Student Visas – The Good, The Bad & The Ugly
By Lorenzo Boccabella, Barrister-at-law, specialist in migration law, published on 28 March 2024
Finally, the hidden deception many students engaged in about future plans for Australia has come to an end.
But there still is a lot of aggressive policy about student visa holders in Australia – student visa cancellations are on the increase and particularly poignant are the visa cancellation at the airport on returning students, these are discussed below!
After 2007, the Rudd and Gillard Governments moved to decouple the overseas student program from skilled migration.
For over 15 years, many students had to engage in the sham that they would not seek permanent residence after completing their courses. Those who said they would seek permanent residence would fail the Genuine Temporary Entrant test.
Now the GTE test has been removed. The key words,’ the applicant intends genuinely to stay in Australia temporarily’ no longer apply. It is helpful to set out exactly how that has happened, here is the before and after:
Before 23 March 2024
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, 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
(iv) any other relevant matter; and
(b) 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) of any other relevant matter.
On and from 23 March 2024:
500.212
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.
What it means is that students can now openly say that they will consider applying for permanent residence visas after they have finished their courses.
For judicial review, it means the decision of Saini v Minister for Immigration and Border Protection [2016] FCA 858; 245 FCR 238 is no longer relevant. The key statement which affected many students at both the AAT level and at judicial review was at [30]:
‘30….But if there is a settled intention, at the time of decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention “genuinely to stay in Australia temporarily”. What is required is an evaluation by the decision-maker of intention as at the time of decision.’
However, this is no longer relevant, and ‘Saini’ can be ignored.
Hand in glove with the relaxation of the GTE is that the English language requirements have been increased, generally the IELTS will be Overall band score of 6.0 (or equivalent), unless the person is undertaking an ELICOS course.
Here are the countries where 5 years of study in English means no English test is required:
(i) Australia;
(ii) Canada;
(iii) New Zealand;
(iv) South Africa;
(v) the Republic of Ireland;
(vi) the United Kingdom;
(vii) the United States of America.
As stated above, there has been a ramping up of student visa cancellations, especially at the airport. Students must always be enrolled in a registered course when crossing the Australian border otherwise the student will be in breach of 8202(2) and therefore be liable to visa cancellation: 8202(2) reads:
“(2) A holder….be enrolled in a fulltime registered course;”
For those who have finished their courses, they must then enroll in some other course (like an advanced English course) if they are thinking of going home and coming back.
There are now close links with many countries especially including USA, Canada & the UK and European countries. If a student has been refused a visa in any of those countries, then that will ultimately be picked up by Immigration and the most vulnerable point is at the point of re-entry to Australia. Students write ‘No’ when asked on their visa applications if they have been refused a visa elsewhere. If this is not the case, this activates visa cancellation under PIC 4020 and the student will be turned around at the airport, visa cancellation in hand.
Students found guilty of even minor offences will have their visa cancelled under Reg 2.43(1)(oa) which reads:
“(oa) in the case of the holder of a temporary visa…… - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));”
The following therefore is my advice regarding students.
From a strategic point of view everything a student does should be aimed at obtaining a qualification in an occupation on the “Medium and Longterm Strategic Skills List”. Things like a diploma of leadership and the like are of limited value.
Planning study in a regional area is clearly a great advantage, noting such areas include the whole of SA, WA, Tasmania, NT and even the ACT plus many areas outside the capital cities of Sydney, Melbourne and Brisbane. The Gold Coast is now even a regional area.
All students should heavily focus on learning English, and all should aim for a score of 7 or more in the IELTS or the equivalent. Students need to do an annual English test to ensure they are on target. Nothing sucks the psychological momentum of a case in the AAT than a person who has been in Australia for a long time starting off as a student who needs an interpreter for the hearing.
During their course, students should strive to work in the field where they hope to get a qualification and avoid the easy tasks of Uber driving and low-level hospitality.
All students need to build up a history of doing good things in Australia, like giving blood, joining groups like lifesaving clubs, some charity work etc, all starting from the day they arrive in Australia.
Of course, students need to be warned that committing any criminal offence could lead to visa cancellation.
The student visa program is now a wonderful pathway for permanent residence, we must stop our student visa clients from wasting that opportunity.