Australian Immigration Daily News

How many bites of the apple can you get?

Or, in terms of migration law, how many opportunities can you get to lodge a student visa application on-shore in Australia if you have allowed your previous student visa to expire?

And what if there are compassionate circumstances that prevented you from applying for a new student visa before the one you already hold has ceased? If you can show compassionate circumstances, can you get more bites at the apple?

These questions were raised in a case that was decided earlier this week, Alharthi v Minister for Immigration & Anor (2017) FCCA 283 (28 February 2017).

And although the decision concerned the “old” student visa regulations, Subpart 570, that were repealed with effect on 1 July 2016, the decision still has currency, because the framework that applied under the old regulations has been carried forward into the new framework that also came into force on 1 July 2016.

The fact pattern in Alharthi has probably been played out many times, as students are perennially “late” with everything (aren’t they?).

The situation was that the applicant was a citizen of Saudi Arabia.  Her previous student visa had expired on 12 July 2015, and she did not lodge an application for a further student visa until 5 days later, on 17 July 2015.

Under the framework of former Subpart 570, and in particular, Clause 570.211(3), an applicant could satisfy the criteria for the grant of a student visa even if the previous student visa had expired, provided that the applicant could satisfy Criterion 3005 of Schedule 3 (see former 570.211(3)(d)).

Criterion 3005 can be satisfied only if “A visa or entry permit has not previously been granted to the applicant on the basis of satisfaction of the criteria set out” in Schedule 3.

The difficulty for the applicant was that she had previously relied on Criterion 3005. She had allowed a prior student visa to expire before she applied for a new one. And since she had previously availed herself of the lenience of flexibility available under Schedule 3,  both the Tribunal and the Federal Circuit Court held that she could not do so again.

Was a claim of compassionate circumstances of any assistance to the applicant? Unfortunately for her, they were not.

The applicant claimed that her previous migration agent had not told her, with respect to her previous student visa, that there had to be reliance on Schedule 3, and that she had therefore not known that in fact Schedule 3 had been used to “rescue” that previous student visa application.  The applicant also claimed that she had needed to return to Saudi Arabia because her father had become ill, that by the time she returned her Confirmation of Enrollment had expired, and she had not been able to get a new COE, or to submit her application for a further student visa, until after her previous visa had ceased.

None of this helped.

The Court, referring to the decision made in the case of Tang v Minister (2011) FCA 1273, concluded that there was no scope in the student visa framework for compassionate circumstances into account as an excuse for failing to lodge a new application before the previous visa expired.

As mentioned above, the same basic scheme now applies under the current student visa regulations.

Item 1222 of Schedule 1 enables an application for a further student visa to be made, even if that application is not made before the previous visa ceases.  The Item specifies that if an applicant is no longer the holder of a substantive visa, an application may be made provided that it is lodged within 28 days after the previous visa has expired, and also (Item 1222(4)(d)) provided that the applicant has not previously been granted a visa based on an application made when the applicant did not hold a substantive visa.

In short: only one bite of the apple was available under the former student visa regulations, and only one bite of the apple is available under the regime that is currently in force. 

A student who fails to apply for a new student visa before the current visa expires has one chance, and one chance only, to apply onshore for a further student visa, and then only if the application is lodged within 28 days of the date that the previous visa has expired.

There is one opportunity for an extension, but only one. A second opportunity is not available, no matter what!

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