# unlawful after 28 days Student Visa 500 cancellation and Partner Visa



## ChrisfromAustria (Apr 27, 2018)

Hi there,

I am currently on a Student Visa 500 - I was applying for a transfer of my scholarship to another faculty which was declined and I had to withdraw from my studies. 
I used the 28 day period to apply for a partnership visa, was granted an inactive BVA. Only now have I realized that if my student visa is cancelled so will my BVA.

Online I found this: 
"If you are notified by the University that your Confirmation of Enrolment (CoE) has been cancelled, you will have 28 calendar days from the date of CoE cancellation to either leave Australia, obtain a new CoE, or apply for a different visa subclass. After this 28 day period has elapsed, it is likely that DHA will cancel your student visa. *Even if your student visa is not cancelled, however, it is unlawful to remain in Australia on a student visa without an active CoE any longer than the 28 day allowance*. The penalties for remaining in Australia unlawfully may include detention, deportation, and / or the imposition of a three year ban on returning to Australia."

Today is the 32nd day and I was wondering if I am already unlawful and what I can possibly do in my situation?

If anyone could help me I would be super grateful.

Cheers, Chris


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## ampk (Sep 21, 2013)

See other post.

Basically you have problem/s and need to work out some plans.


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## ChrisfromAustria (Apr 27, 2018)

Thanks very much! I will see someone tomorrow or next week.

I have been informed on 26th March. 

What could be possible outcomes?


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## ampk (Sep 21, 2013)

I assume that some bans can be imposed for being over the 28 days.

The RMA will inform you but you might need to get a Bridging Visa E as soon as possible.


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## solskjaer (Apr 5, 2014)

I think you should call the DIAC, you dont really have to tell them your identity, you can just ask them questions.


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## ChrisfromAustria (Apr 27, 2018)

I just rang the department. 

Good news, until my visa is cancelled I am not unlawful in Australia. 
Sometimes it can longer for the university and department to processes your cancelled CoE which essentially gives you a little bit longer than 28 days but does not change the fact that my BVA will be cancelled. 

Only solution for me is to apply for another visa (Student) and wait in Australia until a decision is made on my partner visa.


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## solskjaer (Apr 5, 2014)

I think its better do it this way, partner visa is gonna take a long time for them to process. Since you already applied it, so they can't really put a 8534 "no further stay" condition on your new student visa.


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## ampk (Sep 21, 2013)

While I "think" that information from the Department might be correct.

Never ever think that it is fact what they say on the phone or even in emails - they are not qualified to give such information or are they accountable in anyway. Many have shed lots of tears for thinking and believing different.

The only advice you can rely on is from a good and Registered Migration Agent (Australian based is best).

That seems one solution but you need options, so you need a RMA.

What if your Student Visa application is refused? Are there better options for you?


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## ampk (Sep 21, 2013)

solskjaer said:


> I think its better do it this way, partner visa is gonna take a long time for them to process. Since you already applied it, so they can't really put a 8534 "no further stay" condition on your new student visa.


It might be a requirement to attach that condition to this visa??

The applicant might find a new partner or maybe did not meet de facto 12 months requirement last application, but could meet it now or on this new visa.

So many regulations, policy's and variables that we just don't know.


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## ChrisfromAustria (Apr 27, 2018)

Thanks for all the helpful advise. I will talk to an agent next week.

How long have people waited for their student visa to be cancelled? 

@ampk: I have no idea, and I hope to find out soon.


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## Mania (Sep 7, 2016)

If you've applied for a partner visa the department may elect to ignore the fact you are in breach of your current visa condition as a student until thy make a decision on your partner visa. So you may find they never bother to cancel it at all.

However if you leave the country you'll probably find you cant get in so a bit of a catch 22 - likewise your beholden to the other conditions of the visa.


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## Mania (Sep 7, 2016)

Oh and to find out if your currently unlawful have a look on vevo.


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## ampk (Sep 21, 2013)

I know some have not been cancelled and been allowed to expire and allowing the Bridging Visa to come into effect.

But my memory of these is that they were older applications for the 820 and had months (less than 6 I think) from the normal process time publicised at the time.

Others not so lucky.

I think this time of year they will be busy for the next few months meeting end of year requirements.


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## Mania (Sep 7, 2016)

I was in breach of my visa conditions all the way thru until they made a decision on my 820 about 9 months in total - my BVA never went active


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## ampk (Sep 21, 2013)

I have probably read that about you before Mania - with process times now I never considered a Student Visa would still be enforce before a 820 decision was made!! LOL.


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## Mania (Sep 7, 2016)

I was a 457 that was made redundant but I'm sure the same theory could be followed.


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## ChrisfromAustria (Apr 27, 2018)

Hi everyone, 
for other people who are in my situation I thought it would be good to share what I found out since yesterday. Also it would be great to hear the opinion of the more experienced people here!

My situation: I am currently on a 500 Student Visa which is only due to expire in 2021. However, I withdrew from my studies and needed to apply for another Visa. I have lodged a partner visa because I was unaware of the fact that the cancellation of my student visa would also cancel my bridging visa A, making me unlawful etc. 

UPDATE: 
I went to see an immigration lawyer yesterday, on a Saturday! He gave me several options:

1.) Voluntarily cancel student visa, hope for no penalties, stay in Australia, apply for bridging Visa E and prove financial hardship if not granted working rights. 

Since it is going to be 1.5 years until a decision about my partner visa is made, I would not want to choose this option as I would not be able to travel to my family in Europe.

2.) Voluntarily cancel student visa, hope for no penalties, leave Australia asap, wait until student visa is cancelled, 
2.1) apply for an ETA (hope the system doesn't pick up on my already lodged partner visa), come back to AUstralia and apply for reinstallation of the BVA. 

2.2) apply for a short-term skilled work visa which my boss would be happy to sponsor but I am more than worried that they would refuse my application based on my immigration history. 

3.) Leave Australia asap on not yet cancelled Student Visa, apply for e-Visitor 651 from overseas and back in Australia as for 2.)

The immigration lawyer said I would have the biggest chances on option 2.1. Honestly to me this sound really doggy - coming in on a tourist visa to stay permanently. But at this stage I have no other option and am packing my suitcase.


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## ChrisfromAustria (Apr 27, 2018)

Mania aka my life-saver

"If you've applied for a partner visa the department may elect to ignore the fact you are in breach of your current visa condition as a student until thy make a decision on your partner visa. So you may find they never bother to cancel it at all.

However if you leave the country you'll probably find you cant get in so a bit of a catch 22 - likewise your beholden to the other conditions of the visa."

Hi Mania, obviously still unfamiliar with this forum - did not even see the reply on my own thread. 
One of the people I spoke to on the home-affairs phone gave me similar advise. He said as long as I have applied for another visa, I can stay and hope for them not to cancel my visa.

Until 2021 I definitely want to leave the country though  - Should I just take the chance? Or can I request permission to travel somehow? 

Also, can you recommend an immigration agent who knows of " for a partner visa the department may elect to ignore the fact you are in breach of your current visa conditions?"


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## ampk (Sep 21, 2013)

Not sure of the chances of the ETA with the time currently spent in Australia recently.

You can not say you are coming on a Visitor Visa to stay permanently. It is reason to refuse the visa or be turned away on arrival by immigration - you need to be on vacation/ visiting family and friends.


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## Mania (Sep 7, 2016)

It sounds like whomever you've spoken to has given you some realistic options.

The problem with immigration is that there is no hard an fast rule, one departmental agent may make a different decision to another. 

The migration agents job is to review your case, and give you a list of options that are relevant and then to let you know which one is most likely to succeed.

I have given you an example of my story above, it worked for me in my circumstances with my limitations - travel was no issue and was the advice of my migration agent - I also heard most of the above options as well.

You really need to work out what you need and prioritise it. If you HAVE to leave the country prior to your 820 grant then my route is irrelevant as you won't be able to do so.

I don't know your migration agent - are they MARA registered? There's some on here I can point you towards and tell you with confidence that they will give you factual advice based on your case. Wether it will change from the advice you've already been given I don't know as I don't know the ins and outs of your case and nor am I qualified to ask and to check.


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## ChrisfromAustria (Apr 27, 2018)

Thank you for your reply. 

He is MARA registered. 

I phoned him again this morning, told him about your case and what the department said to me. 

In his opinion, it would be an option to email the student visa section of the department. But then this would draw attention to my case. So it is up to me, he said.

Do you think contacting the department is a good idea? 

I don't HAVE to travel, but my little nephew will be born in September and I would like to see him before his first birthday.


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