# Apply for Student Visa while on BVE



## Rozelle (Sep 20, 2016)

Hi

*I've been unlawful for almost 4 months because my Student Visa was refused* and I didn't even know that. (I already explained my case in another thread called Misunderstanding led to Overstay)

I did a consultation with a MARA agent and it really helped me to understand my situation and what options do I have. They offered me to take my case, but the total price was completely unaffordable for me and I'm trying to follow the steps by myself with all the guides that he gave me

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Basically what the agent told me was to* apply for a Bridging Visa E ASAP and then apply for a Student Visa onshore again* which will most likely be refused. *Then I could appeal to the AAT* and it will take almost 1 year until the decission is taken and I might have some chances

But after re reading my immigration documents I just realised that if you are on a BVE and have been unlawful for more than 28 days your Student Visa application can not be accepted and therefore I guess I have no right for an appeal.

*Am I missing something? Can I somehow manage to appeal the decision?*

I have a lot of documents to prove that everything was a misunderstanding and I have genuine studying intentions


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## Jeremy Hooper (Jul 10, 2014)

No, you are not missing anything. Your agent was correct. If you went to the AAT you would that two chances of success. That is Buckley's and Nunn. This is an Australian expression saying that you would have no chance.

If you remain unlawful you have a chance of being pick up by immigration and detained until you can be deported. You should get a BVE immediately and make arrangements to depart Australia. As you have been unlawful for 4 months you will have a 3 year bar on being granted another temporary visa for Australia.


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## Rozelle (Sep 20, 2016)

What I want to know is... *can I apply for a Student Visa and then appeal the decision to the AAT*?

I'm not talking about chances of success. What I want to know is if I have the right to do it, or my visa will get refused and they won't let me appeal.

My Agent said I could do it, but from what I've read it looks like I can't


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## Visa Expert Australia (Oct 5, 2016)

Q: Can I apply for a Student Visa and then appeal the decision to the AAT

A: depends on how you interpret 'can apply', I say yes you can, but sorry it can not be accept it. The whole process may give you 3 to 6 weeks then you back to where you are now.

Did you appeal the decision to refuse your student visa? When and how did you found out it has been refused? You may not been correctly notified.



Rozelle said:


> What I want to know is... *can I apply for a Student Visa and then appeal the decision to the AAT*?
> 
> I'm not talking about chances of success. What I want to know is if I have the right to do it, or my visa will get refused and they won't let me appeal.
> 
> My Agent said I could do it, but from what I've read it looks like I can't


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## CCMS (Oct 10, 2013)

Rozelle said:


> What I want to know is... *can I apply for a Student Visa and then appeal the decision to the AAT*?
> 
> I'm not talking about chances of success. What I want to know is if I have the right to do it, or my visa will get refused and they won't let me appeal.
> 
> My Agent said I could do it, but from what I've read it looks like I can't


You will not be able to make *a valid application* for another student visa. If you can't make a valid application, then it can't be refused and you can't appeal it. Either you have misunderstood your agent or they should go back to school.

MIGRATION ACT 1958 - SECT 48

Non-citizen refused a visa or whose visa cancelled may only apply for particular visas

(1) A non-citizen in the migration zone who:

(a) does not hold a substantive visa; and

(b) after last entering Australia:

(i) was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or

(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

may, subject to the regulations, *apply for a visa of a class prescribed for the purposes of this section* or have an application for such a visa made on his or her behalf,* but not for a visa of any other class.*

See Regulation 2.12(1) for a list of prescribed visas.


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## Rozelle (Sep 20, 2016)

Well I probably didn't use the correct words

My visa application was actually INVALID. Don't know if that changes the whole thing

It was going to be granted, I'm sure of it, but they asked me to send them my CoE to a different email address and I overlooked it thinking that it was the same email address that sent me the email. So I just replied with my CoE... 

Stupid and unfortunate mistake.


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## Visa Expert Australia (Oct 5, 2016)

Short answer is No, it won't change anything, apart form the option to appeal the decision to refuse your student visa no longer correct as there was no decision was made to refuse.



Rozelle said:


> Well I probably didn't use the correct words
> 
> My visa application was actually INVALID. Don't know if that changes the whole thing
> 
> ...


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## CCMS (Oct 10, 2013)

Rozelle said:


> Well I probably didn't use the correct words
> 
> My visa application was actually INVALID. Don't know if that changes the whole thing
> 
> ...


Yes, it changes everything and that's why I do not like to give advice on specific cases on forums like this. Without properly examining all relevant matters it is simply not possible to provide any sound advice. Too often people misunderstand or misconstrue the facts or provide inaccurate or incomplete information.

If the application was invalid, than it is as if it was never made, in which case you simply overstayed your visa.If you wanted to go the Ministerial Intervention route, you could apply for whatever visa you are able to apply for under your current circumstances, have it refused, go to AAT, then go to the Minister. Keep in mind that if your case has no merit, the Minister may reject it very quickly and you won't achieve anything. I think you should make a plan B and consider your future offshore options.


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## Rozelle (Sep 20, 2016)

Thank you for the answers 

Just one last thing... who determines if my case has merit or not?


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## CCMS (Oct 10, 2013)

Rozelle said:


> Thank you for the answers
> 
> Just one last thing... who determines if my case has merit or not?


The Minister does, but there must be unique or exceptional circumstances :

_Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.	_

_Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship._

_Exceptional economic, scientific, cultural or other benefit that would result from you being permitted to remain in Australia._

_Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in your case._

_You cannot be returned to your country/countries of citizenship or usual residence due to circumstances outside your control.
_


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## Visa Expert Australia (Oct 5, 2016)

If you really want to proceed, then it may be settled (winning) at judicial appeal(s) for your previous student visa which was considered to be INVALID.

No one can stop you to apply for a further student visa, but it will not be accepted by DIBP, and no one can stop you to apply for Merits review after that, but there will be no jurisdiction to review it. The whole process may take 3 to 6 weeks and you back to where you are now.



Rozelle said:


> Thank you for the answers
> 
> Just one last thing... who determines if my case has merit or not?


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## Rozelle (Sep 20, 2016)

Do you mean that I should appeal for my Invalid Student Visa application? It was 4 months ago so I guess there's no chance I can do that.


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## Visa Expert Australia (Oct 5, 2016)

I am not making any suggestion what you should or should not do, just my opinion that to go down for a fresh student visa application will take you nowhere.

To appeal for invalid student visa application will have at lease a chance of winning, even if 4 months has past, but you will need to seek Legal Advise whether to proceed or not, what I have said just my opinion.

When did you found out your student visa application was returned as Invalid?



Rozelle said:


> Do you mean that I should appeal for my Invalid Student Visa application? It was 4 months ago so I guess there's no chance I can do that.


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## Rozelle (Sep 20, 2016)

29 June 2016

Dear XXXXX

*Notification of invalid application for a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa*

I wish to advise you that the application made by the following applicant was not valid.

*
ENROLMENT*

Your application for a visa is invalid because it did not meet Item 1222 (3) of Schedule 1 of
the Migration Regulations 1994 (the Regulations). That provision required you to provide
evidence of enrolment in a registered full-time course of study. We did not locate any record
of enrolment for you in the Provider Registration and International Students Management
System (PRISMS).

Please note that the conditional letter of offer you provided with your application is not
sufficient evidence of enrolment.* If you have a letter of offer or confirmation of enrolment
please scan and email this to us at [email protected]*

If a response is not received by Thursday 30 June 2016, your paper application cannot
be accepted. After 30 June 2016, all student visa applications must be lodged online. The
following link to the department's website provides more information

------------------------

And what I did was... sending the CoE by replying to this email which is [email protected]

After my consultation with the MARA agent he said that the best solution would be what I've said before

Applying for a BVE, then Student Visa and then appeal to the AAT. He offered me to take my case, but as I said it's way too expensive for me so I'm trying to gather information and try by myself. I know my chances are close to zero, but this is so important for me that I will try literally everything until the very end.


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## Rozelle (Sep 20, 2016)

I guess that having more than 80% of attendance and working less than 20h per week would help me to prove that I have genuine intentions on studying in Australia if an appeal for that application was possible


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## Visa Expert Australia (Oct 5, 2016)

For what you have provided here, the DIBP was wrong, very very wrong. For a valid student visa application, a letter an offer is good enough, without COE may subject to visa refusal. Did you pay you Visa Application Fee?

Why didn't you appeal back then since you have actually received return application end of June 2016? You have a very strong case.



Rozelle said:


> 29 June 2016
> 
> Dear XXXXX
> 
> ...


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## ampk (Sep 21, 2013)

I'll have a guess Visa Expert,

They asked the Department Of Immigration and then followed that advice from the Department.

And sadly they suffer from incorrect information given by The Department of Immigration and Border Protection staff.


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## Rozelle (Sep 20, 2016)

I showed all what I had in the Department and *they told me that my Letter of Offer was enough to apply for the Student Visa* onshore in the office. If I wanted to apply online I'd need the CoE, but in the office my Offer Letter was valid enough

But it looks like it wasn't because it's a Conditional Letter of Offer



> Conditional Letter of Offer
> 
> This offer is only valid upon successful achievement of the required English language entry level by the XXXXXXXXXXXXX
> 
> ...


 Which is quite strange because I provided all my English certificates both for the Letter of Offer and for the Student Visa

But the thing is... *On June 30th I had all the requirements* (CoE included) *ready to get my Student Visa granted*. But

1- I did a small but crucial mistake sending the email to the wrong email address

2- Nobody replied my email. They could've easily answered me that that was NOT the correct email address or even forward it to the right one

3- My school's orientation day was just a few days after

4- My school kept sending me emails and text messages every week telling me to attend all my classes. They should somehow be aware that I was not on a student visa and therefore cancel my enrolment

5- I paid a lot of money for CoE, 1st term, tuitions fees... and competely forgot to check the Visa payment. Basically I never thought anything could go wrong. I thought it was pretty much straight forward and my visa was going to get granted easily

But after a few weeks I started to think that something was going wrong and after 6 weeks I received an email confirming that I was unlawful because my application had been invalid

At that time I really didn't know what to do so I decided to wait until the end of the first term and try to seek advice from Immigration Lawyers or MARA agents. I already did 2 consultations with 2 different agents and I'm still unsure on what to do.

If my Invalid application for the Student Visa could be appealed, I think I would stand a chance because I have some solid arguments... but in the visa says this:



> *Review rights*
> There is no right of merits review of the assessment that an application is invalid


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## Visa Expert Australia (Oct 5, 2016)

I seem to remember someone posted here in this forum about student visa application was returned as invalid due to no payment, is that you?



Rozelle said:


> I showed all what I had in the Department and *they told me that my Letter of Offer was enough to apply for the Student Visa* onshore in the office. If I wanted to apply online I'd need the CoE, but in the office my Offer Letter was valid enough
> 
> But it looks like it wasn't because it's a Conditional Letter of Offer
> 
> ...


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## CCMS (Oct 10, 2013)

Visa Expert Australia said:


> I seem to remember someone posted here in this forum about student visa application was returned as invalid due to no payment, is that you?


That was indeed the same case. The original application was invalid because of no payment and no CoE. Then a new application was made, again invalid.To make any sense out of this one would have to review exactly what happened with the various applications, if they were indeed invalid or if mistakes have been made by DIBP. Anything else would be pure speculation.


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## Visa Expert Australia (Oct 5, 2016)

I actually provided some comments to other thread but it wasnt there for some reason, however I do remember what I have said, on observation of information provided, that the DIBP got it right.


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## Rozelle (Sep 20, 2016)

Yes, that's true. They couldn't process the payment because my credit card was blocked due to a scamming device detected in one of the ATM's I previously used

So they asked me for both CoE and Credit Card details and I provided both to the wrong email address

*I don't think the Department made any mistake regarding my application*. What I want to prove is that I had all the requirements and only a small and irrelevant (in terms of immigration) mistake messed up the whole thing

So *the first step will be applying for a BVE*. But I'm not sure on what to do next and that's why I'm posting here

- Apply for a new Student Visa and appeal the decision
- Appeal for my Invalid Student Visa application, which I'm not sure if I'm allowed to do
- Leave on a 3 year ban and try to get a waiver, which seems unlikely to get


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## CCMS (Oct 10, 2013)

Rozelle said:


> So *the first step will be applying for a BVE*. But I'm not sure on what to do next and that's why I'm posting here
> 
> - Apply for a new Student Visa and appeal the decision
> - Appeal for my Invalid Student Visa application, which I'm not sure if I'm allowed to do
> - Leave on a 3 year ban and try to get a waiver, which seems unlikely to get


I can't see how you can make a valid application for another student visa. See edited excerpt of schedule one below.

You cannot make an appeal in regards to a visa application that was never validly lodged.

The options for any other applications while on a BVE are very limited.There is also the chance you will be detained when applying for a BVE.

You could possibly make a valid application for another visa just to have it refused, go to the AAT and then go to the Minister.

But what grounds do you have for Ministerial Intervention ?

*Student Visas-schedule 1*

_(4) If the applicant is in Australia, the applicant must hold a substantive temporary visa or must satisfy the following paragraphs:

(a) the applicant is not the holder of a substantive visa;
(b) the last substantive visa held by the applicant was:
(i) a student visa;

(c) the application is made within 28 days after:
(i) the day when that last substantive visa ceased to be in effect_


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## Visa Expert Australia (Oct 5, 2016)

Rozelle,

The major issue now, in my opinion, is you didn’t make any meaningful attempts to sort things out, other then posting here and there, which resulted even harder to untangle the mess caused.

I wouldn’t be surprised if you actually been an unlawful non citizen for a while. Compliance officers usually give/grant a week (may be 2 wks if you are lucky enough) BVE for you to decide what to do next, you would need either show them a valid ticket for departure, or other reasons of staying, then a further BVE may be granted.

I didn’t mean to offend you, and I may be wrong, but it looks like the status you are in.


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## Rozelle (Sep 20, 2016)

I'm not offended. I actually appreciate that some users took part of their time to answer my doubts

I don't know what you mean when you say


> I wouldn't be surprised if you actually been an unlawful non citizen for a while.


I've been unlawful for 4 months because the visa was not granted, but I was on a Visitor Visa when I applied for it.

And I was on a Student Visa offshore last year for 8 months before going back to my country.

-----------------------

As I said, I had a consultation with a MARA agent and he told me that I could apply for a BVE and then a new Student Visa. Actually it's all written in the invoice that he sent me



> Immigration Fess - 500 Visa Application - (To be Invoiced Later) No GST 0.00
> 
> Miscellaneous Disbursements - 500 Visa Application - (To be Invoiced Later)


But after re-reading the conditions of the BVE I realised that It's not possible because of what CCMS just posted above. So that's why I opened this thread


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## Rozelle (Sep 20, 2016)

I just want to fire my last bullet because this is probably the most important moment in my life so far. I've been part time youth sports coach and I know a lot of kids and families and the way they made me feel part of their family is something that I will never forget. 

I don't want to leave through the back door. I just want to fire the last bullet and if it fails, I will have no other option rather than leave. But there should be something I can do. Either appealing to the AAT, Ministerial Review or waive the 3 year ban... I don't know.

It's my fault and I should have acted before, but the fact that I had all the requirements to get the visa granted makes me think that there should be at least a 10% chance of fixing this case



I mean... I have so many documents and paperwork to prove my genuine studying intentions... I can even show a certificate from a very good hotel in my country saying that they would seriously consider hiring me if I got that Management course apart from my obvious satisfactory school attendance.


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## Rozelle (Sep 20, 2016)

Well, I just took the decission


I will leave on a BVE and I will try to apply for a new Student Visa and a waiver for the ban from outside.

Any recommended MARA agent to help me with the waiver?


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## Visa Expert Australia (Oct 5, 2016)

Q: I just want to fire my last bullet because this is probably the most important moment in my life so far. I've been part time youth sports coach and I know a lot of kids and families and the way they made me feel part of their family is something that I will never forget.

A: Based on what you have provided, the fact of a youth sports coach may be a wining point for waiver, as waiving provision clearly specified that compassionate or compelling circumstances that affect the interests of an Australian citizen. Are these kids Australian Citizens? What will happened to them if you not allowed to come back?

Q: I don't want to leave through the back door. I just want to fire the last bullet and if it fails, I will have no other option rather than leave. But there should be something I can do. Either appealing to the AAT, Ministerial Review or waive the 3 year ban... I don't know.

A: No AAT is possible as there is no decision to refuse you visa application. It is possible to go to Minister for intervention, but I could not see any chance of success, not to mention that any steps you take in order for MI access may come back to bite you if you lodge further application in the future.

Q: It's my fault and I should have acted before, but the fact that I had all the requirements to get the visa granted makes me think that there should be at least a 10% chance of fixing this case

A: Met all student visa requirements less important in your situation, but the existence of compassionate or compelling circumstances.



Rozelle said:


> I just want to fire my last bullet because this is probably the most important moment in my life so far. I've been part time youth sports coach and I know a lot of kids and families and the way they made me feel part of their family is something that I will never forget.
> 
> I don't want to leave through the back door. I just want to fire the last bullet and if it fails, I will have no other option rather than leave. But there should be something I can do. Either appealing to the AAT, Ministerial Review or waive the 3 year ban... I don't know.
> 
> ...


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## CCMS (Oct 10, 2013)

Rozelle said:


> Well, I just took the decission
> 
> I will leave on a BVE and I will try to apply for a new Student Visa and a waiver for the ban from outside.
> 
> Any recommended MARA agent to help me with the waiver?


I'd say that any of the agents posting here regularly are well qualified to assist you with this.


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## Rozelle (Sep 20, 2016)

Visa Expert Australia said:


> A: Based on what you have provided, the fact of a youth sports coach may be a wining point for waiver, as waiving provision clearly specified that compassionate or compelling circumstances that affect the interests of an Australian citizen. Are these kids Australian Citizens? What will happened to them if you not allowed to come back?
> 
> A: Met all student visa requirements less important in your situation, but the existence of compassionate or compelling circumstances.


I was working (not anymore until I solve this) for a soccer club and because I'm Spanish I was quite popular there and the families of the kids treated me better than even my family back in my country.

Also the president of the club likes me and I really love everybody and I was even thinking of doing volunteer coaching in case I didn't have working rights on my BVE (not an option anymore now that I'm leaving)

I had boys and girls of all different age groups. From 8 to 45 year old women, but mostly 8, 9 and 10. I also had a U10 girls team that I want to see for the last time before I leave because I coached them twice every week plus the game on the weekends and a huge competition in Canberra. Many unforgettable memories.

*Most of them are Australian Citizens*

If I don't come back the club will find somebody to coach them. But I know the families love me because they gave very good feedback to the club. One of the mums even offered me to work for her husband company so I could get a sponsorship.

I don't know what's they way of proving that there are _ compassionate or compelling circumstances that affect their interests_ I was thinking of a signature collection, but I doubt the department will take that as an evidence

I'd like to find a MARA agent who had dealt with a 3 year ban before, but any other in this forum would be good too as I see people really trying to help me.

I feel like if my previous MARA agent just wanted to find a way to make it longer and get more money, but without any real chance of success


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## ampk (Sep 21, 2013)

Rozelle 3 agents have replied to this thread, 2 first became Registered Agents in 2001 and the other in 2006.

That is a total of 40 years experience, and 3 year bans are not uncommon. I am certain all 3 that replied here, have dealt with many 3 year bans before.


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