What is the difference between student visa cancellation and student visa rejection, and what are your best options in both scenarios
The cancellation of a student visa is different to a student visa rejection (or a visa refusal as referred to in the migration provisions), but each can result in significant ramifications for the affected individual and any family members who are dependent visa holders/applicants. A visa cancellation or visa refusal can have potentially far-reaching impacts on your ability to be granted a future visa to Australia and affect your planned visa pathway. You could also be subject to an exclusion period, which may delay a further visa being granted to you for up to 10 years in some instances. In the most serious cases, a re-entry ban may apply, meaning permanent exclusion from Australia. Apart from the potential consequences as they relate to visa and migration matters, both events will require additional time to have them resolved (where possible) and lead to added costs. On a more personal level, these events can be distressing and stressful for many people, particularly with the added uncertainty that comes when having to deal with what is usually a complex process.
Given the potentially very serious nature of having a student visa cancelled or refused, if you are affected by either of these events, it is critical that you are fully informed about what it means for you, and how best to proceed. Despite the potentially serious nature of a student visa being cancelled or refused, there are often things you can do to remedy the situation. As each case is different, the best course of action needs to be determined based on your own personal circumstances. There is no ‘one size fits all’ solution, but rather, each case should be carefully considered to formulate the best solution for each affected individual. Options which may be available include having the decision reviewed by an independent review tribunal, applying for another visa, or in cases where all options have been exhausted, departing Australia.
The best course of action is therefore to make every effort to avoid either of these scenarios arising in the first place. As we will discuss in this article, this means being fully aware of your responsibilities as a student visa holder and abiding by your visa conditions. You should ensure that you lodge a complete and correct student visa application, including submitting all required documents at time of lodgement. It also means responding to all requests for further information from the Department in a timely manner and within deadlines as they apply.
In this article, we delve further into what it means to have a student visa cancelled or refused, actions that can lead to either of these events occurring, the potential consequences which may arise as a result and options that may be available to you to reach a resolution.
What is the difference between a student visa cancellation and student visa refusal?
A student visa cancellation arises when a student visa, which has already been granted, is cancelled by the Department. This can be due to several reasons, including not complying with your student visa conditions, providing false information in your student visa application, or based on character grounds. Before proceeding with cancelling your visa (and if you are located onshore at the relevant time), the Department is required to notify you in writing of its intention to cancel your visa. It will invite you to provide a response within a specified period. This is your opportunity to present your argument/s and documentation in support of your claims that your visa should not be cancelled. The Department must then consider your response and decide whether grounds exist for cancellation to occur. It must then notify you in writing of its decision.
A student visa refusal occurs if your application for a student visa is rejected by the Department. In this scenario, a student visa has not yet been granted. Therefore, a refusal affects the status of a student visa application only, not the visa itself. In contrast and as discussed above, a student visa cancellation results in a visa which already exists effectively being removed, such that it no longer exists. If the Department has concerns with your application, it may invite you to comment and provide further information, however it is not obligated to do so. The best way to prevent a refusal is to lodge a complete and correct application, and to respond to all requests for further information within timeframes as notified by the Department. Any gaps or inconsistences in information and/or documents provided can result in further scrutiny being applied to your application, and therefore a greater likelihood of your application being refused.
What can lead to a student visa being cancelled?
There are primarily two categories under which a student visa can be cancelled. The first is based on compliance issues, whereby a visa is deemed to have been granted based on incorrect information. Cancellation decisions under this category are discretionary, meaning it is up to Immigration to decide whether to proceed with this action (i.e. it is not compelled to do so). Also be aware that a student visa can be cancelled in instances where the failure to comply was not material to the grant of the visa.
Grounds to cancel a student visa based on compliance include the following:
- providing incorrect information in your student visa application;
- supplying an officer with a bogus document;
- failing to notify the Department of a change in your circumstances;
- failing to correct incorrect answers; and
- making an incorrect statement when responding to a visa cancellation notice.
A bogus document is one which purports to have been, but which was not issued, in respect of a person; is counterfeit or has been altered by a person without authority to alter it; or was obtained because of a false or misleading statement, whether or not made knowingly.
Also be aware that each of the above grounds for visa cancellation can apply whether your actions were deliberate or inadvertent.
Under the second category, specific grounds are prescribed for when a visa may be cancelled. Cancelling a student visa under this category can occur in the following circumstances:
- if you are not, or you are not likely to be, a genuine student; or
- if you have engaged in, or you are likely to engage while in Australia, in conduct which is not contemplated by the visa.
Factors to be considered in determining whether you are a genuine student include:
- evidence that you are not attending your course;
- if you are enrolled in a course but you have extensive periods without actual study (e.g. if you are enrolled in a future course but have an unreasonable period without actual study);
- if you are not informed about the details of your course or the location of your education provider;
- if you have arranged for another person to attend many classes or exams on your behalf;
- if you admit at an interview with the Department that your primary purpose is to work;
- evidence that you have been in Australia for a significant period of time but have not completed any course of study and you are not demonstrating a pathway to an educational qualification or outcome;
- evidence that a deferral was granted by an education provider for non-genuine reasons (e.g. if you claim that a family member has died and this is proven to be false, or if you were granted a deferral to leave Australia for personal reasons but you never left); or
- Your course of study is deferred due to your misbehaviour.
Conduct not contemplated by the visa generally refers to academic misconduct which is ongoing and of a serious nature. Examples include:
- 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.
If your student visa is cancelled, exclusions periods may apply, which means you will be unable to be granted a further visa to Australia for a specified period. You could also be subject to a re-entry ban to Australia.
What can lead to a student visa being refused?
Factors that can result in a student visa being refused include:
- failing to meet visa grant requirements (including not providing required documentary evidence at time of lodgement of your application);
- providing bogus documents or information;
- providing false or misleading information; or
- failing to prove your identity.
To qualify for grant of a student visa, some of the key requirements you will need to meet include:
- confirming that you are enrolled in a full-time registered course;
- meeting an English language requirement (this might require you to complete a prescribed English test and achieve a minimum specified result);
- demonstrating that you are a genuine student who intends to remain in Australia to complete your course and to comply with your visa conditions;
- demonstrate that you have genuine access to sufficient funds (minimum amounts are prescribed) to cover your living costs for the first 12 months of your stay in Australia, your first annual course fee and your travel costs;
- arrange to be covered by acceptable health insurance policy for the duration of your stay in Australia; and
- health, character and public interest criteria.
You must demonstrate that you satisfy each requirement for visa grant by submitting to Immigration supporting documentation in the correct form and in a timely manner. This means attaching all required documents at time of lodgement of your application. If you fail to do so, you risk having your student visa application refused (the Department is not obligated to request any missing documents and/or information and can simply proceed to automatically refuse to grant your student visa).
Among the public interest criteria (PIC) which you will need to satisfy for grant of a student visa is PIC 4020. This deals with instances where applicants have provided a bogus document or false or misleading information, or they are unable to prove their identity. If you are found not to have satisfied PIC 4020, you will be subject to an exclusion period of either 3 or 10 years. This means you will be unable to be granted a further visa to Australia for the duration of the exclusion period.
A student visa may be cancelled or refused if the Department determines that you do not meet the character test. This test is detailed and descriptive and we would recommend that you seek further information and advice in this regard if this could be an issue for you. Some examples of instances where you will fail to satisfy the character test include if you have been sentenced to 12 months or more imprisonment or you have been convicted of a sexually based crime involving a child.
If your visa is refused on character grounds, you may be subject to permanent exclusion from Australia.
What happens to dependent family members if your student visa is cancelled or refused?
If you student visa is cancelled, members of your family unit who hold a student visa as dependents will also have their student visa cancelled. Likewise, if your application for a student visa is refused, the same will apply to any family members who apply as your visa dependents.
What should you do if your student visa is cancelled or refused?
Firstly, don’t panic! Although it can be confronting and distressing to receive such a notification, the best thing to do is to carefully read through your notification letter from Immigration. Take note of important information, in particular, the reason/s for the decision, whether you have the right to lodge an appeal, and any deadlines that apply.
Some important questions to consider include:
- what is your current visa status as a result of the decision? Note validity dates and what action you need to take, if any, to ensure that you maintain your lawful status in Australia at all times;
- has the Department made the correct decision based on the migration provisions? If you have review rights, what are your chances of receiving a favourable decision by the AAT? What is involved in a review? What are the potential pro’s and con’s of proceeding with a review? Should you engage a professional to assist you?
- If you do not have review rights, or you choose not to proceed with one, what other options do you have, if any? If you can apply for another visa whilst onshore, when must you apply by?
It may be that you must depart Australia if you have no further options available. Take note of when you must depart by to prevent an exclusion period being imposed (otherwise, PIC 4014 may apply to a future visa application that you lodge).
These are very important issues for you to think about as you decide how to proceed (and there may be other questions too, depending on your personal situation). They are also complex, requiring a good in-depth understanding of how the migration provisions operate. Several other elements also come into play, such as case law and Immigration policy. Engaging an expert is highly recommended if you find yourself in this situation. An experienced professional will guide you through this process and their experience and specialised knowledge in this complex area of the law will be invaluable.
What options are available if your student visa is cancelled or refused?
As noted above, you may have the right to a review of the decision by the Administrative Appeals Tribunal (AAT) (this will be advised in your cancellation or refusal notification letter from the Department). If you decide to proceed with a review, you must act quickly as strict time-limits apply. You will need to carefully consider the Department’s reasons for their decision and determine whether you believe you can present a valid argument for why that decision was incorrect. Appeals of migration decisions can involve lengthy wait-times. The latest data on processing times released by the AAT shows that, on average, student visa refusals are taking 445 days to reach a decision. The delays being experienced for student visa cancellations are even longer, currently averaging 530 days (these statistics are for the period from 01/10/2018 to 31/03/2019).
Be aware that a student visa cancellation or refusal on character grounds is generally reviewable by the AAT, unless the decision was made by the Minister personally.
If you do not have review rights, or you decide not to proceed, you might consider whether you are eligible for another visa whilst you remain in Australia. Again, be mindful that you will need to act in a timely manner (the period of time you have to act will depend on your specific circumstances and your visa status at that time). You may be subject to restrictions in regard to which visa class you can apply for onshore. This will occur if you are subject to section 48 of the Migration Act. This provision applies if you do not hold a substantive visa (which is any visa excluding a bridging visa, criminal justice or enforcement visa) and since last entering Australia, your visa has been refused or cancelled (except on character grounds). If you are subject to section 48, you can apply for a visa from a prescribed list of visas whilst you remain onshore, including a Partner Visa or a Bridging Visa.
Seeking a judicial review or ministerial intervention are other potential options which may be available, but only if your review application is unsuccessful (and only in limited circumstances).
One other point to be mindful of if you have had a visa refused or cancelled, you must declare this information in any future visa application that you lodge in Australia. This may also be required if you apply for a visa to another country.
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 student visa cancellation or refusal, 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 how best to address a student visa cancellation or refusal, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.