Breaching student dependant work condition 8104 in Australia (2026)
What happens if a student dependant breaches work condition 8104, and when can the visa be cancelled?
Yes — working in breach of condition 8104 can end a dependant's stay in Australia. Under the Australian Government's Federal Register of Legislation page for the Migration Regulations 1994, Schedule 8, visa condition 8104 (current as at September 2026), the note to the condition refers to sections 41 and 116 to 119 of the Migration Act 1958 for the cancellation of a visa where a condition has been breached. This article explains what 8104 requires, how a breach happens in practice, and what cancellation means — as general information only, not advice about any individual case.
What does condition 8104 actually require?
Condition 8104 sets two separate limits, and a dependant can breach either one.
First, the hours cap. Subclause 8104(1) says the holder must not engage in work for more than 40 hours a fortnight while in Australia. For most student dependants that number is read as 48, because subclause 8104(3A) states that if the visa held is a Subclass 500 (Student) visa, or a bridging visa granted on the basis of a valid application for a Subclass 500 visa, the references to 40 hours in subclauses (1), (2C) and (3) apply instead as references to 48 hours.
Second, a timing rule. Subclause 8104(2) says that, subject to two exceptions, 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 work in Australia at all until that person has commenced a course of study.
How is a fortnight counted?
Subclause 8104(4) defines a "fortnight" as the period of 14 days commencing on a Monday. The cap is therefore not a weekly average that resets whenever you are paid — it is measured over a fixed Monday-to-Sunday fortnight block.
This matters more than people expect. Suppose a dependant works 20 hours one week and 30 hours the next, but both weeks fall inside the same Monday-starting fortnight. The total is 50 hours in that fortnight, which is over the 48-hour limit for a Subclass 500 holder, even though the hours were spread unevenly across the two weeks.
Who is allowed to work before the student's course starts?
Subclause 8104(2) removes work rights until the primary student has commenced their course, but two exceptions switch that rule off:
- The dependant's own previous visa (subclause 2A): the rule does not apply if, at the time of applying for the visa, the holder held a substantive visa or a bridging visa (the previous visa), and was permitted to work in Australia while that previous visa was in effect.
- The primary student's previous visa (subclause 2B): the rule does not apply if the person who satisfies the primary criteria held a substantive visa or a bridging visa at the time of applying for the student visa, and was permitted to work in Australia while that previous visa was in effect.
Where either exception applies, subclause 8104(2C) goes further: despite the hours cap, the holder may work more than 40 hours a fortnight (48 hours for a Subclass 500 holder) while in Australia and before the course of study commences.
Are there dependants with no hours cap at all?
Yes, in one situation set out in the condition itself. Subclause 8104(3) says that if the course of study referred to in subclause (2) is for the award of a masters or doctoral degree, then despite subclause (1) the holder may work more than 40 hours a fortnight while in Australia — which, for a Subclass 500 holder, is read as more than 48 hours under subclause (3A).
Note that this unlimited-work allowance is tied to the course the primary student is undertaking, not to the dependant's own enrolment or job.
What counts as breaching condition 8104?
A breach happens whenever the holder does something the condition prohibits. In practice the common patterns are:
| Situation | Is it a breach? |
|---|---|
| Working after the student's course has started, within 48 hours per Monday-starting fortnight | No |
| Working more than 48 hours in any one fortnight after the course has started | Yes |
| Working at all before the primary student's course commences, with no (2A) or (2B) exception | Yes |
| Working unlimited hours before the course starts because (2A) or (2B) applies | No, permitted by (2C) |
| Working unlimited hours because the student's course is a masters or doctoral degree | Not a breach of the hours cap, because subclause (3) overrides subclause (1) — but subclause (2) still bars work before the primary student's course commences unless (2A) or (2B) applies |
The condition is drafted as a single limit on "engage in work" and does not, within this clause, separate paid employment from other work arrangements. Treat the safest reading as: if it is work, it counts towards the fortnight.
What are the consequences of a breach?
The note at the end of condition 8104 directs readers to sections 41 and 116 to 119 of the Migration Act 1958 on cancellation for breaches of conditions. In plain terms, cancelling a visa ends that visa — the person's lawful status in Australia under it stops, and any future application has to be made on a different footing, usually with the cancellation on the record.
Cancellation is dealt with under a discretionary framework rather than as an automatic penalty, and sections 116 to 119 cover the grounds, the procedure and the related consequences. Because the outcome depends on the facts of each case, this article can only describe the legal structure in general terms; it cannot say what will happen to any particular person.
How can a dependant check their own position?
The practical check is documentary rather than impression-based. A dependant who wants to know where they stand can work through three questions against their own records:
- Has the primary student actually commenced their course of study yet?
- If not, did either the dependant or the primary student hold a previous substantive or bridging visa that permitted work — the (2A) and (2B) exceptions?
- Since the course started, was any Monday-starting 14-day block over 48 hours?
Payslips, rosters and timesheets are the evidence that answers these questions. A person who is unsure about their own circumstances, or who thinks a breach has already occurred, should get advice from a registered migration agent or an Australian legal practitioner rather than rely on general information.
This article is general information about Australian migration law. It is not legal advice and is not tailored to any individual's circumstances; the law changes, and the official legislation should be treated as the authoritative source.
Frequently Asked Questions
Can a student dependant's visa be cancelled for working too many hours?
Yes. Breaching a visa condition is dealt with under the cancellation provisions of the Migration Act 1958 — sections 116 to 119 — which the note to condition 8104 refers to. Cancellation ends the visa, and the person's lawful status under that visa stops.
Is the limit 40 hours or 48 hours per fortnight?
Condition 8104(1) is written as 40 hours, but subclause (3A) substitutes 48 hours where the visa held is a Subclass 500 (Student) visa or a bridging visa granted on the basis of a valid Subclass 500 application. Most student dependants therefore fall under the 48-hour figure.
Can a dependant work before the student's course starts?
Generally no — subclause 8104(2) prohibits work until the primary student has commenced a course of study. The two exceptions are where the dependant, or the primary student, held a previous substantive or bridging visa that permitted work, in which case subclause (2C) even allows unlimited hours before the course begins.
Do masters and PhD dependants have unlimited work rights?
Under subclause 8104(3), if the primary student's course is for the award of a masters or doctoral degree, the holder may work more than the fortnightly cap while in Australia — for a Subclass 500 holder that cap is read as 48 hours under subclause (3A). Subclause (3) overrides subclause (1) only, so subclause (2) still bars work before the primary student's course commences unless (2A) or (2B) applies.
When does the fortnight start?
Subclause 8104(4) defines a fortnight as the period of 14 days commencing on a Monday. Hours are counted inside that fixed block, so uneven weeks can still put the total over the cap.
Does the condition apply to the student as well as the dependant?
Condition 8104 is written for the holder it is attached to, and its timing rule refers specifically to a member of the family unit of a person who satisfies the primary criteria for a student visa. Whether a particular visa is subject to this condition depends on the relevant provision in Schedule 2 of the Migration Regulations 1994.