When can an Australian provider call a student's conduct 'misbehaviour' — and what process is required (2026)?

Under section 47A of the Education Services for Overseas Students Act 2000 (ESOS Act), a provider may rely on "misbehaviour by the student" as one of the grounds for refusing to provide, or continue providing, a course — but only if it has already accorded the student natural justice. Subsection 47A(3) states that a student does not default under that misbehaviour limb "unless the registered provider accords the student natural justice before refusing to provide, or continue providing, the course". This reads from the Federal Register of Legislation's compiled text of the ESOS Act (C2004A00757), as of September 2026. For agents and advisers, that precondition is the single most contestable point in a misbehaviour file: if it was not satisfied, the student has not defaulted on that ground at all.

What does "student default" actually cover under section 47A?

Section 47A(1) sets out three routes to a student default in relation to a course at a location:

Failure to start — the course starts at the location on the agreed starting day, but the student does not start on that day and has not previously withdrawn (paragraph (1)(a));
Withdrawal — the student withdraws from the course at that location, whether before or after the agreed starting day (paragraph (1)(b));
Provider refusal — the registered provider refuses to provide, or continue providing, the course because of one of three events: the student failed to pay an amount they were liable to pay the provider in order to undertake the course; the student breached a condition of their student visa; or misbehaviour by the student (subparagraphs (1)(c)(i)–(iii)).

Two exceptions are signposted in the provision itself. Subsection 47A(2) covers the case where the student does not start because the provider has defaulted under subparagraph 46A(1)(a)(i), and subsection 47A(3) is the natural justice gate on misbehaviour. Note 1 and Note 2 in the Act point to those two exceptions respectively.

The wording applies to an "overseas student or intending overseas student". Under section 5, an overseas student is a person, in or outside Australia, who holds a student visa (excluding kinds prescribed in the regulations), and an intending overseas student is a person who intends to become, or has taken steps towards becoming, an overseas student.

Why is misbehaviour the only ground with a built-in procedural gate?

The Act attaches a precondition to one limb only. Failure to pay and student visa breach (subparagraphs (1)(c)(i) and (ii)) carry no equivalent express qualification in section 47A; misbehaviour does, and Note 2 to the subsection directs the reader to subsection (3) for "an exception to subparagraph (1)(c)(iii)".

The practical effect is that the misbehaviour limb is self-defeating when the process is missing. The consequence is not that the provider faces a lesser penalty or a slower timetable — it is that there is no student default under that limb. Since the refund duty in section 47D is triggered by "an overseas student or intending overseas student defaults", the whole downstream analysis depends on the gate having been passed.

Does the Act define "misbehaviour" or spell out the required process?

Neither term is defined in the section 5 definitions, and subsection 47A(3) prescribes no checklist, no notice period, and no particular form of hearing. That silence cuts both ways: it means a provider cannot discharge the obligation by ticking boxes, and it means an adviser cannot defeat a decision merely by pointing to a missing template.

What can be tested is the shape of the process against the ordinary concept of natural justice, which the provision assumes rather than defines. In general terms, the questions worth asking of the file are whether the substance of the conduct relied on was put to the student, whether the student had a genuine opportunity to answer before the decision was made, and whether the person deciding was not simply the person making the allegation. These are ordinary features of procedural fairness rather than a codified list, and how much process is enough will vary with the seriousness of what is alleged and the consequence that follows.

Where does the timing bite — and what is the default day?

The requirement in subsection 47A(3) is expressed prospectively: natural justice must be accorded before the refusal to provide or continue providing the course. On the face of the provision, a process that only begins after the exclusion decision has already been made does not satisfy a precondition attached to the refusal itself. An internal appeal that later upholds the decision is a separate step; it does not convert a refusal made without prior process into one made with it.

Section 5 defines the default day, which matters for reporting and for anchoring the sequence of events:

Basis of default	Default day under section 5
Paragraph 47A(1)(a) — did not start on the agreed starting day	The agreed starting day
Paragraph 47A(1)(b) — withdrawal	The day the student withdraws
Paragraph 47A(1)(c) — provider refusal (including misbehaviour)	The day the provider refuses to provide, or continue providing, the course

Agreed starting day is itself defined as the day the course was scheduled to start, or a later day agreed between the provider and the student.

So the record should show the process occurring before the date the provider records as the refusal date. Where a provider's own chronology puts the notices after that date, the sequencing itself is the argument.

If the misbehaviour limb fails, what happens to the refund?

Where a student has defaulted, section 47D(1) requires the registered provider to provide a refund. The amount is the amount (if any) required by the written agreement entered into with the student under section 47B (subsection 47D(2)); the refund is payable to the student, or to another person specified in the agreement to receive it (subsection 47D(3)); and it must be paid within the provider obligation period of four weeks after receiving a written claim from the student (subsection 47D(4)).

Subsection 47D(5) then carves out an exception where the provider is not required to refund under that section: the student was refused a student visa, and that refusal was a reason for the student's failure to start, withdrawal, or failure to pay. Misbehaviour does not appear in that list of three acts or omissions, and the note to the subsection records that a provider is required to provide a refund under section 47E instead.

Two points follow for advisers. First, the visa-refusal exception is drafted around the student's own acts, not around a provider's misbehaviour finding. Second, where natural justice was not accorded, there is no default under subparagraph (1)(c)(iii) to begin with, so the refund position has to be assessed on whatever other basis actually exists — not assumed to be settled by the provider's characterisation.

What should an adviser test in a misbehaviour file?

Working from the statutory text rather than from the provider's summary:

Which limb was relied on — a letter that says only "student default" without identifying subparagraph (1)(c)(iii) leaves the basis unclear.
What the student was told, and when — the allegation, the evidence, and the opportunity to respond must all sit before the recorded refusal date.
Who decided — whether the decision-maker was separate from the person raising the conduct.
The default day recorded — check it against the section 5 definition for paragraph (1)(c).
The written agreement — the refund amount is whatever section 47B agreement requires, and the four-week period in section 47D(4) runs from a written claim, so the existence and date of that claim are part of the analysis.

This article describes the legislation as published and is general information only; it is not advice on any individual matter, and a specific case turns on its own documents and the provisions in force at the time, so the current official text and any qualified professional opinion should govern.

Frequently Asked Questions

Is "misbehaviour" defined in the ESOS Act?

No definition appears in the section 5 definitions, and section 47A does not set out what conduct qualifies. The only express control on the ground is the procedural one in subsection 47A(3), which requires natural justice before the refusal.

Can a provider rely on misbehaviour if it only offered an appeal afterwards?

The wording of subsection 47A(3) requires natural justice to be accorded "before refusing to provide, or continue providing, the course", so a process that starts only after the exclusion decision sits outside that precondition. Whether an internal appeal cures the position is a matter to be tested against the provision's wording and the facts of the case.

Does a misbehaviour finding mean the student loses any refund?

Not automatically. Section 47D(1) requires a refund where a student has defaulted, in the amount required by the written agreement under section 47B, and subsection 47D(5)'s no-refund exception is built around visa refusal plus failure to start, withdrawal or failure to pay — misbehaviour is not one of the listed acts.

How long does a provider have to pay?

Section 47D(4) sets the provider obligation period at four weeks after the provider receives a written claim from the student.

Who is the refund paid to?

Under subsection 47D(3), the refund goes to the student, unless the agreement specifies another person to receive a refund under that section.

What date counts as the default day for a misbehaviour refusal?

Under the section 5 definition, where paragraph 47A(1)(c) applies, the default day is the day the registered provider refuses to provide, or continue providing, the course to the student.

References

Federal Register of Legislation — Education Services for Overseas Students Act 2000 (C2004A00757), sections 5, 47A and 47D