Migration (LIN 20/102: Arrangements for Student (Temporary) (Class TU) visa applications) Instrument 2020

Section 4 defines the key expressions used in the instrument. The Act means the Migration Act 1958. The authorising email is an email sent by an officer of the Department that authorises an applicant to make an application in a different place or a different manner. Class TU visa means Student (Temporary) (Class TU) visa. The Department means the Department of Home Affairs. PHEIC means Public Health Emergency of International Concern designated by the World Health Organisation. Reapplying applicant means an applicant whose Subclass 500 visa or Subclass 590 visa was cancelled under paragraph 116(1)(e) of the Act as a result of the risk, in relation to a relevant PHEIC, to the health, safety or good order of the Australian community or a segment of the Australian community, and who is seeking to apply for a Subclass 500 visa or Subclass 590 visa. Regulations means the Migration Regulations 1994. Relevant PHEIC means the PHEIC on the basis of which a subsequent applicant’s Subclass 500 visa or Subclass 590 visa was cancelled.

These definitions are central to the operation of the instrument. The concept of a reapplying applicant is narrowly drawn. It requires both that the cancellation occurred under the specific power in paragraph 116(1)(e) and that the cancellation was linked to the risk arising from the relevant PHEIC. The three-month time limit for making the new application is measured from the date of that cancellation. The definition of authorising email requires that the email be sent by an officer of the Department and that it both authorises the non-internet method and includes the approved forms.

The instrument also relies on the distinction between internet applications and applications made in a different manner. Internet applications must use the forms listed in Column 3 of the Schedule 1 table. Non-internet applications are available only when an authorising email has been issued and must comply with the additional procedural steps in subsections 6(4) or 6(5).

The term PHEIC is not further defined in the instrument beyond the reference to designation by the World Health Organisation. The relevant PHEIC is identified by reference to the particular PHEIC that formed the basis for the earlier cancellation decision.

The instrument directly affects persons who wish to apply for a Subclass 500 (Student) visa or a Subclass 590 (Student Guardian) visa. Within that group it creates different categories based on age, intended living arrangements, and prior visa history.

Applicants who are under 18 years of age and who intend to reside with a parent, a person who has custody of the applicant, or a suitable relative fall within item 1 of the table. All other Subclass 500 applicants fall within item 2. All applicants for a Subclass 590 visa fall within item 3. Reapplying applicants who meet the criteria in the definition in section 4 and who are in Australia fall within item 4, provided they lodge their application no later than three months after the cancellation of their previous visa.

The instrument also affects officers of the Department who are authorised to send authorising emails. Those officers must ensure that any such email authorises the use of the correct non-internet form and includes that form. The Department as a whole is responsible for the administration of the forms listed in the table.

Indirectly the instrument affects migration agents and legal practitioners who prepare and lodge Class TU visa applications on behalf of clients. It also affects educational institutions and student guardians who may be involved in supporting applications, particularly where the applicant is under 18 or where a guardian visa is sought. The related retrieval context shows that the Education Services for Overseas Students Act 2000 has objects that include complementing Australia’s migration laws by ensuring providers collect and report information relevant to the administration of student visas. The arrangements in this instrument therefore form part of the procedural framework that supports those reporting obligations.

The instrument imposes procedural duties on applicants and on the Department. Applicants must use the approved internet form specified in Column 3 of the table in Schedule 1 unless they have received an authorising email permitting a non-internet application. Where a non-internet application is authorised, the applicant must submit the approved form according to the directions specified in the authorising email, attach a copy of the authorising email to the application, and, except in the case of item 4 applicants, submit the application before midnight on the day following the date the email was sent. If the applicant is outside Australia, the authorised non-internet application may also be made at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia.

For applicants falling within item 4 of the table, the duties are slightly different. They must submit the approved form (1543) according to the directions in the authorising email and attach a copy of that email, but the instrument does not impose the next-day midnight deadline on these applications.

The Department, through its officers, has a corresponding duty to issue authorising emails only when appropriate and to include the correct approved non-internet forms in those emails. The instrument does not create any substantive rights to the grant of a visa. It creates procedural rights to have an application considered as validly made if the form and manner requirements are satisfied. An applicant who receives an authorising email gains the right to lodge in the manner described in that email, provided the procedural steps in subsection 6(4) or 6(5) are followed.

The instrument does not confer any right to receive an authorising email. The decision to issue such an email remains within the discretion of the authorised officer.

This instrument does not itself create or prescribe any penalties. Enforcement occurs through the operation of the Migration Act 1958 and the Migration Regulations 1994. An application for a Class TU visa that is not made in the form and manner required by item 1222 of Schedule 1 to the Regulations, as specified in this instrument, will not meet the approved-form requirement. Such an application is liable to be treated as invalid and may be returned or refused without substantive consideration.

The Migration Act 1958 contains general provisions dealing with the validity of visa applications and the consequences of non-compliance with prescribed requirements. Officers of the Department are responsible for assessing whether an application complies with the arrangements set out in this instrument. Where an application is lodged using an unauthorised form or without the required attachments or within the prescribed time limits, the Department may determine that the application is not validly made.

The related retrieval context includes provisions from other legislation that interact with student visa administration, such as the objects of the Education Services for Overseas Students Act 2000, which include protecting Australia’s reputation for quality education and training services and complementing migration laws. Non-compliant applications under this instrument may therefore have downstream effects on the ability of education providers to meet their obligations under that Act, but the instrument itself does not impose penalties on providers.

The instrument is made under subregulation 2.07(5) of the Migration Regulations 1994 and operates as a specification of the approved forms and manner of application for the purposes of item 1222 of Schedule 1 to those Regulations. It therefore forms part of the legislative scheme established by the Migration Act 1958 and the Migration Regulations 1994 for the grant of temporary visas.

The instrument expressly refers to paragraph 116(1)(e) of the Migration Act 1958 in the definition of reapplying applicant. That paragraph permits the Minister to cancel a visa if satisfied that the presence of the visa holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The instrument creates a procedural pathway for persons whose visas have been cancelled on that ground in connection with a relevant PHEIC to reapply within three months using the special form 1543.

The related retrieval context indicates connections with the Education Services for Overseas Students Act 2000. Section 4A of that Act states that one of its principal objects is to complement Australia’s migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas. The procedural requirements in this instrument support the orderly processing of student visa applications, which in turn assists education providers in meeting their reporting obligations under the Education Services for Overseas Students Act 2000.

The instrument also interacts with the general provisions of the Acts Interpretation Act 1901 through the repeal mechanism in Schedule 2, which relies on section 33(3) of that Act. No other legislative instruments or Acts are directly amended or overridden by this instrument.

This instrument was made on 24 February 2020 by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. It commenced on the day after it was registered on the Federal Register of Legislation. The principal change effected by the instrument is the repeal of the Arrangements for Student Visa Applicants 2017/011 instrument and the introduction of updated form requirements together with a new category for reapplying applicants.

The new category in item 4 of Schedule 1 and the associated definition of reapplying applicant in section 4 allow persons whose Subclass 500 or Subclass 590 visa was cancelled under paragraph 116(1)(e) of the Migration Act 1958 because of risks arising from a relevant PHEIC to lodge a fresh application using form 1543, provided they are in Australia and apply no later than three months after the cancellation. The instrument also adjusts the procedural requirements for non-internet applications by requiring attachment of the authorising email and, in most cases, submission by the next-day midnight deadline.

These changes were made to accommodate the administrative consequences of a Public Health Emergency of International Concern. The instrument provides a defined pathway for affected applicants to reapply without having to rely on the general non-internet authorisation process that applies to other applicants. The repeal of the 2017 instrument ensures that only the forms and procedures in the current table apply to new applications.

The source text does not name any court challenges, judicial decisions or controversies associated with this instrument. No cases are identified in the instrument itself or in the related retrieval context.

The instrument’s provisions concerning authorising emails, time limits for submission, and the requirement to attach a copy of the authorising email create procedural steps that could, in individual cases, become the subject of argument about whether an application was validly made. Disputes might arise where an applicant claims to have received an authorising email but the Department does not accept that the application was lodged in accordance with the directions in that email. Such arguments would be resolved through the ordinary processes of judicial review available under the Migration Act 1958 in the Federal Circuit and Family Court of Australia or the Federal Court of Australia.

The source text contains no indication that any such challenges have been brought or that any particular controversy has arisen in relation to the PHEIC-related provisions or the repeal of the earlier instrument.

Several practical points require careful attention when applying the instrument. The three-month period for reapplying applicants runs from the date of cancellation of the previous visa and is measured strictly. An application lodged on the day after the three-month period expires will not qualify for the item 4 pathway and will need to be considered under the general rules if an authorising email can be obtained.

The midnight deadline in subsection 6(4) applies only to non-internet applications that are not made by item 4 applicants. Reapplying applicants under item 4 are not subject to that specific deadline, but they must still follow the directions in the authorising email and attach a copy of it. Failure to attach the authorising email will mean the application does not comply with subsection 6(5).

For applicants under 18 who intend to reside with a parent, custodian or suitable relative, both the internet and non-internet pathways require the use of form 157A together with 157N. The 157N component is mandatory for this category and cannot be omitted.

Authorising emails must both authorise the non-internet method and include the approved forms. An email that merely permits a non-internet application without providing the forms will not satisfy the requirements of subsection 6(3). Applicants who receive such an incomplete email should seek a corrected version before lodging.

Applications made outside Australia under an authorising email may be lodged at a diplomatic, consular or migration office, but the other requirements of subsection 6(4), including the attachment of the authorising email and the timing rule, still apply.

The instrument applies only to applications for Class TU visas. It does not authorise non-internet applications for any other visa class unless a separate instrument provides for that class.

Practitioners and applicants should first determine which item of the Schedule 1 table applies. This requires checking the applicant’s age, intended living arrangements, the subclass sought, and whether the applicant meets the definition of reapplying applicant, including confirmation that any prior cancellation was under paragraph 116(1)(e) of the Migration Act 1958 and linked to a relevant PHEIC.

Where the applicant falls within item 1, 2 or 3 and no authorising email has been received, the application must be lodged using the approved internet form: 157A (internet) with 157N for item 1 applicants, 157A (internet) for item 2 applicants, and 157G (internet) with 157N for item 3 applicants. The online system should be used to complete and submit the form.

If an authorising email has been received, the applicant must follow the directions contained in that email exactly. The approved non-internet form listed in Column 4 must be used, a copy of the authorising email must be attached, and the application must be submitted before midnight on the day following the date the email was sent, unless the applicant falls within item 4. For item 4 applicants the form is 1543 and the same attachment requirement applies, although the next-day midnight deadline does not.

Applicants who are outside Australia and have received an authorising email should confirm whether the email permits lodgement at a diplomatic, consular or migration office and, if so, ensure the application is delivered to the correct office within the applicable time limit.

Before lodging, practitioners should verify that the authorising email was sent by an officer of the Department, that it authorises the specific non-internet form required, and that it includes the form itself. Any discrepancy should be raised with the Department before submission to avoid an invalid application.

Record-keeping is essential. A copy of the authorising email, the date and time it was sent, and proof of submission should be retained. For reapplying applicants, evidence of the date of the previous cancellation and confirmation that the cancellation ground was paragraph 116(1)(e) in connection with the relevant PHEIC should be obtained and kept with the file.

Finally, because the instrument repealed the 2017 arrangements, practitioners should ensure that any templates or guidance based on the earlier instrument are updated to reflect the current table and the special provisions for reapplying applicants.