Student visa refusals and cancellations: transferring to a lower level of study

We have assisted a number of students at the Tribunal and the Federal Circuit Court who have had their student visa refused or cancelled.

Today, we write to inform you of one of the reason why your student visa may be refused or cancelled if you transfer to a lower level of study.

In our experience, it is one of the more common reasons why students in Australia are refused or cancelled their visa.

Condition 8202 is found in Schedule 8 of the Migration Regulations 1994 and states as follows:

 (1)  The holder must be enrolled in a full-time course of study or training if the holder is:

                     (a)  a Defence student; or

                     (b)  a Foreign Affairs student; or

                     (c)  a secondary exchange student.

             (2)  A holder not covered by subclause (1):

                     (a)  must be enrolled in a full-time registered course; and

                     (b)  subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

                     (c)  must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

                              (i)  the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

                             (ii)  the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

             (3)  A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

                     (a)  is enrolled in a course at the Australian Qualifications Framework level 10; and

                     (b)  changes their enrolment to a course at the Australian Qualifications Framework level 9.

You must maintain enrolment in a registered course that is the same level as, or at a higher Australian Qualification Framework (AQF) level than, the registered course for which you were granted a visa

If you transfer to a lower AQF level, you will be in breach of condition 8202 and may risk refusal or cancellation of your student visa. This is also generally applicable if you are changing to a lower AQF level even with the same education provider.

The only exemption that applies is if you are studying a doctoral degree and you wish to transfer to a master degree.

We will continue to share further updates on what to avoid while you are on a student visa in Australia.

By RSG Lawyers.

Footnotes are available upon request.

Email: admin@rsglaw.com.au

(03) 9350 4440

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