Visa Refusals & Cancellations

If your visa has been refused or cancelled, the most important thing is: don’t panic. There may still be something you can do. You may be able to appeal your case to the Administrative Appeals Tribunal or, in some cases, request the Immigration Department to revoke your cancellation.

Red Earth Migration can help at almost every stage of the refusal or cancellation process.

 

If the Department is considering cancelling or refusing your visa

In many cases, the Department will send you a letter telling you that they are considering refusing or cancelling your visa. They will tell you what they believe the problem is and give you a chance to respond. This is the best time to contact a registered migration agent to ask for assistance, as you may be still be able to have your visa granted or avoid cancellation. It’s important to get expert advice as it could be the difference between being able to stay in Australia or having to leave and being banned from returning.

If you have received a notice of intention to consider refusal or cancellation, get in touch with us on 08 5151 9239.

 

If your visa is refused

If you are in Australia and still have a “substantive” visa (not a bridging visa), you can stay until the end of your visa and are able to make more applications until your visa expires, unless you have been given a specific ban (e.g. for submitting bogus documents or misleading the Department). You can also appeal the decision to the Administrative Appeals Tribunal.

If you are in Australia and are holding a bridging visa, your bridging visa will expire 35 days after the decision, unless you decide to appeal to the Administrative Appeals Tribunal. You will be banned from applying for most visas while you are still in Australia but there are some exceptions and you can apply from outside Australia unless you have been given a specific ban.

If you are outside Australia, you may be able to appeal to the Administrative Appeals Tribunal if your visa was sponsored by someone in Australia. You will be able to lodge a new application unless you have been given a specific ban.

 

If your visa is cancelled

If you are in Australia this will cancel all visas (including bridging visas), meaning you will be considered unlawfully in the country. You will need to apply for a new bridging visa in order to either apply to the Administrative Appeals Tribunal for your visa to be reinstated or to leave the country.

If you are outside Australia you will have no legal right to enter Australia, even if you still have affairs to resolve in Australia. You may be eligible to apply to have your cancellation revoked, depending on your situation. You are not likely to have review rights but may in some cases.

 

The Administrative Appeals Tribunal

In many cases, you can appeal a refusal or cancellation decision to the Administrative Appeals Tribunal (AAT). If you are in Australia you will receive a bridging visa so that you can stay here while you wait for your visa to be processed.

The AAT will hear your case as if it were a new case, taking into account everything on the Department’s file as well as any new information you have given them. They may decide that the Department’s decision was wrong and make a new decision which will replace the Department’s decision. However, they are still bound by the same regulations as the Department and you must still fulfil the visa requirements at the time of the hearing.

EXAMPLE:

You meet an Australian, fall in love and get married. You come to Australia on a tourist visa and then apply for a partner visa. The Department doesn’t believe that your relationship is genuine, and refuse the visa. You appeal to the AAT and give them extra evidence that your relationship is genuine.

 

Unfortunately, three months before the AAT hearing, you separate from your spouse. You no longer live together and intend to get a divorce as soon as possible.

 

At the AAT hearing, the tribunal member agrees that your relationship was genuine at the time you applied to the Department and that the Department was wrong to refuse the visa. However, as you are no longer in a genuine relationship, you can’t fulfil the visa criteria and the tribunal member cannot give a decision in your favour. The original decision stands and you will have 35 days to leave the country before your bridging visa expires.

 

We have experience with AAT appeals and can assist with the process, including drafting submissions and attending the hearing alongside you. Contact our team on 08 6161 9239 for a consultation about your exact circumstances and your chances of success at the AAT.

 

Judicial Review (Federal and High Court Appeal)

If you believe the delegate and/or the AAT made a legal error in considering your case, you may be eligible to appeal to the Federal Court of Australia. This kind of appeal is not a merits review like the AAT, which means that no new evidence can be taken into account and the case will not be assessed on its merits. Rather, the judge will consider whether there was a legal problem with the decision that was made. If the Federal Court rules against you, it may be possible to appeal your case further until it reaches the High Court.

You will need a legal practitioner to represent you in Court. Red Earth Migration does not provide this service but may be able to recommend a lawyer to you.

 

Ministerial Intervention

If the AAT has ruled against you and there are no grounds for appeal to the Federal Court, or if the court has ruled against you, your last chance may be ministerial intervention. The Minister for Immigration and Border Protection has wide powers to grant visas directly to applicants even if they do not legally fulfil the requirements.

These requests are considered on a case-by-case basis and there are no firm requirements for the Minister to intervene. However, the Minister will only intervene in exceptional cases and there are some situations where it is guaranteed that the Minister will not intervene (for example, cases involving bans based on providing bogus material to the Department).

If you are considering applying for Ministerial Intervention, you will want a professional to prepare your submission and make sure you put your best foot forward. Contact us on 08 6161 9239 for a consultation and quote.

(22/5/2017)