Challenging an ESOS decision in 2026: internal review in 30 days, 120-day deemed affirmance, then the ART

Yes — but the path depends on who made the decision. Under Part 6 of the Education Services for Overseas Students Act 2000 (ESOS Act) as published on the Federal Register of Legislation, as at September 2026, an affected provider may apply for internal review within 30 days of being notified — but only where the decision was made by a delegate of the ESOS agency. If the internal reviewer does not decide within 120 days, the reviewer is taken to have affirmed the original decision, and that outcome can then go to the Administrative Review Tribunal (ART).

Which ESOS decisions can be challenged?

Section 169AB sets out a table of "reviewable decisions". Each entry also identifies the affected provider — the party entitled to bring the review. The decisions listed in that table include the following.

The table also covers a decision to extend, or not to extend, the measurement period for a provider under section 92B. Registration refusals, the period granted on registration or renewal, conditions on registration, refusals to add a course at a location, and enforcement action under section 83 are all within the list — so the practical question is rarely "is this reviewable?" and more often "which of the two review routes applies?"

Can every reviewable decision go to internal review?

No. Section 169AA draws the line clearly: an affected provider may apply for internal review or for review by the ART, but only reviewable decisions made by a delegate of the ESOS agency are subject to internal review. Section 169AD(1) repeats the limit — internal review is available where a reviewable decision "is made by a delegate of the ESOS agency".

Internal review is therefore a filter, not a universal second chance. A decision made by the agency itself, rather than by a delegate, does not have an internal review stage; the ART is the forum. The note to section 169AD confirms that reviewable decisions may be reviewed by the ART whether or not they were made by a delegate.

What does the agency have to tell you — and does a missing notice help?

Section 169AC requires the ESOS agency, as soon as practicable after making a reviewable decision, to give the affected provider a written notice containing three things: the terms of the decision, the reasons for the decision, and notice of the provider's right to have the decision reviewed.

The sting is in subsection 169AC(2): a failure to give that notice does not affect the validity of the reviewable decision. A defective or missing notice is not a windfall. It does not revive a deadline or undo the decision, and section 169AE(5) applies the same rule to the internal review decision — a failure to give the written notice required after internal review does not affect that decision's validity either.

How do you start an internal review, and how is the 30 days counted?

Section 169AD(2) sets three requirements. The application must be made in the form approved, in writing, by the ESOS agency; be accompanied by any information and documents required by the agency; and be made within 30 days after the affected provider is notified of the decision.

The clock runs from notification, not from the date the decision was signed. The agency may allow a longer period, and it can do so whether before or after the end of the 30-day period — so an application outside 30 days is not automatically the end of the matter.

In practice, the sequence is:

1. Read the decision notice and record the date you were notified.
2. Obtain the form approved in writing by the ESOS agency.
3. Gather the information and documents the agency requires.
4. Lodge the application within 30 days of notification.
5. If that is not possible, ask the agency to allow a longer period.

Does the decision stop applying while the review runs?

Not automatically. Section 169AD(3) allows the ESOS agency, after receiving an internal review application, to determine by written notice that the operation of the decision is stayed pending the outcome of the review. The power is discretionary, and any stay is subject to the conditions specified in the determination (subsection 169AD(5)).

Where a stay is made, it takes effect from the start of the day the determination is made, or a later day if the determination specifies one. It then runs until either a decision is made under section 169AE on the review, or an application is made to the ART under section 169AG. In other words, a stay is something the agency grants and controls, not something the applicant gets by lodging.

What does the internal reviewer actually do?

Section 169AE(1) requires the agency to review the decision, or to have it reviewed by a delegate who was not involved in making the decision and who occupies a position at least at the same level as the delegate who made it. That is the structural safeguard: a fresh decision-maker, at no lower a level than the original one.

The internal reviewer may affirm, vary, or set aside the reviewable decision, and if the decision is set aside, make such other decision as the reviewer thinks appropriate (subsection 169AE(2)). Under subsection 169AE(3), the internal review decision is taken — other than for the purposes of section 169AB — to have been made under the provision under which the original decision was made. It steps into the original decision's place rather than becoming a new entry in the reviewable decisions table.

Written notice must follow: the terms of the decision, the reasons, and notice of the right to have the decision reviewed by the ART.

What if nothing happens for 120 days?

Section 169AF(1) requires the internal reviewer to make a decision within 120 days after the application is made under section 169AD. Subsection 169AF(2) supplies the consequence: if no decision is made within that period, the internal reviewer is taken to have made a decision under section 169AE to affirm the reviewable decision at the end of the period.

Silence is not neutral. Once the 120 days expire, the original decision stands as affirmed, and because the deemed decision is a decision under section 169AE, it falls within section 169AG(1)(b) — reviewable by the ART as an internal reviewer's decision.

The two clocks, side by side

These figures describe how the Act allocates time; they are general information about the statutory process rather than advice about any particular provider's position, and the operative text — together with any later amendments on the Federal Register of Legislation — remains the authority to work from.

When does the ART step in?

Section 169AG(1) allows applications to the ART for review of three kinds of decision: a reviewable decision; a decision of the internal reviewer under section 169AE that relates to a reviewable decision; and a determination by the TPS Director of an amount of TPS levy payable by a provider or registered provider under subsection 53A(1).

Standing is narrow. An application relating to a reviewable decision or an internal review decision may only be made by, or on behalf of, the affected provider for that reviewable decision (subsection 169AG(2)). An application relating to a TPS levy determination may only be made by, or on behalf of, the provider concerned (subsection 169AG(3)).

The TPS levy determination is the odd one out: section 169AA gives it a direct path to the ART rather than placing it inside the reviewable decisions table, so there is no internal review stage for it.

Assume a provider applies for internal review of a decision to impose a condition on its registration, and hears nothing for four months. At the end of the 120 days, the condition stands as affirmed; the provider's next step is the ART, not another wait. A stay granted earlier would also have fallen away at that point, since it ends once the section 169AE decision — including the deemed one — is made.

Frequently Asked Questions

Is the 30 days counted from the decision or from the notice?

From notification. Section 169AD(2)(c)(i) runs the 30 days from when the affected provider is notified of the decision, not from the date the decision was made.

Can the agency extend the 30 days after it has already expired?

Yes. Section 169AD(2)(c)(ii) allows the agency to allow a longer period whether before or after the end of the 30-day period, so an extension can be granted retrospectively.

Does lodging an internal review pause the decision?

Not by itself. Section 169AD(3) gives the ESOS agency a discretion to determine that the operation of the decision is stayed, and any such stay is subject to the conditions set out in the determination.

What exactly happens at the end of 120 days?

Under section 169AF(2), the internal reviewer is taken to have made a decision under section 169AE affirming the reviewable decision at the end of the 120-day period. That deemed decision is itself reviewable by the ART under section 169AG(1)(b).

Which ESOS decisions skip internal review?

Reviewable decisions not made by a delegate of the ESOS agency are not subject to internal review, and go to the ART. TPS levy determinations by the TPS Director under subsection 53A(1) also go straight to the ART.

Does a missing or late decision notice make the decision invalid?

No. Section 169AC(2) states that a failure to give the required notice does not affect the validity of the reviewable decision, and section 169AE(5) says the same about the notice following an internal review.

Can a student bring one of these reviews against a provider?

These review rights belong to the affected provider. Section 169AG(2) provides that an application for ART review of a reviewable decision or internal review decision may only be made by, or on behalf of, the affected provider for that decision.

References

• Federal Register of Legislation — Education Services for Overseas Students Act 2000, section 169AA (Guide to this Part)
• Federal Register of Legislation — Education Services for Overseas Students Act 2000, section 169AB (Reviewable decisions)
• Federal Register of Legislation — Education Services for Overseas Students Act 2000, section 169AC (Notice of decision)
• Federal Register of Legislation — Education Services for Overseas Students Act 2000, section 169AD (Application for internal review of reviewable decisions made by delegates)
• Federal Register of Legislation — Education Services for Overseas Students Act 2000, section 169AE (Internal review of reviewable decisions)
• Federal Register of Legislation — Education Services for Overseas Students Act 2000, section 169AF (Internal review decision must be made within 120 days)
• Federal Register of Legislation — Education Services for Overseas Students Act 2000, section 169AG (Review by the Administrative Review Tribunal)