Receiving news that your Australian student visa has been rejected is never a pleasant experience. You might be feeling like it’s the end of the road to achieving what you had originally set out to do, whether that be to study in Australia and return abroad, ready to commence or continue your career with new qualification/s, potentially improved career prospects and better income earning capacity into the future. Or, you may have planned to study in Australia as part of a pathway to eventually settling permanently in the country and making it your home. Whatever your goals may be, it is important to be aware that a student visa rejection (or refusal, as it is commonly referred to) does not necessarily mean an end to all this. Depending on your personal situation and the circumstances surrounding the visa refusal, there may be things you can do to either salvage your student visa application, or to modify your previously planned visa pathway to still achieve your original goals, but in a different way. You should be prepared, however, for a longer process and more costs should you find yourself in this situation. You will have to make some important decisions about where to go from here. Before doing so, you need to ensure that you are fully informed about the pros and cons of all options available to you, and equally importantly, how each available alternative will impact on other aspects of your life beyond migration related matters. Ultimately, you must be comfortable with the decision that you make on the best way forward.
Some of the potential options that may be available to you include appealing the decision (referred to as a merits review), applying for another visa whilst you remain in Australia, or departing the country and applying for a visa from offshore. In some circumstances, your available options will be more limited, such as in the case where your student visa is refused on character grounds. In such a cases, you will be prohibited from applying for another visa whilst you remain onshore (except for a protection visa or Bridging Visa R (BVR)). Be mindful that a visa refusal can also result in the imposition of an exclusion period, meaning you will be unable to be granted a further visa to Australia for a specified period (this restriction can be waived in certain circumstances).
Given the complex nature of the migration laws, we highly recommend that you first speak with a professional, who can help by explaining what options you may have, the potential benefits and disadvantages of each alternative course of action, the likely time and costs involved, and which option is likely to get you the ultimate result that you hope for. Being well informed will give you your best chance of achieving this.
The most important point to make at this initial step is that you need to act quickly. If you are entitled to a review of your case, you must apply within a certain timeframe (which is shorter in cases where the refusal is based on character grounds). If you miss this critical deadline, you will lose the right to an appeal and, as a result, be left to consider other avenues going forward. This may mean having to depart Australia by a certain date. And if you fail to adhere to this strict departure date, further negative consequences may result which will affect your ability to be granted a visa to Australia for a certain period (with the imposition of an inclusion period).
Whatever decision you make must therefore be a carefully considered one, based on the most correct, up-to-date and comprehensive information as possible.
In this article, we aim to help you through this process by setting out what you should do if your Australian student visa is refused, outlining the steps you should take in addressing this situation. Be mindful that each case is different, and the right course of action will depend on the individual circumstances of each case. There is no one-size-fits-all approach; each case needs to be carefully examined to determine the best and right course of action to take.
Importantly, do not panic! Concentrate instead on finding a solution which works best for you.
With this in mind, what should you do if your Australian student visa gets rejected?
The most important thing to do is first, carefully read through your refusal notification letter received from the Department as this will contain important information pertaining to your application. This written notification will comprise of the following two components:
Notification of refusal of your application
Take note of the below key information:
- Date of the refusal and the date when you a taken to have received the refusal notification letter (this is a critical date for review purposes);
- Whether you have review rights. If you do, the letter will state that you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of the decision and the deadline for doing so;
- If you are onshore at the time of notification of the refusal, the letter will confirm your visa status in Australia as well as the requirements on departing the country in the event that you do not apply for a review or take an alternative course of action whilst you remain in Australia (such as applying for another visa);
- Information on lodging another visa application and how this will impact on your visa status in Australia; and
- Information about how to apply for a review of the decision to the AAT, including contact details for each State registry of the AAT.
This contains the following important data:
- Background information – visa subclass and date it was lodged; migration agent details (if applicable) and your immigration history;
- Information and evidence that was considered by the Department in reaching its decision;
- Findings of the Department (i.e. you do not meet the criteria for visa grant);
- Reasons and decisions – this section will outline in detail the legislative references against which your application was assessed, including extracts of relevant provisions and how these have been applied in your case based on the information and documents that you have provided to the Department, which lead it to refuse your application; and
- In certain cases, a separate attachment outlining the legislation applicable to your circumstances.
Once you have read through this information, the key points to note at this initial stage are:
- Whether you have the right to apply for a review of the decision and if so, the deadline for doing so; and
- Your current visa status in Australia and the date by which you must either depart Australia or take a course of action other than applying for a review. It is essential that you maintain your lawful status in Australia at all times. Take note of all such dates as they apply to your case and act immediately if a situation arises where there are reasons why you cannot depart Australia by the time your visa ceases. You can contact a migration professional for assistance and advice, or the Department directly. Importantly, do not ignore this – take immediate action to address this to prevent any issues arising, which may affect your ability to be granted a future visa to Australia.
So, what exactly does it mean to have your case reviewed?
Merits review means that a review body considers your claims including any additional information which you have put forward with your application for review. Reviews of migration matters are conducted by the AAT, an organisation which is independent of the Department. Most migration related matters are reviewed by the Migration and Refugee Division of the AAT. Character related matters are reviewed by the AAT’s General Division.
The AAT must consider a valid review application in accordance with the applicable law to reach a preferable decision according to the facts of the case. Under the review process, the AAT will decide whether the Department made the correct or preferable (best) decision in refusing to grant you the visa, based on the relevant legislative provisions applicable to your case. The AAT is bound by strict legislative requirements governing how reviews are to be conducted. In making its decisions, there are several options available to the AAT. In can:
- Affirm the decision (confirm that the original decision was the correct one);
- Vary the decision (change the original decision);
- Remit the matter back to the Department to reconsider in accordance with specified directions or recommendations as per the Migration Regulations (this means replacing the original decision with a new one); or
- Set aside the decision and substitute a new decision in its place (meaning sending the case back to the Department to make a new decision).
If the decision by the AAT is different to that of the Department, the new decision by the AAT is taken to be a decision of the Minister and must be implemented.
In cases where the AAT remits or sets aside the original decision, this means it has decided differently to the Department about the nature and relevance of the facts of your case and has come to a different decision. This may be due to:
- new information having been presented to the AAT (one of the key benefits of a review is that in addition to the documents originally supplied to the Department, the AAT can also consider any new information which you provide as part of the review);
- a change in Migration Regulations or policy since the original decision was made, which is applicable at the time of the AAT decision;
- a change in the circumstances of the case (this is related to the first point above);
- failure by the Department to take account of evidence presented to it;
- a misunderstanding or misapplication of the Migration regulations or a different view regarding the meaning of the Regulations; or
- a ruling by the Federal Court after the original decision was made which affects how the relevant legislation is to be interpreted.
When applying for a review, you can also provide written submissions outlining your reasons for arguing that the Department made the incorrect decision. Submitting a strong, persuasive and thorough submission accompanied by supporting evidence can result in the AAT deciding your case without the need for a Tribunal hearing (which are held in some cases). This is where appointing a representative to assist you with your review application can really help. A trained professional (such as a migration agent) is equipped with the skills required to properly structure well-written submissions, formulate clear and persuasive arguments, conduct research into relevant source materials including legislation, case law and Immigration policy and seek expert reports as applicable.
When do you have the right to have your case reviewed by the AAT?
You can apply to the AAT to have the refusal decision reviewed provided that you:
- lodged your student visa application whilst you were in Australia; and
- you are in Australia at the time when you apply for the review.
The deadline for applying for a review is 21 calendar days after the day on which notice of the decision is received.
If the refusal is based on character grounds, you will be entitled to a review provided:
- the decision to refuse the application was not made by the Minister personally; and
- you would be entitled to seek a review of the decision if it had been made on another ground (as outlined above).
For most character-related refusals, you must apply for the review within 9 days after the date when you are notified of the decision.
Importantly, the Tribunal has no power to extend the time limit for lodging your application for review. If you miss your deadline, you will lose your right to a review and will need to consider other options. Be aware that certain options are only available after an unsuccessful AAT review outcome (these are discussed further below in this article).
When will you be ineligible to apply for a review of the refusal decision?
If you lodged your application for a student visa offshore, you will be unable to have the decision reviewed by the AAT.
As noted above, you will also be ineligible to have your case reviewed if the decision to refuse was based on character grounds and made by the Minister personally.
Expected AAT decision timeframes and costs
AAT processing periods and application fees vary, depending on whether the review relates to general migration or character related matters.
General migration matters
If your student visa has been refused based on non-character related grounds, you should be prepared for substantial wait times for a decision on your case. Based on data published by the AAT for the most recent reporting period (decisions made between 1 November 2018 and 30 April 2019), processing times for student visa refusals are taking, on average, 465 calendar days from lodgement of the review application to time of decision (the median number of days from review application lodgement is even longer, which is currently 529 calendar days).
The AAT application fee is $1,764, payable before the deadline for lodging your review application. You can apply to have a 50% reduction applied to this fee if it would cause you severe financial hardship. The total fee will also be refunded if you lodge an invalid review application. If the Tribunal decides in your favour, you will receive a refund of 50% of the original review application fee paid.
For certain character-related refusals, the Tribunal must make its decision within 84 days (or 12 weeks) after the day on which you were notified of the decision. If the AAT does not make a decision in that time, the Department’s original decision will remain unchanged.
The standard application fee is $920. A reduced fee of $100 will apply in certain circumstances, including in cases of financial hardship.
If you have the right to a review, should you always take this option?
Not necessarily. Although a review can be a valuable opportunity which effectively gives you a ‘second chance’ to have your case considered afresh, it is not always the best way forward. As mentioned earlier in this article, all cases are unique. What is right for you will depend on your specific circumstances. The most important question to ask when considering whether to proceed with a review is the likelihood to achieving a successful outcome. How likely is the AAT to decide the case in your favour? Do you have good arguments to present? Are these well-researched and supported with relevant case law, legislation and/or Immigration policy? The decision should not be taken lightly and should be made in a considered and informed manner weighing up several factors which come into play. Sometimes, it is better not to proceed with a review and instead take another course of action, even if that means departing Australia. You need to consider other factors too, which extend beyond migration matters. For example, are you comfortable with the uncertainty that a review would involve; do you prefer matters to be resolved quickly? How will proceeding with a review affect your life more generally? Consider also that you are likely to hold a Bridging Visa whilst you remain in Australia awaiting the AAT’s decision. What will this mean for you and what rights will you have? These are all important questions which an experienced and trained professional can help you with.
Further information on AAT reviews
Please refer to our detailed guide for further information on what is involved in the AAT review process.
Other potential options
Applying for another visa
If you do not have the right to have the decision reviewed by the AAT, you may consider whether you can apply for another visa whilst you remain in Australia. Your options will be severely restricted in this case, based on the following considerations:
Section 48 of the Migration Act
This provision applies if you do not hold a substantive visa (which is any visa excluding a bridging visa, criminal justice or enforcement visa) and since last entering Australia, your visa has been refused (except on character grounds). If you are subject to section 48, you can only apply for a visa from a prescribed list whilst you remain onshore (including a Partner Visa or a Bridging Visa).
Schedule 3 of the Migration Regulations
This provision imposes additional requirements for grant of a partner visa onshore in cases where you do not hold a substantive visa at time of lodgement. This can be waived in certain limited circumstances.
If your student visa is refused based on failing to satisfy Public Interest Criteria (PIC) 4020, you will be subject to an exclusion period of either 3 or 10 years. This means you will be unable to be granted a further visa to Australia for the duration of the exclusion period. You can apply to have this waived in certain limited circumstances.
Applying to the Minister to personally intervene
If your AAT appeal is unsuccessful, you may be able to apply to have the Minister personally intervene in your case. Your circumstances would need to be unique or exceptional for the Minister to consider the matter personally, which will be decided based on whether s/he considers it to be in the public interest to grant you the visa.
Applying for a judicial review
Another potential avenue is to appeal the decision to the Federal Circuit Court of Australia if your AAT review is unsuccessful. This right to appeal also extends to refusal decisions made on character grounds, including where they are made by the Minister personally (which may be appealed to the Federal Court or the High Court, whether you are in Australia or offshore). An appeal to the Federal Court of a decision must be made within 35 days of the date of the notification of the decision. Be aware also that the court can only decide whether a legal mistake has been made by the Department, which is not the same as an AAT merits review.
If you have no further options available to you to remain in Australia, your only available avenue is to depart the country. If you are required to do so, it is vital to ensure that you leave Australia by the required date. Failing to do so can result in the imposition of an exclusion period, which will restrict when you can be granted a new visa to Australia. Consider the following:
Under this provision of the Migration Regulations, if, as a result of the visa refusal you depart Australia in one of the following circumstances, you will be unable to be granted a further visa for 3 years (this can be waived in certain limited circumstances):
- as an unlawful non-citizen (meaning you do not hold a valid visa); or
- as the holder of a Bridging Visa C, Bridging Visa D or Bridging Visa E.
Special Return Criteria (SRC) 5002
If you are removed from Australia (meaning you are deported as an unlawful non-citizen) as a result of failing to regularise your visa status or proceed with another avenue within the time-limit imposed after having your student visa refused, you will be subject to a 12 month exclusion period from Australia (this can be waived in certain limited circumstances).
Further information on potential options
We now refer you to our article which further discusses the options which may be available to you (in addition to seeking a review) to assist you further if you find yourself in this situation.
How do you prevent a refusal in the first-place next time?
As you can see from the above discussion, a student visa refusal brings an additional set of challenges to what is often already a complex process. But sometimes, it does happen. Your best form of defence against a refusal is being well informed and having a good understanding of all relevant matters. Seeking expert advice can also be of great assistance in this regard.
If you are planning to apply for a student visa, or your application has been refused and you wish to prevent this from happening again, we have prepared a detailed guide for your reference which contains information on the most common reasons for a student visa to be refused. Being aware of what to look out for and being prepared before any potential issues arising with your own application will help ensure that you to lodge a complete and correct application, thus maximising your chances of being granted a student visa.
Australia’s migrations laws are complex, and each case is different. There are also several terms which are defined in the migration provisions (and whose meanings may differ from their ordinary usage). We recommend that you seek professional advice if you are affected by a student visa refusal, as being fully informed will give you the best chance of achieving a successful resolution to your case. A migration professional can help you to do this.
For up to date advice on what you should do if your Australian student visa is refused, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.