What can you do if your visa application is refused?

Having a visa application refused can be extremely disappointing. After spending considerable time completing forms, gathering documents and having paid the relevant fee – which is generally only refundable in limited circumstances – receiving a visa refusal can be a serious set-back.

Visa applications in Australia are processed and considered by the Department of Home Affairs. A decision to issue a visa refusal may be made for a number of reasons including (but not limited to):

• applying for the wrong visa type (surprisingly common so get legal assistance and good advice);
• failing to meet the conditions required of a previous or existing visa;
• failing to meet eligibility criteria such as health and character requirements;
• incomplete information or inconsistencies in the application and/or supporting documents; or
• insufficient funding.

If you receive a visa refusal, you may be able to have the decision reviewed. The communication provided by the Department will state the reasons for refusal and whether the decision is reviewable. Not all decisions can be reviewed, so it is important to act quickly!

The review process for visa refusals

 

The Administrative Appeals Tribunal (AAT), Migration and Refugee Division will manage the review of visa refusal. The Tribunal is required to make decisions which are fair, just and economical and takes an informal approach to the review process.

When reviewing a case, the Tribunal has the power to reconsider the case in its entirety and make a new decision based on the relevant facts and circumstances.

The application for review may be completed and lodged online, by post, fax, in person or by email, and the relevant fee must be paid at the time of lodgement. Speak to a Brett Slater Solicitor first, before making the application to ensure all is correct and in order.

Preparing for your case

A Brett Slater Solicitor will be able to assist you to prepare for your case; this includes (if required) a pre-hearing interview which prepares the Applicant for the tribunal.

• After an application for review is lodged, confirmation is given to the applicant and the Department of Home Affairs. The Minister for Immigration or the Department are not represented during the review process however, they must provide the Tribunal with all relevant documents concerning the case and the visa refusal.

• The case is allocated to a Tribunal member who reviews the documents.

• A hearing date is usually set, and the applicant invited to attend and/or provide further details or respond to information.

• An applicant may nominate a representative to run the case, prepare submissions and evidence, and attend any meeting or hearing arranged by the Tribunal. The representative may be invited to comment on matters raised during the review process, to understand the reasons for the visa refusal.

• Preparing good written submissions, gathering evidence to support a case, and planning for the hearing is critical for an applicant to have every chance of achieving the best possible outcome of the review.

• The Tribunal is required to inform an applicant of certain information that could result in an adverse outcome of the review and provide an opportunity for the applicant to respond within a specified time. It is important to respond timely and appropriately so the opportunity to put forward a case is not lost.

The decision

The Tribunal may:

• affirm the decision;
• vary the decision;
• substitute the decision for a new one;
• send the case back to the Department to make a new decision.

The time frame for the Tribunal to determine a case will depend on the circumstances and complexity of the matter, noting that some cases will be given priority in accordance with legislation and policy directions.

In most cases, a decision about the visa refusal will not be made at the hearing and the Tribunal member will send the applicant and Department a written determination afterwards.

Occasionally, a decision may be made at the end of the hearing and the Tribunal member will announce this verbally and may provide written reasons for the decision within the following 14 days. Alternatively, the member may announce the decision and reasons at the end of the hearing. In such cases, an applicant may request in writing within 14 days, to be provided with a written version of the determination.

Further, applicants who are not happy with the Tribunal’s decision may have an opportunity to appeal to the Federal Circuit Court (FCC), but only on a question of law. This is a complex area of law and visa applicants should obtain expert legal advice regarding their eligibility to appeal Tribunal decisions.

Conclusion

In conclusion, there any factors that can instigate a visa refusal. So, no matter what the reason, act quickly to protect your rights and to make sure that all avenues are explored to achieve the best possible outcome under the circumstances. Obtaining timely advice from an experienced immigration specialist is vital.

If you or someone you know wants more information or needs help or advice, please contact us on 02 9299 5815 or email [email protected].