Question of the Week



How to cancel your student visa and stop studying once you have applied for a partner visa?

Category: Visa for Australia

Question asked

Hello,

I am Australian and my girlfriend is from Europe. We live together here in Australia. She is currently on a student visa but would like to stop studying soon for various reasons including her health.

We have decided to apply for a partner visa anyway as we want to stay together here in Australia and get married one day. Once we have applied for the partner visa and received the bridging visa, is there any way that she can stop studying before her course finishes and switch to the bridging visa?

We know that if she cancels the student visa (which is her substantive visa), she will also cancel the bridging visa, but is there some legal way for her to leave her course and finish her student visa early so that the bridging visa will start sooner?

Thanks for your help.
M.

Answer provided by Migration Agent

Hi M.

There is a way to achieve this although it is not as simple as it seems at first glance. At present, your girlfriend has a student visa with certain duration and certain conditions. This visa bounds her to these conditions for as long as she is the holder of this visa. When you apply for the Partner visa, whilst she would be granted a bridging A visa and she will have access to Medicare upon lodgement of the partner visa, the bridging visa granted would only come into effect once the other substantive visa expires.

The only way to avoid this is to apply for a visitor visa in order for her to move away from the longer term student visa. The visitor visas are granted with a duration of up to 3 months. This means that the bridging visa A granted in association with the partner visa application will come into effect once the visitor visa expires. Your partner would no longer be bound by the conditions of the student visa once she is granted a visitor visa. She will lose her work rights for the duration of her visitor visa but have these work rights restored once she moves onto a bridging A visa.

What if her visitor visa is refused (almost insignificant risk of this happening in the current pandemic situation, but with any application, there is always a risk of that even if the refusal is an administrative error)? If her visitor visa is refused then she would continue to be bound by the student visa conditions for the duration of the student visa. She could negotiate with the education provider to take a leave of absence due to health reasons, which if approved by the education provider is considered substantial compliance with her visa conditions although she would stop studying.

This is because her education provider has agreed to grant her the leave on the basis of health. If the education provider does not give her a leave of absence and she stops studying while her Partner visa is in processing and she is still the holder of a student visa, she would be in breach of her visa condition which requires her to continue studying.

A breach of visa condition may trigger the Department to issue her with a latter called Notice of Intention to Consider Cancellation. This notice would invite your partner to provide reasons as to why despite the fact that she breached the visa condition which is a ground for the cancellation of her visa, the reasons not to cancel her visa outweigh the reasons put forward by the Department to cancel her visa.

I have attached a document which provides you with an outline of the Departmental policy as to the relevant information that the Department would consider when making a final decision as to whether or not they should cancel your partner's student visa for a breach of visa condition if she has stopped studying without the approval of the education provider.

-------- Clarification request -------------

Thanks for your answer. Can you please clarify the order we would need to do this?
1. Talk to education provider to get a leave of absence. If they agree, does that effectively end the student visa?
2. Apply for a visitor visa. Can we do that within Australia?
3. After the visitor visa ends, she goes on to the bridging visa.
Also, how do I contact you if we want to hire you for assistance?

-------- Answer from Migration Agent ----------

1. Talk to education provider to get a leave of absence. If they agree, does that effectively end the student visa? - no it does not end the student visa, but your partner would no longer be required to study and normally that would be a breach of visa condition, but with the approval of the education provider is considered substantial compliance with the student visa conditions. The student visa remains valid for the duration of the student visa.

2. Apply for a visitor visa. Can we do that within Australia? - yes you should be able to do that from within Australia if the student visa is without "No Further Stay" condition.

3. After the visitor visa ends, she goes on to the bridging visa. - yes only after the expiry of the visitor visa she would be moving onto the bridging visa.

Also, how do I contact you if we want to hire you for assistance?

Thank you for using Ask-An-Agent. If you need further services from myself you can always message me using the Ask-An-Agent messenger. You can also reach me by contacting Amy at amy.jacobson@ask-an-agent.com.au – and don’t forget to mention your question ID so that I can keep providing immigration services to you.

Migration Agent

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