If you wish to apply for a student visa in Australia and have previously breached a visa condition, you are now able to be granted a student visa in Australia if that breach was the result of exceptional circumstances.
We recognise on some occasions a visa holder may inadvertently breach their visa conditions due to exceptional circumstances outside of their control.
Legislative change has recently been introduced which provides flexibility to take into account these exceptional circumstances. As a result, prospective student visa applicants may no longer need to leave Australia to apply for a new student visa if they have unintentionally breached a visa condition.
They will however, need to provide evidence the breach resulted from exceptional circumstances and they must satisfy all the criteria for grant of the student visa.
The following fictional scenario is provided as an example of circumstances that may be considered exceptional.
Bernard is studying a Bachelor of Journalism on a Higher Education Sector visa (subclass 573). He is a good student and is determined to gain a qualification that will enhance his prospects of employment in his home country. Partway through his second semester he suddenly falls ill and is taken to hospital.
Due to the severity of his illness, Bernard spends the rest of the semester in hospital recovering from his illness and is unable to notify his education provider to request a deferral from his studies. As the education provider is unable to contact Bernard, he is eventually reported for failing to achieve satisfactory course progress and attendance. Bernard has inadvertently breached visa condition 8202.
Bernard returns to his course and provides a medical certificate to his education provider who retroactively grants him a deferral for his absence. He is now required to study for an extra semester to complete his course and will need to apply for a new student visa.
Due to the legislative change, Bernard can remain in Australia and lodge an application for a new subclass 573 student visa while he continues his studies. When he lodges his student visa application, he includes a declaration outlining the exceptional circumstances that led to him breaching the condition on his visa and provides evidence of his hospitalisation.
The department is satisfied the breach was the result of exceptional circumstances and is also satisfied Bernard meets all the criteria for grant of the student visa including the genuine temporary entrant and genuine student requirements. Bernard is granted a new student visa and is able to complete the final semester of his course in Australia.