Subclass 866 for International Students: Refused

Subclass 866 for International Students: What a Refusal Means

A refused Subclass 866 for international students is not necessarily the end of the matter, but it is the point at which the time for careful action becomes very short. For most students, the refusal can be reviewed by the Administrative Review Tribunal. That review is a fresh consideration of the claims. It is also subject to a time limit that is short and strictly applied.

The refusal of a Subclass 866 Protection visa has consequences that go beyond the application itself. It affects the bridging visa, the student's ability to work and study, the position of family members, and the student's future options in Australia. Section 48A of the Migration Act 1958 generally prevents a further protection visa application while the student remains in Australia. The review is therefore the most important step the student can take.

This article explains what happens after a refusal of Subclass 866 for international students: the refusal letter, the bridging visa, study and work, the review, family members and the options that remain. For the general rules on whether students can apply, see our article on international students applying for a Subclass 866 Protection visa. For review of protection decisions generally, see our page on protection visa refusals.

The First Steps After a Refusal of Subclass 866 for International Students

The steps after a refusal of Subclass 866 for international students should be taken in a fixed order, because some cannot be repaired if they are missed.

• Establish the notification date. Find the date the decision was sent and the time limit stated in the letter.
• Lodge the review application. Apply to the Administrative Review Tribunal well before the time limit expires, including every family member who wishes to be part of the review.
• Confirm your visa status. Check in VEVO which visa is in effect, its conditions and whether the student visa is still running.
• Keep complying. Continue to meet any student visa conditions, and do not travel.
• Analyse the reasons. Identify each finding the officer made and the evidence needed to answer it.
• Gather evidence and prepare submissions. Lodge the material with the Tribunal before the hearing.

The first two steps are urgent. The remaining steps take longer but should begin immediately. A refusal of Subclass 866 for international students is also a good point to obtain independent advice, because the review is usually the last opportunity to put the claims within the ordinary process. Our article on getting a second opinion from an immigration lawyer explains what a review of an earlier decision involves.

Read the Refusal Letter for the Date First

The first step after a refusal of Subclass 866 for international students is to identify when the decision was notified. The Department states that the refusal letter tells you why the application was refused, your review rights with the Administrative Review Tribunal and the time limit for lodging an application for review.

The time limit runs from when you are notified of the decision, not from when you read the letter. Decisions are commonly sent by email or to ImmiAccount. A student who has changed email address, who stopped checking an old account, or whose representative received the decision and did not pass it on, can lose the review right without having read the letter. The Department states that email is its preferred method of communication, and that applicants must tell it about changes to their contact details.

Once the date is known, the review application should be lodged well before the last day. Late applications for review of a protection decision generally cannot be accepted. The reasons can be analysed in detail after the review application is lodged. The review application itself should not wait for that analysis. Our guide to appealing a protection visa refusal to the ART explains how the application is made.

What the Reasons for Refusal Show

After the date is secured, the reasons for refusal become the roadmap for the review. A decision on Subclass 866 for international students usually turns on one or more of a small number of findings.

Common findings include:

• Credibility. The officer did not accept that the events occurred as claimed, often because of inconsistencies with the student visa file, delay or the interview evidence.
• Relocation. The officer accepted the risk in one area but found that the student could reasonably relocate elsewhere in the country.
• State protection. The officer found that effective protection was available from the authorities.
• No Convention reason. The officer found that the harm feared was not for one of the five refugee reasons, and that it did not amount to significant harm for complementary protection.
• Conduct in Australia. The officer disregarded conduct in Australia under section 5J(6) for the refugee test.
• Identity. The officer applied sections 91W or 91WA because identity evidence was not provided or was not accepted.

Each finding points to what the review must address. A credibility finding needs evidence and explanation. A relocation or state protection finding needs country information and evidence about the student's personal circumstances. Our page on complementary protection explains the relocation and state protection exclusions for the second test.

Your Bridging Visa After a Refusal

A refusal of Subclass 866 for international students does not immediately end the bridging visa granted with the protection application. Under the Migration Regulations 1994, a bridging visa associated with a protection application generally continues for a period after the student is notified of the refusal. If an application for review is made in time, the bridging visa generally continues while the review is pending and for a period after the Tribunal's decision.

This is another reason the review time limit matters. If no review application is made in time, the bridging visa will cease after the prescribed period, and the student will become unlawful unless they hold another visa. The Department states that a person whose protection application has been finally determined, who does not engage protection obligations and who holds no other visa, does not have a lawful right to stay and must leave Australia.

The conditions of the bridging visa do not change because of the refusal. A Bridging visa A held by a protection visa applicant whose application has not been finally determined cannot carry the no work condition. An application is generally not finally determined while a review is pending within time. Our guide to Bridging visa A explains when a bridging visa ceases.

Can You Keep Studying and Working After a Refusal?

In most cases, yes, while the bridging visa remains in effect. The position under Subclass 866 for international students after a refusal depends on which visa is in effect.

If the student visa is still in effect, it continues with its own conditions, including course requirements and the work limitation, until it ceases. The protection refusal does not cancel it. The student should continue to comply with the student visa conditions, because cancellation of the student visa would also end the bridging visa attached to the protection application.

If the student visa has already ceased and the Bridging visa A is in effect, the bridging visa conditions apply. As explained above, a Bridging visa A held by a protection visa applicant whose application is undecided cannot carry the no work condition, and the student visa conditions have ceased with the student visa. Whether the student continues studying is a matter for the student and the provider's enrolment rules.

A student who holds a Bridging visa E should check its conditions carefully. A Bridging visa E associated with a protection application initially carries the no work condition unless it has been removed. Our guide to bridging visas in Australia explains the differences. Check the current conditions in VEVO before making any decision about work.

Review by the Administrative Review Tribunal

Review by the Administrative Review Tribunal is the main remedy after a refusal of Subclass 866 for international students. The Tribunal reconsiders the application. It is not limited to checking whether the officer made an error. It can consider new evidence and, subject to the rules on its procedures, claims that were not put to the Department.

The Tribunal usually invites the applicant to a hearing. The member asks questions about the claims, the evidence and any concerns in the Department's decision. The student can give evidence, call witnesses in some circumstances, and make submissions through a representative. An interpreter is provided where needed. Our guides to the protection visa ART hearing and to preparing for the ART hearing explain the process in detail.

New claims raised for the first time at the Tribunal are likely to be examined closely. The member may ask why they were not raised with the Department. The same approach to delay applies: delay is not by itself a reason to reject a claim, but an explanation is needed. For students, new claims at review often relate to events at home or in Australia after the Department's decision. Those should be presented with evidence of when they arose.

Preparing the Review of Subclass 866 for International Students

Preparation for the review of Subclass 866 for international students begins with the material the Tribunal will have. The Department gives the Tribunal its file, including the decision record. The student should obtain a copy of the decision and, where possible, the documents and interview recording relied on, so that the review addresses exactly what the officer considered.

The review should then deal with each adverse finding. Where the officer did not accept the account, the review should explain the inconsistencies relied on and provide evidence that supports the account. Where the officer relied on relocation or state protection, the review should provide current country information and evidence about the student's personal circumstances. Where the officer disregarded conduct in Australia under section 5J(6), the review should provide evidence that the conduct was genuine and should also argue the complementary protection claim, to which section 5J(6) does not apply.

Written submissions and evidence should be lodged with the Tribunal before the hearing, in accordance with any directions the Tribunal gives. A review of Subclass 866 for international students that arrives at the hearing with the evidence already before the member is in a far stronger position than one that relies on oral evidence alone.

What the Tribunal Looks At in Subclass 866 for International Students

The Tribunal applies the same legal tests as the Department. The student must meet the refugee criterion in section 36(2)(a) or the complementary protection criterion in section 36(2)(aa). The Tribunal has the Department's file, including the student visa applications, the protection application, the interview recording and the decision.

For Subclass 866 for international students, the issues the Tribunal examines usually include:

• the explanation for any differences between the student visa statements and the protection claims;
• the timing of the protection application relative to the student's course, visa expiry or any student visa refusal;
• any trips home during study;
• whether conduct in Australia was genuine, for the purposes of section 5J(6);
• country information about people with the student's profile, including students returning from abroad; and
• relocation and state protection.

The review should address each finding in the Department's decision and each of these issues, with written submissions and evidence lodged before the hearing. Our article on evidence in a protection visa application explains the types of material that help.

Family Members on the Student Visa After a Refusal

Family members included in an application for Subclass 866 for international students are affected by the refusal. A partner or dependent child who was included as a member of the family unit relied on the principal applicant's claims, unless they had claims of their own. The review application should include every family member who wishes to be part of the review.

Each family member's own visa also needs to be checked. A partner or child may still hold a student visa as a secondary applicant, or may hold a bridging visa associated with the protection application. Their status, work rights and schooling depend on which visa is in effect. A child born in Australia during the application is generally granted the same visa as the parents hold at the time of birth, and should be included in the steps that follow.

Where a family member has claims of their own, those claims should be identified and presented at the review. Section 48A applies to family members as well, so the review may be the last opportunity to put their claims within the ordinary process. Subclass 866 for international students with families therefore needs a review strategy that covers every person in the family.

Section 48A: Why There Is No Second Application

Section 48A of the Migration Act 1958 generally prevents a person whose protection visa application has been refused from making a further protection visa application while in the migration zone. The Department's guidance records that, since 28 May 2014, the bar applies whatever the grounds of the further application. A student cannot make a second application based on different claims, such as complementary protection after a refugee claim failed.

The only way around the bar is the Minister's personal power under section 48B to allow a further application in the public interest. The power is non-compellable. It cannot be demanded, and there is no right of review if it is not used.

For Subclass 866 for international students, this means that the review is not a practice run for a later application. Every claim, every family member's claim and every piece of evidence should be put at the review. The Department also states that a person cannot make a valid permanent protection visa application if they have been refused a protection visa since their last arrival in Australia.

Section 48 and Other Visa Options After a Refusal

After a refusal of Subclass 866 for international students, a student who does not hold a substantive visa is subject to section 48 of the Act, which applies to a person who has had a visa refused or cancelled since last entering Australia. Section 48 limits the visas the student can apply for while in Australia to those prescribed in regulation 2.12 of the Migration Regulations 1994.

Whether any other visa is available depends on the student's circumstances, including whether the student still holds a substantive student visa. Where the student visa is still in effect, section 48 may not yet apply. These questions should be assessed individually and early, because some options depend on the student remaining lawful.

A student should not leave Australia during a review without advice. Clause 866.411 of the Migration Regulations 1994 requires the applicant to be in Australia when a Subclass 866 visa is granted, and most bridging visas do not allow travel.

A Refusal and Your Future Visa History

A refusal of Subclass 866 for international students remains part of the student's immigration history. Future visa applications, in Australia or elsewhere, commonly ask whether the applicant has ever been refused a visa, and the answer must be truthful. Adverse credibility findings made in the refusal may also be read by decision makers in later applications.

That is a further reason to take the review seriously. A review that succeeds replaces the refusal with a grant. A review that is not pursued leaves the refusal and its findings in place. Students who are considering whether to seek review of Subclass 866 for international students should weigh that consequence as well as the immediate effect on their status in Australia.

If the Tribunal Affirms the Refusal

If the Tribunal affirms the refusal, the protection application is finally determined. The bridging visa will cease after the prescribed period, and the Department states that a person who has no lawful right to stay must return home or to another country where they have a right of entry.

In limited cases, the Minister has personal, non-compellable powers to intervene after a Tribunal decision. These powers are exercised rarely and only in circumstances that the Minister considers to be in the public interest. They are not a further stage of review. A student who is considering a request should obtain advice promptly about whether any basis exists and about the effect on lawful status while a request is considered.

Mistakes After a Refusal of Subclass 866 for International Students

Most losses after a refusal of Subclass 866 for international students come from the same mistakes:

• Missing the review deadline. The time limit is short and strictly applied, and runs from notification.
• Not checking correspondence. Decisions sent to an old email address or to ImmiAccount are still notified.
• Trying to lodge a new protection application. Section 48A generally makes it invalid.
• Breaching student visa conditions. Cancellation of the student visa can end the bridging visa.
• Leaving Australia. Travel during review can end the application and the bridging visa.
• Leaving family members out of the review. Each family member's position should be addressed.

How My Migration Lawyers Acts After a Refusal of Subclass 866 for International Students

My Migration Lawyers acts in many Subclass 866 Protection visa matters for international students and regularly acts after a refusal, including at the Administrative Review Tribunal. The firm deals with complex cases, including refusals based on credibility findings, inconsistent student visa statements, relocation and state protection, section 5J(6), and identity issues under sections 91W and 91WA.

The firm's work after a refusal of Subclass 866 for international students includes:

• Securing the deadline. The notification date is confirmed and the review application is lodged in time.
• Analysing the decision. Each finding in the Department's decision is identified and the evidence needed to answer it is gathered.
• Status and family. The firm confirms the bridging visa, the student visa and each family member's position, and advises on study and work in the meantime.
• Presenting the review. Written submissions, country information and supporting evidence are lodged before the hearing. Your account remains your own evidence, reviewed and corrected by you, and you decide which claims are advanced.
• Appearing at the hearing. The firm prepares you for the hearing and appears at the Tribunal with you.

The practice is led by Principal Lawyer Weiwei Zhang. Consultations are held by video, so students anywhere in Australia can obtain urgent advice after a refusal. Our protection visa lawyers and visa refusals pages explain how the firm acts in these matters. Book a consultation with My Migration Lawyers as soon as the refusal arrives, or call 1300 040 300.