By Lorenzo Boccabella, Barrister-at-law and specialist in migration law
The government has cleared the decks for the Administrative Review Tribunal to determine some temporary visa matters on the papers without a hearing. The government had announced that student visas in particular would be determined that way.
Migration advisers will soon have to engage a new set of skills to deal with this.
The government set 18 May 2026 as the date for the commencement of the Administrative Review Tribunal and Other Legislation Amendment Act 2026. However we are still waiting for the regulations to be promulgated which will set out exactly which visa reviews will be determined on the papers. The new s367C of the Migration Act states:
(1) This Division applies in relation to an application to be reviewed on the papers.
(2) An application made to the ART for review of a reviewable migration decision is an application to be reviewed on the papers if:
(a) the decision is a decision relating to a temporary visa; and
(b) the application is of a kind (if any) prescribed for the purposes of this subsection.”
We are still awaiting regulations to determine exactly which visas will be subject to this new regime, but it is certain that student visas will be determined on the papers once the new regulations come into force.
Instead of getting a notice of hearing, visa applicants will get a notice saying that the decision will be made on the papers and that applicants will have a timetable for supplying new evidence and new submissions.
It looks like it will be a one-shot approach.
I argue that the principle outlined in the High Court decision of SZBEL v MIMIA [2006] HCA 63 will still apply and indeed will be more important. There the Court in a unanimous judgment stated:
“35….unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.”
It will be necessary to write to the tribunal to say that the applicant is preparing submissions based solely on the issue which was decided against the applicant in the visa refusal. One does not want the tribunal, without notice, ranging over uncharted issues about the visa grant or refusal. In this regard the High Court in SZBEL also endorsed what the Full Federal Court said in Cmmr for ACT Territory Revenue v Alphaone (1994) 49 FCR 576:
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.” (emphasis added)
However, it is absolutely essential that submissions and evidence will need to be marshalled on rebutting what the delegate found against the visa applicant.
There is no cookbook as to what exactly to say to the tribunal but it will involve detailed rebuttal of where the delegate found against the applicant.
Evidence will need to be presented in statutory declaration form, any additional documents will need to be assembled, and written submissions will need to be made addressing the exact point on which the visa decision went against the applicant.
The new process of deciding cases on the papers will apply immediately to all visas which will be prescribed by regulations, including for visa applicants lodged before the 18 May 2026.
Of course, from 1 July 2024, those holding visitor visas and certain other visas could not apply for student visas onshore. Students who hold student visas can apply for another student visa onshore.
Nevertheless, there will be a large cohort of student visa applicants who are in the pipeline to the ART.
Inevitably many students will be refused on the Genuine Temporary Entrant grounds set out in cl 500.212 which reads:
“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) …… 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 needs to be borne in mind is that the Department of Home Affairs website recognises that that students are welcome to apply for the Subclass 485 Temporary Graduate visa after completing their courses – see https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-graduate-485:
“A temporary visa that allows international students to live, study and work after you have finished your studies.”
Thus, students are very entitled to state that following the completion of their course they will apply for the subclass 485 visa and work and live in Australia while holding that visa.
This will soften the impact of the GTE somewhat.
Multiple student visa holders will face the difficulty of the accusation that they are using student visas just to extend their stay in Australia.
It is expected that regulations will be promulgated shortly where it is presumed that student visas will be identified as the visas which will be subject to the tribunal determinations without hearing.
The Explanation Statement to the amending act states:
“Amendments to the Migration Act
The bill would amend the Migration Act 1958 to require the tribunal to make decisions without conducting an oral hearing in reviews of certain migration decisions.
This will specifically include decisions to refuse to grant a student visa, and could be expanded by regulation to include decisions in relation to other kinds of temporary visas.
Critically, permanent and protection visas are excluded from this regime in recognition that the matters in contention can be more complex—and in the case of protection matters—generally involves a more vulnerable cohort of applicant.”
Note for any student visa refused for an applicant who lodged while offshore, there is still the avenue of judicial review to the Federal Circuit and Family Court of Australia, judicial review grounds are limited to errors of law and defects in the decision making process, much more limited that merit review to the tribunal but still a valuable right.