Migration Amendment (Administrative Review of Student Visa Refusal Decisions) Regulations 2026

EXPLANATORY STATEMENT

Issued by the Minister for Home Affairs

Migration Act 1958

Migration Amendment (Administrative Review of Student Visa Refusal Decisions) Regulations 2026

The Migration Act 1958 (the Migration Act) is an Act relating to the entry into and presence in Australia of aliens, and the departure or removal from Australia of aliens and certain other persons.

Subsection 504(1) of the Migration Act provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.

Overview

The Migration Amendment (Administrative Review of Student Visa Refusal Decisions) Regulations 2026 (the Amendment Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to prescribe an application made to the Administrative Review Tribunal (ART) for review of a reviewable migration decision to refuse to grant a student visa to be an application to be reviewed on the papers.

The amendments of the Migration Regulations provide for the ART’s ability to make decisions ‘on the papers’ in relation to certain applications for decisions to refuse grant of a student visa, without conducting an oral hearing, in appropriate cases. This supports the Government’s commitment to ensuring the ART has the tools that it needs to deliver effective and efficient merits review and address its significant caseload of applications for review.

Schedule 1 to the Administrative Review Tribunal and Other Legislation Amendment Act 2026 (the Amendment Act) commenced by proclamation on 18 May 2026. Amendments of the Migration Act 1958 by the Amendment Act, supported by the amendments made by the Amendment Regulations, will permit the ART to review prescribed reviewable temporary migration decisions on the papers without the need to hold an oral hearing in the proceedings or, otherwise, enable the applicant to appear before the ART. The purpose of the Regulations is to amend the Migration Regulations to enable the ART to review prescribed decisions to refuse grant of a student visa on the papers in accordance with the amendments of the Migration Act made by the Amendment Act. The amendments will support the ART to address its caseload of student visa refusal reviews more efficiently.

The amendments in the Amendment Act were informed by the findings and recommendations of the Rapid Review into the Exploitation of Australia’s Visa System handed down by Christine Nixon AO APM in March 2023 (the Nixon Review), which highlighted the importance of proportionate and efficient merits review processes for the integrity of Australia’s migration system.

For the purposes of paragraph 367C(2)(b) of the Migration Act, the Amendment Regulations amend the Migration Regulations to prescribe, in new subregulation 4.18(1), an application made to the ART for review of a decision to refuse to grant a student visa as a kind of application that is an application to be reviewed on the papers, in circumstances prescribed in new subregulation 4.18(2).

The Amendment Regulations commence on 1 June 2026.

Further details of the Regulations are set out in Attachment A.

Consultation

In accordance with section 17 of the Legislation Act 2003, the Department undertook consultation with the Attorney-General’s Department and the ART to inform the development of the Amendment Regulations, and the implementation of the ‘on the papers review’ reforms for merits review of certain decisions to refuse grant od a student visa. The Attorney-General’s Department undertook targeted consultation on the proposed policy approach to the measures in the Amendment Act with key civil society stakeholders across the law and migration sectors in August 2025. The Department of Home Affairs and the ART are preparing updates to client-facing information on websites and associated materials to support implementation of the proposed Regulations.

Parliamentary scrutiny etc

The Amendment Regulations are a disallowable legislative instrument for the purposes of section 42 of the Legislation Act.

The Migration Act does not specify any conditions that needs to be satisfied before the power to make the Amendment Regulations may be exercised.

A Statement of Compatibility with Human Rights (the Statement) has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement is included at Attachment B.

The Amendment Regulations amend the Migration Regulations, which are exempt from sunsetting under table item 38A of section 12 of the Legislation (Exemptions and Other Matters) Regulations 2015. The Migration Regulations are exempt from sunsetting on the basis that the repeal and remaking of the Migration Regulations:

• is unnecessary as the Migration Regulations are regularly amended numerous times each year to update policy settings for immigration programs;
• would require complex and difficult to administer transitional provisions to ensure, amongst other things, the position of the many people who hold Australian visas, and similarly, there would likely be a significant impact on undecided visa and sponsorship applications; and
• would demand complicated and costly systems, training and operational changes that would impose significant strain on Government resources and the Australian public for insignificant gain, while not advancing the aims of the Legislation Act.

The Amendment Regulations will be repealed by operation of Division 1 of Part 3 of Chapter 3 of the Legislation Act. Specifically, that Division – under section 48A – operates to automatically repeal a legislative instrument that has the sole purpose of amending or repealing another instrument. As the Amendment Regulations will automatically repeal, they do not engage the sunsetting framework under Part 4 of the Legislation Act.

ATTACHMENT A

Details of the Migration Amendment (Administrative Review of Student Visa Refusal Decisions) Regulations 2026

Section 1 – Name of Regulations

Section 1 provides that the title of the Regulations is the Migration Amendment (Administrative Review of Student Visa Refusal Decisions) Regulations 2026 (the Amendment Regulations).

Section 2 – Commencement

Section 2 provides for the commencement of the Amendment Regulations on 1 June 2026.

Section 3 – Authority

Section 3 provides that the authority under which the Amendment Regulations are made is the Migration Act 1958 (the Migration Act).

Section 4 – Schedules

Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned. Any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 – Amendments

Migration Regulations 1994

Item [1] – Regulation 1.03 (definition of confirmation of enrolment)

Item [2] – Regulation 1.03 (definition of confirmation of enrolment)

Before the commencement of the amendments in items 1 and 2, the definition of confirmation of enrolment in regulation 1.03 of the Migration Regulations 1994 (the Migration Regulations) provided:

• confirmation of enrolment, in relation to a student and a registered provider, means a confirmation by the registered provider that the student is enrolled in a registered course provided by the registered provider, as required by section 19 of the Education Services for Overseas Students Act 2000.

Item 1 of Schedule 1 to the Amendment Regulations amends the definition of confirmation of enrolment in regulation 1.03 of the Migration Regulations by inserting “(within the meaning of the Education Services for Overseas Students Act 2000)” after the first occurrence of “registered provider” within that definition of that regulation to those Regulations.

Item 1 clarifies that “registered provider”, where it appears in the definition of confirmation of enrolment, has the meaning that is provided in the Education Services for Overseas Students Act 2000.

The term ‘registered provider’ is defined in section 5 of the Education Services for Overseas Students Act 2000 as follows:

• registered provider for a course for a location means a provider that is registered to provide the course at the location.

Item 2 of Schedule 1 to the Amendment Regulations makes a technical consequential amendment of the definition of confirmation of enrolment to support the amendment by item 1, by omitting “the Education Services for Overseas Students Act 2000” and substituting “that Act” in its place.

The amended definition of confirmation of enrolment in regulation 1.03 of the Migration Regulations provides for:

• confirmation of enrolment, in relation to a student and a registered provider within the meaning of the Education Services for Overseas Students Act 2000, means a confirmation by the registered provide that the student is enrolled in a registered course provided by the registered provider, as required by section 19 of that Act.

The effect of items 1 and 2 is to clarify that the reference to ‘registered provider’ in the definition of confirmation of enrolment has the meaning provided for by the Education Services for Overseas Students Act 2000, rather than the meaning provided for in regulation 1.03 in relation to the Aged Care Act 2024 for other purposes under the Migration Regulations.

Item [3] - Regulation 4.27

This item renumbers regulation 4.27 (Prescribed period for making certain decisions) of the Migration Regulations. The amended regulation number would be regulation 4.17 of the Migration Regulations.

This is a technical amendment to support the insertion of new regulations 4.18, 4.19 and 4.20, to ensure sequential numbering where provisions have been previously repealed. This amendment ensures sequential numbering in the Migration Regulations and complies with modern Office of Parliamentary Counsel drafting practices.

Item [4] – After regulation 4.27

Item 4 of Schedule 1 to the Amendment Regulations inserts new provisions after current regulation 4.27 of the Migration Regulations – noting the renumbering of that regulation by the amendment in item 3. These new regulations are as follows:

• regulation 4.18 - Applications to be reviewed on the papers;
• regulation 4.19 - Applications that cease to be applications to be reviewed on the papers; and
• regulation 4.20 - Response period for applications to be reviewed on the papers.

Regulation 4.18 - Applications to be reviewed on the papers

New regulation 4.18 of the Migration Regulations is titled ‘Applications to be reviewed on the papers’. This item inserts new regulation 4.18 to the Migration Regulations for the purposes of section 367C of the Migration Act, which provides for applications to be reviewed on the papers. Subregulation 4.18(1) of the Amendment Regulations provides the kinds of applications that are an application to be reviewed on the papers for the purposes of paragraph 367C(2)(b) of that Act. Under subregulation 4.18(1), an application made to the ART for review of a reviewable migration decision to refuse to grant a student visa is prescribed.

Kinds of applications that are an application to be reviewed on the papers

New subregulation 4.18(1) provides that for the purposes of paragraph 367C(2)(b) of the Migration Act, an application made to the ART for review of a decision to refuse to grant a student visa is prescribed.

Section 367C of the Migration Act provides for Division 4A (Conduct of ART Review—applications to be reviewed on the papers) of Part 5 to the Migration Act applying in relation to an application to be reviewed on the papers (see subsection 367C(1) of that Act).

The term ‘application to be reviewed on the papers’ is defined in subsection 5(1) of that Act as follows:

• application to be reviewed on the papers: see subsections 367C(2) and (3).

Subsections 367(2) and (3) of the Migration Act provide that an application made to the ART for review of a reviewable migration decision is an application to be reviewed on the papers if:

• the decision is a decision relating to a temporary visa; and
• the application is of a kind (if any) prescribed for the purposes of subsection 367C(2).

The note under subsection 367C(2) provides that an application made to the ART for review of a reviewable protection decision cannot be an application to be reviewed on the papers (see paragraph 338(1)(b) of that Act). However, an application is not, or ceases to be, an application to be reviewed on the papers if:

• the President of the ART refers the application to the guidance and appeals panel under section 122 of the Administrative Review Tribunal Act 2024 (the ART Act); or
• the circumstances (if any) prescribed for the purposes of this paragraph 367C(3)(b) apply in relation to the application.

Subsections 367C(4) and (5) of the Migration Act provide that without limiting paragraphs 367C(2)(b) and (3)(b), regulations made for the purposes of those paragraphs may prescribe kinds of, or circumstances relating to, applications made before, on or after the commencement of those regulations. The regulations may provide that specified steps taken under Division 4A or Division 4 of Part 5 of that Act in relation to applications that cease to be, or that become, applications to be reviewed on the papers are to be treated as steps taken under Division 4 or Division 4A of Part 5 (as the case may be). The interaction between subsection 367C(5) and new regulation 4.19 is set out further below.

Circumstances in which an application is not an application to be reviewed on the papers

New subregulation 4.18(2) of the Migration Regulations provides that for the purposes of paragraph 367C(3)(b) of the Migration Act, a prescribed circumstance is that the application relates to a decision to refuse to grant a student visa because the applicant did not satisfy one or more of the following criteria (whether or not that is the only reason the decision was made to refuse the visa):

• public interest criteria 4001, 4003B, 4007, 4010, 4013, 4014, 4017, 4018 or 4020;
• a special return criterion.

The expression ‘special return criterion’ is defined in regulations 1.03 of the Migration Regulations. A special return criterion is a criterion set out in a clause of Schedule 5 to the Regulations. A reference to a special return criterion by number is a reference to the criterion set out in the clause so numbered in that Schedule.

The purpose of new subregulation 4.18(2) is to provide that an application should cease to be an application to be reviewed on the papers if the visa is refused on is the basis of a failure to satisfy one of the prescribed public interest criteria or special return criteria (whether that is the only ground of refusal, or one of multiple grounds of refusal). This reflects the policy position that it is more appropriate for the ART to consider matters relating to those criteria in the context of an oral hearing.

The effect of the new subregulation 4.18(2) will be to give effect to the policy intent, which is that decisions involving public interest criteria or special return criteria may be more complex in nature than other student visa decisions.

Issues on which the ART must invite written submissions and evidence

Section 367F of the Migration Act (ART must invite submissions and evidence on certain issues) relevantly provides that the ART must, in relation to an application to be reviewed on the papers, invite the applicant to give the ART written submissions and evidence in relation to certain relevant issues. In addition to the other relevant issues set out in subparagraph 367F(1)(a), the effect of subparagraph 367F(1)(b) of that Act is that the ART must invite submissions and evidence on any relevant issues prescribed by the Regulations. The amendments in subregulations 4.18(3) and 4.18(4) of the Migration Regulations prescribe the relevant issue for the purposes of subparagraph 367F(1)(b) of the Migration Act.

New subregulation 4.18(3) of the Migration Regulations provides that new subregulation 4.18(4) applies in relation to an application to be reviewed on the papers of a decision to refuse to grant a student visa to an applicant who sought to satisfy the primary criteria for the grant of the visa. The purpose of this new subregulation 4.18(3) is to make it clear that new subregulation 4.18(4) only applies to primary applicants, because only primary applicants are required to be enrolled in a course of study.

New subregulation 4.18(4) of the Migration Regulations prescribes a relevant issue. For the purposes of paragraph 367F(1)(b) of the Migration Act, a prescribed relevant issue is whether the applicant is enrolled in a course of study (within the meaning of clause 500.111 of Schedule 2 to the Migration Regulations). The policy intention is to ensure that visa applicants provide evidence that they are currently enrolled in such a course at the time their student visa application is considered by the ART.

Regulation 4.19 - Applications that cease to be applications to be reviewed on the papers

New regulation 4.19 of the Migration Regulations provides for the purposes of subsection 367C(5) of the Migration Act for an application that ceases to be an application to be reviewed on the papers.

Subsection 367C(5) of the Migration Act is detailed above under the heading “Subsection 4.18(1) of the Migration Regulations”.

Under regulation 4.19, any information and invitation given by the ART to the applicant under subsection 367G(1) of the Migration Act would be treated as information and invitation given to the applicant under, and in accordance with, section 359A (Information and invitation given by ART) of that Act.

Subsection 367G(1) of the Migration Act provides that the ART must:

• give to the applicant clear particulars of any information that the ART considers would be the reason, or a part of the reason, for affirming the decision that is under review;
• ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied upon in affirming the decisions under review; and
• invite the applicant to comment on the information.

The policy intention of regulation 4.19 is to ensure that if an invitation had previously been issued to a visa applicant under Division 4A of Part 5 of the Migration Act, and the relevant application for review of the decision will no longer be considered an ‘application to be reviewed on the papers’, then a new invitation does not need to be reissued under section 359A, which is found in the Division 4 of Part 5 of that Act. The policy intention is that once an invitation satisfies section 367G, it also satisfies section 359A. This avoids the ART issuing similar invitations twice, and avoids the need for visa applicants to provide the same information twice.

Regulation 4.20 - Response period for applications to be reviewed on the papers

For the purposes of paragraph 367H(2)(a) of the Migration Act, new regulation 4.20 of the Migration Regulations provide for the response period for any invitations given under subsections 367F(1) and 367G(1) of the Migration Act , being the following prescribed periods:

• for an invitation given under subsection 367F(1) – within 28 days after the day the applicant is notified of the invitation.
• for an invitation given under subsection 367G(1) – within 14 days after the day the applicant is notified of the invitation. 

Section 367H of the Migration Act provides for the content of invitation (see subsection 367F(1)) and adverse information given (see subsection 367G(1)) by the ART). Section 367H provides that the invitations must be given in writing, must be given by one of the methods specified in section 379A or by a method prescribed for the purposes of giving documents to an applicant in immigration detention if the applicant is in immigration detention, must specify that that the applicant must respond in writing, must specify the period (the response period) within which the applicant must respond, and must be given in accordance with the prescribed requirements (if any). Paragraph 367H(2)(a) of the Act provides that the response period must be, if a period is prescribed for the purposes of paragraph 367H(2)(a)—that period.

The policy intention behind the timeframe of 28 days for an invitation issued under subsection 367F(1) is to reflect that this provision is a key mechanism by which a student visa applicant may present their case, instead of via a hearing. The timeframe of 28 days is appropriate in this circumstance, because it balances allowing the applicant sufficient time to present their case, while ensuring that information is provided in a timely way in order to move the applicant’s matter forward. The consequence for not replying to the invitation issued under section 367F is dismissal of the review by the ART under section 367M of the Migration Act.

The policy intention behind the response timeframe of 14 days for an invitation issued under subsection 367G(1) is reasonable and appropriate because 14 days is the current standard period for response following the issue of an invitation under section 359A of the Migration Act, where an applicant is not in immigration detention. A subsection 367G(1) invitation is substantially similar to an invitation issued under section 359A. As provided for in regulation 4.19 of the Migration Regulations, any steps taken to issue an invitation issued under 367G(1) will be treated as steps taken under, and in accordance with, steps taken under section 359A of the Migration Act. While there is currently no statutory timeframe for an applicant to respond to an invitation issued under section 359A, the 14 day response timeframe has been the standard practice for the ART for a considerable period of time. Further, 14 days is also proportionate because there is no punitive action taken if the applicant does not respond within the period (in contrast to the dismissal by the ART for failure to respond to a section 367F invitation). If an applicant does not respond within 14 days, the ART must still take into account any information received after end of the period if a decision has not yet been made regarding the student visa application (section 367N of the Migration Act refers).

Item [5] – In the appropriate position in Schedule 13

Part 162—Amendments made by the Migration Amendment (Administrative Review of Student Visa Refusal Decisions) Regulations 2026

This item inserts Part 162 of Schedule 13 into the Migration Regulations, which provides for the operation of transitional arrangements made by the Amendment Regulations.

Clause 16201(1)(a) of Schedule 13 to the Migration Regulations provides that new regulation 4.18 (see item 4 above) applies in relation to an application for review of a decision to refuse to grant a student visa that is made on or after commencement of Schedule 1 to the Amendment Regulations. Clause 16201(1)(b) of Schedule 13 to the Migration Regulations provides that new regulation 4.18 applies in relation to an application for review of a decision to refuse to grant a student visa that is both: made before that commencement; and in relation to which the President of the ART has not, before that commencement, directed that a member or members constitute the ART under section 37 of the Administrative Review Tribunal Act 2024.

This is made possible because of the operation of subsection 367C(4) of the Migration Act, which provides that regulations made for the purposes of paragraphs 367C(2)(b) and 367C(3)(b) may prescribe kinds of, or circumstances relating to, applications made before, on or after the commencement of those regulations. This is supported by subsection 367C(4) of the Administrative Review Tribunal and Other Legislation Amendment Act 2026.

That provision of that Act, and new regulation 4.18 (see item 5, above) has the effect that an application for review of a decision relating to a specified kind of temporary visa (such as a student visa), which has already been made to the ART but in relation to which the ART has not yet been constituted, is able to be reviewed on the papers. This retroactive application is appropriate to ensure the ART can apply consistent procedures to reviews of the same kinds of decisions, such as where a student visa applicant sought merits review before the commencement of the Amendment Regulations, but where the ART had not yet considered the application for merits review.

The policy intent of clause 16201 of Schedule 13 is to trigger the conversion of an application made to the ART for review of a reviewable migration decision that would be reviewed at hearing, and change it into an application for review of a reviewable migration decision that would be reviewed on the papers.

Subclause 16201(2) of Schedule 13 to the Migration Regulations provides that new regulation 4.19 (see item 4, above) of the amendments made by Schedule 1 to the Amendment Regulations, applies in relation an application that ceases to be an application to be reviewed on the papers on or after the commencement of that Schedule, whether the application was made before, on or after that commencement.

The policy intent of this new provision of the Migration Regulations is to give effect to the operation of regulation 4.19. This provision ensures that where an invitation had previously been issued to a visa applicant under Division 4A of Part 5 to the Migration Act, and that relevant review application will no longer be considered an ‘application to be reviewed on the papers’, then a new invitation does not need to be reissued under new Division 4 of Part 5.

Clause 16202 of Schedule 13 to the Migration Regulations provides that for an application that becomes an application to be reviewed on the papers on commencement of Schedule 1 to the Amendment Regulations, for the purposes of subsection 367C(5) of the Act, any steps taken in relation to the application under section 359A of the Migration Act before that commencement are to be treated as steps taken under subsection 367G(1) of the Act and (where relevant) in accordance with section 367H of the Act.

The policy intent of this new provision is to ensure that where an invitation had previously been issued to a visa applicant under Section 359A of the Migration Act before commencement of Schedule 1 of the Amendment Regulations, are to be treated as steps taken under subsection 367G(1) of the Act and (where relevant) in accordance with section 367H of the Act.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration Amendment (Administrative Review of Student Visa Refusal Decisions) Regulations 2026

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview

The Administrative Review Tribunal and Other Legislation Amendment Act 2026 (the Act) amended the Administrative Review Tribunal Act 2024 (ART Act) and the Migration Act 1958 (Migration Act) to expand the circumstances in which the Administrative Review Tribunal (ART) may make a decision without holding an oral hearing, and require the ART to make decisions in relation to certain kinds of applications ‘on the papers’ without holding an oral hearing.

The Act inserted Division 4A of Part 5 into the Migration Act which includes several regulation-making powers. In particular, Division 4A of Part 5 allows certain details of the new scheme of ‘on the papers’ review to be prescribed in the Migration Regulations 1994 (Migration Regulations).

In 2023, the Rapid Review into the Exploitation of Australia’s Visa System conducted by Ms Christine Nixon AO APM (the Nixon Review), recommended that reviews of certain temporary visa decisions, including student visas, should be “on the papers” without a hearing, and within a set period of time’. Consistent with this recommendation, it is the Australian Government’s intention that student visa refusal decisions will be the first visa type prescribed for the on the papers process.

Since early 2024, the ART has experienced a significant increase in applications – particularly applications for review of decisions to refuse to grant a student visa. In 2024-25, the ART received 31,361 applications for review of student visa refusals – a substantial increase from pre-COVID levels of up to 6,000 application per year. This has further highlighted the importance of ensuring the ART is equipped with the tools it needs to provide efficient merits review. Significant caseload pressures and extended wait times at the ART create incentives for non-genuine applicants to apply for review in order to extend their stay in Australia. For genuine applicants, these delays caused by the caseloads, act as a significant barrier to timely resolution of the visa application process.

Prior to these amendments, the ART was required to conduct an oral hearing before making a decision in a proceeding concerning the review of a student visa refusal decision. Oral hearings are time and resource intensive. An on the papers review would resolve matters in an efficient manner, while ensuring applicants have a meaningful opportunity to present their case to the ART in writing.

Overview of amendments

Prescribing the kind of applications to be reviewed on the papers

The Migration Amendment (Administrative Review of Student Visa Refusal Decisions) Regulations 2026 (Amendment Regulations) amend the Migration Regulations to prescribe an application for review of a decision to refuse to grant a student visa to be an application to be reviewed on the papers under paragraph 367C(2)(b) of the Migration Act.

Student visa refusal decisions are appropriate for review without an oral hearing, due to the nature of the issues under review, the low volume and complexity of written materials relevant to these reviews and the temporary and short-term nature of student visas. The review assesses whether the available material is sufficient to satisfy the requirements of the applicable legislative and policy framework. This involves a holistic evaluation of all relevant evidence, with the specific considerations varying according to the circumstances of each case.

Limiting these reviews to written material also reflects the relative low risk associated with student visa outcomes, particularly when compared with decisions concerning permanent or long-term visas. Overall, prescribing student visa refusal decisions as suitable for review on the papers strikes an appropriate balance between fairness, efficiency, and the proportional use of review body resources.

Exceptions to the ‘on the papers’ review

The Amendment Regulations also prescribe an application that is not or ceases to be an application to be reviewed on the papers under paragraph 367C(3)(b) of the Migration Act. Where it is considered more appropriate for a matter to be determined through an oral hearing, rather than on the papers, the Amendment Regulations prescribe an exclusion from the on the papers review process. The Australian Government’s intention is that certain applications for review should not be determined without a hearing where issues arise that would benefit from oral evidence and submissions.

In particular, applications for review of decisions involving specified Public Interest Criteria (PIC) or Special Return Criteria are excluded from the on the papers review process. This reflects the view that it is more appropriate for the ART to consider matters relating to those criteria in the context of an oral hearing.

Accordingly, for the purposes of paragraph 367C(3)(b), the Amendment Regulations will prescribe that an application is not an application to be reviewed on the papers where it relates to a decision to refuse to grant a student visa due to failure to meet PICs set out in Schedule 4 to the Migration Regulations:

• PIC 4001;
• PIC 4003B;
• PIC 4007;
• PIC 4010;
• PIC 4013;
• PIC 4014;
• PIC 4017;
• PIC 4018;
• PIC 4020; or

satisfy any of the Special Return Criteria set out in Schedule 5 to the Migration Regulations.

In these circumstances, the application will require an oral hearing before the ART as part of the review process.

Operation of the amendments in relation to applications made before the commencement of Schedule 1

The Amendment Regulations also clarify the operation of the amendments in relation to applications made before the commencement of Schedule 1 to the Act that, at commencement, are before the ART.

The purpose of the application provision is to ensure continuity and certainty for existing applications transitioning under the ART framework. The provision confirms that applications already on foot at commencement are dealt with under the amended arrangements without requiring the ART to take further procedural steps, such as re-sending an invitation that relates to procedural fairness, where such an invitation had already been sent under section 359A of the Migration Act.

The measure does not affect substantive rights or alter the merits review entitlements of applicants. It is limited to clarifying the temporal application of the amendments and supports procedural fairness by ensuring that existing matters continue to be dealt with in a clear and predictable manner.

Prescribing the requirement for the Tribunal to invite submissions and evidence on certain issues

As a prescribed application under paragraph 367C(2)(b) of the Migration Act, an application for review of a student visa refusal decision is subject to the provisions of the Migration Act regarding the requirement of the ART to invite submissions and evidence on certain issues.

In addition to the issues listed in paragraph 367F(1)(a) of the Migration Act, paragraph 367F(1)(b) of the Amendment Regulations prescribes an issue to be whether the applicant is enrolled in a course of study.

Prescribing a response period for submissions, evidence and adverse information

Where the ART invites submissions and evidence under section 367F of the Migration Act, or where the ART must give adverse information under section 367G of that Act, a response period is prescribed under paragraph 367H(2)(a) of that Act. Prescribing a response period in the Migration Regulations provides certainty and consistency for applicants.

The Amendment Regulations provide that, for the purposes of paragraph 367H(2)(a) of the Migration Act, where an invitation is given under subsection 367F(1) of that Act, the response period is within 28 days after the day that the applicant is notified of the invitation. Further, for an invitation given under subsection 367G(1) of that Act, the response period is within 14 days after the applicant is given the application.

Human rights implications

The Amendment Regulations may engage the following rights:

• right to a fair and public hearing in Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR),
• right to freedom from unlawful expulsion from the territory of a State Party in Article 13 of the ICCPR, and
•  right to an effective remedy in Article 2(3) of the ICCPR.
•  right to equality and non-discrimination in Articles 2 and 26 of the ICCPR.

Right to an effective remedy

Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an effective remedy for any violation of rights or freedoms recognised by ICCPR. It includes the right to have a remedy determined by competent judicial, administrative or legislative authorities. This right also encompasses the duty to ensure competent authorities enforce any such remedies when granted.

The extent to which Article 2(3) applies to migration decisions is not fully settled because, strictly speaking, there is no general right for a non-citizen to hold a visa or enter or remain in Australia. Nevertheless, the availability of ART review ensures that there is an effective and enforceable remedy determined by a competent administrative authority for decisions made under the Migration Act.

Right to a fair and public hearing

Article 14(1) of the ICCPR protects the right that all persons are equal before courts and tribunals. It further provides that every person, in determination of rights and obligations in a ‘suit at law’ is entitled to a ‘fair and public hearing by a competent, independent and impartial tribunal established by law’.

While the United Nations Human Rights Committee (UNHRC) in its General Comment No. 32 states that to be fair, a hearing must in principle be conducted orally or publicly, it also notes that ‘the requirement of a public hearing does not necessarily apply to all appellate proceedings which may take place on the basis of written presentations’. Article 14(1) also recognises that ‘the press and public may be excluded from all or part of a trial for reasons of morals, public order (order public) or national security in a democratic society, or when the interest of the private lives of the parties so requires…’.

The extent to which article 14(1) of the ICCPR applies to administrative review proceedings (whether such proceedings constitute a ‘suit at law’) is not fully settled.

Right to freedom from unlawful expulsion

Article 13 of the ICCPR provides that an alien lawfully in the territory of a State Party may be expelled only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against their expulsion and to have their case reviewed by, and be represented before, the competent authority.

Right to equality and non-discrimination

Articles 2 and 26 of the ICCPR provide that all persons are equal before the law and are entitled to the equal protection of the law without discrimination. These provisions prohibit discrimination on a range of grounds and require that any differential treatment be reasonable and objective and pursue a legitimate objective.

Application of new ‘on the papers’ review process

The Amendment Regulations may engage the rights to an effective remedy and fair hearing (to the extent it applies in ART matters) by prescribing applications for review of a decision to refuse to grant a student visa to be an application to be reviewed by the ART on the papers, without an oral hearing.

To the extent that limiting an applicant’s opportunity to present their case orally before the ART limits the right to an effective remedy and the right to a fair hearing, this is in pursuit of the legitimate objective of the ART, as stated in section 9 of the Administrative Review Tribunal Act 2024 to conduct quick and efficient reviews with as little formality and expense as a proper consideration of the matter requires. Relevantly, the UNHRC has stated in its General Comment No 32 that ‘[a]n important aspect of the fairness of a hearing is its expeditiousness’ and that ‘delays in civil proceedings that cannot be justified by the complexity of the case or the behaviour of the parties detract from the principle of a fair hearing’. Providing for such a form of review for student visa refusal decisions is reasonable and proportionate as it provides applicants with efficient outcomes as appropriate to the subject matter while ensuring applicants have a meaningful opportunity to present their case to the ART in writing. There will be no limit to the information applicants will be able to present to the ART in support of their case, and nothing to constrain an applicant from making a full and forthright case in writing.

Student visa refusal decisions are suitable for review on the papers due to the lower level of complexity of written materials and the temporary and short-term nature of these visas. In certain student visa refusal decisions where the decision to refuse the visa relates to certain PICs or Special Return Criteria where there is a high level of complexity, oral hearings will continue to be required.

In addition, student visa refusal decisions are suitable for review on the papers as:

• An existing criterion for the granting of a student visa is that an applicant has a level of English proficiency;
• ART processes are designed to be informal and less adversarial;
• The ART will continue to have the flexibility to request additional information to ensure it has all the information it needs to make a decision.

The Amendment Regulations provide for review of student visa refusal decisions on the basis of written submissions and evidence. Procedural fairness does not require that an oral hearing is conducted in every case. Requiring an oral hearing in every case is unnecessarily rigid. In some circumstances (particularly where the issues to be resolved are objective and can be readily resolved based on documentary evidence) an oral hearing is not necessary to provide procedural fairness and properly determine a matter.

The amendments maintain a meaningful opportunity to be heard by requiring the ART to invite submissions and evidence addressing the reasons for refusal. The ART remains empowered to consider new material and to decide the matter on its merits.

Reviewing student visa refusal decisions on the papers promotes a more efficient and timely review process, reducing delay for applicants and supporting the effective administration of the migration program. Given the often time sensitive nature of student visa applications, including course commencement dates and academic calendars, paper-based review enables faster resolution of cases without undermining procedural fairness. Applicants retain the opportunity to present their arguments and supporting evidence in writing, ensuring that all relevant matters are considered.

The measures are proportionate as student visa refusal decisions in defined circumstances (student visas refused where specified Public Interest Criteria or Special Return Criteria are the grounds for refusal) will not be reviewed on the papers as it is more appropriate for the ART to consider issues relating to those criteria in the context of an oral hearing.

To the extent that the right to an effective remedy and the right to a fair hearing apply in ART matters, the amendments reinforce the reasonableness and proportionality of any limitation of these rights, because the Amendment Regulations will be subject to the safeguard provided by Parliament’s disallowance procedures. Prescribing applications for review of student visa refusal decisions in the Amendment Regulations, rather than in primary legislation, provides flexibility for the Government to remove such decisions from that process where that becomes appropriate.

Adverse information framework

Applications prescribed under paragraph 367C(2)(b) of the Migration Act are subject to the conduct provisions in Divisions 4 and 4A of Part 5. This includes the requirement for the ART to give adverse information, subject to certain exceptions, to the applicant that will be the reason, or a part of the reasons, for affirming the decision under review (section 367G). The types of information which must not be disclosed are prescribed by subsection 367G(2) of that Act, and are confined to information that is:

• not specifically about the applicant or another person and is just about a class of persons which the applicant or other person is a member,
• information that the applicant gave for the purpose of the application for review (and should already be aware of),
• information that the applicant gave during the process that led to the decision under review  other than such information that was provided orally by the applicant to the Department,
• non-disclosable information as defined in subsection 5(1) of the Migration Act (including where disclosure will be contrary to national or public interest),
• information that was included or referred to, in the written statement of the decision that is under review,
• prescribed by regulation for the purposes of paragraph 367(2)(f) of that Act.

To the extent an applicant under the Amendment Regulations may have restricted access to certain information relevant to their application, this may limit the rights to a fair hearing and freedom from unlawful expulsion by preventing their opportunity to comment otherwise and therefore narrowing the scope of procedural fairness afforded to them.

The adverse information framework is necessary to support the Tribunal’s ability to efficiently resolve matters and these limitations are reasonable and necessary to manage the volume of reviews, while minimising the disadvantage to the applicant, as the information is either not about them, is information they ought to have access to already, or is against the public interest to disclose.

Response periods

The Amendment Regulations prescribe differentiated response periods based on the nature of the information, providing a 28‑day timeframe for responding to invitations under section 367F (submissions and evidence) and a 14‑day timeframe for responding to notices under section 367G (adverse information). To the extent an applicant is affected by the adverse information framework, this distinction may limit an applicant’s right to equality and non-discrimination and freedom from unlawful expulsion. Any limitation, however, is reasonable, necessary and proportionate to pursuing a fair and efficient review framework.

These response periods are calibrated to reflect both the nature of the material provided to the applicant and the task required to respond and are underpinned by clear policy intent. In particular, the 28‑day timeframe for subsection 367F(1) invitations recognises that this mechanism is the key means by which a student visa applicant can present their case in lieu of a hearing. The longer timeframe is therefore appropriate, as it balances providing applicants with sufficient time to gather and present their case while ensuring that information is provided in a timely way to progress the matter. This is reinforced by the consequence of non‑response, as failure to respond to a section 367F invitation may result in dismissal of the review under section 367M of the Migration Act.

By contrast, the 14‑day timeframe for subsection 367G(1) notices reflects the more limited and focused task required when responding to adverse information already identified by the ART. The shorter 14-day timeframe is consistent with long standing administrative practice, including under section 359A of the Migration Act 1958, where a 14-day response period has been routinely applied. This established approach provides a relevant and persuasive benchmark, demonstrating that such a timeframe can operate effectively within a statutory decision making framework. Importantly, the continued use of the 14 day period in that context indicates that it has been regarded as both practical and procedurally fair over time.

In both cases, procedural fairness is maintained because the differing response times  require a reasonable opportunity to respond based on the type of information being sought . The prescribed timeframes operate fairly in practice by providing individuals with a genuine and effective opportunity to understand and address the material, while also ensuring that review processes are proportionate and efficient. They are appropriately calibrated to the nature of the task, the consequences of non‑response, and broader policy objectives, and do not undermine procedural fairness.

Conclusion

The Amendment Regulations are compatible with human rights because to the extent that the Amendment Regulations limit any human rights, those limitations are reasonable, necessary and proportionate.

The Hon Tony Burke MP

Minister for Home Affairs