Student visas: critical technology defined and computer based decision-making for compliance

Student visas have undergone upheaval in recent times. Since the pandemic, work restrictions have wound back and more scrutiny has been added to student visa applications due to the large influx of international students since the borders reopened.

One restriction that came into effect on 1 July 2022 was visa condition 8208, which prohibits a student visa holder from undertaking critical technology-related studies unless approved. To be approved, there must not be an unreasonable risk of unwanted transfer of critical technology by the student.

Studies that may be affected are postgraduate research courses or any bridging course which is a prerequisite to a postgraduate research course.

Visa condition 8208 only applies to students transferring into such courses as student visa holders. All student visa applications are assessed in the same manner as visa condition 8208 as there is the related public interest criterion 4003B that student visa applications must satisfy.

What is unwanted transfer of critical technology is subject to regulation 1.15Q of the Migration Regulations 1994 (Cth). It involves the transfer or communication of critical technology or its information that would harm or prejudice the security or health of the Australian public or the security or defence of Australia or its international relations. It also involves prejudice or interference with the prevention, detection, investigation, prosecution or punishment of a criminal offence.

These broad terms, however, do not specify what kinds of technology are critical. For that, a new instrument was registered on 19 February 2024 but that will come into force on 1 April 2024.

Not surprisingly critical technology involves the cutting edge of research and innovation, including:

• Advanced manufacturing and materials technology

• Artificial intelligence technology

• Advanced information and communication technology

• Biotechnology

• Clean energy generation and storage technology

• Quantum technology

• Autonomous systems, robotics, positioning, timing and sensing technology

These areas of research are likely to be sensitive both politically and ethically and may be high-value targets for theft by nations and organisations.

To aid in determining compliance, visa condition 8208 will be subject to section 495A of the Migration Act 1958 (Cth), which allows computer decision-making. Possibly, it will flag any changes in Provider Registration and International Student Management System (PRISMS), which is the system to register and manage CRICOS-registered courses.