Condition 8105 governs all student visa holders and their ability to work in Australia. In most scenarios it is self explanatory but there is one situation our office receives many enquiries about. Can you work full time after finishing your course and while you are waiting for another visa to be granted?
For the record Condition 8105 states;
8105
(1A) The holder must not engage in any work in Australia before the holder’s course of study commences.
(1) Subject to subclause (2), the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session.
(2) Subclause (1) does not apply:
(a) to work that was specified as a requirement of the course when the course particulars were entered in the Commonwealth Register of Institutions and Courses for Overseas Students; and
(b) in relation to a student visa granted in relation to a masters degree by research or doctoral degree if the holder has commenced the masters degree by research or doctoral degree.
(3) In this clause:
fortnight means the period of 14 days commencing on a Monday.
Example 1
Jesse completes his Masters of IT in November 2019 and then applied for his Graduate 485 visa in December. His visa expires on the 15th March 2020. Subclause (1) outlines the requirement that the restriction of 40 hours per fortnight only applies when the course is in session. Most students know that during holidays the 40 hours does not apply because the institution is not in session.
When Jesse completed the course, for his circumstance, “the holders course or study or training” (the Masters of IT his visa was granted for) is no longer in session. It does not matter to Jesse that the university where he studied started semesters again in February. Since Jesse has completed his course it can no longer be considered “in session” .
According to the DOHA official policy for Condition 8105 states;
A course is considered out of session if;
- if a student has completed their course as scheduled (as per dates listed on their CoE) and still holds a valid Student visa
Jesse had a COE which indicates he completed is course according to schedule, November 2019.
Jesse’s 485 application may not be granted until May this year, for example. When his student visa expires on the 16th March his BVA granted in association with the 485 application will take over. In most cases BVA’s conditions are the same as the visa previously held by the visa applicant. Hence for Jesse, Condition 8105 still applies to his BVA. However since Jesse finished his program he can continue to work full time until the 485 is granted.
Example 2
Jesse decided after completing his Masters Degree in November, chooses to continue to study in Australia and applies for another student visa for a Masters course starting in February 2020. He begins his course but his student visa has not been granted and looks like it may not be granted until June because the DOHA is busy with applications.
Jesse is confused if he can work full time until his next course begins because he knows the Condition 8105 sates; (1A) The holder must not engage in any work in Australia before the holder’s course of study commences.
In this case (1A) does not apply to Jesse because he has already started and completed the course in relation to the visa he holds. When this current visa expires he will then be on the BVA for the new student visa application. Condition 8105 will still apply but only in relation to the facts surrounding the previous visa. In this case the fact is that Jesse has completed his course of study and thus has no work restriction.
It will only be when the next student visa is granted and the new Condition 8105 will be attached and the circumstances surrounding the visa holder will apply. At that time if Jesse is “in session” with the new course, he will be restricted to the 40 hours per fortnight.
This is confirmed by DOHA’s policy explanation for Condition 8105. It states the following;
Condition 8105(1A) provides that ‘the holder must not engage in any work in Australia before the holder’s course of study commences’. The work limitations are tied to the date of commencement of the relevant course of study. Therefore, in certain circumstances the student may continue working between courses and visas:
- Students who have completed a course of study and have been granted or have applied for a student visa (including those on a bridging visa associated with their student visa application, which is subject to condition 8105), to undertake a different course of study, are required to stop working from the grant date of the new visa and cannot work until the new course commences.
You will note that only in cases where the new visa is granted that students are required to stop working until their new course begins. In Jesse’s case he has been allowed to work full time even though he new course had already started because he was on the BVA and waiting for the new visa to be granted. Once his student visa is granted since he has already begun his new course he has permission to work but back to the usual restriction.
It is a complicated scenario and even between migration agents the opinions varies on this issue. However the policy is clear. It is also basic logic that visa conditions which are tied to a visa holders certain circumstances, such as a particular COE for student visas, cannot be carried over and applied to a Bridging Visa.
Confused about this issue and need advice about this or other matters? We are here to help. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists. Save time and money and book a Skype appointment if you like!
