Offshore student visa refusals can be challenged in australian courts

By Lorenzo Boccabella, Barrister-at-law, specialist in migration law, published on 15th November 2024

All student visa refusals offshore are subject to judicial review in the Federal Circuit & Family Court of Australia. However the grounds of judicial review are limited to legal points and of course are not merit review.

But the new Ministerial Direction 106– ASSESSING THE GENUINE ENTRY AND STAY REQUIREMENTS FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS, will create enough legal uncertainty to lead to a lot more litigation, but only if students can afford it.

The complications added by this direction adds to the work of almost every student visa, hence migration advisers need to increase their fees on student visas as a result.

Since 1 July 2024, the restrictions on applying for a student visa onshore exclude anyone holding the following subclasses: 485, 600 (Visitor), 601 (ETA), 602 (medical) and 651(eVisitor) among others.

But the various working holiday visas are open as onshore prerequisites and so is the subclass 482 and the 494 and of course the 407 (Training) and 408 (Temporary Activity) visas and many others. Being onshore as a visitor no long works as a pathway to permanent residence via the student visa regime.

The number of student visa holders in Australia remains at a high, with 675,000 in the country, while those on temporary graduate visas has almost doubled since 2022 – from 115,000 to 228,000 – as students seek to stay in Australia after their courses, putting pressure on the net migration figure.

This is the basic reason why the government is squeezing the tide on student visas.

The old Genuine Temporary Entrant (GTE) test is gone and is replaced by that of “a genuine applicant for entry and stay as a student”.

This is contained in cl 500.212 which reads in total:

“The applicant is a genuine applicant for entry and stay as a student:

(a)  having regard to:

(i)  the applicant’s circumstances; and

(ii)  the applicant’s immigration history; and

(iii)  if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

(b)  because the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i)  the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii)  the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

(c)  because of any other relevant matter.”

The Ministerial Direction 106 mandates the following considerations:

“(5)  Circumstances where further scrutiny may be appropriate include, but are not limited to:

a)  information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the Department indicate the need for further scrutiny;

b)  the applicant or a relative of the applicant has an immigration history of reasonable concern;

c)  the primary applicant for a Subclass 500 (Student) visa intends to study in a field unrelated to their previous studies or employment;

d)  apparent inconsistencies in information provided by the applicant in their visa application;

e)  the applicant holds a Subclass 485 (Temporary Graduate) visa, a Subclass 600 (Visitor) visa, a Subclass 601 (Electronic Travel Authority) visa or a Subclass 651 (eVisitor) visa; or

f)  the applicant holds a student visa, or previously held one or more student visas.”

Possibly the only way to tackle this Direction 106 is to use it as template literally addressing every point made in the direction which is why advisor fees for student visa need to increase.

There are a couple of tricky practice points in student visa progression. A student can be unlawful for 28 days and still apply for a new student visa but he or she will only have the benefit of this concession once – see Item 1222(4)(d), which states, “the applicant has not previously been granted a visa based on an application made when the applicant did not hold a substantive visa.”

Under the old ‘Genuine Temporary Entrant’ test there were some useful challenges to adverse decision in the tribunal, one of them being Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061.

As stated above the Direction 106 could lead to more legal challenges. Cases have yet to trickle into the AAT and the new Administrative Review Tribunal but there are still many cases going through  on the old student visa.