Large numbers of onshore temporary residents gain 6/12-month visa extension opportunities

Australia introduced the Subclass 408 visa COVID-19 pandemic event stream during the pandemic, and eligibility was significantly broadened in recent months,meaning that essentially any temporary resident with employment onshore is eligible to apply for a Subclass 408 visa with full-time work rights — one year for those working in a critical industry, six months for other sectors.

For more details, see:

With at least six months of full-time work rights,this time can be used to meet the employment or work experience requirements for state nomination, and to facilitate employer-sponsored pathways — working towards the full-time 38-hours-per-week requirement and the minimum two years of relevant work experience,For detailed planning and further information, see:There’s another work visa option in Australia! No need to worry about soaring points scores, sudden policy changes, or unpredictable invitation rounds — if you have a job, there’s a pathway, and most occupations can lead to PR!

Many clients have been asking:whether they can cancel their student visa (which currently also allows full-time work, though a review is scheduled for April on whether this will continue), then apply for a Subclass 408 visa with full-time work rights — and save some tuition fees in the process.

The Subclass 408 also has another apparent ‘advantage’ — one of the reasons it seems to make a student-to-408 switch look feasible:namely that a Subclass 408 application can be lodged within 90 days before visa expiry, or within 28 days after expiry.

Because student visas typically have long validity periods, most people cannot meet the ‘within 90 days before expiry’ requirement. But if they cancelled their student visa and then lodged a 408 application within 28 days — wouldn’t that satisfy the condition?

The bottom line first: under absolutely no circumstances should you do this!

Let us explain why this cannot be done, and what the consequences are:

First, you cannot voluntarily cancel your own student visa whilst onshore in Australia:

If the absence of an enrolled course causes your Confirmation of Enrolment (CoE) to be cancelled, the institution will notify the Department of Home Affairs, which will then contact you within a set period. If you continue not to enrol in a course, you will have breached Condition 8202 of your student visa (shown in figure 3) — specifically the full-time study requirement (shown in figure 4),and the Department of Home Affairs will invoke its visa cancellation powers under Section 116 to cancel your student visa(figure 5)

which will then trigger a ban:

The reason you cannot proceed to a Subclass 408 visa after your student visa has been cancelledis that once a student visa is cancelled under Section 116, this simultaneously triggers the ban under Section 48, subsection 1a2(figure 6)

— meaning you are prohibited from applying for any visa other than those listed in figure 7,and the Subclass 408 is not on that list — meaning that once your student visa has been cancelled,you are prohibited from applying for a Subclass 408 visa.

You then face restrictions under PIC 4013:

More seriously, if a previous visa was cancelled under Section 116,you will also face restrictions under PIC 4013(figure 8),for the following three years,the vast majority of temporary visas will be unavailable to you— the consequences are extremely serious!

We strongly urge everyone not to attempt this — beware of falling into this trap!

If you have already withdrawn from your studies, act quickly — pay the outstanding tuition to recover your CoE, or apply to another institution as soon as possible for a new student visa to avoid serious consequences! If you need assistance, please contact our support team below!

Extending this topic further — many people who hold a student visa onshore and have lodged a migration visa (such as Subclass 190, Subclass 491, or a partner migration visa) have also been asking:Since they now hold a Bridging Visa A, can they withdraw from their studies and cancel the student visa?

The answer is: we strongly advise everyone to be patient and take the legitimate path.

As explained above, you cannot voluntarily cancel your own student visa whilst onshore in Australia. Strictly speaking, whilst the Bridging Visa A has not yet come into effect (because the student visa is still valid),if your student visa is cancelled,the Bridging Visa A will also cease to be valid(as stated in your Bridging Visa A grant notice) — at this point, if you are onshore, you will immediately becomeillegal stayand will need to immediately contact the Department of Home Affairs to arrange a transfer toa Bridging Visa E(which normally does not permit work, study, or travel, and requires a separate application for an exemption)— this will not in principle affect the migration visa application itself, howeverif you later apply forcitizenshipand need to satisfy the residence requirement,all residence time prior to the period of unlawful stay cannot be counted.

The typical timeline is as follows: if you stop paying or formally withdraw, the institution cancels your CoE; they are required to report this to the Department of Home Affairs within 28 days,and the Department typically takes a minimum of 2–3 months to action your case.As everyone knows, the current processing times for migration visas are extremely slow —2–3 months would be considered impossibly fast for the vast majority of applications; waiting 2–3 years is not out of the question.So there is onlya very slim chance that, if you are lucky enough, your migration visa is granted before the Department cancels your student visa — theoretically leaving you unscathed. That said, even having a record of a cancelled student visa is not a good thing,so we strongly advise everyone to take the proper path and not gamble with their visa status.

Some people have asked:what if they depart Australia before the visa is formally cancelled and wait overseas for the migration visa to be granted?That would indeed avoid a record of unlawful stay — however,in the event the migration visa is refused offshore, you generally have no right of appeal, and at present, offshore processing is even slower.

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