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Australian Visa Refusal Notification Options for the Appeal & Review Process (Tribunal & Ministerial Review)

Australian Visa Refusal Notification Options for the Appeal & Review Process (Tribunal & Ministerial Review)

Australian Visa Refusal Notification Options for the Appeal & Review Process (Tribunal & Ministerial Review) AAT - Judicial Review - Visa Rejection - Intervention - Policy - Obligations - Requirments - How to Re-Apply

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Australia Partner visa processing times update March 2017

Australia Partner visa processing times update March 2017

2018 UPDATE INCREASED PARTNER VISA REFUSALS: 20,000 Less Skilled, RSMS, and Partner Visas Granted Due to New Integrity Measures from Australian Immigration Department

UPDATE ON CHANGES:  Changes for the Australia Partner Visa Application! Separate Sponsorship application and possibly more!

Australia Partner Visas continue to face long processing times and increased scrutiny by the DIBP

Key terms: Partner visa – Processing times – Visa refusal – Partner visa subclass 801 – Partner visa subclass 820

A recent query to the Department of Immigration and Border Protection (DIBP) in relation to a 2nd stage Partner visa (subclass 801) application has resulted in the following response:

“The current processing time for Permanent Partner (subclass 801) visas is 12 to 18 months from your eligibility date.”

The processing times for the Temporary Partner (subclass 820) visas are also listed as 12 to 18 months on the DIBP website.

The eligibility date refers to the date you become eligible for processing of the permanent partner visa, which is usually just before two years after you lodged your initial partner visa application. You can find out if you are eligible by using the DIBP Partner (Permanent) Calculator.

This means that a typical partner visa applicant will have to:

  • wait 12 to 18 months before the temporary partner (subclass 820) visa is granted
  • wait another 6 to 12 months before you can apply for a permanent partner (subclass 801) visa
  • wait another 12 to 18 months before you receive your permanent partner (subclass 801) visa

You will only receive a permanent partner (subclass 801) visa after 36 to 42 months’ (3 to 3.5 years) time!


 

While most will think that 3 to 3.5 years’ time is not an issue for a couple in a relationship, the timeframe also requires partners to:

  • continue in a committed and mutually exclusive relationship
  • continue to collect evidence which will demonstrate an ongoing and genuine relationship

Other indirect consequences may include the delay of starting a family or buying a home together before the permanent visa is obtained.

Why is the Partner visa taking a long time to process?

The partner visa has had its processing time increase year-on-year because of two main reasons:

  1. increasing number of applications but yearly planning levels for partner visas has not changed (there are 70,000 applications in the pipeline)
  2. increase in integrity checks by DIBP assessment officers on the relationship

The increase in integrity checks by the DIBP is in response to reported abuse of the partner visa programme in the past few years. News like this one reported in Queensland, where 16 bogus marriages were arranged for partner visa application purposes, means that the integrity checks and longer processing times are here to stay. There has been debate in the Australian Parliament for partner visas to be scaled down with increase requirements, as reported by the Herald Sun.

Additionally genuine partners, who submitted weak applications or did not collect sufficient evidences to demonstrate their relationship is genuine and ongoing, face harsh and detailed assessments by the DIBP. It may be best to assume that the DIBP will view your relationship as bogus if you do not provide enough evidence and information to suggest otherwise. Additional areas which may raise suspicion include:

  • de facto relationship of over three years at the time of lodgement
  • Australian citizen children from a previous relationship who are in the care of the sponsor
  • lack of financial ties and interdependency (common among low-income couples)
  • lack of social recognition of the relationship in Australia from the applicant’s side (which is a challenge if the applicant did not socialise while in Australia)

With the increased scrutiny Work Visa Lawyers has received increasing enquiries from applicants whose partner visa applications were refused. In such a scenario the applicant will need to submit an appeal and review with the Administrative Appeals Tribunal (AAT). If you need to know more about what needs to happen to lodge an appeal, read our article here.

Source:

  1. https://www.border.gov.au/Trav/Visa-1/801-
  2. https://www.wavefm.com.au/news/national-news/111793-qld-indian-wedding-scammers-thrown-in-jail
  3. http://www.heraldsun.com.au/news/victoria/federal-government-urged-to-crack-down-on-partner-visa-loopholes/news-story/0b57ad4a49ca7d193a7882c19a61c7a9

This information is accurate on 1 March 2017

 

Comments by Principal Migration Agent and Lawyer Chris Johnston

Partner visa applications have been experiencing huge grievances with longer processing times as the number of applications continues to be well above the annual planning levels. Additionally there have been more cases of partner visa refusals as the DIBP mentality is somewhat edgy when assessing the genuineness of the relationship. As such you are advised to submit applications which are supported by documents and information beyond the minimum requirements, to avoid negative results. Seek professional advice for your partner visa application if you need to because a visa refusal 12 to 18 months after your lodgement results in:

  • loss of visa application fee paid – A$ 6865
  • delays in starting your life in Australia
  • stress in the relationship caused by the uncertainty of the visa status, and additional financial expenses to submit a review or new application

You are reminded to continue collecting evidences showing a genuine and ongoing relationship for the assessment of the temporary partner visa application and also for at the permanent partner visa application stage. The number of review applications received by the AAT for partner visa refusals has increased in the 6 months from July to December 2016 as compared to the previous year.

 

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

若您需要中文翻译与更多详细资料,请联络Work Visa Lawyers文化联系人员进伟 (Sean)

电邮:This email address is being protected from spambots. You need JavaScript enabled to view it.
微信:Sean_CW_Choong

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Commonwealth Ombudsman investigates Department of Immigration and Border Protection (DIBP) about its visa cancellation powers! Numerous issues identified in published report!

Commonwealth Ombudsman investigates Department of Immigration and Border Protection (DIBP) about its visa cancellation powers! Numerous issues identified in published report!

Key terms: Visa cancellation – Migration Act 1958, s501 – Migration Act 1958, s116 – character issues – criminal charges – Commonwealth Ombudsman

 

The Commonwealth Ombudsman is the organisation responsible for handling complaints about Commonwealth Government departments and agencies. The Department of Immigration and Border Protection (DIBP) is one of the Government departments monitored by the Ombudsman.

In December 2016 the Ombudsman published two reports involving the DIBP, namely:

  1. Administration of section 501 (hereafter the “section 501 report”)
  2. The administration of people in immigration detention who have had their Bridging visa cancelled due to criminal charges or convictions (hereafter the “bridging visa cancellation report”)

Both reports identified shortcomings and issues with the DIBP process of cancelling long term Australian visas and bridging visas.

The section 501 Report

In the section 501 report it was noted that a similar investigation was carried out in 2006, which was critical of the then Department of Immigration and Multicultural Affairs (DIMA) for not “always provide(sic) the minister with all relevant information, especially mitigating information, about long term Australian residents when considering the cancellation of their visa”.

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Have you had your Australian Visa refused or cancelled? The festive season can include negative surprises. Immigration Lawyer Chris Johnston and our team of Registered Migration Agents can help lodge your appeal in time!

Have you had your Australian Visa refused or cancelled? The festive season can include negative surprises. Immigration Lawyer Chris Johnston and our team of Registered Migration Agents can help lodge your appeal in time!

All you need to know and do when your visa application is refused!

Receiving a refusal notification for your visa application is stressful and places you in a wave of uncertainty. However, quick action is required to resolve your visa status if your visa application was lodged onshore in Australia.

The same can be said if you received a Notice of Intention to Consider Cancellation (NOICC) for your current visa. It is best to quickly address the issues raised in the NOICC, than to challenge the decision to cancel your visa after the decision has been made.

What are the common reasons for a visa application to be refused?

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Introduction to the Administrative Appeals Tribunal (AAT) Migration and Refugee Division

Introduction to the Administrative Appeals Tribunal (AAT) Migration and Refugee Division

The Administrative Appeals Tribunal (AAT) is the organisation responsible for reviewing decisions made by the Australian government. The Migration and Refugee Division (MRD) is a division under the AAT which reviews Australia visa decisions. Typically applicants and visa holders will submit an application for review when their visa application is refused, or when their Australian visa is cancelled. Additionally the MRD also reviews decisions regarding sponsorship and nomination under employer sponsored visas. Citizenship application decisions are also reviewed by the MRD.

When a decision is being reviewed by the Tribunal one of the following results occur:

  • the decision is affirmed (i.e. there are no changes)
  • the decision is set aside (i.e. the decision is substituted with a new and different decision)
  • the original application (visa/citizenship/sponsorship/nomination) is remitted (i.e. returned) to the Department of Immigration and Border Protection (DIBP) for reconsideration with recommendations by the Tribunal on additional factors to be considered
  • the decision is varied

The AAT conducts a merits review which is explained as follows on the AAT website:

“Merits review is an administrative reconsideration of a case. A merits review body makes decisions within the same legislative framework as the primary decision maker, and may exercise all the powers and discretions conferred on the primary decision maker.”

The Tribunal reviews the application afresh and may also consider new evidence or information submitted with the review application.

The AAT is independent of the DIBP and has the powers to review and reverse (set aside) the decisions made by DIBP.

AAT-MRD Statistics for 2015-2016

In the 12 months from 1 July 2015 to 30 June 2016 the AAT-MRD received 14,307 applications for review. The reviewed decisions include those for all Australian visas (including bridging visas) and exclude refugee and humanitarian visas.

The majority of the decisions submitted for review are:

  • Partner visas (29%)
  • Student visas (17%)
  • Visitor visas (13%)
  • Temporary work visas (11%)

During the same period a total of 12,511 decisions were handed out to active review applications. Out of the 12,511 decisions handed out:

  • 37% were set aside
  • 44% were affirmed
  • 12% were withdrawn
  • 7% were not reviewed (no jurisdiction or the review application was not submitted in time)

Other interesting statistics include:

  • 46% of Partner visa reviews resulted in DIBP decisions being set aside
  • 31% of Student visa reviews resulted in DIBP decisions being set aside
  • 51% of Visitor visa reviews resulted in DIBP decisions being set aside
  • 26% of Temporary work visa reviews resulted in DIBP decisions being set aside
  • 23% of Nomination or Sponsorship approval reviews resulted in DIBP decisions being set aside

Should I submit a review to the AAT for my visa/sponsorship application that was refused?

You can submit a review application only if you are entitled for review rights. The decision to lodge a review application to the AAT depends on the circumstances of the visa/sponsorship refusal. Some of the common grounds for refusals include:

Partner visas – Schedule 3 issues, failure to demonstrate genuine relationship

Student visas – Meeting the Genuine Temporary Entrant (GTE) requirement, lack of financial capacity

457, RSMS and ENS visas – Demonstrating genuine position

Visitor visas – Meeting the Genuine Temporary Entrant (GTE) requirement

At Work Visa Lawyers we will assess the original application and supporting documents submitted and advise if the prospects for review are favourable. The Decision Record received by the applicant will also be studied in detail to identify weak areas of the original application and how we can address them in the review application.

What are my chances of success with the AAT-MRD review?

The chances of obtaining a positive outcome from the Tribunal to set aside a DIBP decision require the following:

- a thorough analysis of the refusal Decision Record

- in-depth knowledge about the visa applied and the requirements

- assessing the applicant’s circumstances and ability to address the issues highlighted by the DIBP delegate when deciding on the refusal

In summary it should be considered whether the applicant can provide better evidence or information that will meet the visa application requirements. If the original application can be improved then the chances for success with the review will be increased.

Applicants with complicated circumstances should also note that submitting an AAT review application is a pathway towards ministerial intervention. You can only request for a ministerial intervention if you have received a decision from the AAT. You should be aware that the Minister only intervenes in a small amount of cases and you should have unique or exceptional circumstances before applying for a ministerial intervention.

You can find out more about ministerial interventions here.

Sources:

  1. http://www.aat.gov.au/resources/statistics
  2. http://www.aat.gov.au/AAT/media/AAT/Files/Statistics/2015-16/MRD-Detailed-Caseload-Statistics-2015-16.pdf
  3. http://www.aat.gov.au/AAT/media/AAT/Files/Statistics/2015-16/MRD-Migration-Caseload-Statistics-2015-16.pdf

 

This information is accurate on 25 August 2016

Do you need help with an Australian visa application or Review Application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

若您需要中文翻译与更多详细资料,请联络Work Visa Lawyers文化联系人员进伟 (Sean)

电邮:This email address is being protected from spambots. You need JavaScript enabled to view it.
微信:Sean_CW_Choong

QR Code - Sean WeChat 2

 

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We know all about 457 visas and 457 Business Sponsors requirements. Whether you operate a small business or manage a large Australian corporation Work Visa Lawyers® can provide you advice and complete assistance with a wide range of migration processes.Based in Adelaide South Australia, Immigration Lawyer and Migration Agent Chris Johnston provides migration advice to people and businesses from all over the world.

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