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Historically, the right for an applicant to appear at an oral hearing and argue their case in person has been a critically important aspect of our merits review system at the former Administrative Appeals Tribunal (1976 to 2024) and Administrative Review Tribunal (current). The exception to this was the failed attempt to undertake merits review of protection visa cases without oral hearings through the Immigration Assessment Authority, which operated from 2015 to 2024.
The Administrative Review Tribunal and Other Legislation Amendment Act 2026 amended both the Administrative Review Tribunal Act 2024 CTH and the Migration Act 1958 CTH (MA) to create a new framework for deciding certain prescribed review applications “on the papers” without holding an oral hearing. This new regime is focused upon temporary visa applications. New s 367C(2)(b) MA creates merits review “on the papers” for prescribed temporary visas, unless the decision relates to a prescribed matter. Section 376C MA allows for “on the papers” review to be specified according to:
- type of temporary visa; and
- circumstances, such as the criterion upon which a temporary visa application was refused: s 376C(3)(b) MA.
These changes were retrospective in that they applied to any applications for review which were undecided prior to the amendments taking effect on 18 May 2026 when the Act was proclaimed.
The First Cab Off The Rank – Student Visa Refusals
Student visas are the first temporary visas prescribed on 8 May 2026 by the Migration Amendment (Administrative Review of Student Visa Refusal Decisions) Regulations 2026, which commences on 1 June 2026. “Student visa” is defined in Reg 1.03 MR to include all types of student visa other than a subclass 590 Student Guardian visa.
This means that decisions to refuse to a Student visa application, where the review applicant was the primary student visa applicant, are now to be decided “on the papers”. The exception is where the student visa application was refused on the basis of failing to meet a Schedule 4 criteria (PIC 4001, 4003B, 4007, 4010, 4013, 4014, 4017, 4018 or 4020); or a Special Return Criteria in Schedule 5 of the Regulations. The vast majority of student visa refusals occur on the basis of the applicant failing the “genuine student” criteria in Cl 500.212 MR so a consequence of these changes is that most student view cases at the Tribunal will now fall under this new regime.
This change to merits review of student visa refusals does not arise in a vacuum, but instead is in the context of changes enacted by the Migration (Specification of Categories of Visas that Preclude a Person from Lodging a Student Visa Application in Australia) Amendment Instrument (LIN 24/051) 2024, which from 1 July 2024 drastically limited many visa holders from making onshore applications for student visas. Those amendments were clearly designed to stop what was seen as improper or non-meritorious visa onshore applications. The predictable flood of student visa applications that were lodged in May and June 2024 to avoid this change directly led to the current glut of 40,000+ student visa refusal applications now before the Tribunal. It is not a difficult stretch to see these new limitations for student visa refusals before the Tribunal as a further step to address what the Government sees as non-meritorious cases.
How the New Regime Will Operate
Step One: Invitation
In practical terms, s 367F requires the Tribunal to invite affected review applicants to give written submissions and evidence relating to:
- whether the applicant satisfies the criterion for the grant of the visa;
- any provision which prevents the grant of the visa; and
- whether the applicant is enrolled in a course of study.
The Explanatory Statement makes clear that the policy intention of this approach is to ensure that visa applicants provide evidence that they are currently enrolled in a course at the time their student visa application is considered by the Tribunal.
Importantly, these matters are not limited to the basis of the refusal set out in the Department’s decision.
Step Two: Response
A response to the Tribunal’s s 367F invitation must be received by the Tribunal within 28 days from notification of the invitation. The Regulations also set 14-days as the time limit for responses to a natural justice letter issued by the Tribunal under s 467H MA dealing with “adverse information”. Neither the Act nor the Regulations explicitly require a response in writing, so it will be interesting to see how the Tribunal handles phone calls by review applicants to the Registry, which are later claimed to be formal responses to these notices, in circumstances where no oral hearing is possible.
Step Three: Dismissal or Decision
If the review applicant does not respond within the timeframes, the Tribunal will mandatorily dismiss the application under s 367M MA. We foresee a conflict between this mandatory dismissal directive in s 367M with the obligation under s 367N MA to consider any material provided by the review applicant. This raises the question of material received by the Tribunal in response to a notice issued under ss 367F or 367G after the response time is passed but before a decision is made. It is unclear whether the ability of the review applicant to seek reinstatement of the dismissed case within 28 days under s 368C MA will be a sufficient answer to this question.
If the review applicant does respond within the statutory timeframes the Tribunal is required to make a decision on the application, taking into account the response, but without holding an oral hearing. There is no discretion available for the Tribunal to hold an oral hearing under this regime.
The Next Cab(s) Off The Rank
We predict the following will soon arise:
- A large number of student visa cases finalised by the Tribunal either for non-response to the notices or on the papers will flow through to the Federal Circuit and Family Court of Australia increasing the already high volume of matters before the Court; and
- Refusal of subclass 407 Training visas will be added to the “on the papers regime”, on the basis the Government’s view that most of these applications were not for genuine occupational training (or any training at all). The Australian Government’s concern that a large proportion of student visa applications were unmeritorious is the same concern that extends to the subclass 407 Training visa. On this point we note the 26 May 2026 announcement that Australian Border Force (ABF) officers have recently launched a national operation to strengthen compliance and oversight in the training visa program. The four-month operation is led by the Department’s Sponsor Monitoring Unit and is focused on identifying employers engaged in fraudulent training programs and other exploitative arrangements to undermine the visa system and exploit migrant workers under the program. Refer to https://www.abf.gov.au/newsroom-subsite/Pages/New-natiaonal-compliance-operation-targets-training-visa-exploitation.aspx.