Can I Apply For An Australian Visa After Refusal?
If you have recently been refused an Australian visa, you may not be sure what you can do to legally migrate and settle in Australia. Can you simply fill out another visa application for a different visa? Is it possible to appeal the denial of a student visa, work visa, or any other visa in Australia?
In this guide, we’ll discuss some of the basics about what you can do after your visa has been denied by the Department of Home Affairs. Let’s get started now.
The Reason Your Visa Was Refused Or Cancelled Is Important To Your Case
The circumstances of your case are what determine whether or not you can reapply after visa refusal or visa cancellation. Your visa application can be denied for a number of reasons, but most of them fall into the following two categories:
– Non-character-related refusal or cancellation – This is the most common type of visa refusal and cancellation. For example, if you unknowingly entered false information on your application, you may be denied – or if you did not meet the criteria required for a particular type of visa, it may be refused.
In most cases, this type of refusal or cancellation will not stop you from filing future applications, though there are some notable exceptions.
– Character-related refusal or cancellation – This type of cancellation is issued if you fail the “character test,” and is a more serious issue. Meeting the character test is provided for of the Migration Act of 1958.
Essentially, it allows the government to cancel or deny a visa to anyone with an extensive criminal record, has committed criminal offences, has broken Australian migration laws, or is otherwise somehow involved in criminal acts.
It is usually more difficult to appeal a refusal or cancellation based on character-related grounds, and this denial can result in your permanent exclusion from Australia. You will usually have difficulty in getting a bridging visa while any decision is pending.
Depending on the circumstances of your case and why you were denied, you may be able to make an appeal – or in some limited access you may be able to file a new visa application.
For example, if you lost your employer sponsorship visa, you may be able to find a new employer in Australia, obtain sponsorship, and re-apply and gain approval for your new visa. The specifics of appealing or applying for a different visa will vary, depending on your case.
Note also that if you have had a visa application refused or been subject to a visa cancellation in the past, you will be required to declare this when you are applying for future visas with the Department of Home Affairs. This could affect your eligibility for future visas – but failing to disclose past visa refusal or cancellation entirely will usually result in the denial of your visa application.
Take Action Immediately After Denial Whether You’re In Australia Or Offshore
If your visa is cancelled and you are currently living in Australia, you’ll almost always need to apply for a BVE (Bridging Visa E) right away. This visa will give you time to make the arrangements for leaving Australia – or give you time to apply for a limited group of visas. The processing time for a BVE is very short, since it’s an emergency visa – if you don’t have any visa you’ll need to be detained. There is no filing fee for making a BVE application.
A BVE may also be issued if you plan to take your cancellation case to the Administrative Appeals Tribunal (AAT), which was formerly known as the Migration Review Tribunal (MRT), or if you are seeking ministerial intervention in your case after having been to the AAT.
If you are not living in Australia, you do not need to get a BVE visa. However, you should contact a registered migration agent or immigration lawyer right away to begin exploring your options for filing an appeal – or filling out and lodging a different type of visa application.
Apply For A New Visa Or File An Appeal With The Department Of Immigration Or AAT
The proper next step depends on the reason for your visa refusal or denial. In some cases, you may simply need to fill out a fresh (possibly different) type of visa application – and you may be approved.
However, in other cases, your best option may be to work with a migration agent or immigration later lawyer in Australia to appeal your case. Most visa types lodged onshore or if lodged offshore with a sponsorship or nomination involved will allow you to file an appeal with the Department of Immigration.
Filing an appeal in the case of a visa cancellation based on character, there might be an opportunity to have the cancellation decision revoked. This typically involves sending more information about your application to the Department of Home Affairs. Then, your application will be reviewed, and the person reviewing it will make a decision on whether or not your visa was cancelled in error or if there are other reasons why the cancellation decision should be reversed.
If you have applied for a visa in Australia and that visa application is refused then will you please have an opportunity to have that position reviewed via tribunal. You have one more chance to convince a decision maker that you meet the criteria to allow a visa to be granted to you. You might send an appeal to the Administrative Appeals Tribunal. Note that the AAT cannot grant visas. Instead, it will examine your case, and decide whether or not the criteria for granting a visa are satisfied.
Then, the AAT will either find in favour of the Department of Immigration and confirm its decision – or it will find that you did meet the criteria of the visa, and the Department of Immigration will then have to further consider your application with the findings of the AAT in mind. In most cases, this means that you will be approved for the visa.
What If My Appeals Are Denied? Do I Have Any More Options To Re-Apply Or Appeal?
Usually, there are two options. First, you can appeal for ministerial intervention – if your circumstances are very unique and exceptional, you may be able to get help directly from the Minister, but this happens quite rarely.
Another option is to work with an experienced migration agent to scrutinise the decision of the AAT, and identify legal errors that may invalidate the decision. This is an area in which MyVisa® Immigration Advisory specialises. If it can be argued that the AAT decision was in error, a Federal Court Circuit judge may quash their decision – which means the tribunal will need to make another decision, but this time in accordance with law.
Our practice has had tremendous success in scrutinising decision making by members of the AAT review of finding an error in their decision-making process so that orders can be obtained from Federal Circuit Court judges which quash the AAT decision and order them to re-make a decision. This re-making of a decision is done by a fresh tribunal looking at all of the information about your case from the beginning.
It Is Possible To Apply For An Australia Visa After Refusal – Or To Win Your Appeal!
Your personal circumstances will dictate which option is best for you. In some cases, you may be able to legally immigrate by simply choosing a different type of Australian visa – but in others, you may need to appeal the decision of the Department of Home Affairs.
To find out which option is right for you, get in touch with Nilesh Nandan at MyVisa Immigration Advisory for a case review and discussion about your options. Together, we can determine the best path forward if you have been subjected to visa cancellation or refusal in Australia. Contact us online now to get started.