The question of whether cancelling your student visa to apply for another onshore visa can cause issues if commonly asked.
Two of my clients recently asked me if they can apply for a partner visa and cancel their student visa so that they did not have the condition 8105 work limitation and could stop studying and begin to work in Australia, without the 40 hour per fortnight restriction on Student visas, whilst they wait for their partner visa to be determined.
You can withdraw your visa application any time prior to determination, but not after determination without incurring issues.
Depending on the visa type you apply, and your current visa status, you most likely will be granted a Bridging Visa A (BVA) or another Bridging visa when you apply onshore for a Substantive visa. The bridging visa comes into effect when your current visa expires. Refer to our previous blog “What is a Bridging Visa” to learn more.
You need to comply with the conditions of your current visa until the bridging visa comes into effect; however, cancelling your student visa to apply for another onshore visa will have the effect of not activating your bridging visa.
You will not be able to remain on the BV if you cancel your student visa because your BV was granted on the basis of you lodging another visa application while you were holding the student visa (i.e. the substantive visa). Therefore, if your student visa is cancelled, your BV will also be cancelled, and you will then be in Australia unlawfully.
The only visa you can apply for then is a Bridging Visa E to prevent being in Australia unlawfully.
Bridging Visa E does not grant you work rights by default. To apply for work rights, you will also need to lodge an application requesting work rights. In order to obtain work rights, you will need to prove that you are in ‘financial hardship’ and specific criteria applies to prove this.
Furthermore, with the Bridging Visa E, you can not apply for a Bridging Visa B to leave Australia and return to Australia. So, if you leave Australia, you cannot get back in. So, no matter what happens in your home country (family death, emergency etc..), you may not be able to come back to Australia if you leave.
The period your visa is cancelled, until a BVE is granted, you may become unlawful, although the department usually grants the BVE on the spot to avoid this.
If you are unlawful for any period of time due to cancellation, this will affect general residency requirements when it comes time to applying for citizenship. Your time in Australia will be reset from when you obtain a new visa to meet the residency requirement for citizenship. For instance, if you have lawfully spent 4 years in Australia and your visa is cancelled and you become unlawful, you will need to wait another 4 years to meet the residency requirement for your citizenship from when your new visa is granted.
A record of cancellation or unlawfulness may create obstacles for future visa applications in Australia, and you may have to do some explaining when applying for other countries as you will need to justify why your visa was cancelled, or why you were unlawful.
Therefore, please think very carefully if you are on a student visa and are intending to apply for another visa and stop studying. By ceasing your study will result in a breach of your conditions on the student visa, and you may have your visa cancelled with significant consequences as outlined above.
For more information please feel free to contact us at Keystone Visa and Migration Services.