An Australian Visa refusal can be devastating for everyone involved and can put your future in Australia in immediate jeopardy and uncertainty. However, your visa refusal does not necessarily mean it is the end of your pathway to Australia.
In this article, we answer some of the most commonly asked questions for applicants that have received visa refusals.
1. What can I do about a visa refusal in Australia?
If you have received a visa refusal, your immediate concern is to ask whether the Department of Home Affairs ("the Department") made the right decision. We know from experience that the Department makes errors all the time in their decision-making procedures, especially when there is subjective or discretionary criteria involved.
You may have appeal rights if you have a visa refusal based on:
- Genuine Temporary Entrant Criteria for a Student Visa or Visitor Visa
- A genuine need for a nomination in an employment visa
- Not meeting the criteria of a Partner Visa refusal
- Not meeting the criteria of another family visa application, such as a Parent Visa
- Visa Cancellations
- Incorrect interpretation of the visa criteria for General Skilled Visa; or
- Documents that were overlooked by the Department.
The Department does not always make the correct the decision which is why there is a review body, known as the Administrative Appeals Tribunal ("AAT") to look at your visa application independently from the Department's perspective and decide whether the visa ought to have been granted.
2. What time frames does the AAT have?
If you appeal a refusal or a cancellation of a visa you may be required to present your argument to the Tribunal in a few months or more. Your matter is important to you, but the AAT has a long list of applicants (who are also appealing a refusal or cancellation visa) and so the time frame can extend out to about 2 years. During this time, you will be holding a Bridging Visa to keep you lawful in Australia, usually with work rights.
Click here for the latest AAT processing times.
3. What if I want my matter heard sooner rather than later?
There is always the option of requesting priority hearing on a visa refusal if you can demonstrate compelling or compassionate circumstances. However, the Tribunal will make the decision as to whether to grant priority hearing.
4. What if my Visa Refusal was outside of Australia?
If you have a visa refusal outside of Australia, there are limited options depending one what type of visa you applied for.
5. Do I need legal assistance with an appeal? How can Work Visa Lawyers help me?
You do not have to have a Lawyer or a Registered Migration Agent ("RMA") to lodge a review and to appear before the AAT.
But you may benefit from the experience of a Immigration Lawyer and RMA.
We know from our experience that it is not easy to convince a Tribunal member that your visa application meets the criteria, but we have been successful on many occasions even when the odds seemed slim!
Work Visa Lawyers will provide you with sound advice as to your prospects of success in overcoming the challenge of convincing the Tribunal that you should be granted the visa.
We assist you with:
- Understanding what the Tribunal is looking for;
- Preparing you for the hearing;
- Obtaining additional supporting information to improve your chances of success at the Tribunal;
- Attend the hearing with you to ensure that the hearing is conducted fairly; and
- Provide pre and post written submissions to clearly show the Tribunal why the Department was incorrect and why your visa should not have been refused.
6. What if the AAT makes the wrong decision?
It is possible that the Tribunal makes the wrong decision because the Migration Act and Regulations are constantly changing! This means there can be a lot of confusion which can lead to errors.
If you believe the Tribunal has made the wrong decision you should get legal advice from Work Visa Lawyers to determine whether you should appeal the decision to the Federal Circuit Court. In the Federal Circuit Court, you need to demonstrate that there has been an error which is known as a 'jurisdictional error'.
Click here to learn more about the judicial review process at the Federal Circuit Court.
Only lawyers can assist you with your application to the Federal Circuit Court. Here at Work Visa Lawyers, we have a wealth of experience in advising clients whether the Tribunal has made a jurisdictional error. Our team of Immigration Lawyers are committed to getting positive outcomes for our clients.
7. What are my other options after an unsuccessful AAT appeal?
You may have other options including: -
- After having appealed to the AAT, you can request for Ministerial Intervention.
- Consider if there are other visas that you can apply for, including skilled points-based visas (189, 190 and 491 visas), or employer sponsored visas, or a partner visa.
Due to a visa refusal you may be section 48 barred, meaning you may need to go offshore to lodge the visa.
Why choose Work Visa Lawyers for your visa refusal appeal?
We work closely with you to achieve your desired outcomes. As experienced lawyers, we have seen many scenarios where the visa applicant should have engaged a professional to assist them with the Tribunal hearing but didn't, which led to them having to leave Australia. We know that it is important for your future to obtain a visa to Australia. If there are no prospects of success at the AAT and/or Federal Circuit Court, we will advise you of this and work out other pathways for you and your family to stay in Australia.
If you require further information about appealing your visa decision, you can contact us through: