case. A migration professional can help you to do this.
For up to date advice on what you should do if your Australian visa is cancelled, or to explore visa options that would allow you to work in Australia, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.