EXPLANATORY STATEMENT
Migration Regulations 1994
EVIDENCE OF INTENDED COURSE OF STUDY 2016/027
(Subitems 1222(5) and 1222(3))
- Instrument IMMI 16/027 is made under subitem 1222(5) of Schedule 1 to the Migration Regulations 1994 (the Regulations).
- The purpose of the Instrument is for the Minister to specify for applicants of the Item 1222 Student (Temporary) (Class TU) visas the evidence that is required by paragraph 1222(3)(c) of Schedule 1 to the Regulations must satisfy.
Under subparagraph 1222(3)(c) of Schedule 1 to the Regulations, if an applicant seeks to satisfy the primary criteria for the grant of a Subclass 500 (Student) visa, he or she must provide with their application, evidence specified in item 1 of the Instrument, which confirms the applicant’s enrolment for each intended course of study in Australia, or activities related to study in Australia, offered by an educational provider. The term educational provider is defined in regulation 1.03 of the Regulations as an educational provider, for a registered course in a location, means each institution, body or person that is a registered provider of the course in that location, for the Education Services for Overseas Students Act 2000.
On 16 June 2015, the Australian Government released the Future Directions for Streamlined Visa Processing report and announced that it would implement the report’s eight recommendations; including a simplified student visa framework based on two of the key recommendations:
- reduce the number of student visa subclasses from eight to two; and
- implement a new combined country and provider immigration risk framework to guide student visa evidentiary requirements and create streamlined visa application processing opportunities for education providers across all sectors.
Subclass 500 - Student and Subclass 590 – Student Guardian form part of the project to simplify the Australian Government’s student visa framework.
3. Consultation was undertaken with key international education sector stakeholders as part of the project to simplify Australia's student visa framework before this instrument was made. Stakeholders consulted included: Commonwealth agencies (Department of Education and Training, Austrade, Department of Foreign Affairs and Trade, the Department of Defence, the Australian Skills Quality Authority, and the Tertiary Education Quality and Standards Agency), state and territory government agencies (including school regulators), as well as industry peak bodies (Australian Council for Private Education and Training, Australian Government Schools International, Council of Private Higher Education, English Australia, Independent Schools Council of Australia, International Education Association of Australia, TAFE Directors Australia, and Universities Australia).
4. The Office of Best Practice Regulation (OBPR) has been consulted and a Regulatory Impact Statement has been completed, and is attached to this Explanatory Statement at Attachment A. (OBPR Reference 18083).
5. Under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, the Instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
6. The Instrument commences immediately after the commencement of Schedule 4 of the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016.
Overview
The Evidence of Intended Course of Study 2016/027 Instrument was enacted in 2016 to address the need for streamlined visa processing for student visa applicants in Australia. This instrument was made under the Migration Regulations 1994 and aims to provide specific evidence requirements for applicants of the Item 1222 Student (Temporary) (Class TU) visas. The policy objective behind this instrument is to simplify Australia's student visa framework by reducing the number of student visa subclasses and implementing a new combined country and provider immigration risk framework to guide student visa evidentiary requirements. This change was recommended in the Future Directions for Streamlined Visa Processing report released by the Australian Government on 16 June 2015. The instrument is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 and commences immediately after the commencement of Schedule 4 of the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016.
Scope and Application
The Evidence of Intended Course of Study Instrument 2016, identified as IMMI 16/027, is a regulation made under the Migration Regulations 1994 and specifically targets applicants seeking to obtain a Subclass 500 (Student) visa. This regulation applies to all individuals who wish to study in Australia and are applying for a student visa under Subitem 1222(5) of Schedule 1 to the Migration Regulations. It mandates that applicants provide evidence of their enrolment for each intended course of study in Australia or related activities, which must be offered by an educational provider as defined under regulation 1.03 of the Migration Regulations. This definition encompasses any institution, body, or person registered to provide a course in Australia under the Education Services for Overseas Students Act 2000. The regulation is a part of a broader initiative to simplify Australia's student visa framework, consolidating various subclasses into two primary categories and introducing a unified risk assessment framework to expedite visa processing. The regulation was developed following consultations with a wide range of stakeholders, including government agencies, state and territory authorities, and industry groups, to ensure that the requirements are practical and effective.
Key Provisions
The key provisions of the Instrument, IMMI 16/027, are outlined in subitems 1222(5) and 1222(3) of Schedule 1 to the Migration Regulations 1994. The Instrument specifies the evidence required from applicants for a Subclass 500 (Student) visa to confirm their enrolment for each intended course of study in Australia. This evidence must be provided with the application, as mandated by subparagraph 1222(3)(c) of Schedule 1. An educational provider, as defined in regulation 1.03 of the Regulations, is an institution, body, or person registered to offer a course in a location under the Education Services for Overseas Students Act 2000.
The Instrument imposes several obligations on applicants seeking a Subclass 500 visa. Primarily, applicants must furnish evidence of their enrolment in a course of study in Australia. This evidence must include confirmation from an educational provider, as defined in regulation 1.03. Additionally, applicants must ensure that the evidence provided satisfies the requirements set out in the Instrument to avoid delays or denials in their visa application. The Instrument is part of a broader initiative to streamline the student visa process, which includes reducing the number of student visa subclasses and implementing a unified risk framework for student visas.
In terms of consequences for non-compliance, the Instrument itself does not specify offences, penalties, or civil/criminal consequences for breach. However, under the Migration Act 1958, providing false or misleading information in a visa application can lead to significant penalties. These include fines of up to 120,000 penalty units (approximately AUD 21.6 million as of 2023) and imprisonment for up to 10 years for individuals, or 500,000 penalty units (approximately AUD 90 million) for bodies corporate. The seriousness of these penalties underscores the importance of providing accurate and truthful information in visa applications.
In conclusion, the Instrument IMMI 16/027 sets out specific requirements for the evidence that student visa applicants must provide to confirm their enrolment in Australian educational courses. These requirements are designed to facilitate a streamlined and efficient visa processing system, aligning with broader reforms in the Australian student visa framework. Compliance with these requirements is crucial to avoid severe penalties under the Migration Act 1958.