It is not uncommon for international students to appeal to the Administrative Review Tribunal (ART) following a refusal of their Subclass 500 (Student) visa. In many cases, the underlying objective is to remain in Australia long enough to complete their enrolled course and become eligible for a Subclass 485 (Temporary Graduate) visa.
In many instances, appeals are lodged without full awareness of the strict legal framework that governs student visa applications. A common misunderstanding is that the ART can approve a student visa even if the applicant is no longer enrolled at the time of the decision, to facilitate lodgement of their graduate visa. This is not the case.
A recent decision of the Federal Circuit and Family Court illustrates the consequences of proceeding without legal advice and failing to meet the strict statutory requirements.
Virk v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 389
In Virk, the applicant sought review of a decision to refuse her student visa. By the time the matter came before the Administrative Appeals Tribunal (AAT), she had completed her enrolled course – a key requirement under subregulation 500.211(a) of the Migration Regulations 1994 (Cth). During the hearing, she requested an adjournment to obtain a new Confirmation of Enrolment (CoE). The AAT declined to adjourn, citing her lack of action in the preceding six months to re-enrol, and proceeded to affirm the refusal.
The applicant then appealed to the Federal Court, arguing that the AAT had acted unreasonably by refusing the adjournment and had failed to properly consider the medical material she provided as a basis for the need for adjournment, and her intentions to re-enrol in a course.
The Court dismissed the application, holding that the Tribunal had acted lawfully and reasonably in making its decision on the evidence available. The Court emphasised that a Tribunal is not obliged to refer to every piece of evidence, especially when the evidence is peripheral to the main issue. Crucially, the applicant was not enrolled in a course at the time of the AAT’s decision, and thus could not satisfy a core visa criterion.
The Court reaffirmed that the AAT has no power to grant a student visa where the applicant does not meet the objective legislative requirements, regardless of their personal circumstances or future intentions. The Tribunal’s decision had expressed that the applicant had more than 6 months since completion of her last course to enrol in another course or seek appropriate documentation.
Was the Refusal Unreasonable?
The applicant also ran a broader argument that even if the Tribunal had considered the relevant materials, it had acted unreasonably in refusing the adjournment. The Court did not agree.
Referencing key High Court decisions such as Minister for Immigration and Citizenship v Li and Minister for Immigration and Border Protection v Singh, the Court acknowledged that legal unreasonableness is a high bar. A decision will not be legally unreasonable just because a court might have come to a different view.
In Virk, the adjournment was sought so the Applicant could commence the process of enrolling in a course and obtaining a Confirmation of Enrolment (COE). By contrast, in the Li and Singh cases, applicants sought adjournments to finalise processes already underway (a skills assessment review and an English test re-mark, respectively). The difference is significant. The Tribunal was entitled to consider that, after more than six months without study, and in the absence of any steps toward new enrolment, the appellants had had adequate time to prepare.
Understanding the Legal Framework
Student visa applications are assessed against both objective and subjective criteria. One of the fundamental requirements is that the applicant must be enrolled in a registered course at the time the decision is made. If this requirement is not met, the application cannot succeed. The ART is bound by the legislative framework and does not have the discretion to overlook unmet visa criteria, even in cases where the applicant’s intentions are genuine to re-enrol or seeks to remain in Australia for subsequent visa pathways.
This is a critical point often misunderstood by applicants, particularly those who view the appeal process as an opportunity to “buy time” to later apply for a Subclass 485 visa. The reality is that if you are not enrolled in a course when the ART makes its decision, the appeal cannot succeed.
This leaves applicants in a difficult position where there are subject to the section 48 bar, and are unable to apply for a further visa while in Australia.
The Importance of Early Legal Advice
The decision in Virk serves as a timely reminder of the importance of obtaining legal advice before commencing an appeal. Early advice allows applicants to:
- Assess whether they currently meet the relevant visa criteria;
- Take timely steps to re-enrol or otherwise remedy issues that may affect their eligibility;
- Prepare evidence and submissions that properly address the Tribunal’s legal framework; and,
- Avoid pursuing appeals that have no reasonable prospects of success.
While good intentions are understandable, the ART must apply the law as it stands and cannot make exceptions based on future goals. While the Tribunal process allows applicants to present their case, it is a merits review focused on specific legislative requirements rather than general circumstances.
Where an applicant is unable to meet the visa criteria and the Tribunal affirms the refusal, Ministerial Intervention may be a more appropriate option in cases involving compelling or compassionate circumstances. This is a discretionary process and is not available to everyone, but may be appropriate where there are strong considerations, such as family hardship, health issues, or other exceptional factors. Seeking legal advice is crucial to determine whether this pathway is viable and to ensure that any request is appropriately framed and supported by relevant evidence.
Final Thoughts
The decision in Virk reinforces a key truth about Australia’s migration system: decisions are governed by strict legislative requirements, not personal circumstances. While many international students face genuine challenges, such as delays, personal hardship or unclear advice, these factors alone are unlikely to sway the outcome at the ART.
Before pursuing an appeal, it’s important to understand what the Tribunal can and cannot do. Professional legal advice can clarify your options and help avoid a situation where an otherwise hopeful pathway becomes a legal dead-end.