VISA REFUSAL OR CANCELLATION
What to do about an Australian visa refusal or cancellation?
VISA CANCELLATIONS AND VISA REFUSALS
Time is usually of the essence in such a situation. You will need to quickly decide whether you can apply for review or appeal a decision. The Department of Immigration & Border Protection will advise you of your review/appeal rights when notifying you of an adverse decision. Usually there is a limited period of time so it is essential that you seek advice as soon as possible, if you need assistance in making a decision.
The key issues to consider are:
- Is it a decision that can be reviewed or appealed?
- On what grounds can I apply?
- What is the procedure for applying for review or appeal? What are the time limits involved, and the likely costs?
- What body can I appeal to? If there are different options, what are the merits of each?
- Do I have prospects of successfully overturning the initial decision?
- What will be my visa status while applying for review?
Not all decisions are ‘reviewable decisions’, but the department’s decision-maker will advise you in writing if the decision is reviewable, and what steps you can take if you want to ask for a review.
Most visa decisions with a right of review are reviewable by the Administrative Appeal Tribunal (AAT), including:
- Decisions about deportation and citizenship
- Decisions on onshore protection visa applications
- Business-related sponsorships and nominations for temporary business entry visas, and employer nominations for permanent entry
- Visitor visa applicants intending to visit Australian citizen/resident relatives may have a review right – again a decision-maker will advise of what review rights are available.
Cancellation of subclass 200 (refugee) visas, where the holder is in Australia at the time of cancellation, may also be reviewable by the AAT.
Offshore humanitarian applicants do not have a review right, but applicants for onshore protection visas (subclass 866) do have a right of review by the AAT.
In general terms the AAT conducts a ‘merits review’ of the decision of the Department. It looks afresh at the decision and can take into account information already given the Department as well as any new evidence or information the review applicant can put forward. Generally speaking the tribunals are not bound like the courts of law with rules of evidence but are supposed to be ‘fair, just, economical, informal and quick’. There is also usually an ability to appeal the lawfulness of the Department’s decision making in the courts, however the grounds of review may be more limited and this is usually a much more expensive option.
As experienced immigration lawyers, Putt Legal can advise clients on potential review or appeal options and assist in the preparation of such cases if there are reasonable prospects of success, whilst keeping costs to a minimum.
Please contact us as soon as possible to discuss your particular circumstances and review/appeal options that may be available to you. It is essential that you seek advice as soon as possible and certainly well before any deadline.
CHARACTER CANCELLATIONS – s501 MIGRATION ACT 1958
Given our experience in criminal as well as immigration law, we have a particular expertise in character cancellations, whereby visas are refused or cancelled due to persons being sentenced to terms of imprisonment, or otherwise being of character concern.
➤ Since 11 December 2014, a mandatory cancellation power was introduced in into the Migration Act 1958 - s501(3A):
➤ Minister must cancel a visa that has been granted to a person if:
(a) Minister is satisfied that the person does not pass the character test because of the operation of:
(i) substantial criminal record (12 months imprisonment);
(ii) sexually based offences involving a child; and
(b) person is serving a sentence of imprisonment on a full time basis in a custodial institution for an offences against Cth, State or Territory law
➤ No review, but there is a revocation power under s501CA
Putt Legal has assisted many serving prisoners get their visa cancellation decision revoked, i.e. get their visa back, by making successful submissions to the National Character Consideration Centre (NCCC) of the Department of Immigration & Border Protection (DIPB), in accordance with Ministerial Direction 65.
If you get a Notice of Intended Cancellation or a Notice of Intended Refusal in relation to your visa from the Department of Immigration we suggest that you contact us urgently to discuss.
We regularly visit prisons such as Casuarina, Hakea, Acacia, Wooroloo, Karnet and immigration detention centres such as Yongah Hil Immigration Detention Centre and Perth Immigration Detention Centre (airport).