Thousands of International Students’ Visas Fear To Be Cancelled

blog_image: 

Recently, many international students have received an email from Immigration Department saying they have breached condition 8516 attached to their student visa because they have switched from a SVP course to a non-SVP course. The immigration Department has given them 14 days to respond.  If no satisfactory answer is received within 14 days, their student visas can be subject to cancellation.The situation is very urgent because most international students are now on vacation and may not even be aware that they have received such an email, let alone respond within 14 days.

 

Condition 8516 requires international students, while holding their student visas, continue to meet the original criteria, under which their student visa was granted.  Originally the condition 8516 was designed to stop international students from changing education sectors without reapplying for a new student visa.   Streamlined Visa Processing (“SVP”) arrangement was introduced in March 2012 in order to reduce the visa requirement evidencing burden for those international students who are enrolled in an eligible higher education provider, typically universities.

 

Recently many international students have come to Australia under SVP arrangement and then changed to a non-SVP course or to a lower ranking diploma course. Immigration Department are very concerned about that.

 

Immigration Department have suggested the following three options for students who want to leave a SVP provider (http://migrationblog.immi.gov.au/2014/01/14/changing-courses-changes-everything/#comments):

  1. transfer to another streamlined institution
  2. remain in her current SVP course and apply for a new student visa (after completing six months of her principal course) with a letter of offer or confirmation of enrolment from the new provider
  3. depart Australia, request the voluntary cancellation of her student visa and then apply for a new student visa with a letter of offer or confirmation of enrolment from the new education provider.

 

VisaMaster strongly disagree with the third option because this option can only lead to students incuring unnecessary risks and costs. In the example given on immigration blog  (http://migrationblog.immi.gov.au/2014/01/14/changing-courses-changes-everything/#comment-1912), a  copy of which is attached at the end of this article,  the Immigration Blog writer suggests the student stop his study, leave Australia, apply for voluntary cancellation and then apply for a new student visa with Kaplan’s COE.

 

I believe this is a very wrong approach.  Just consider the amount of time and money lost if this approach is taken. This may include disruption of study, airfares, expenses associated with lodging a new student visa application.  Plus, if the new student visa application is refused the student will be stuck overseas as he will not be entitled to lodge an appeal with Migration Review Tribunal.  The correct approach would be Immigration give the  student an opportunity to correct a totally innocent mistake that he made out of his ignorance of the law.  This can be simply achieved through lodging a new onshore student visa application, though the student will have to deal with the issue of substantial compliance of the conditions of his previous student visa.  This issue can be addressed with a carefully crafted submission written by an experienced immigration specialist advisor.

 

Below are some of the common scenarios and the suggested solutions provided by VisaMaster.

  1. I am currently studying a bachelor of accounting course with Melbourne University and wish to change to bachelor of business with Deakin University. Should I do anything with my VISA?

No.  Both courses are SVP courses. There is nothing you need to do with you visa.

  1. I am currently studying bachelor of business with Melbourne University and find it is difficult to cope and wish to change to bachelor of business with ABC College. Should I do anything with my student visa?

Yes. ABC College is a non-SVP provider. If you wish to change from a SVP course to a non-SVP course, you need to apply for a new subclass 573 visa.

  1. I am currently studying bachelor of business with Melbourne University. I find the course is very hard and wish to change to diploma of hospitality with XYZ Institute. What should I do?

You need to apply for and be granted a subclass 572 VISA before you could switch because you are changing to a different education sector.

  1. I am currently studying  bachelor of business with Melbourne University and wish to change to a course package consisting diploma of business with ABC College and bachelor of business Deakin University. What should I do?

You need to apply for and be granted a new subclass 573 VISA before you can switch because as a result of including diploma course in the package your student VISA assessment level may have changed. Additionally, the diploma of business is not a SVP course.

  1. I have already switched to a non-VP course. I am progressing well and wish to complete it. What should I do?

You should immediately apply for a new student VISA on the basis of your current COEs.  However, Immigration Department will look closely at your compliance history with your previous student Visa. Many factors will be taken into consideration such as the circumstances under which you breached your VISA condition and the duration of the breach. You will need a strong submission to support your new student VISA application.  I strongly suggest you appoint VisaMaster Immigration to lodge the application on your behalf.

  1. I have already transferred from a SVP course to a non-SVP course. Now Immigration has advised me to request a voluntary cancellation of my VISA, depart Australia and then apply for a new student VISA to come back to Australia. What should I do?

VisaMaster strongly disagree with this approach. Once you leave Australia,  your new student VISA application will be totally at the mercy of Immigration Department. If your new student VISA application is refused, you will not be entitled to a review by Migration Review Tribunal. However if you remain in Australia and lodge a new student VISA application onshore, you will have the MRT review right in case your new student VISA application is refused. That way, you will put yourself in a much better position by staying in Australia.

  1. I have received an email from Immigration Department asking me to respond within 14 days. What should I do?

You should immediately contact VisaMaster. Your specialist immigration adviser will be able to prepare a comprehensive and strong submission. With a good submission, it is very likely that Immigration Department will leave you alone and not proceed with the cancellation.

  1. I have already replied to Immigration Department within 14 days and now Immigration Department is prepared to cancel my student VISA. What should I do?

Your case is getting very serious now.  You should immediately contact VisaMaster. Your specialist immigration adviser at VisaMaster will carefully review your situation and make a strong case against cancellation. We will walk you through every step of the VISA cancellation process.

  1. My student visa has already been cancelled by Immigration as a result of me not complying with condition 8516.  What should I do?

You should immediately seek professional advice with VisaMaster.  We could help you lodge a review with Migration Review Tribunal.  MRT has the power to overturn the cancellation decision made by Immigration if MRT believes it is fit to do so.

  1.  My 573 visa was granted before 24 March 2012 and I wish to change from a SVP course to a non SVP Higher Education course.  Do I have to apply for a new visa?

No.  SVP arrangement started on 24 March 2012.

  1. I lodged a new student visa application and received a letter from Immigration saying I have not substantially complied condition 8516 of my last student visa.  What should I do?

This is commonly referred to as “substantial compliance” clause.  In order to be granted a new temporary visa in Australia you must have substantially complied with the conditions of last held substantive visa.  Substantial compliance means there be some compliance, even though there is no strict compliance. All the relevant factors surrounding the non-compliance need to be taken in consideration. It is a very complex area of law, a significant amount of expertise is needed to handle this kind of cases. I strongly suggest you seek expert advice immediately.

 

Appendix A: Extract from Immigration Blog

Vo Minh Tam Pham says:

January 15, 2014 at 9:28 pm

I actually did not meet the requirement to enrol – I did not meet requirement to study Master degree in Deakin University after pathway course at MIBT which links to Deakin.
I want to study Bachelor of Business ( Hospitality and tourism Management) but Deakin University does not have this course.
In addition, I successfully enrolled into Kaplan Business School for Hospitality and Tourism Management Stream in March, 2013. Then I have kept pursuing this course non-stop with quite good results until now.
Moreover, the Immigration knew that I’m under Kaplan now but they said that I’m doing non-streamlined course at Kaplan. And here is what makes me don’t understand :”You are not enrolled in an eligible course with an eligible education provider as required under the terms for which your visa was granted, and you are now considered to be in breach of visa condition 8516.” They ask me to explain, and I did. They they asked me to find useful information from here. I don’t really know what to do now.
So in this case, should I come and bring all documents to explain to them or I need to apply for a new visa?
Thank you for your helps a lot.

Reply

  • Jalford says:

January 16, 2014 at 9:59 am

Your visa was granted for your studies in Deakin University under streamline visa processing, this means you had reduced evidentiary requirements when your visa was assessed and granted. When you did not meet the requirement to enrol in Deakin University your options were to enrol in another streamlined university to stay compliant on your streamline student visa. See link: List of Streamlined Universities.

If you wish to continue your studies at the new non-streamlined education provider (Kaplan) you are required to obtain a non-streamlined student visa. You can do this by:

1.Depart Australia
2.Requesting Voluntary Cancellation of your student visa
3.Apply for a new student visa with a letter of offer or CoE from the new education education provider (Kaplan).

You will need to meet all criteria for the grant of a new visa.

 

 

Appendix B:   The sample letter  received from Department of Immigration 

14 January 2014

 Dear xxx,

  BREACH OF YOUR STUDENT VISA CONDITIONS

 I am writing to you to advise of your non-compliance with the conditions imposed on your Higher Education Sector (subclass 573) student visa.

 Student visa applicants with a Confirmation of Enrolment from a participating education provider at bachelor, masters or doctoral degree level are assessed under a streamlined visa processing arrangements. As a beneficiary of this arrangement, your visa was granted based on you having to meet a lower threshold of proof of your education history, English language ability, and financial capacity.

 It has come to the attention of the department that you ceased enrolment at Melbourne University  and have since commenced studies in a non‑streamlined course at xxx  International College (Vic) Pty Ltd.

 You are subject to visa condition 8516, which states:

 8516

The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

 You are not enrolled in an eligible course with an eligible education provider as required under the terms for which your visa was granted, and you are now considered to be in breach of visa condition 8516.

 For a list of education providers who are eligible to provide courses to students granted visas under the streamlined processing arrangement, please see website: www.comlaw.gov.au/Details/F2013L01035

 Please provide information and any supporting documentation on the circumstances that led you to change courses. Please email this information to student.integrity.and.visa.cancellation.coordination@immi.gov.au If you provide an explanation, the department will make an assessment of the breach. If you do not provide an explanation within the next 14 days, the department will initiate cancellation of your visa. If your visa is cancelled you will become an unlawful non-citizen and liable to detention under Section 189 and removal under Section 198 of theMigration Act 1958. You will have limited options to apply for further visas in Australia and may be required to return to your country of origin.

 For further information regarding student visa conditions and lodgement of student visas, please see our website at http://www.immi.gov.au/Study/Pages/changing-courses.aspx; our Migration Blog atwww.migrationblog.immi.gov.au/ and our Facebook page at www.facebook.com/DIBPAustralia?ref=hl

Yours sincerely

Student Integrity unit

Department of Immigration and Border protection

 

About author:

Robert Chen is a specialist immigration adviser (MRN:  0103806) with over 12 years of professional experience.  He is the president of Victoria/Tasmania Branch of Migration Institute of Australia (MIA) – The peak professional body for Australian immigration industry (http://mia.org.au/state-branch/Victoria-and-Tasmania-5.html). Robert sits on the National Board of MIA as the honorary treasurer (http://mia.org.au/about-mia-national/).

Robert is a Fellow member of MIA (“FMIA”), a prestigious title reserved only for an exclusive elite group of Registered Migration Agents.  There are only around 40 FMIAs among the total number of close to 5000 registered Australian migration agents worldwide (http://mia.org.au/members-with-additional-accreditation/).

Robert is the founding director of VisaMaster Immigration & Education Centre, a highly respected immigration and education consultancy firm in Melbourne. He and his team have served over 10,000 clients over the years and enjoyed track record of clients’ satisfaction.

 

Disclaimer:  The content of this article does not constitute legal or immigration advice. You must seek independent advice before taking any actions.  The author or VisaMaster does not accept any liabilities arising out of your relying on the content of this article.