International Students: Protection Visa 866

Student Visa Cancelled Protection Visa Options: The Short Answer

A student visa cancelled protection visa situation is more common than most students realise, and the short answer is that the protection pathway usually remains open. If your student visa has been cancelled, or is facing cancellation, you can still apply for a Subclass 866 Protection visa, provided you arrived in Australia holding a visa, were immigration cleared and are not barred by an earlier protection refusal.

What changes after cancellation is your status. A student whose visa is cancelled becomes an unlawful non-citizen unless another visa is in effect. The bridging visa that follows a protection application lodged after cancellation is generally a Bridging visa E, and it initially carries the no work condition. The order in which things happen therefore matters in every student visa cancelled protection visa case.

This article explains how student visas are cancelled, how to respond to a notice, what happens to a pending protection application, which bridging visa follows, and how review of the cancellation and a protection application interact. The general rules on whether students can apply for protection are covered in our article on international students applying for a Subclass 866 Protection visa. Our page on visa cancellations explains the cancellation process for all visas.

Who Can Apply for Protection After a Student Visa Is Cancelled

The threshold requirements in a student visa cancelled protection visa case are the same as for any applicant. The Department states that an applicant must have arrived in Australia holding a visa that was in effect and been immigration cleared on arrival. A student who arrived by air on a student visa and passed through immigration clearance meets that requirement, and a later cancellation does not change how the student arrived.

The Department also states that a person cannot make a valid application if they have been refused a protection visa, or had one cancelled, since their last arrival, and that applicants must not hold or ever have held certain temporary protection and humanitarian visas. Those exclusions rarely affect students.

Family members need separate attention. Where a student visa is cancelled, the visas of family members who hold student visas as secondary applicants may also be cancelled as a consequence. Each family member's status should therefore be checked immediately. Members of the same family unit can be included in the protection application if they are in Australia and eligible to apply, and a partner or dependent child can be added later on Form 1436 while the application is undecided. In a student visa cancelled protection visa matter involving a family, every eligible family member should be considered from the start. Our page on the Subclass 866 Protection visa sets out the requirements.

How Student Visas Are Cancelled

Most student visa cancellations are made under section 116 of the Migration Act 1958. Section 116 allows the Minister to cancel a visa on a range of grounds. The ground most often relied on for students is that the holder has not complied with a condition of the visa.

In student visa cancelled protection visa matters, the conditions most commonly in issue are:

• Course requirements. Condition 8202 requires a student, in broad terms, to remain enrolled in a registered course and to maintain satisfactory attendance and course progress.
• Work limitation. Condition 8105 limits the work a student visa holder can do.
• Health insurance. Condition 8501 requires adequate health insurance arrangements to be maintained.
• Continuing to meet the visa requirements. Condition 8516, where imposed, requires the holder to continue to satisfy the criteria on which the visa was granted.

Cancellation can also follow other grounds, such as incorrect information in the student visa application. Education providers report enrolment changes and certain attendance and progress issues to the Department, and those reports are a common starting point.

A cancellation under section 116 is usually preceded by a notice of intention to consider cancellation. The notice sets out the ground and the information relied on, and invites the student to respond within a short time. That notice is the most important document in any student visa cancelled protection visa case, because a response may prevent cancellation altogether.

Responding to a Notice of Intention to Consider Cancellation

A notice of intention to consider cancellation should be answered in writing, within the time stated, with evidence. The response can argue that the ground for cancellation does not exist, or that even if it exists the visa should not be cancelled because of the student's circumstances.

For a student with protection claims, the response raises strategic questions. Should the protection claims be mentioned? Should a protection application be lodged before the cancellation decision is made? The answers depend on the facts, but three points apply in almost every student visa cancelled protection visa matter.

First, a response is not a protection application. Mentioning a fear of return in a cancellation response does not engage the protection process. If the student has genuine protection claims, a valid Subclass 866 application is needed.

Second, lodging a protection application before cancellation does not prevent the student visa from being cancelled, and if the student visa is cancelled the Bridging visa A granted with the protection application ceases. However, the earlier lodgement can matter later for work rights, as explained below.

Third, section 48A of the Act generally prevents a further protection visa application after a refusal. A protection application lodged in haste, without proper claims and evidence, because a cancellation notice has arrived may be the only protection application the student can make in Australia. Our guide to the protection visa statement of claims explains what a complete application requires.

What Happens When the Student Visa Is Cancelled

When the student visa is cancelled, the student ceases to hold it immediately. Unless another visa is in effect, the student becomes an unlawful non-citizen. Section 189 of the Act requires an officer to detain a person the officer knows or reasonably suspects is an unlawful non-citizen, which is why lawful status must be restored quickly in any student visa cancelled protection visa case.

If a protection application was already pending, the Bridging visa A granted with it ceases on the cancellation, whether or not it had come into effect. The Department's guidance also records that a person who seeks to have their own substantive visa cancelled loses any associated bridging visa and becomes unlawful. The protection application itself is not affected by the cancellation. It remains undecided.

The student can then seek a Bridging visa E associated with the protection application, or, if no protection application has been made, lodge one and seek a Bridging visa E with it. The Bridging visa E restores lawful status while the application is decided.

Section 48 After Cancellation: Protection Remains Available

Section 48 of the Act applies to a person in Australia who does not hold a substantive visa and who has had a visa refused or cancelled since last entering Australia. That person can apply only for the visas prescribed in regulation 2.12 of the Migration Regulations 1994. Protection visas remain available.

The section 48 bar is often misunderstood in student visa cancelled protection visa matters. Students are sometimes told that cancellation means they cannot apply for any visa in Australia. That is wrong for a protection visa. The more accurate statement is that cancellation closes most onshore options other than protection, which makes the protection application, if the claims are genuine, the central decision.

No further stay conditions are also not an obstacle. Conditions 8503, 8534 and 8535 each include an express exception for protection visas. The only application bar that realistically affects most students is section 48A, which applies after a protection visa refusal. In practical terms, the student visa cancelled protection visa question is therefore not whether an application can be made, but whether the claims are genuine and ready. A student visa cancelled protection visa application made only because other options have closed, without genuine claims, will be refused and will trigger the section 48A bar. A student visa cancelled protection visa application with genuine claims should be lodged promptly, with the claims set out in full. Our article on protection visa eligibility sets out the threshold requirements.

Timing: Before or After Cancellation

The timing of the protection application relative to the cancellation shapes the bridging visa and work rights in a student visa cancelled protection visa matter. There are three common sequences:

• Protection lodged well before any cancellation notice. The student holds a Bridging visa A that is not yet in effect. If the student visa is later cancelled, the Bridging visa A ceases, and a Bridging visa E follows.
• Protection lodged after a notice but before the decision. The position is the same, but the timing of the protection application will be examined for credibility.
• Protection lodged after cancellation. The student is already unlawful and will generally be granted a Bridging visa E with the application.

In each sequence the student usually ends up on a Bridging visa E. The difference lies in what the student can show when seeking work rights, and in how the officer views the timing of the claims. The Department's guidelines recognise that some applicants wait until a visa has nearly ceased, or until other avenues have been exhausted, before lodging a protection application, and state that delay should not be the only reason for rejecting a claim. Our article on delay in lodging a Subclass 866 application explains how delay is assessed.

Evidence in Student Visa Cancelled Protection Visa Matters

Evidence in a student visa cancelled protection visa matter has two jobs. It must support the protection claims, and it must explain the events that led to cancellation, because the officer will read the cancellation file.

Useful evidence often includes:

• records from the education provider showing when attendance or progress changed, and any correspondence about it;
• medical or counselling records, where the student consents, that show the effect of events at home on the student's health and study;
• messages, emails or social media posts that show threats, family pressure or the withdrawal of financial support;
• statements from people who witnessed relevant events, in Australia or at home; and
• country information about how people with the student's profile are treated on return.

These records are persuasive because they were created before the protection application and for other purposes. They can show that the non-compliance that led to cancellation and the fear that underlies the protection claim have a common cause. Our protection visa documents checklist lists the documents to gather. Where a document cannot be obtained, the reason should be given in writing, because section 5AAA of the Act places the responsibility on the applicant to set out the claims and provide sufficient evidence to establish them.

Bridging Visa E and Work Rights After Cancellation

Work rights are the most immediate practical problem in a student visa cancelled protection visa case. For a protection visa applicant, the Bridging visa E must initially carry condition 8101, the no work condition, unless the applicant falls within a class specified by the Minister.

The Department's guidance states that a Bridging visa E holder may be granted a further Bridging visa E without condition 8101 if they show a compelling need to work, which is assessed as financial hardship, and either an acceptable reason for the delay in applying for the protection visa, or that they applied for a protection visa, were granted an associated Bridging visa A or C, and that bridging visa has ceased while the protection application remains undecided.

That second alternative is why earlier lodgement can matter. A student who lodged a protection application while the student visa was in effect, and whose Bridging visa A then ceased because of cancellation, can rely on that history instead of having to prove an acceptable reason for delay. A student who lodges only after cancellation must usually show an acceptable reason for the delay. The guidance lists reasons that are not usually accepted, including not knowing about the process and waiting for documents. Our guide to bridging visas in Australia explains the Bridging visa E in more detail.

Reviewing the Cancellation and Applying for Protection

Review of the cancellation and a protection application are separate processes, and in a student visa cancelled protection visa matter both may run at once. A decision to cancel a student visa made while the student is in Australia may be reviewable by the Administrative Review Tribunal. The time limit for seeking review is short and strictly applied, and it is stated in the cancellation notice.

Seeking review of the cancellation does not prevent a protection application. In a student visa cancelled protection visa matter, both steps may be necessary, and neither should wait for the other. If the Tribunal sets the cancellation aside, the student visa is generally restored. If it affirms the cancellation, the protection application continues to be decided on its own merits.

The two processes can support or undermine each other. Statements made in the cancellation review about the student's study intentions and ties to home will be read by the officer deciding the protection application, and the reverse is also true. The positions taken in each must be consistent and truthful. A student should not argue in a cancellation review that they intend to complete their course and return home, and in a protection application that they cannot return, without explaining how both are true.

How the Cancellation Affects the Protection Claim

A cancellation is not a bar to protection, but it can affect how the claim is assessed. In student visa cancelled protection visa matters, the officer is likely to ask why the protection claim was raised at or after the time of cancellation.

Where the cancellation followed poor attendance or course progress, the underlying cause may support the claim. A student who stopped attending because of threats to family, a mental health crisis linked to events at home, or fear connected to their identity or beliefs, can explain the non-compliance and the protection claim together. Where the cancellation followed incorrect information in the student visa application, the officer will look closely at credibility, and the explanation for the earlier information must be honest.

The legal tests do not change. The student must meet the refugee criterion in section 36(2)(a) or the complementary protection criterion in section 36(2)(aa). Our page on complementary protection explains the second test, and our guide to evidence in a protection visa application explains what supports a claim.

The Protection Visa Interview After a Cancellation

Most protection visa applicants are interviewed, and in a student visa cancelled protection visa matter the interview will almost certainly cover the cancellation. The officer holds the student visa application, the provider's reports, the cancellation notice, the student's response and the cancellation decision.

Expect questions about why attendance or progress changed, why the protection claims were not raised earlier, what the student told the Department in the cancellation process, and how the student has supported themselves since cancellation. The Department states that at the interview an applicant can change information given before. Where something said in the cancellation process was wrong, an honest correction is better than an attempt to defend it.

Preparation for the interview in a student visa cancelled protection visa matter should include a chronology that places the student visa, the non-compliance, the notice, the cancellation and the protection claims in a single timeline. Our guides to protection visa interview preparation and protection visa interview questions explain the process.

Mistakes in Student Visa Cancelled Protection Visa Matters

The same mistakes recur in student visa cancelled protection visa matters:

• Ignoring the notice. A notice of intention to consider cancellation left unanswered is often followed by cancellation.
• Asking for the student visa to be cancelled. This ends any associated bridging visa and generally leads to a Bridging visa E with the no work condition.
• Lodging a thin protection application. Section 48A means there is usually no second protection application after a refusal.
• Missing the review deadline. Review of the cancellation is subject to a short and strictly applied time limit.
• Remaining unlawful. Every day without a visa increases the risk of detention and makes delay harder to explain.
• Leaving Australia without advice. Clause 866.411 of the Migration Regulations 1994 requires the applicant to be in Australia when a Subclass 866 visa is granted.

If a protection application is later refused, review is by the Administrative Review Tribunal within a short and strictly applied time limit. Our page on protection visa refusals explains the process.

How My Migration Lawyers Acts in Student Visa Cancelled Protection Visa Matters

My Migration Lawyers acts in many Subclass 866 Protection visa matters for international students, including student visa cancelled protection visa matters where cancellation has been threatened or has already occurred. The firm deals with complex cases, including students with attendance and course progress problems linked to events at home, students who are already unlawful, and students whose protection-associated bridging visas have ceased.

The firm's work in student visa cancelled protection visa matters includes:

• Urgent status advice. The firm confirms the student's current visa, any pending application and the deadlines in any cancellation notice.
• Responding to the notice. The firm prepares a written response to a notice of intention to consider cancellation within the time allowed.
• The protection application. The student's own account is assessed against the protection tests and presented in the form the law requires. The student reviews and corrects the statement and decides which claims are advanced.
• Bridging visa and work rights. The firm seeks a Bridging visa E and prepares the case for work rights on compelling need and the ceased Bridging visa A or an acceptable reason for delay.
• Consistent positions. Where cancellation review and protection proceed together, the firm makes sure the evidence in each is consistent.

The practice is led by Principal Lawyer Weiwei Zhang. Consultations are held by video, so students anywhere in Australia can obtain urgent advice. Our protection visa lawyers page explains how the firm acts in these matters. If your student visa has been cancelled or you have received a notice, book a consultation with My Migration Lawyers, or call 1300 040 300.