What can you do if your visa application is refused?

Having a visa application refused can be extremely disappointing, particularly after spending considerable time completing forms, gathering documents and having paid the relevant fee, which is generally only refundable in limited circumstances.

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

• applying for the wrong visa type, which is quite common and may occur more frequently when applications are lodged without legal assistance;
• 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;
• insufficient funding.

If your visa application has been refused, you may be able to have the decision reviewed. The visa notification letter should state the reasons for refusal and whether the decision is reviewable. Not all decisions can be reviewed, and it is important to act quickly to determine your rights and lodge the appropriate application.

The review process for visa refusals

The Administrative Appeals Tribunal, Migration and Refugee Division deals with the review of visa refusals. 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 types of decisions reviewable by the Tribunal, who is entitled to apply for a review (which may be the visa applicant, a sponsor or close relative), the fees and time limits are set out in the Migration Act 1958 (Cth) and Regulations. The relevant timeframe within which to lodge a review application will be stated in the Department’s notification letter. The Tribunal is not authorised to make exceptions, so it is imperative to lodge the application on time.

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.

Preparing for your case

Following is an overview, and some information regarding the Tribunal’s review process.

• 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.
• 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.
• Preparing good written submissions and 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.

Submissions should provide background information concerning the applicant and respond specifically to the matters raised by the Department. The submissions must directly address the reasons for refusing to grant the visa.

• 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 timeframe 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 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.

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

Conclusion

Many factors may cause a visa application to be refused. No matter what the reason, it is important to 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 07 3281 6644 or email mail@powerlegal.com.au.