Students & Condition 3005
Take care with students lodging applications after their student visa expires. Many are not aware that a student is given only one chance to apply for a further student visa while not holding a visa. This is because of condition 3005. Let me explain. Here is the schedule 2 criteria that a student subclass 573 Higher Education sector visa applicant must meet if he or she does not hold a substantive visa:
(3) An applicant meets the requirements of this subclause if:
(a) the applicant is not the holder of a substantive visa; and
(b) the last substantive visa held by the applicant was:
(i) a student visa; or
(ii) a special purpose visa; or
(iii) a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or
(iv) .. ; or
(v) a Subclass 497 (Graduate — Skilled) visa; and
(c) the application is made within 28 days (or within such period specified by Gazette Notice) after:
(i) the day when that last substantive visa ceased to be in effect; or
(ii) if that last substantive visa was cancelled, and the MRT has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation — the later of:
(A) the day when that last substantive visa ceased to be in effect; and
(B) the day when the applicant is taken, under ss 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision; and
(d) the applicant satisfies Schedule 3 criterion 3005.
So a student turning up with an expired visa to DIAC is not penalized if doing so within 28 days of the visa expiring. But the student can only do this once because of the operation of paragraph 3005 which reads:
A visa… has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:
(a) this Schedule; or
In other words when the earlier student visa was granted within 28 days of holding a substantive visa then condition 3005 was met. It means then that next time the student is beyond time, the 3005 has already been met by that the student so that student can not apply again (a very complex drafting method!!).
English Language prerequisites for students visas
The English language proficiency requirements for the subclass 572 visa for example are:
the applicant had, less than 2 years before the date of the application:
(i) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:
(A) in Australia; and
(B) in English; or
(ii) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:
(A) is specified by the Minister in a Gazette Notice for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; or
(iii) as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:
(A) was conducted in English; and
(B) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(iv)…
(v) successfully completed a foundation course that was conducted:
(A) in Australia; and
(B) in English;
DIAC takes the view that one of these alternatives must be met BEFORE the visa application is lodged. But as Wijaya 060978622 [2008] MRTA 235 (25.3.08) demonstrates, this is not so.
Firstly meeting the Sched 5A requirements is part of the time of decision criteria (see para 572.223(2).
Secondly as the words in bold above show the requirement is that the course is completed not less than 2 years before application, NOT that the course be completed before application. In other words the provision sets the outer earlier limits as to when the English language requirements had to be met, NOT the later limits. So the English language requirement could be met up to the day of decision!
How many overseas students are there
As at 31.12.07 there were 222 942 overseas students present in Australia[1].
Can apply for a student visa while holding a graduate skilled 485 visa
If anything goes wrong with the transition from student visa to permanent residence via the subclass 485 graduate skilled visa, there is always option to re-apply for another student visa. The 485 has been made a pre-requisite visa for the 572, 573 & 574 visas[2] as part of the introduction of the changes to the General Skilled Migration schemes.
[1]Immigration Update 31.12.07 see www.immi.gov.au/media/publications/statistics/index.htm
[2] Migration Amendment Regulations 2007 (No 7) items 81 to 89.