Australian Immigration Daily News

Is there anything that you can do to help a student whose visa has expired get another student visa? 

To paraphrase Barrack Obama’s famous campaign slogan from 2008: “Yes you can!” 

However, there is a major caveat that RMAs must be aware of, and that was made clear by a decision of the Full Court in December 2014 (Sapkota v Minister for Immigration and Border Protection (2014) FCAFC 160 (1 December 2014): You can only do it once! A student who allows her/his visa to expire a second time and then wants to seek a further student visa is in what the first President Bush (George H.W. Bush, not to be confused with his son, “W!) would have described as “deep doo-doo”.  The decision in Sapkota makes it clear that a student who has allowed their visa to expire can have only “one bite of the apple” under the migration legislation.  If they let their visa expire a second time, they are literally “out of luck” – at that stage, the only remedy is to apply for the further student visa from offshore. 

The factual background in Sapkota was that the visa applicant was a student from Nepal.  Her first student visa had expired on 19 May 2010, and she thus became an “unlawful non-citizen”.  However, she did apply for a new student visa on the day after her first student visa had expired (on 20 May 2010). She was thus granted a further student visa on 6 July 2010 through the provisions of Schedule 3 of the Migration Regulations. 

As RMAs will be aware, clause 3001of Schedule 3 is satisfied in the case of persons who have ceased to hold a substantive visa on or after 1 September 2004 provided that the person makes an application for a new visa within 28 days of the expiration of the substantive visa.  

Therefore, the applicant in Sapkota was able to get the second student visa in 2010 even though she applied for that visa after her original student visa had expired and she had become an unlawful non-citizen because she had applied for the second student visa within 28 days after the first visa had expired. 

The problem that arose in Sapkota was that the visa holder allowed the second student visa that she had been granted in July 2010 to expire before she applied for a further (third) student visa.  The second visa ceased on 15 March 2013. The visa holder did not lodge an application for a further student visa until 4 days later, on 19 March 2013. 

So the question in the case was whether the applicant could again rely on Schedule 3 to rescue her situation, and could obtain a further student visa on the basis that she had applied for the further visa within 28 days after her student visa had ceased. 

The answer from a 5-judge panel of the Federal Court, sitting as the Full Court, was a resounding and unanimous “No!!!!!” 

The applicant in Sapkota sought a “Higher Education” visa, and it was thus necessary for her to satisfy what was clause 573.211 of Schedule 2 of the Regulations (the clause that was at issue in the Sapkota case has been carried forward to the version of the Regulations that are now in force as clause 573.211(3).  

This clause of Schedule 2 is satisfied in cases where the applicant is not the holder of a substantive visa (in other words, an unlawful non-citizen); the last substantive visa held by the applicant was a student visa; the application for the further student visa is made within 28 days after the last substantive visa ceased to be in effect; and most critically, the applicant satisfies Schedule 3 criterion 3005. 

As Shakespeare’s protagonist Hamlet put it: “there’s the rub”!!

Clause 3005 of Schedule 3 can be satisfied only if “a visa….has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in….this Schedule” (which includes clause 3001 of Schedule 3, of course). 

It would appear, based on the express wording of clause 3005, that the clause cannot be satisfied by a person who has previously relied on Schedule 3 to obtain a visa.  In other words, it would appear that a person who has become an unlawful non-citizen and has previously relied on Schedule 3 to get a further visa has “used up” her or his “get out of jail free” card, and cannot satisfy the criteria of clause 3005.  

The applicant in Sapkota tried to get around this obstacle by arguing that she had not in fact relied on Schedule 3 the first time that she had become unlawful (in 2010) and had applied for a further student visa after her original visa had ceased.  She argued that her second student visa, the one granted in 2010, had actually been obtained based on her satisfaction of Schedule 2 criteria, and that Schedule 3 did not actually specify criteria for the grant of a student visa. 

The Full Court rejected this interpretation of the Regulations. The Court referred to Regulation 2.03(2), which provides that if a criterion in Schedule 2refers to a criterion in Schedule 3, 4 or 5 by number, a criterion so referred to must be satisfied as if it were set out at length in the first-mentioned (in other words, the Schedule 2) criterion.  Therefore, under Regulation 2.03(2), clause 3005 of Schedule 3 is effectively “incorporated by reference” into clause 573.211 of Schedule 2.   

Consequently, the Full Court ruled that the proper interpretation of the Regulations is that an applicant who has previously relied on Schedule 3 (because they have lodged an application for a further student visa application after their existing visa has ceased) cannot do so a second time! If they attempt to do so, they will not meet the criteria for the grant of a student visa under what I snow clause 573.211(3) (as well as comparable provisions relating to other classes of student visa. 

The holding of Sapkota is therefore a cautionary lesson for holders of student visas and for RMAs who are advising them: Clause 3005 of Schedule 3 provides one opportunity, and one opportunity only, for students who have allowed their visas to expire and have thus become unlawful non-citizens, to get another student visa.  There won’t be a chance to get another bite of the apple.  So RMAs need to emphasise to students that they must plan in advance, and that if they want to extend their studies in Australia they must apply for a further student visa before the one they already hold ceases.  And students need to be vigilant to protect their own visa entitlements, by being aware of the terms of their visas, and knowing exactly when their visas are due to expire, so that they can avoid difficulties and apply for further student visas before their existing visas expire.

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837