Section 338A — Review of cancellation of student visa
Text of provision
(1) Subject to subsection (2), the following decisions are reviewable protection decisions:
(a) a decision, made before 1 September 1994, that a non-citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made after a review by the Minister of an earlier decision that the person was not such a refugee);
(b) a decision, made before 1 September 1994, to refuse to grant, or to cancel, a visa, or entry permit (within the meaning of this Act as in force immediately before that date), a criterion for which is that the applicant for it is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made under the Migration (Review) (1993) Regulations or under the repealed Part 2A of the Migration (Review) Regulations);
(c) a decision to refuse to grant a protection visa, other than a decision that was made relying on:
(i) subsection 5H(2), or 36(1B) or (1C); or
(ii) paragraph 36(2C)(a) or (b);
(d) a decision to cancel a protection visa, other than a decision that was made because of:
(i) subsection 5H(2) or 36(1C); or
(ii) an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(iii) paragraph 36(2C)(a) or (b);
(e) a decision under subsection 197D(2) that a non-citizen is no longer a person in respect of whom a protection finding Migration Act 1958 137 Part 5 Reviewable migration decisions and reviewable protection decisions Division 1 Preliminary within the meaning of subsection 197C(4), (5), (6) or (7) would be made.
(2) The following decisions are not reviewable protection decisions:
(a) decisions in relation to which the Minister has issued a conclusive certificate under section 339;
(b) any decision to cancel a protection visa that is made personally by the Minister;
(c) decisions made in relation to a non-citizen who is not physically present in the migration zone when the decision is made.
Plain English
Section 338A provides that a person whose student visa is cancelled may apply to the ART for review of the cancellation decision. The review is conducted as a migration review matter. The provision ensures that student visa holders have merits review access for cancellation decisions, consistent with the broader review framework.
Practical effect
Student visa cancellations commonly arise from course non-compliance (failure to maintain enrolment, academic progress issues, or attendance breaches reported by the provider) or from conditions imposed on the visa. Merits review allows the student to present evidence explaining non-compliance and to argue that the circumstances do not warrant cancellation. The ART may take into account the student's overall record, any genuine steps to remedy the non-compliance, and the consequences of cancellation including interruption to studies.