How many back to back student visas can a person get
The strange thing about student visas is that there is no limit in the regulations on how many back to back student visas a person can get. But decision makers at the delegate and tribunal level identify that a student applying for serial student visas is doing something to circumvent “the intentions of the migration program”. Or sometimes it is said that a serial student visa applicant is using the next student visa in order to maintain ongoing residence in Australia.
The irony is that neither concept is defined in the regulations. One would expect the term ‘residence’ to be clearly defined but it clearly is not. There are two things, temporary residence and permanent residence but the term ‘residence’ itself is left undefined.
The student visa program is not just about students, it is about education providers. Just before the last federal election the government published the Australian Strategy for International Education 2021-2030 and it stated at page 3:
“Since its release in 2016, good progress has been made on Australia’s first international education strategy, the National Strategy for International Education 2025. International education has increased its vital role in Australia’s social, cultural and economic prosperity, generating almost a quarter of a trillion dollars for the Australian economy over the last ten years. In 2015, it contributed $19 billion to the Australian economy and by 2019, this had almost doubled to $40.3 billion. This made international education Australia’s largest services export and fourth largest export sector overall. International students and their visiting family and friends also make a key contribution to the visitor economy, creating further employment and economic opportunities.”
So, one ‘intention’ of the migration program is to provide students to education providers. A student applying for successive student visas meets that ‘intention’. At least at the moment, another “ intention of the migration program”, as far as student visas are concerned, is to provide workers in the current period of shortage of workers. The Home Affairs website currently states:
“Unrestricted work rights for student visa holders to end on 30 June 2023
To address workforce shortages, student visa work hours restrictions have been temporarily relaxed. This will end on 30 June 2023.
Until 30 June 2023, all ongoing students as well as new student arrivals and secondary applicants are able to work more than 40 hours a fortnight in any sector of the economy and work before their course of study commences.”
Then there is question of ongoing ‘residence’. There is analogous reasoning in Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation [1941] HCA 13; (1941) 64 CLR 241 where Williams J stated:
“The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode”
It is appreciated that the word ‘residence’ in that case is about a place but the reasoning is analogous, where a person has on-going ‘residence’ is a place where the person ‘eats and sleeps and has his settled or usual abode’.
Ongoing residence is a difficult concept, a subclass 482 visa holder in the Medium-term stream could apply for 3 consecutive visa and live in Australia legally for 12 years. Conditions 8503, 8531, 8540, 8558, 8573, 8575 and 8576 apply to some visas but not student visas. These conditions state:
The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.
The holder must not remain in Australia after the end of the period of stay permitted by the visa.
The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa or a Subclass 462 (Work and Holiday) visa, while the holder remains in Australia.
The holder must not stay in Australia for more than 12 months in any period of 18 months.
The holder must not stay in Australia for more than 12 months in any period of 24 months.
8575
The holder must not stay in Australia for more than 7 months in any period of 12 months.
8576
The holder must not stay in Australia for more than 10 months in any period of 12 months.
So, there is nothing illegal about a person being granted multiple consecutive student visas. A properly drafted regulation could have stopped that. If the Australian government wished to place a limit on the number of consecutive student visas a person could have or a limit on the number of years a person could spend in Australia on a student visa then it is and would have been a very easy thing to do. No government has done so.
It is not unusual for persons to spend long periods of time in Australia holding sequential temporary visas as this is permitted by the regulations. Obviously once a person applies for a permanent visa that may evidence an intention not to stay in Australia temporarily.
While it is possible to apply for back to back student visas, the key strategy for any student visa pathway has to be twofold: one is to obtain a skill on the Medium and Longterm Strategic Skills List and second is to obtain English language skills for both visa and occupational registration purposes. In relation to the latter, sometimes a student visa holder living in Australia with a dependant spouse or partner who does not speak English, could act as a handbrake on English language skill enhancement, sometimes these dependants are forgotten in student visa planning, it is just as important for adult partner dependants to to gain English language skills as much as the student visa holder, otherwise the homelife in Australia can be an English free-zone to detriment of both parties.
In the meantime, no need to be necessarily squeamish about applying for multiple back to back student visas, although be prepared for a fight and a possible trip to the Administrative Appeals Tribunal.
We deal with these issues in my full day 10 CPD point migration webinar workshops. The next one is Saturday 12 November 2022. The one after that is Friday 9 December 2022. Next year I plan to hold have the webinar workshops on Saturday and the other half on a Friday. Looking forward to seeing you at these webinars.