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June 5, 2024

Student Visa Refusals in 2024: Key Insights and What to Do Next

This article on student visas refusals is written by our immigration agent Fabio Nocilla (MARN 1801445), but it does not constitute legal consultation and is for informational purposes only.

The first months of 2024 have brought us face to face with a historically rare event: the refusal of Student Visa applications. The markets most affected so far are those of Indian, Asian, and South American students. The primary factors generating ‘rejection anxiety’ are twofold:

  • Statements from ministers repeatedly expressing (for political purposes) their intent to reduce the number of Student Visas issued
  • Various rejections of applicants from other nationalities
  • The slow processing of visas

Currently, the greatest uncertainty is due to the very long wait times experienced by holders of visa 408. This does not translate into a mass refusal as each application will be judged on an individual basis.

What happens if I receive a refusal?

It’s useful to prepare for the worst-case scenario and understand what it means to receive a refusal and request a review of the decision (also known as an ‘appeal’). Many people believe that a refused visa means having to return home. This is not correct. Additionally, many people see a refusal and an appeal as a ‘blemish’ or a negative record in the eyes of the Department and an obstacle to future visa applications (which is only partially true).

Do I have to leave the country after a refusal?

If you receive a refusal of a Student Visa applied for in Australia (IMMI Refusal Notification with Records), the official letter will give you the following options:

  • Leave the country within 35 days, or
  • Request a review of the decision within 21 days of the refusal at the AAT

What is a review of the decision – appeal?

When the Department issues a negative verdict, it is also required to explain the reasons. Generally, Student Visas are denied on the basis that the delegate has concluded that the applicant does not genuinely intend to study. This criterion is subjective: it is about what the examiner believes the applicant’s intentions are. In simple terms: it is their opinion. Very often the reasons are generic, for example:

  • The applicant has not demonstrated how this visa will be useful to them in the future.
  • The applicant would find much better working conditions in Australia compared to their home country.

In essence, those who decide to deny the visa argue that the interest in studying is not the primary factor behind the choice to apply for a Student Visa.

If the visa was applied for within Australia, it is possible to challenge this decision and request that a new one be made.

Who makes the new decision?

The decision is made by the Administrative Appeals Tribunal (AAT). The name itself can create anxiety. The common imagination refers to a real court, with judges and lawyers. Nothing could be further from the truth. The AAT is an external division of the same department, a sort of office to which the appeal request is presented. Very often the entire review procedure is devoid of any contact with officials (everything is completed through documents). In the event of a hearing, it is often by telephone or a simple in-person conversation, in which one can be assisted by their agent.

How does the review (also called ‘appeal’) work and how long does it take?

The review request is very quick, and the operation is completed in one day. However, the time before the AAT makes the new decision is quite long. The AAT website reports a wait time between 314 and 646 days (between 1 and 2 years).

Once the review request is completed, you are allowed to remain in Australia awaiting the new decision (thus, for about a couple of years).

What visa do you wait for the new decision with?

When applying for the visa that was later refused, a Bridging Visa was obtained (generally a Bridging Visa A). When the review request is completed, that bridging visa is extended to an ‘indefinite’ date, as it depends on when the tribunal will make the decision.

What conditions and work rights do I have while ‘on appeal’?

During this long waiting period, the conditions and work rights present on the previous visa are extended until the moment of the new decision. Here are some examples based on the visa held at the time of refusal:

  • Tourist -> no work rights during the appeal waiting period
  • Working Holiday Visa -> work rights during the appeal waiting period, but there is a six-month limit
  • Student Visa -> part-time work rights during study periods, full-time during holidays
  • Visa 408 Covid Visa -> full-time work rights while awaiting the appeal

How much does it cost to request a review?

The fee to be paid to the AAT at the time of the appeal is $3,374. In case of a positive outcome, 50% of this amount is refunded.

What factors can favor a positive outcome?

Your delegate has decided that you are not genuinely intending to study as you declared. However, in the meantime, one or two years have passed. It is clear that a determining factor will be your academic performance. Can you demonstrate that you have passed various exams? Have you attended classes? This will help a lot because it creates an objective fact that cannot be ignored. Certainly, the AAT will also try to understand future plans, such as an intention to return to your home country. However, the most important factor will be related to academic performance.

What factors can favor a negative outcome?

It often happens that people take advantage of the review period to stay in the country without studying, paying for school, and working as much as possible. Similarly (but in the negative), this creates an objective fact that cannot be ignored.

During the appeal waiting period, can I travel outside Australia or am I stuck inside?

Many people fear being stuck in Australia in case of refusal of their visa during the appeal period. However, it is almost always possible to leave and re-enter the country if necessary. In fact, if at the time of the visa application you received a Bridging Visa A, even after the refusal it will be possible to convert it into a Bridging Visa B and obtain travel and return rights.

You might be interested: what are bridging visas?

During the appeal waiting period, can I apply for other visas? Like sponsor, skilled visa, or Partner Visa.

In general (but there are exceptions) it is not possible to apply from within Australia for a visa if you have received a refusal. This is by virtue of Section 48. However, from outside Australia, this is possible. Since it is also possible to obtain a Bridging Visa B, thus leaving and re-entering the country, this can allow applications for other visas even while awaiting review.

Do you need more information? Contact us at infopoint@atlasmigration.com

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