Archive for VISA

Visa Refusals And The Appeal Process

Recent DIBP decisions to refuse Australian visas

In recent times the Department of Immigration and Border Protection (DIBP) has been taking a strict approach to migration with the result that more and more visa applications are being rejected. Interestingly, the grounds for many visa refusals have been subjective, such as:

  • Character (failing to satisfy the DIBP that you are of good character)
  • Genuine position (failing to provide sufficient evidence that the employer genuinely requires the applicant’s experience and skill)
  • Genuine relationship (failing to provide sufficient evidence that the applicant and sponsor are in a real and committed partner/spouse relationship)

There are significant consequences if your visa is refused, such as:

  • The impact on your legal status in Australia, and becoming illegal after your bridging visa (associated with the visa application) has expired (usually 28 days from the refusal date).
  • Restrictions on which future visa applications you can lodge while you are still in Australia;
  • A potential ban on your future return to Australia, due to a 3 year ban on temporary visa applications if you overstay your visa or if you leave Australia while on certain bridging visas and you are affected by a ‘risk factor’.

How to appeal against DIBP decisions – The Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) is a separate body, independent of the DIBP. It reviews DIBP decisions on their merits, meaning it stands in the original decision-maker’s shoes and makes the decision afresh, without being influenced by the original DIBP decision. Due to increased visa refusals the AAT has been experienced a high volume of review applications, with the waiting times for a decision therefore ranging anywhere from 6 to 24 months depending on the type of visa.

An appeal against a decision by the DIBP to refuse an Australian visa is not automatic, it can only take place if you have the right to do so and you make a formal application to the correct division of the AAT. If your visa application has been denied it is very important that you speak with a specialist immigration lawyer as a matter of urgency, as strict legislatively prescribed deadlines apply to the lodging of review applications with the AAT. The AAT does not have discretion to extend the timeframe for making a review application. If you wait too long, the DIBP decision to reject your visa application will be final.

If your visa application has been refused the DIBP will have sent you a letter detailing their decision, whether you have a right to appeal, and most importantly, the deadline for lodging a review application that applies in your case. Whether or not you have a right to appeal depends upon the type of visa applied for and the reasons why the visa was denied. For example, if the Minister for Immigration and Border Protection personally decides to reject your visa under section 501 of the Migration Act 1958 (Cth) (‘Migration Act’), you cannot apply to have the decision reviewed by the AAT.

The review application filing fee of AUD$1,673.00 is payable in all cases, except for a review of a bridging visa which resulted in a person being placed in immigration detention. The filing fee is 50% refundable if your matter is successful at the AAT. If you lodge your review application while you are still in Australia it is likely you will be eligible for a bridging visa, allowing you to stay in the county lawfully until the AAT makes a decision in relation to your application.

The appeal process can be highly confusing, particularly if you are not familiar with the Australian legal system and English is your second language. It is imperative that you speak with a specialist immigration lawyer to assess the options which may be available to you, and to advise you as to which is the preferable and most cost effective option in your particular circumstances. If you are concerned that you may be close to the deadline for lodging a review application contact us immediately and we will advise you as to what steps you should take.

Given the increase in visa refusals it is crucial that applicants wishing to appeal DIBP decisions present a very strong case. The appeal hearing provides the opportunity to explain your circumstances in greater detail, to correct any misinterpretations and to provide the missing information or supporting documents that let to your visa application being rejected.

It is vital that you have a legal representative who understands how the appeal process operates and can employ strategies best suited to your particular application and visa category. It is essential that all applications for a review are carefully prepared, thorough, well supported and lodged in a way that meets all applicable DIBP law and policy. In the absence of specialist advice, oftentimes visa and review applications are handled poorly, and unfortunately there are significant ramifications which are out of the applicant’s control.

Once you have lodged an appeal application your case will be reviewed by a single AAT tribunal member, who considers your visa application against the same criteria as the DIBP, pursuant to the Migration Act. You may then be asked to attend an appeal hearing, which is an opportunity to appear in person to present your case and provide the AAT with supporting documentation. If you require an interpreter, one will be provided free of charge.

The hearing takes place in a room which resembles a court room, and is voice-recorded. The tribunal member will ask numerous questions about the application, peruse the relevant documentation and hear from any relevant witnesses you have arranged to attend the hearing. The review hearing can be quite a stressful process for these reasons, and particularly because the outcome determines whether you will be permitted to remain in Australia.

If your appeal to the AAT is unsuccessful, you may be able to seek redress through Judicial Review (at the Federal Circuit Court, in the event the AAT has made a legal error) or Ministerial Intervention (to the Minister of Immigration and Border Protection). However, if your appeal to the AAT was not handled correctly, your Judicial Review options may be limited.

Consult a specialist immigration lawyer to ensure your success

Consulting a specialist immigration lawyer will greatly boost your chances of success. The specialists at our firm offer advice specifically tailored to your particular circumstances, correspond with the AAT on your behalf, represent you at the AAT hearing, submit written submissions and evidence, and will ensure you avoid the common fatal mistakes made by applicants who do not consult a specialist, such as failing to adhere to the strict time limits or submitting the incorrect forms.

If you have any questions and would like to schedule a free consultation to meet with our specialist immigration lawyers, please do not hesitate to contact our offices.