Visitor and Graduate visa holders barred from onshore student visa applications from 1 July 2024

The noose around student visas being a fallback for those wanting to remain in Australia will tighten considerably from 1 July 2024 as the Minister for Home Affairs announced yesterday that from this date, visitor visa and subclass 485 – Temporary Graduate visa holders will be barred from lodging student visa applications while in Australia.

It is no surprise that the government wants to reduce net overseas migration (NOM), which is a measure of the growth of Australia’s population. NOM includes temporary visa holders including skilled workers, international students, working holiday makers and long-term visitors. The NOM for 2022–23 was 528,000, and as many of those entering Australia are likely to live in major cities, this invariably puts a strain on infrastructure and upward pressure on rent, which is undesirable considering the government has declared a housing shortage.

A large part of the NOM is the international student market, which is also one of Australia’s largest exports. To effectively reduce the NOM, the government must dissuade applicants from applying by making visa grants more difficult.

They can do this in a few ways. One is by changing the criteria for a visa to be granted. An example for student visas is increasing the financial capacity requirement, which they did on 10 March 2024.

They can also increase the number of refusals. For student visas, there exists a highly subjective criterion: the genuine student test. This can be used to scrutinise and make legally correct decisions to refuse even though previously an application may have been approved. As unpopular as this sounds, this may help understand why there was a large uptick in student visa refusals last year. No doubt education agents can corroborate this policy change over recent months.

Another is to make it impossible to lodge a visa application in certain situations. This can be done in a couple of ways. One is to implement an Expression of Interest (EOI) model, used for General Skilled Migration visas from 1 July 2012, or a ballot/lottery, used for the new subclass 192 – Pacific Engagement visa.

A second is to bar applicants from making an application. The classic example is the notorious section 48 of the Migration Act 1958 (Cth), which bars a further application in Australia for someone who does not hold a substantive visa (any visa other than a bridging visa or criminal justice visa), and who has had a visa application refused or cancelled since last entering Australia. Section 48 in conjunction with regulation 2.12 of the Migration Regulations 1994 (Cth) excludes many further onshore visa applications. The Department of Home Affairs has a useful, but out-of-date, information sheet that explains this.

There are also visa conditions that operate similarly. One is visa condition 8503 which bars the visa holder from lodging a valid application for any substantive visa other than a protection visa. These visa conditions can be waived when compelling and compassionate circumstances exist. The minister has referenced using these ‘no further stay’ visa conditions more for visitor visas.

The government will employ a similar mechanism to section 48 to bar visitor visa and graduate visa holders from applying for a student visa while in Australia. The purpose is to prevent de facto residence and where the student visa application is likely to not be genuine, which the minister refers to as “visa hopping”. The minister cites the number of international students staying in Australia on a second or further student visa has grown by over 30 per cent to over 150,000 in 2022-23, that there is an increase in the number of student visa applications from those in Australia on visitor visas, and that around 32 per cent of 485 visa holders have returned to being a student close to when their visa expires.

It should not be assumed that going from one student visa to another is undermining the integrity of the student visa program. There may be very genuine reasons to applying for another student visa. International students may have extended their studies by enrolling in a higher qualification or may require more time to finish their studies as they could have failed subjects.

A question many may ask is why not simply refuse the student visa application on genuineness grounds? The purpose of barring a visa application instead of refusing is that the applicant cannot then apply to the Administrative Appeals Tribunal (AAT), which will buy them more time in Australia while waiting for a hearing.

As stated in the media release, this change is to spur graduates to find skilled employment and be on a pathway to a permanent visa or otherwise depart Australia. The unintended consequence of this policy may be that unscrupulous employers may take advantage of a temporary visa holder’s vulnerability and desire to remain in Australia.