STUDENT VISA CONDITIONS REVISITED
We will explain the attendance and course progress requirements of the student visa condition 8202. As stated in our previous news letter, any student visa contains various conditions as a part of the grant of the visa.
It is obligatory for student visa holders and their dependents to comply with the conditions defined on their visa. Any breach of these rules can lead to a visa cancellation procedure, the worst nightmare of any international student.
Schedule 8 in the Migration Regulations define the laws covering the conditions imposed with the grant of a visa.
Student Visa Condition 8202
In general terms condition 8202 requires students to:
- Be enrolled in a registered course
- Achieve satisfactory course progress and
- Achieve satisfactory course attendance
These requirements are encapsulated in various clauses, which cover most circumstances a student might face.
The following information comes from the Department of Immigration and Border Protection's (DIBP) Procedural Advice Manual (PAM) on one of these conditions imposed, 8202.
Compliance with 8202 (Part II)
ATTENDANCE: Condition 8202 requires students maintain satisfactory attendance. Certain education providers are required to monitor students' attendance where relevant:
Higher Education, ELICOS and Schools sector are not required to monitor attendance, however students are reported if their attendance falls below 80%, unless the provider determines that:
- the student's lack of attendance is due to compelling and compassionate circumstances and
- the student is attending at least 70% of the course.
Students may be taken to have satisfied the attendance requirements if they have not been reported by their education provider for a breach of attendance requirements.
For students to actually breach the attendance condition it would have to have occurred during the validity period of the last student visa held.
Displaced students, that is students who are no longer enrolled in a course because the institution at which they were enrolled has ceased operations; are not required to provide evidence of attendance. They are given time to find other education providers who match their needs.
COURSE PROGRESS: Condition 8202 also requires that students achieve course progress that is certified by their education provider to be at least satisfactory.
Again unless the education provider reports a students on the basis of unsatisfactory course progress, this condition is taken to have been met.
Similar to the attendance requirement the breach would have to occur during the validity period of the last student visa held.
Students applying for a further visa are not ordinarily required to provide transcripts of their academic results.
SUBSTANTIAL COMPLIANCE: If the student visa application was made in Australia, the applicant must have complied substantially with the conditions that apply or applied to the last of any substantive visas they held, and to any subsequent bridging visa.
The expression 'has complied substantially' implies that there be some compliance with a condition and the criterion would not be considered satisfied if there has been no compliance by the applicant with an imposed condition.
There would not be substantial compliance if an applicant has breached either of the provisions.
Students changing courses within the same sector and with the same provider:
Counselling:
As a general rule, students are granted a visa for the duration of the course for which they have enrolled. If a student subsequently wishes to undertake a shorter course than that for which the visa was granted, the student should be counselled that, although they do not have to make a fresh visa application:
- when they have completed the shorter course they must, within 28 days, either leave Australia or, if they wish to enrol in a further course of study, notify the department and apply for a new student visa as required and
- if they do neither, the department might commence visa cancellation action.
The Department must be notified:
Students wishing to change their course are expected to notify the department accordingly. If the course is longer than the course for which they have been granted a visa, the student should be told that, although they do not have to apply for a further visa now, they will need to keep in mind the cease date of their current visa and apply for a further visa later as necessary.
Student visa holders and applications for migration - Compliance with 8202: If a student completes their course of study and makes an application for migration, they will be granted a Bridging Visa A in association with the application. The BVA, however, will not come into effect until the student visa ceases. Therefore, the applicant remains subject to student visa conditions until such a time as their visa ceases, or their application for migration is granted.
The following guidelines apply to students who remain on a student visa while awaiting an outcome of a migration application. The general principle is that:
* students who complete the full course of study for which they were granted a student visa should be allowed to remain on a student visa
* visa cancellation and subsequent bridging visa applications should be considered for students who do not complete the full course of studies for which they were visaed.
The following scenarios illustrate the policy approach:
Scenario 1
If the student finishes the principal course for which they were visaed as scheduled or earlier than planned:
* the student to be allowed to remain on student visa, even if not intending to undertake any further studies
* if an SCV (Student Course Variation) is issued for early completion, the visa should not be cancelled.
Scenario 2
If the student does not attempt the principal course, but makes an application for a permanent visa after only completing a preliminary course, once the student is brought to notice:
* if the student intends continuing studies, they can be allowed to remain on their student visa.
* if the student does not continue studies, the student visa may be cancelled as the student no longer continues to be a person who would satisfy the grant of a student visa. In this instance, the student and dependants can apply for a Bridging E visa (BVE).
