Unfortunately what is actually meant by Condition 8516 is neither well understood or known amongst international students simply because the definition is a vague solitary sentence;
'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'
Today the DIBP issued this statement to all Registered Migration Agents in Australia via email;
"A course swap could mean a student visa is cancelled. Be aware of visa condition 8516 for streamlined student visa holders.
Under the streamlined student visa processing arrangements eligible student visa applicants from participating universities are assessed for a visa outside the Assessment Level (AL) Framework and are not subject to the evidentiary requirements of schedule 5A of the Migration Regulations."
In general terms 8516 means that visa holders must continue to meet the requirements of your student visa grant even after it has been granted to you.
This applies to you as the person who is studying and also to all the dependent family members who may have come with you.
So for example, if you presented a loan account to the DIBP to cover your living and study expenses in Australia to have the visa granted and later that loan account was no longer available to you to meet your study needs, then this may be a breach of Condition 8516 as you were granted your visa on the basis of that loan.
Similarly, if you were granted your student visa because you were the wife/husband of the student who is studying and that relationship ceases but you continue to remain in Australia on that same student visa, then you would be in breach of 8516.
The possible examples of breaches of 8516 are endless but the one that has our attention today is the one regarding the Streamline Visa Processing (SVP) arrangements.
Firstly it is important to realise that the SVP arrangements simply places you into an assessment criteria normally afforded to Assessment Level 1 passport holders. Level 1 processing arrangements have always been streamlined with minimum supporting documents required. With the introduction of the SVP these ease of processing was offered to higher assessment level passport holders if they enrolled into particular higher education courses with certain approved education providers.
As we mentioned in Volume 282 yesterday, the DIBP has been sending out possibly thousands of letters that contain a real threats to cancel a students' visa.
These letters the DIBP are sending out is not a formal Notice Of Intention to Cancel (NOIC) which is a requirement before a visa can be cancelled. It seems that the DIBP view these letters as an education campaign but in reality they are a scare campaign.
However, this scare campaign may indeed turn into a punishment campaign by sending out NOIC letters to students and potentially cancelling their visas.
Please note that if you are a DIBP assigned assessment level 1 passport holder and you have moved your course to a non-SVP provider, you will not receive one of these letters, so please do not be alarmed.
The information contained below is only for those who may be in breach of Condition 8516 as the DIBP letter indicates. Assessment Level 1 passport holders are permitted to change to any education providers without a breach of Condition 8516 occurring for no matter what provider you enroll into you will always be assessed under the SVP arrangements.
How have I breached 8516?
If you receive one of these Breach Of Your Student Visa Condition letters it is because when you have changed to the new education provider who is not the SVP list, even though it is in the same education sector (for example: 573 Higher Education).
The letter is claiming that when your visa was processed at the assessment level 1 standard, it was done so only because you were enrolled into one of the education providers that were on the SVP list. Normally your processing standards would not have been streamlined to assessment level 1. Therefore you were granted your visa on the basis on the minimum documentation required, normally a privilege only afforded to level 1 passport holders.
The DIBP is claiming that in your move to a non-SVP listed provider, the conditions on why you were granted your visa no longer exist.
What most students are unaware of, is that to change to a providers not on the SVP list, you must apply for a new student visa where you will be assessed under the assessment level appropriate for the passport you hold. In this new application your financial ability to support yourself to study in Australia will come under closer scrutiny with a request of evidence of amount and source of your funds.
The DIBP will argue that technically the day you enrolled into the new non-SVP school without a new student visa to suit that school, a breach of 8516 occurred. Once a breach has occurred it is then at the DIBP's discretion to cancel your visa.
What should you do if you are planning to change to a non-SVP school?
If you are planning to change your enrollment to a non-SVP school you should apply for a new student visa when the new COE has been issued for the new non-SVP provider. Ideally you should not begin your new study until the new visa has been granted so no breach of 8516 occurs.
What if I have already started my study at a non-SVP school, how should I respond to the letter?
If you have already begun your study at a new school that is not on the SVP list then in reality it may not be possible to return to your original education provider for a number of reasons. There is little doubt that the DIBP wish students to lodge new student visa applications if you are breaching your current visa condition regarding 8516.
It is very likely many students will have no idea of what the SVP arrangements were at the time their student visa was applied for. We have discovered by checking the past student visa application forms that it was not until the November 2012 designed Form 157A where Question 48 was modified to reflect the SVP arrangements. This is well after the official start date of the SVP policy which began on the 24th March 2012.
Up until this date there was no mention of SVP on any application form. In reality it is highly possible that students were not even remotely aware that their student visa was granted on the basis of the SVP arrangements and assessed at the Level 1 assessment criteria.
If this were the case then you would be entitled to explain this to the DIBP in your response and simply inform them that you had no idea you were breaching the Condition 8516. You should also highlight what a good student you have been and have not breached any other condition on your visa and that your desire to go on to finish your degree where you are now studying.
If you applied for your student visa after November 2012 it would be more difficult to explain that you were not aware of the SVP because of Question 48. However it is possible many students used an education agent overseas who completed their forms for them and it is most likely that the benefits of the SVP requirements were not even explained to them. There is certainly no mention of the visa being granted on the SVP arrangements on any grant letter we seen.
What if I receive a NOIC?
After you respond to this letter from the DIBP they will either issue you a NOIC or they won't.
If you do receive a NOIC then you can still legally apply for another student visa before your visa is cancelled. It is likely that if the DIBP actually goes to the effort of sending you a NOIC then there is a good chance your visa will be cancelled regardless of what you say to them.
By lodging a new student visa application you are sending the right message to the DIBP that you are attempting to rectify your error. It is then at the case officer's discretion to decide on holding off cancelling your current student visa application until a decision is made on the new application before the DIBP. At worst, if they still cancel your current student visa, your new visa application will still continue to be assessed on its own merits.
Remember once your visa has been cancelled you will be unable to lodge a new student visa application while you remain in Australia.
It is therefore critical that you lodge a new application before this cancellation procedure may occur. If you attend the DIBP for an interview regarding the NOIC, it will be too late then to lodge another application for they will most likely cancel your visa on the spot. It must be done before attending any interview or before relying solely upon a written response.
Will I have review rights if my visa is cancelled?
If your visa is cancelled due to a breach of Condition 8516 then you will be entitled to review that decision at the Migration Review Tribunal (MRT). However be warned to win at the MRT on cancellation issues is a difficult process and the chances of you losing will be high.
What is the benefit of lodging a new 573 visa before cancellation?
If the new 573 student visa application is lodged before a cancellation takes place or even after one of these 8516 breach letters has been received, there is still one hurdle to overcome. Any student visa application has the clause referring to the applicant's history of meeting the conditions of their previous visa.
For example for a Higher Education 573 visa application, this is the regulation of concern;
573.235
"If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa."
Complied Substantially?
In a cancellation procedure of a visa after a NOIC has been issued for a breach of Condition 8516, the DIBP only have to demonstrate that a breach has occurred. They do not have to take into account if the breach has been substantial or not.
However in assessing a new student visa application the DIBP case officers must take into account if the breach as been "substantial". This is an easier argument to be successful with.
The Federal Court of Australia has covered what is meant by "substantial compliance". These past decisions now force case officers to have regard to a number of factors, which may have lead up or indeed caused the breach, such as;
- the nature of the breach of condition
- the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted
- whether or not the applicant deliberately flouted the condition; and
- if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.
Clearly in any new student visa application there may be many realistic possibilities to argue that substantial compliance has occurred despite the breach of Condition 8516. This is certainly a stronger position to argue in an applicants favour compared to trying to ague against a cancellation procedure.
Important Advice
If you have received one of these Breach of your Student Visa Condition letters, do not ignore it. Seek advice from a registered Migration Agent before you make a written response. If you need more time to respond you may make such a request to the DIBP.
