Students – No Need to Apply for Permission to Work When Course Starts

 

Students will get the right to work first up without having to apply for a new student visa in order to get permission to work, but the right is postponed until the student starts the course.  Previously all first time student visas were granted with the ‘no work’ condition 8101.  By policy once students started their courses they then got permission to work by applying for a new student visa which would then be subject to condition 8105 (restricted to working 20 hours a week during course times).

But Migration Amendment Regulations 2008 (No 2) removes that ‘8101′ requirement and replaces it with this paragraph in relation to the subclass 573 Higher Education Sector visa.  This will apply to all student visas granted on or after 26.4.08 irrespective of when the application was made.

573.611           If the applicant satisfies the primary criteria:

(a)        in all cases, conditions 8105, 8202, 8501, 8516, 8517, 8532 and 8533; and

(d)        if the applicant is a citizen of Iran, condition 8204; and

(e) subject to clause 572.612, any 1 or more of conditions 8303, 8523 & 8535 may be imposed.

 

Here is what 8105 says in full with the addition of subparagraphs 8105(1A) & (3) brought in by the amendments:

8105

(1)       Subject to subclause (2), the holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session.

 

(1A)   The holder must not engage in any work in Australia before the holder’s course of study commences.

 

(2)        Subclause (1) does not apply to work that was specified as a requirement of the course when the course particulars were entered in the Cwth Register of Institutions and Courses for Overseas Students.

(3)   In this clause:

week means the period of 7 days commencing on a Monday.

8105 has always permitted students to work full time outside course times.

 

But the restriction on secondary visa holders working until the primary visa holder starts the course remains in place with a new clause 8104 which applies to all secondary student visa holders.

8104                (1)   Subject to subclauses (2) to (6), the holder must not engage in work for more than 20 hours a week while the holder is in Australia.

(2)   If the holder is a member of the family unit of a person who satisfies the primary criteria for the grant of a student visa, the holder must not engage in work in Australia until the person who satisfies the primary criteria has commenced a course of study.

(3) If the holder is able to engage in work in accordance with subclause (2), the holder must not engage in work for more than 20 hours a week while the holder is in Australia unless subclause (4) or (5) applies.

(4)   Subclause (3) does not apply if:

(a)        the visa for which the primary criteria were satisfied is:

(i)a Subclass 573 (Higher Education Sector) visa; or

(ii)        a Subclass 574 (Postgraduate Research Sector) visa; and

(b)        the course of study is a course for the award of a masters or doctorate degree that is registered on the Cwth Register of Institutions and Courses of Overseas Students.

(5)   Subclause (3) does not apply if:

(a)        the visa for which the primary criteria were satisfied is a Subclass 576 (AusAID or Defence Sector) visa; and

(b)        the course of study is a course for the award of a masters or doctorate degree.

(6)   In this clause:

week means the period of 7 days commencing on a Monday.

 

In both 8104 & 8105, there is clarification of what is a week, identifying the week as the 7 days from Monday. Previous case law allowed some flexibility in identifying the working week to favour a student.  Now it is clear in any week from the Monday to the Sunday, the student can not work more than 20 hours a week when the course is running.

Barbara Davidson