Australia reopened its borders on 15 December, and many work-and-study students are already planning their trip, with some having already arrived. The Australian Prime Minister and the states of NSW and Victoria — which have stronger economies and larger populations — have repeatedly stressed the need to adapt to living with the virus and to maintain an open policy, with no intention of returning to lockdowns.

NSW, Victoria and the ACT have now scrapped the 72-hour home-quarantine requirement for overseas arrivals. The current rules require a test within 24 hours of arrival that returns a negative result, and another test on day six after arrival that also returns a negative result.

NSW Premier Dominic Perrottet said this week that if adjustments genuinely need to be made, the government will act, but it will not reconsider reimposing mandatory mask mandates or restrictions on large gatherings — people must now take responsibility for themselves.

The Australian government will continue to monitor the spread and impact of new variants and take appropriate measures, but the focus has shifted from case numbers alone to serious illness. The government is also unwilling to reverse course on state and international border openings, so students currently overseas can confidently book their return trip.

We have recently received many work-and-study enquiries. Many applicants want to return to Australia as quickly as possible so they can lodge their next visa onshore before their current visa expires. From our extensive track record of successful cases, the onshore success rate is generally higher.

Beyond that, onshore lodgement offers many other benefits, which we’ll walk through one by one.

Many Australian visas can be lodged either onshore or offshore, and the work-and-study student visa is one of them. An onshore application is one where, at the time of lodgement, the applicant is already in Australia holding a valid visa. Under migration law, the applicant may lodge a new visa application within Australia and, as a result, be granted a bridging visa.

Onshore → bridging visa, stay in Australia while awaiting the outcome

The greatest advantage of an onshore application is that when a new visa application is lodged before the applicant’s existing substantive visa expires, in most cases a Bridging Visa A (BVA) will be granted, which takes effect immediately upon expiry of the current visa, providing seamless coverage. This means that even if the applicant’s existing visa expires, they do not need to leave Australia and can remain in the country while waiting for the next visa decision. In most cases, a BVA requires no separate application and is granted automatically upon lodgement. If special circumstances apply, a Form 1005 can be submitted to the Department of Home Affairs.

Many applicants are curious whether they can leave Australia while holding a BVA. The answer is no! If you need to leave Australia while awaiting your visa decision, you can apply for a Bridging Visa B (BVB). Under normal circumstances the BVB is valid for up to three months (although during these special times a longer period is usually granted).

Please note: if you leave Australia without first obtaining a BVB, a BVA alone does not allow re-entry. You would need to lodge a new visa application offshore before you can re-enter the country.

Onshore → right of appeal

In addition, visa applications lodged onshore carry appeal rights. If an onshore renewal is unfortunately refused, the applicant can appeal to the Administrative Appeals Tribunal (AAT), pointing out errors or unreasonable findings by the case officer, supplementing material not previously submitted, and explaining or correcting unsuitable material previously lodged. If the appeal s\ucceeds, the visa can then be granted.

The AAT appeal process

1. Within 21 days of receiving the refusal letter, the applicant has the right to lodge an initial review application with the AAT and pay the appeal fee (note: from 1 July 2021 the appeal fee increased to AUD 3,000).

2. After lodgement, the AAT will send the applicant a confirmation letter and begin the review. The current average processing time is 15 months. After the appeal is lodged, the applicant will be granted a bridging visa and can lawfully remain in Australia while awaiting the outcome.

3. The AAT will issue an invitation letter for the applicant to attend a hearing. The applicant should prepare extensive written material and evidence in advance and seize the opportunity to advocate for themselves in person — this is critical to the appeal outcome. The AAT also provides a free interpreter service; if your English is not strong, you can request an interpreter to be present.

4. The AAT makes a decision based on the material provided.

AAT review decisions

If the AAT finds that the Department of Home Affairs’ decision to refuse or cancel the visa was incorrect, it can, under migration law, overturn the Department’s decision. This is known as Set Aside.

If the AAT finds that the Department’s decision to cancel or refuse the visa was correct, it will uphold the decision — also known as Affirm.

If the AAT finds that the Department’s decision to cancel or refuse the visa should be reconsidered, the case will be remitted to the Department, and the case officer will re-examine the application in line with the legal principles set out by the tribunal. This is known as Remit.

In short, the AAT itself does not have the power to substitute a new decision for the Department of Home Affairs. It must refer the new decision back to the Department, which will then either grant the applicant the visa or reinstate the cancelled visa to its original holder.

For a more detailed introduction to AAT appeals, see our earlier article: Visa refused or cancelled? What should you do first? Seize your AAT appeal — it may give you another chance!

Still, refusal should be avoided in the first place

Of course, even if there is a chance to rescue things at the end, no one wants to be refused. Even if the refusal is successfully overturned, that refusal history will remain on the Department’s system. So it is best to be fully prepared at lodgement.

Among the cases we receive, the most common refusal ground is doubt over whether the applicant is a Genuine Temporary Entrant (GTE). In the work-and-study student visa context, this simply means that every student applicant must genuinely be applying for the purpose of studying, and a study plan must be provided.

Most applicants don’t need to worry too much about this issue. However, for applicants with a “troubled” study background — for example, those with a period of “blank” study history in Australia or who have failed subjects — it is very easy to attract the Department’s attention. Whether or not there is a “troubled” history, a GTE statement must be written based on your own circumstances; never just copy a template.

Worth noting: onshore renewals are still in a favourable window, with a relatively high success rate.

Onshore processing times have also clearly sped up recently, with outcomes coming through quickly. Lately, even older applicants over 60 have been successfully granted visas together with accompanying study visas.

This shows that the Department of Home Affairs is being more lenient with onshore applications. Students whose visas are about to expire should prepare their materials now, familiarise themselves with matters relating to their school and visa application, or contact a migration agent for advice as soon as possible.

 

We hope today’s article helps you better understand onshore renewals in Australia and what to do after a visa refusal.