Article table of content:
- Final Guide
- Notification when your visa application is refused
- Appealing to the AAT
- What to do if you lose at the AAT
- Things to know about visa refusal
Final Guide
How to know if you have a visa refusal coming your way (Things to take note of to check if your visa application has been refused or about to be refused)
If you have received any letter from Immigration that is inviting you to comment on certain Adverse Information, you might be wondering what it means and why it was sent. First of all, the Department sends such letters when they feel there is a good reason for them to cancel or refuse your visa application. When you receive such a letter, you have a very limited chance to convince them to change their decision.
When you are applying for a visa, it is important to take every letter seriously. For example, you have to read any “Invitation to Comment” letter sent to you for clarification.
Such letters come with a strict deadline that must be followed. You have to respond to the issue raised in the letter before the deadline. This means that you have to check the period you have to work on the response and submit it accordingly.
Another thing to note is the information you have to provide in your response to the adverse letter. Any other response not relating to the letter might prejudice your application. It is safer to do what you are asked instead of doing something that will get you into deeper trouble. The issue noted in the letter sent by the Department must be addressed before it becomes a greater issue.
How to respond to the “Invitation to Comment” letter
When you are responding to any “Invitation to Comment” letter, you must understand what you are supposed to do. If the delegate is trying to get further information or requires you sent further documents, be sure to do accordingly.
One way of doing this properly is by employing the assistance of someone who understands the entire process. This is because you might miss certain information which might lead to unknown implications from the Department which will end up leading to your visa refusal.
Are you contacted before your visa is refused?
If you are applying for a visa when you are living outside Australia without the help of a sponsor, the Department is likely to make a decision without having to contact you before they make final decisions on your application. They might contact you but they are not obliged to do so because there is no legal requirement binding them to follow such procedures. If you are applying for a sponsored visa offshore, Immigration might request an interview before they grant you a visa.
Does everyone get the same form of punishment when applying for their visa?
The simple answer is NO. This is highly dependent on where you are applying. If you are applying from a country that records high rates of fraud, you have to expect more intense questions and a longer verification process. Note your GTE statement should be more detailed than from countries with a low rated of fraud.
Applications without any appeal rights are dealt with quickly without much effort on the part of the Department especially when it comes to contacting visa applicants to ask for further information before the application is refused. If you fall under this category then it is best you don’t get your hopes up waiting for a call that might never come.
The most important thing to note is that you have to provide complete information to the Department. The information should always support your application for the visa. This is to be done immediately after your application is made or after your submission is made.
Interview for Student visas
When you are applying for an Australian visa, always expect to be called for an interview. As an applicant you must know the course you are applying for, its structure, and you will be studying in the course. You will only make your chances worse if you don’t know anything relating to what you want to study in the country.
Another thing to note is that your reason for the visa application must make sense before you apply for it. It must also be related to your previous study history. For example, you have the previous history in Medicine but when you were applying for your course you chose Business. You must have a tangible reason for such a change else it might worry you during your visa application.
You must also know the importance of studying the course you applied for and how it might make an impact on your future plans.
Notification when your visa application is refused
Are refusal decisions final?
When a visa application goes against the criteria for it to be granted and it is refused, such a decision cannot be reversed. There is no need to try to fight for a better decision because the verdict remains the same.
Can one lodge another visa application?
When you are living outside Australia, you are given the opportunity to start a new visa application after the old one was rejected as long as you are prepared to pay for the charges. If you are living offshore and your visa application is rejected, the easiest and fastest way to deal with it is to start a new visa application.
The new application automatically becomes better than the old one, so you provide better submissions which might be what you need to convince your case officer that your case must be accessed for a visa grant.
If you are already staying in Australia when you are applying for a visa, you probably have a bridging visa. The bridging visa expires 35 days after your visa application is refused in respect of the application.
Can a person apply again?
This is largely dependent on your immigration status in the country. If you were in Australia when your visa was refused, then you will need a substantive visa. This is a type of visa aside from the bridging visa.
If you have a substantive visa, you can lodge another visa application provided you are still in the country. With this, you will be granted a bridging visa relating to a new visa application.
Can a Bridging visa holder get a visa refusal?
People with bridging visas have more opportunities for new visa applications for further Australian visas.
Refusals on Student visas
If you are living outside Australia and your student visa gets refused, you have no right to appeal for your visa. However, if you are already staying in the country and you were granted a student visa in the past but was rejected this time, you can appeal for them to review their decision.
Reasons that can lead to the rejection of a student visa application
A student visa is not rejected unless there are reasons leading to such a decision. One of the reasons is that the student is not able to show any tangible evidence relating to their financial resources that might be used to fund their study in the country. They cannot allow you to stay in a country where you cannot take care of yourself.
Another reason a student visa might be refused is that the person does not meet the criteria. The criteria used in Australia is the “Genuine Temporary Entrant,’ GTE requirement.
Australian visitor visa refusals
There are two main types of people applying for visitor visas, one for people with sponsors living in Australia and the other is people without sponsors. When a sponsored visa application is refused, you have the right to seek a review, unlike a visa that is not sponsored.
The Common reasons
There are various reasons a visa will be denied because Australia is particular when it comes to approving them. One of the common reasons is that the decision-makers feel there is no motive behind the visa application and you might not return to your home country once the visa expires.
If you are from a third world country, you will need tangible reasons to convince the decision-makers that you will follow the conditions that come with your visa approval. You will also have to convince them that you will leave the country when your visa expires.
Visa refusal when you overstay your current visa
If you fail to comply with the set conditions of your previous visa, it will be difficult to convince them that they should grant you another visa. It is the main reason why it is important to always comply with the condition in case you want to extend your visa application.
Inconsistent answers
One thing decision makers hate is seeing inconsistent answers that do not tally with the documents provided. Once they notice that your documents are not consistent with the information you provided your visa application will be refused.
Immigration officer doesn’t spend their time and effort trying to seek for further information from visa applicants living outside the country. If your visa application is not convincing enough, you will be refused. Always ensure you complete your visa application with the relevant information and documents attached.
Lodging a bond to fix a visitor visa refusal
There are many myths circulating that lodging a bond can help you when your visitor visa is refused. That is not the case. They are only relevant if the primary consideration is met and it complies with the visa conditions.
Health and character issues
Every visa application for Australia comes with certain health requirements as well as character requirements. If you are someone who is unhealthy or you have a criminal record be it in your country or another country, your visa is likely to be refused. Avoid providing misleading information if you fall under this category because it might make the situation worse.
If the decision-makers notice that you gave them false information, there have no choice but to apply the necessary sanctions. These sanctions vary based on the offence committed and can include being banned from applying for another visa within a period of 3 years or more.
One thing you must avoid is rushing to get a visa because it might just lead to a visa refusal. For example, if you are applying for a visa to go and see your partner living in Australia, you have to be careful not to apply for any other visa apart from the Partner Visa. Some people decide to opt for the quickest instead of going through the normal procedure.
If you want to get a partner visa, it is safer than any other visa then after arriving you lodge a partner visa when you are in the country. However, the prudent thing to do is to apply for an offshore partner visa before you apply for a visitor visa.
Does a refund come with a visa refusal?
You must already know the answer to this question. If you are applying for a visa, you must know that you will not get any refund for the money spent. The Department will not refund any application fee or charges you pay when your visa is refused or withdrawn.
If you are paying for your visa application in instalments, you will not be able to pay the next instalment if your application is refused or withdrawn.
Appealing to the AAT
How to appeal to the AAT?
Applications made with the Department of Immigration if you are living in the country or when there is a permanent resident sponsor involved allows an appeal to be made to the AAT. If you fall under this category, you have two opportunities to provide information to the decision-maker.
One opportunity is at the departmental level and the second is to the member at the Administrative Appeals Tribunal.
You are given two chances to make your case. If you get a chance to make your case right, maybe you noticed the Tribunal has made a wrong decision which they are not supposed to, then you can make a point.
When a decision is incorrect, it is treated as a decision that is infected with legal error, and an error from the Tribunal. The decision can be changed in many ways. One way is by applying to the Federal Circuit court. The court reviews the decision made by the Tribunal confirming the legal errors noted.
If they confirm the legal error, they then proceed to quash the decision made by the Tribunal. When this happens your case is sent back to the Tribunal for reconsideration so they can make a new decision.
How does the AAT work?
The AAT does not make any decisions when it comes to granting visas. The only decision they make is whether or not the criteria used to grant a visa is satisfied or not. If the Tribunal believes they made the right decision, they confirm the decision.
If the Tribunal is of the view that you meet the criteria for the grant of the visa, it will make a finding to that effect, and remit the decision with a direction to the
Department of Immigration to further consider the application in view of the Tribunal’s findings. It’s important to note that the Tribunal is not empowered to grant any visa.
Cost of appealing a visa refusal
If you get the right to appeal to the Administrative Appeals Tribunal (AAT) after your visa has been refused. You have to pay a fee to the AAT when you are filing for an application for review. The tribunal will consider your circumstances against the same laws applicable to your application. You will need to write AAT appeal letter.
The AAT usually charges a fee after an application is filed and it is around $1787. If your application is approved for review, you get a refund of 50% of the fee charged.
You will need a representative to assist you in managing your appeal and making oral submissions to the Tribunal because you cannot do everything on your own. You will also have to make written submissions before and after the hearing. So, you also have to consider professional fees that must be paid to your representative.
The fees must be paid to a representative who is registered as an Australian Migration Agent. The fees vary depending on the skills and knowledge of the representative. It is important to opt for a representative who will add value to your application.
It helps if your representative has credibility with the Tribunal. This means they are competent and diligent when it comes to providing relevant information to the Tribunal. It helps you to move a step forward and helps the Tribunal to get the necessary information required to help them make a correct decision for your visa.
Is there a time limit if you want to apply for a review?
It may be too late if you are applying for a review to the AAT especially after you have already provided additional information.
If you are already living in Australia when the decision was made, you have the right to appeal at the Administrative Appeals Tribunal. The appeal will only be a review of the decision made. The right of appeal last for about 21 days after the decision was made. The decision is shorter if your visa application was cancelled.
What to do when you lose at the AAT
What can one do when they are unsuccessful with their AAT visa appeal?
When you fail with the AAT, you have to options available. Either you accept the decision made and leave the country unless you have other visa opportunities pending or you make a special submission to the minister so he can come to your aid depending on your circumstances.
There is a third option which is scrutinising the decisions of the Tribunal by identifying legal errors. If your case can be argued, the Federal Circuit Court judge might see it appropriate to order that the decision made by the AAT is quashed.
Legal errors
It is very complex when you are trying to find out if the Tribunal’s decision is infected with a legal error. It is very difficult and sometimes impossible to identify such errors if you are reading the decision of the delegate.
Instead of doing so, you have to get the assistance of a forensic review to help you identify all the information provided with respect to the visa application. It must relate to the relevant laws and regulations that can help you with the consideration of the visa. A review of the chronology of events especially the information shared between the applicant, the Department and the Tribunal must also be checked.
It might include a transcript of the hearing before the tribunal. Once you have all the information required, you can determine whether or not the decision made by the Tribunal is correct or whether it was infected with a legal error.
Minister intervention
If you have a unique case, and you feel your visa refusal was an unintended consequence of Australia Immigration rules. With this, you can seek a special intervention from the Minister for Immigration to help you with your case.
This can only be done when you have already made an application for review to the AAT concerning the reason why they refused your visa. Don’t miss the opportunity you get when you can review to the AAT. If you fail to do so, you might be denied the next opportunity of getting aid from the minister.
Can a migration agent help you in matter relating to visa refusal appeals at the court level?
Some Migration Agents are skilled when it comes to assisting clients with visa refusal advice and with assisting with the making of new applications successfully.
Other Migration Agents might not have the necessary skill set and the communication skills required to effectively push your case over the line after it has been refused.
Make sure you understand that once an application has been refused there is a considerable additional hurdle that you must overcome in relation to getting the next application approved (simply because of the fact of the prior refusal).
Importance of getting assistance from specialised visa refusal lawyers
Certainly, when it comes to discerning whether the decision of a Tribunal is infected with legal error, I’m of the view that it is not usually prudent for a Migration Agent to advise in relation to jurisdictional error.
This is because it requires considerable knowledge of legal principles, and registered Migration Agents either do not have this skill set or knowledge base. Also, there are additional rules and qualifications needed for registered and practising Australian legal practitioners.
Some Migration Agents work around this issue by using and associating with lawyers, or by committing clients into a direct brief situation, where they are ghosting themselves and a relationship is effective between the visa applicant and a barrister. This is known as a direct brief scenario.
Migration Agents should not be briefing barristers directly – rather, barristers should be taking briefs, within the meaning of the Uniform Solicitors Rules and the Uniform Barristers Rules, either directly from clients in a direct brief situation or from Australian Legal Practitioners.
If your visa has been refused, you have to take the steps to obtain advice from an Australian Legal Practitioner skills in the field of Immigration law.
The first question you should ask is whether or not your prospective representative is an Australian Legal Practitioner and what level of success they have had in running cases before the Administrative Appeals Tribunal and in the Federal Circuit Court and the Federal Court in respect of challenges to immigration decision making.
The best thing to do is get two or more opinions related to the prospects of success be it making a fresh application or making an appeal to the Administrative Appeals Tribunal
Things to know about visa refusal
How to appeal when your visa is refused
The following are the things to do when your Australian visa application is refused:
- Be sure to identify the notification document sent to you
- Find the decision record which is usually attached to the notification document.
- Identify the documents you provided to the Department of Immigration
The information provided in these things is what every Immigration lawyer will request from you. You can have a meaningful conversation with an expert about the issue. If you cannot answer or provide these things there is nothing you can do.
What does an invalid application mean?
It is one of the worst ways your visa application can get rejected. When you have an invalid application it becomes unlawful. This means that any bridging visa you had does not exist. When this happens, the best thing to do is to consult your advisor.
What to expect when your visa is refused
Most people expect to get notified when their visa application is refused but that is not the case. If your visa is refused and you did not get any notification from the Department, be sure to know that they are not entitled to do so.
Visa refusals are different as compared to visa cancellations. When your visa is cancelled, the consequences following such action is worse than when your visa is refused. With the visa cancellation, they are not made without any prior notice. When your visa application is called and you are notified, you have 7 days to appeal. However, when your visa is refused, you have a maximum of 21 days to appeal.
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