Visa applications are frequently refused. This can cause heartbreak and represent a significant loss of money.
The visa process can be confusing, and the law and policy are continually changing. People who prepare their own applications can run into problems for a range of reasons. Some of these relate to not understanding the visa rules to start with or not providing sufficient evidence that they meet the visa criteria or in making a minor mistake in answering a seemingly innocuous question.
The Department of Home Affairs also makes mistakes in deciding applications, leaving itself open to legal challenge through the review system.
Are you caught by the Section 48 Bar?
The implication of having a visa application refused or cancelled is that you cannot apply for another kind of visa from within Australia except for Partner, Medical Treatment, Special Category Bridging, or Child (Residence) visas. Specifically, if you have had a visa refused or cancelled you cannot apply for a Skilled, Visitor, Student, or Employer Sponsored visa from within Australia. This is known as the section 48 bar.
If you leave Australia, there is no restriction on applying for these visas from outside Australia.
Are you caught by a re-entry ban?
A re-entry ban, also known as an exclusion period, prevents a person from returning to Australia for up to three years. A re-entry ban may be imposed if you overstay your visa by more than 28 days or your visa is cancelled. These bans do not apply to all visas and often do not apply to permanent visas. You should seek legal advice if you think you may be subject to a re-entry ban.
Prior to refusing a visa the Department of Immigration may be required to a) provide you with a notice stating why it is intending to refuse your visa, and b) give you the opportunity to respond in writing as to why your visa should not be refused.
If you receive a notice of intention to refuse your visa it is critical you speak to VisAustralia about how to prepare your submission in response. VisAustralia will review your application against the proposed ground for refusal and prepare a detailed response to keep your application alive.
The Administrative Appeals Tribunal (AAT) is the main administrative forum where decisions by Departmental officers to refuse visa applications can be challenged. An appeal to the AAT provides an opportunity to have an independent “second look” at the merits of the Department’s action.
Please note that not all decisions are reviewable by the AAT. For example, if you apply for a Skilled, Visitor or Student visa from outside Australia, you cannot apply to have a decision reviewed by the AAT. Moreover, while challenges cannot be made to decisions of accrediting bodies and state governments, you can make second and third applications.
Visa applications lodged in Australia, refusals of sponsored visa applications, and visa cancellations can be challenged in the AAT. When you are applying for review, you must lodge the application for review within the time frame specified in the decision notification letter.
In reviewing whether the decision in your case is correct and handling your appeal to the AAT or the relevant body, VisAustralia will ensure that all relevant material supporting your visa application is fully considered, and will put your case positively and forcefully.
There are costs for having a visa decision reviewed by the AAT. In most cases, you have to pay a fee of $3,000 when you apply. The application fee can be reduced to $1,500 if the Tribunal is satisfied the full fee will cause or is likely to cause you severe financial hardship. You will also be refunded 50% of the application fee if you win your case.
AAT Time Frames
It is an open secret that the AAT can take between 12 and 24 months to make a decision. In some cases applications are heard quickly, but in most cases you can expect a significant delay. This need not be a bad thing as on making the review application you will receive a bridging visa that may have work rights. This may enable you to continue living and working in Australia until your case is called for a hearing.
This may give you additional time to meet the criteria for a Skilled or other kind of visa.
Appeals against appalling decisions made by the AAT can be made to the Federal Circuit Court. Not all decisions made by the AAT are subject to review in the Courts. Appeals to the Courts are limited in scope to determining whether the AAT made a “jurisdictional error” – for example, by failing to correctly identify the issues, by incorrectly interpreting the law, by failing to consider relevant material or by relying on irrelevant material to arrive at its decision.
VisAustralia can undertake a careful review of the Tribunal’s decision, provide advice to you as to whether there are solid grounds that justify going forward with an appeal, and act for you in the Court proceeding.