Migration (LIN 20/158: Class of Persons for Student (Temporary) (Class TU) Visa Applications) Instrument 2020

Provider default is central to classes 1, 5, 7, and related family provisions. It is defined as an event where a registered course either does not start on the agreed starting day, ceases to be provided after it starts, or is not provided in full to a student, and this event occurs because a sanction has been imposed on the education provider under Division 1 or 2 of Part 6 of the Education Services for Overseas Students Act 2000. This link to ESOS Act sanctions means that not every course closure qualifies; only those directly caused by a regulatory sanction. The definition also creates the concept of a provider default day, which is either the agreed starting day (if the course never starts) or the day the course ceased to be provided (if it stops mid-stream). The definition excludes voluntary closures or cancellations by the provider not tied to ESOS sanctions.

PHEIC means a Public Health Emergency of International Concern designated by the World Health Organization. This term is used in the definition of reapplying applicant for class 7. A reapplying applicant is a person whose Subclass 500 or 590 visa was cancelled under paragraph 116(1)(e) of the Migration Act because of the risk to health, safety or good order of the Australian community from a relevant PHEIC. That person must apply within three months of cancellation. The instrument limits this to cancellations based on the PHEIC risk rather than other grounds.

Relevant PHEIC is the specific PHEIC designation that formed the basis of the cancellation. This prevents applicants from relying on a different PHEIC to reattach a cancelled visa.

Agreed starting day means the scheduled start day of a registered course or a later day agreed between provider and student. This is relevant for determining when the provider default day falls if the course never starts.

Subsequent person appears in class 4 and refers to a person who is a member of the family unit of a postgraduate research student and who is seeking to satisfy secondary criteria for a Subclass 500 visa. This is a procedural concept allowing family members of a student already enrolled in a postgraduate research degree to apply afterwards and combine with the student's application.

The instrument also draws on terms defined in regulation 1.03 of the Migration Regulations, including "defence student", "foreign affairs student", "member of the family unit", "registered course", and "secondary exchange student". These definitions are incorporated by reference.

The instrument directly affects a narrow set of applicants for Student and Student Guardian visas, but its indirect effects ripple through education providers, migration agents, and the broader regulatory system. The primary beneficiaries are students who have experienced a provider default due to an ESOS sanction. For them, the fee waiver reduces the cost of applying for a replacement course. The same applies to student guardians of such students. Additionally, family members of Foreign Affairs students, Defence students, and postgraduate research students can apply with a nil charge, but only if they combine their applications with the primary student.

A second group is former visa holders whose visas were cancelled because of a PHEIC risk (for example, during the 2009 H1N1 pandemic or more recently COVID-19, though the instrument was made after COVID-19). They must reapply within three months of cancellation. This group is small and tightly circumscribed.

The third group is students whose studies were disrupted by COVID-19 specifically. To qualify, the applicant must have held a Subclass 500 visa at any time on or after 1 February 2020 and must be or have been unable to complete the course of study to which that visa related before the end of the visa period because of COVID-19. This does not cover students whose visa expired after 1 February 2020 due to other reasons, or those whose course was disrupted but who could still complete within the visa period. Family members of such students who combine applications also benefit.

Education providers are indirectly affected. If a provider faces an ESOS sanction that leads to provider default, the instrument creates a class of students who can reapply for a new course fee-free. This may reduce the financial penalty on the provider's reputation but also imposes an administrative burden on the Department to verify provider default. Providers may be more cautious about course changes that could be misconstrued as defaults, though the definition requires a sanction, so voluntary decisions are excluded.

The instrument imposes no new duties on employers or other third parties. The direct cost of waived charges is borne by the Commonwealth through forgone fee revenue. The compliance burden falls on applicants to gather evidence of provider default, PHEIC cancellation, or COVID-19 disruption. This may disadvantage applicants without access to legal advice or records.

The instrument confers a right to a nil visa application charge, but only if the applicant falls within one of the specified classes and meets all other legal requirements for a valid application. The right is conditional and procedural. There is no substantive right to a visa; that depends on satisfying the criteria for Subclass 500 or 590.

Applicants have a duty to provide satisfactory evidence for several classes. For provider default classes (sections 7(b), 11, and indirectly 8 and 12), the applicant must show that they were enrolled in the course on the provider default day, that they hold or last held a Subclass 500 visa, and that the application is made within 12 months of the provider default day. Section 7(b)(vi) also prohibits a second application based on the same provider default. This creates a duty to ensure that an application is not repeated for the same default.

For class 7 (PHEIC cancellation), the applicant must be in Australia at the time of application (class 7(a)) and must apply within three months of cancellation. The definition of "reapplying applicant" requires that the cancellation was under paragraph 116(1)(e) and that the reason was the PHEIC risk. This imposes a duty on the applicant to prove both the cancellation ground and the causal link to the PHEIC.

For COVID-19 classes (sections 14 and 15), the applicant must demonstrate that they held a Subclass 500 visa on or after 1 February 2020 and that they were unable to complete the course before the end of the visa period because of COVID-19. The instrument gives no guidance on what constitutes satisfactory evidence for this. The applicant must show causation: that the inability was "because of" COVID-19. General disruption may not suffice if the course could still be completed within the visa period through online learning or extensions.

Family member classes (2, 3, 4, 9) require a combined application with the primary applicant. This is a procedural duty: the family member must lodge at the same time and in the same application as the primary. Separate applications cannot benefit from the nil charge under these classes.

No right of merits review is conferred by this instrument. A refusal to treat a charge as nil may be reviewable through the usual AAT pathway for visa refusals, but the instrument itself does not create a review right. The Department's internal decision on whether the applicant falls within a class is an administrative determination that can be challenged only via judicial review or as part of the broader visa decision.

This instrument creates no penalties of its own. It is a legislative instrument that modifies Schedule 1 to the Migration Regulations, and enforcement of the conditions attached to visa applications falls under the Migration Act 1958 and the Regulations generally. If an applicant falsely claims to fall within one of the classes to obtain a nil charge, they may be subject to provisions in the Migration Act concerning false or misleading information (sections 234 and 236). Providing a bogus document or making a false statement in support of a visa application carries maximum penalties of 12 months imprisonment and/or fines under subsection 234(1) read with section 236. Additionally, if the fraud is detected before grant, the visa application can be refused on character grounds or under Public Interest Criterion 4020 (failure to satisfy PIC 4020 leads to refusal and a three-year ban on further applications).

For provider default classes, the instrument requires "satisfactory evidence" of enrolment on the provider default day. The Department may verify this with the provider. If a provider colludes with students to fabricate evidence, that could trigger sanctions under the ESOS Act or the Criminal Code.

The instrument itself does not empower the Department to cancel a visa for failing to meet the class conditions after grant; the visa grant criteria must have been met at the time of decision. If later it emerges that the applicant was not genuinely within the class, cancellation could be considered under section 116 of the Act for non-compliance with a condition or for incorrect information.

The cost of enforcement is borne by the Department through verification checks. This is a diffuse cost of administering the migration program. The instrument does not create any private right of action for competitors or other parties to challenge a charge waiver.

The instrument is made under the Migration Regulations 1994, specifically subitem 1222(5) of Schedule 1. It operates as an exception to the general rule that a non-citizen applying for a Subclass 500 or 590 visa must pay the prescribed visa application charge (item 1222). Without this instrument, the charge would be payable. The instrument displaces the general charging provision for the specified classes.

It interacts with the Education Services for Overseas Students Act 2000 (ESOS Act) through the definition of "provider default". That definition is triggered only when a sanction has been imposed under Division 1 or 2 of Part 6 of the ESOS Act. The ESOS Act regulates providers on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). A sanction could include suspension or cancellation of a provider's registration. The instrument thus relies on ESOS Act processes to define the event. If a course closes without an ESOS sanction (for example, a voluntary closure or a decision by the provider to discontinue the course), the students do not qualify for the nil charge under the provider default classes.

The instrument also references the Migration Act 1958, particularly subsection 5(1) for the definition of "in Australia" and paragraph 116(1)(e) for visa cancellation due to health, safety or good order risks. The definition of "reapplying applicant" is anchored to that cancellation ground. This limits the PHEIC class to a specific statutory trigger. If a visa was cancelled under a different paragraph of section 116, the applicant cannot use class 7.

The instrument revokes a previous instrument (LIN 20/099) under section 33(3) of the Acts Interpretation Act 1901. The transition between instruments may affect applicants who lodged under the earlier instrument but whose applications were not decided before revocation. Practitioners should consider the date of application and the relevant instrument in force at that time.

The instrument does not affect the operation of the Education Services for Overseas Students (ESOS) framework beyond referencing it. It does not create new obligations on education providers. It does not interact with state or territory laws. Its interaction with other Commonwealth agencies is limited to the Department of Home Affairs (as administrator) and the Australian Skills Quality Authority or Tertiary Education Quality and Standards Agency (which enforce ESOS sanctions).

The instrument was made on 24 July 2020 by Michael Willard, a delegate of the Minister for Home Affairs, and commenced the day after registration on the Federal Register of Legislation. It revoked LIN 20/099, which had the same title and was presumably a shorter-lived instrument. The text provided does not show any subsequent amendments. As a legislative instrument, it may have been amended or superseded by later instruments, but those are not part of the source material. The instrument remains in force until repealed or replaced. Its commencement date suggests it was drafted to address provider defaults and COVID-19 disruptions arising during 2020. The instrument does not contain a sunsetting clause, but legislative instruments generally cease 10 years after registration under the Legislation Act 2003 unless exempted. Practitioners should verify whether a later consolidating instrument has repealed it. The absence of amendment history in the source text is notable; the instrument may have been designed as a temporary measure, but the text does not so state.

The source text does not reference any litigation. As a legislative instrument specifying classes for fee waivers, it is unlikely to have been the subject of direct judicial challenge. Its validity could be tested only if a court found that the delegate exceeded the power in subitem 1222(5) of Schedule 1 to the Regulations, for example by specifying a class not relevant to visa application charge or by imposing conditions that are not permitted. The instrument is a legislative instrument and thus reviewable by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 or under section 75 of the Constitution, but there is no reported case involving this specific instrument in the source. The instrument's practical effect is to reduce fees; an applicant who is improperly excluded from a class may challenge the Department's decision that they do not meet the class criteria as part of a refusal to waive the charge. However, such a challenge would likely be against the visa refusal, not the instrument itself. The instrument's definitions, such as "provider default" and "reapplying applicant", could be litigated if ambiguity arises, but no court has yet done so in the available source. The instrument is relatively recent and narrow in scope.

Several traps await the unwary applicant or adviser. Provider default is defined narrowly. Only defaults caused by an ESOS Act sanction qualify. A student whose provider simply goes out of business or cancels a course voluntarily (for example, due to low enrolments) is not covered. The instrument requires "satisfactory evidence" that the applicant was enrolled on the provider default day, not merely at the time of the default. If the applicant enrolled after the default day, they cannot claim under these classes. The 12-month time limit in sections 7(b)(v) and 11(e) runs from the provider default day, not from when the applicant learns of the default. Missing this window means the charge must be paid.

For class 7 (PHEIC cancellation), the applicant must have been in Australia at the time of application. An applicant who left Australia after cancellation but before reapplying loses eligibility. The three-month limit from cancellation is strict. If the cancellation occurred more than three months prior, the class cannot be used, even if the applicant was unaware of the cancellation or delayed in applying. The instrument also requires that the cancellation was "as a result of" the PHEIC risk. As a matter of proof, the applicant needs to show that the Department invoked paragraph 116(1)(e) for that reason. If the cancellation notice cited a different ground, class 7 is not available.

COVID-19 classes (14 and 15) are more open-ended but contain a hidden hurdle: the applicant must have been unable to complete the course before the end of the visa period "because of" COVID-19. This requires a causal link. If the student could have completed the course online within the visa period but chose not to, or if the disruption was due to travel restrictions that could have been overcome, the Department may take a restrictive view. The instrument does not define "unable to complete" or "because of". A student who held a visa after 1 February 2020 but whose course was not actually ongoing at that time (for example, a gap between courses) cannot rely solely on the date. The visa period must relate to the specific course.

Family members must combine applications with the primary applicant under classes 2, 4, 8, 9, and 12. If the primary applicant applies separately and then the family member tries to lodge later, the nil charge is not available, even if the primary eventually qualifies. Class 3 (family members of existing Foreign Affairs or Defence students) is a separate stream that does not require simultaneous lodgement; that class applies to persons already holding a Subclass 500 visa and their family members. But note that class 3 only applies if the primary is a Foreign Affairs or Defence student, not a regular student.

Another subtlety: class 1 (section 7) covers secondary exchange students and students approved under a Commonwealth training scheme, as well as Foreign Affairs and Defence students. But these subclasses are subject to their own regulatory criteria in the Regulations. The instrument does not waive those criteria; it only removes the charge. A secondary exchange student must still meet the requirements of paragraph 1.04C of the Regulations.

Finally, the instrument applies only to "applicants" for a visa. It does not apply to visa holders who want a change of course or a waiver of conditions. It does not reduce the visa application charge for subsequent applications if the first application under the class was already lodged and refused.

Compliance begins with identifying whether the applicant falls into one of the nine classes. For an applicant affected by a provider default, the first step is to obtain evidence that the default occurred because of an ESOS Act sanction. This may require a letter from the provider, a notice from the Department of Education, or a record on CRICOS. The applicant must also prove they were enrolled on the provider default day, for example by a confirmation of enrolment or a copy of the electronic Confirmation of Enrolment (CoE). The applicant must hold or have last held a Subclass 500 visa. Timeliness is critical: the application must be made within 12 months of the provider default day. If the applicant already made a previous application based on the same default, they are ineligible. For student guardians, the same evidence and timeline apply to the nominating student.

For a former visa holder whose visa was cancelled due to a PHEIC, the applicant must be in Australia, and the cancellation must have been under paragraph 116(1)(e) of the Act. The applicant should obtain a copy of the cancellation notice and check the stated ground. The application must be lodged within three months of the cancellation date. The applicant can apply for either a Subclass 500 or 590 visa. If more than three months have passed, the only option is to pay the normal charge.

For students affected by COVID-19 after 1 February 2020, the applicant must demonstrate that they held a Subclass 500 visa at any time on or after that date and that they were unable to complete the course to which that visa related before the visa period ended, because of COVID-19. Evidence might include records showing the course end date, visa grant and expiry dates, and documentation of COVID-19 impacts such as border closures, lockdowns, or provider suspension. The Department has discretion to assess what constitutes satisfactory evidence. Practitioners should err on the side of providing a detailed statutory declaration explaining the causal link.

Family members seeking to claim the nil charge under classes 2, 4, 8, 9, or 12 must ensure they lodge a combined application with the primary applicant. The primary applicant must be included in the application and must themselves fall within the relevant class (for example, a primary student affected by provider default under class 1, or a postgraduate research student). The instrument does not require the primary to already hold a visa; they may be applying at the same time.

In all cases, the visa application itself must be valid and meet the other Schedule 1 requirements (for example, correct form, lodgement method, and fee payment method if applicable). Since the charge is nil, the applicant should not pay the fee; the system should recognise the class. If the application is lodged online, the applicant or agent may need to select the appropriate fee exemption or code.

All documentary evidence should be retained and submitted with the application. The Department may request further information. If the applicant is unsure whether they fall within a class, they may need to seek a formal assessment or precedent from the Department. The instrument does not provide for a pre-lodgement determination of fee exemption.

Finally, the instrument was made under a specific delegation. Applicants should verify that the instrument remains in force and has not been replaced by a later instrument. Checking the Federal Register of Legislation for the latest version of LIN 20/158 is advisable before lodging.