Studying and Temporary Visas in Australia

What you need to know about the Australian Genuine Temporary Entrant visa, breaching visa conditions and visa cancellation under Section 116 of the Migration Act 1958. 

Are you a Genuine Student?

If you are a Student Visa holder, or are looking at applying for a Student Visa, you may be aware of the Department of Home Affairs’ Genuine Temporary Entrant (GTE) criterion.

In effect, the GTE must be satisfied in order for a Student Visa to be granted – in other words, your individual circumstances must demonstrate that you genuinely intend to stay in Australia temporarily.

In assessing the GTE, the Department of Home Affairs takes into consideration the following factors:

  • Your personal circumstances in your home country
  • Your potential circumstances in Australia
  • The value of the program to your future
  • Your immigration history, and
  • Any other matter that is relevant to your intention to remain in Australia temporarily.

If you are under 18 years of age, the intentions of your parent, legal guardian or spouse will also be considered.

When assessing your circumstances, the Department will consider the following questions relating to your proposed course of study:

  • How will this course of study benefit your future?
  • How is this program related to your previous studies or work experience?
  • If this program is not related to your previous studies, why have you decided to change your career path?
  • What do you know about this program?
  • Are you aware of the full cost of this program?

In addition to the above, the Department will have regard to your circumstances in your home country including, but not limited to, the following:

  • Do you have an offer of a job when you return to your home country? If not, how do you intend to look for a job once you return home?
  • Are you married or single? If you are married, when did you marry?
  • What do your parents do?

Further, if you are an existing Student Visa, the Department will assess your circumstances in Australia and consider the following:

  • Do you have family living in Australia?
  • If you are married, does your spouse intend to accompany you to Australia? What is your spouse’s current occupation? Will your spouse resign from their current employment to accompany you to Australia? What does your spouse intend to do in Australia?
  • Do you have any children? If so, will your children accompany you to Australia?

Finally, the Department will evaluate your immigration history including visa refusals, cancellations, other temporary visa approvals and applications. The Department will consider your applications for visas for other countries also in order to determine whether you will be a genuine student intending to remain temporarily in Australia.

Breaching Visa Conditions and S116 Cancellation

The Minister is afforded general powers to cancel visas under Section 116 of the Migration Act (‘the Act’) where certain circumstances exist. Two (2) common grounds for visa cancellation include the following:

  • You have not complied with a condition(s) imposed upon your visa
  • The grounds under which your visa was granted no longer exist.

If the Department of Home Affairs intends to exercise its discretion to cancel an Australian visa under section 116, the Minister must first issue a Notice of Intention to Consider Cancellation (NOICC).

Upon receipt of the NOICC you are given the opportunity to present arguments and submissions in support of your matter, explaining why your visa should not be cancelled. Failure to respond to a NOICC will likely result in the visa cancellation regardless.

Under s116(1)(fa) of the Act, the Minister may issue a NOICC where he considers the Student Visa holder will not be a genuine student. We note that Students Visa Holders who receive a s116 NOICC after 13 April 2013 are not subject to mandatory cancellation. The power to cancel the Student Visa is, therefore, discretionary in nature.

Grounds for cancelling a Student Visa can include the visa holder breaching the following conditions:

  • Condition 8104 – must not engage in work for more than 40 hours per fortnight (unless exemptions apply).
  • Condition 8105 – must not engage in any work in Australia before commencement of the course of study.
  • Condition 8202(2) – must be enrolled in a full-time, registered course of study

Failure to adhere to these conditions may result in your visa being cancelled under s116 of the Migration Act 1958 (‘the Act’).

In addition to the above, s116(e) also gives the Minister the power to cancel visas where the presence of the Student Visa Holder in Australia is – or may be, or would or might be, a risk to:

  • the health, safety or good order of the Australian community or a segment of the Australian community; or
  • the health or safety of an individual or individuals.

An NOICC under s116(e) may be issued if you have been convicted for driving offences, being the subject of an aggravated violence order (AVO) as well as many other character issues.

It is important to stress that under s116 of the Act, the Minister can issue an NOICC and subsequently cancel a Student Visa where exists sufficient evidence that the Student Visa Holder may, would or might be a risk. In other words, the cancellation can be enacted if the probability of you offending is considered serious by the Minister.

Despite the above, if the Department of Home Affairs decides to cancel your Student Visa, you may have the right to review this decision with the Administrative Appeals Tribunal (AAT) provided you apply for review within the statutory time frames and pay the review application fee.

If you are an existing Student Visa Holder (or Applicant) and have received an NOICC from the Department of Home Affairs, contact our Immigration Accredited Specialist today for accurate advice and guidance on your matter.

If you have a family member currently serving a prison sentence and they are not an Australian citizens, be aware that their visa may be at risk of being cancelled.

It is now mandatory for the Minister for Immigration to cancel a non-citizen’s visa if they:

  • are currently serving a full-time prison sentence and
  • have been sentenced to 12 months or more imprisonment (this includes time already served) or
  • have been sentenced to life imprisonment or
  • have been sentenced to death or
  • have been found guilty of a sexual offence involving a child.

Will your family member’s visa be cancelled?

If you have a family member or friend that has been served with a cancellation notice we can help.

Cancellation Notice – If your family member meets the above criteria, the Department will issue them a notice cancelling their visa.

Revocation Request – Your family member can seek to have the cancellation revoked. A revocation request must be submitted to the Department within the prescribed time limit.

The time available to submit the request is as follows:

  • if a staff member from the Department handed the notice to your family member, they have only 28 days from the date of the notice to submit their revocation request; or
  • if the Department sent your family member the notice by post, they have 35 days from the date of the notice to submit their revocation request.

If your family member fails to submit their revocation request within the time limit, their revocation request will not be considered. Further on completion of their sentence, the Department of Home Affairs will look to detain them before removing them from Australia.

Even if your family member’s visa is not mandatorily cancelled, the Department of Home Affairs has other powers to cancel a person’s visa on ‘character grounds’ and in turn may send your family member a letter called a Notice of Intention to Consider Cancellation (NOICC).

Alan Rigas Solicitors have been dealing with temporary entrant visas and Australian visa cancellations for over 20 years.

Contact Us today to discuss your needs as time limits cannot be extended: 02 9635 5333

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