Applying for a Student visa as a Visitor visa holder?
We have recently become aware of a number of migration agents and/or legal practitioners who are advising Visitor visa holders about how they can still stay in Australia after lodging an offshore Student (Subclass 500) visa application, since certain visa holders (including Visitor visa holders) are no longer able to apply for a Student visa in Australia.
Before we explain why this advice may not be particularly appropriate or helpful, it is necessary to first go through why certain visa holders are now prevented from lodging onshore Student visa applications in Australia, so as to understand what the Australian Government’s motivations behind these Student visa changes are, as well as what the Department of Home Affairs has been trying to discourage through these changes.
Background to certain visa holders no longer being able to apply for a Student visa in Australia
On 1 July 2024, legislative changes were made in Australia to prevent the following temporary visa holders from applying for a Student (Subclass 500) visa onshore (i.e. whilst in Australia):
Subclass 485 (Temporary Graduate)
Subclass 600 (Visitor)
Subclass 601 (Electronic Travel Authority)
Subclass 602 (Medical Treatment)
Subclass 651 (eVisitor)
Subclass 771 (Transit)
Subclass 988 (Maritime Crew)
Subclass 995 (Diplomatic Temporary) – primary visa holders only
Subclass 403 (Temporary Work) International Relations)) – Domestic Worker (Diplomatic or Consular) stream
Subclass 426 (Domestic Worker (Temporary) – Diplomatic or Consular)
This means that the above visa holders, including Visitor visa holders, are unable to apply for a Student visa whilst they are in Australia, and would have to depart Australia to be able to lodge a valid Student visa application.
Additionally, these changes were made to restrict “visa hopping” in Australia, and to end the “loopholes” that allow students and other temporary visa holders to continuously extend their stay in Australia through the Student visa program. They were also made to make it clear that graduates should be finding skilled jobs and becoming permanent residents, or departing the country when they are more likely to become ‘permanently temporary’.
Why are people concerned about not being able to apply onshore for a Student visa when they can still lodge an offshore Student visa application?
Whilst the above visa holders would still be able to lodge Student visa applications offshore (i.e. whilst outside of Australia), many people have become concerned about not being able to stay in Australia during the processing of their Student visa applications. In this regard, persons who lodge offshore visa applications are not generally eligible for the grant of a bridging visa to remain in Australia pending the finalisation of the visa application.
In contrast, persons who lodge onshore visa applications may be eligible for the grant of a bridging visa which allows them to stay in Australia until a decision is made on their onshore visa application, such that Visitor visa holders who were previously able to lodge onshore Student visa applications in Australia were able to remain in Australia during the processing of their Student visa application.
Why are some migration agents and legal practitioners saying that you can still get a bridging visa to stay in Australia after lodging an offshore Student visa application?
Is this good advice?
Generally, persons who lodge a visa application in Australia which can be granted while the visa applicant is in Australia, may be eligible for the grant of a bridging visa which allows them to remain in Australia pending the finalisation of the visa application, as long as they hold a valid visa at the time of lodgement.
Whilst this would prima facie suggest that only people who are in Australia at the time of lodging such a visa application can be granted a bridging visa to stay in Australia until a decision is made on their visa application, it is in fact technically true that certain persons who have lodged an offshore visa application, may upon their arrival in Australia, be eligible to apply for a bridging visa to remain in Australia until the finalisation of the offshore visa application, as long as they held a valid visa at the time of lodgement. This is because Departmental policy states that all “internet applications” (including visa applications lodged through the ImmiAccount) are taken to have been lodged “in Australia”, such that the visa applicant would be eligible for the grant of a bridging visa if:
the visa applicant held a valid visa (e.g. a substantive visa) when the visa application was lodged offshore;
the visa can be granted whilst the visa applicant is in Australia;
the visa applicant lodges a separate application for a Bridging visa in Australia after the lodgement of the offshore visa application; and
the visa applicant otherwise meets all other relevant regulatory criteria for the grant of the bridging visa, e.g. including character requirements.
This means that where a person holds a Visitor visa at the time an offshore Student visa application is lodged, and subsequently travels to Australia on that Visitor visa, the person will be able to apply onshore for a Bridging visa A. Once that Bridging visa A is granted and comes into effect, the Visitor visa holder will then be able to remain in Australia beyond the Visitor visa, on the Bridging visa A, until a decision is made on the offshore Student visa application.
So is this good advice? Even though this advice may be technically accurate, there are 2 main reasons as to why we do not believe that it is particularly good or appropriate advice for many Visitor visa holders, and why we would encourage all temporary visa holders to seek professional advice before attempting to apply for a Student visa whether in or outside of Australia:
Reason 1: Applying for a Student visa as a Visitor visa holder may result in the cancellation of your Visitor visa
Firstly, a Visitor visa is granted to persons for the purposes of staying in Australia temporarily, e.g. for tourism purposes, as opposed to staying in Australia for an extended period of time or maintaining de facto residence in Australia.
When you apply for a Visitor visa to visit Australia, you are declaring to the Department that you genuinely intend to visit Australia temporarily, i.e. that you are a genuine temporary entrant to Australia, and once granted, you are obliged to depart Australia prior to the expiry of your Visitor visa. In circumstances where you apply for a further visa to stay in Australia beyond the expiry of your Visitor visa, the Department may draw a number of adverse inferences about whether you are a genuine visitor to Australia, and accordingly consider cancelling your Visitor visa where -
it is unclear whether you ever had a genuine intention to only visit Australia e.g. for tourism purposes; and/or
it appears that you may have provided incorrect information or bogus documents to obtain the Visitor visa.
In particular, your Visitor visa can be cancelled when you are still offshore (i.e. outside of Australia), when you are in Australia (which would result in you becoming an unlawful non-citizen in Australia), and even when you are still in immigration clearance (i.e. upon your arrival at the airport in Australia). If your Australian visa is cancelled, you will generally be subject to a 3-year exclusion period, which prevents you from being granted most temporary visas for a period of three (3) years.
Reason 2: Visitor visa holders who apply for a Student visa may find it harder to satisfy the Genuine Student test for the grant of a Student visa
From 23 March 2024, Student visa applicants must satisfy the Genuine Student test for the grant of a Student visa, taking into account the applicant’s circumstances, immigration history, visa compliance and any other relevant matter. Additionally, under Ministerial Direction 106, further scrutiny may be appropriate where a Student visa applicant holds a Temporary Graduate (Subclass 485) visa, a Visitor (Subclass 600) visa, an Electronic Travel Authority (Subclass 601) visa or an eVisitor (Subclass 651) visa, amongst other visas.
This means that Visitor visa holders who apply for a Student visa may have a harder time convincing the Department that they are genuine students, and that they may face an increased risk of having their Student visa application refused for failure to satisfy the Genuine Student test.
Persons who are refused a visa in Australia may subsequently be barred by section 48 of the Migration Act 1958 (Cth) from applying for another visa whilst they are in Australia, with limited exceptions.
Does this mean that Visitor visa holders should not apply for Student visas?
Notwithstanding the above information, we acknowledge that every case has its own merits, and that many Visitor visa holders may in fact have a strong case for the grant of a Student visa, especially where their Student visa applications are properly prepared and substantiated by the relevant documentary evidence.
We nonetheless encourage all temporary visa holders to seek professional advice before attempting to apply for a Student visa whether in or outside of Australia, so that they are aware of all the potential issues in their case, and so that they are in a better position to make a fully-informed decision about how they should proceed with their Student visa application.
For more information, check out our free Student Visa Guide, in which we break down what all Student visa applicants should be addressing in their Student visa application, to demonstrate that they are a genuine student and thereby minimise the chances of refusal.
To discuss your eligibility for a Student visa or how to address the genuine student requirement in your Student visa application, please contact info@inclusivemigration.com.au or submit an enquiry using the contact form on our website.
