Have you received a letter from Immigration inviting you to comment on Adverse Information? What does this mean? Well, the Department feels there might be a very good reason why your visa application could be refused. You have a very limited opportunity to convince them otherwise.
You must take any letter very seriously. Carefully read any “Invitation to Comment” letter that is sent to you.
There is a strict time deadline, which appears in these letters. You must make a response to the issue raised by the Department on time. Take care to calculate when the period starts, and when it ends.
Next, be very careful to make sure that any information you provide in response to an adverse information letter will not further prejudice your application. Don’t dig yourself into an even bigger hole. The issue identified by the Department could potentially become an even greater issue for you. Are you giving Immigration more rope with which to hang you?
Be sure to understand and comprehend fully what it is that the delegate is concerned about. If the delegate is asking for further documents or information, you must be clear on precisely what it is that the delegate is ultimately trying to ascertain.
This is a useful exercise to undertake with the assistance of somebody who understands the visa refusal process. This is because you might not be fully aware of the implications of the letter you have received from the Department … until, of course, you receive a refusal.
If you are making an application for a visa from overseas (that is, if you are outside of Australia when making your Australian visa application) and you do not have a sponsor in relation to the application you lodge, then the Department is likely to decide on your application without taking the additional step of contacting you for clarification on the information that you have provided.
The Department might contact you, but you should be aware that there is no legal requirement for them to do so.
If you are offshore and you’re applying for a sponsored visa, then Immigration may seek to interview you before granting you a visa.
No! This is particularly so if you are from a country where applications are known to have a high incidence of fraud. You can also expect more intense questions and verification if your own immigration history is imperfect.
My experience is that these applications, which do not have any appeal rights, are decided quite quickly and without much effort or interest by the Department to contact visa applicants to request further information before refusal.
The most significant lesson from all of this is to make sure that you always provide complete information to the Department in support of your application for a visa. This should be as soon as your application is made, or as soon as possible after the submission of your application.
You should expect to be interviewed about your plans to visit Australia to study. It is expected that you should be aware of the course you applied for, how it is structured, and what you will and won’t be studying in that course. You will frustrate your chances forever if you make an application for a student visa to Australia without knowing enough about the course you intend to study.
Another aspect of student visa refusal is that it must make sense for you to study the course, given your previous study history. Suppose there is a great divergence between your study history abroad and the study you wish to undertake in Australia. In that case, you will need to provide some logical and plausible explanation as to why your study direction has changed.
You should also be able to clearly articulate how your course of study in Australia will help you achieve your plans.
When an application for a visa has been considered against the criteria for the grant of the visa applied for and it has been decided to refuse your visa application, it is quite pointless to go back to your case officer and argue for a reversal of the refusal decision.
When you’re overseas (outside of Australia), it is usually the case that you can lodge as many visa applications as you are prepared to pay charges for.
For this reason, it’s often the case that if you are offshore and you receive a visa refusal, then it may well be that the simplest, fastest and most cost-effective way to proceed is to lodge a fresh application for a visa.
This fresh application would, ideally, have better submissions and more complete information, which might persuade the case officer that your case has sufficient merit for a visa grant.
If it is the case that you are in Australia at the time of lodging your visa application, then you will usually have been granted a bridging visa. This visa expires 35 days after any visa refusal decision has been made in respect of your application.
Applications lodged onshore will usually have an appeal right if the application is refused, but usually not so if the application is made offshore and there is no sponsor. Check this!
The answer to this question depends on your immigration status in Australia.
Assuming you are in Australia at the time of your visa refusal, then the important question is whether you hold a substantive visa.
A substantive visa is best thought of as any visa for Australia other than a bridging visa.
If you hold a substantive visa, then it is more likely that you will be able to lodge another visa application while in Australia, and that you will be granted a bridging visa in association with that new visa application.
For example, suppose you are the holder of a student visa that expires in two and a half years and you had previously made an application for a partner visa which was refused today. In that case, you might be able to make a further application for another visa while you are in Australia.
The situation is very different, however, if you hold a bridging visa at the time of receiving the visa refusal decision.
This is because holders of bridging visas have far more limited opportunities to make valid applications for further visas in Australia, to remain in Australia.
For more of my tips on bridging visas, check out my guide to bridging visas.
If you are overseas and you’re making your first application for a student visa for Australia and it is refused, you will typically not have any rights to appeal your visa refusal.
However, if you are in Australia and you have previously been granted a student visa for Australia, and you’re seeking to make a further application for a student visa while you are in Australia, then you will typically have an opportunity to seek a review of any decision that is made to refuse you a further student visa.
In my experience, most student visas are refused for one of two reasons.
The first is that the student is unable to show satisfactory evidence that they have the financial resources to fund their study and stay in Australia, because they fail to understand what sort of evidence is required, or they fail to comprehend the relevant times when funds are required to be shown to be available.
The second reason for refusal is that a student visa applicant fails to meet a criterion known as the “genuine temporary entrant” requirement, or “GTE” requirement.
In this scenario, the delegate deciding the application for a student visa will usually refuse a student visa application based on the GTE requirement if the decision-maker concludes that the applicant is a non-genuine temporary entrant and is simply using the student visa program to extend their stay in Australia for purposes other than genuine study.
The delegate is typically concerned that the student is unlikely to return to their home country after their course of study because the situation is either so good in Australia or so bad in the student’s home country.
Visitor visas for Australia fall into two main groups. One group is for visitors who have no sponsors in Australia. The other is for visitors who have family in Australia who have indicated a willingness to sponsor a visa applicant.
A family-sponsored visitor visa is one that is made when the visa applicant is abroad, but in which the Australian decision-maker is usually based in Australia.
If a decision is made to refuse a family-sponsored visa, the visa applicant will have a right to seek a review before the Administrative Appeals Tribunal (AAT).
You will already be aware that Australia is very particular about which visa applications it approves. The most common reason your visa will be refused is if the decision-maker feels that there are no prospects of the visa applicant complying with the visa grant, which would allow the visitor to visit Australia temporarily and return to their country. Because Australia is such a desirable location you can expect people to want to live here, and visitors to Australia will have their visa applications carefully scrutinised.
Are you from a third-world country? If so, you’ll need to convince a decision-maker that you will comply with any visa grant conditions. In particular, you’ll need to convince the decision-maker that you will exit and be a genuine temporary entrant visiting Australia for the visa granted to you.
Of course, if you have come to Australia and failed to comply with the conditions of your visa, or overstayed your visa, then it will be extremely difficult for you to persuade the decision-maker that you should be eligible for the grant of a further visitor visa.
Inconsistency, not just between documents provided in your visitor visa application, but also inconsistent information provided in one visitor visa application compared with the information provided in another visa application, can provide the basis for the r refusal of your visitor visa.
Too often, I see applications for visitor visas taken so casually that almost no supporting materials are provided. Immigration officers don’t like to spend too much time and effort seeking further information from visa applicants abroad, and usually, any visitor visa application which is in any way unconvincing will be refused. Accordingly, care should be taken to provide complete but relevant information in association with any visitor visa application.
Another common reason why your visitor visa is likely to be refused is that your supporting documents are not consistent with one another and are not readily verifiable after a decision-maker contacts your employer (or past employer) in your home country.
I often get asked why a bond was not asked for by the Department, and what is the problem if a bond is pledged to secure the obligations of the visa holder in respect of any visa granted.
This is perhaps the biggest myth floating around in the minds of visa applicants. Thinking that a bond will cure any defects that visa applications have is wrong.
While it is true that one may be imposed by decision-makers, bonds are beside the point. Bonds may only be additionally relevant and then imposed, if the primary consideration (of whether or not the visitor is in fact a genuine visitor) is met and compliance with the visa conditions and visa terms is extremely likely.
Of course, every visa application for Australia needs to meet health requirements and character requirements. If you are unhealthy or have a criminal record, your visitor visa is likely to be refused. You should take care not to provide misleading information about any information you provide in support of your application.
If the decision-maker becomes aware that false or misleading information has been provided, you will suffer sanctions. These sanctions can include not being able to be granted a visa for 3 years (in the case of false and misleading information, or bogus documents) or 10 years (in the case of false or misleading information, or bogus documents about your true identity).
Take care when making an application for what seems to be the quickest visa. One quick way of getting a visitor visa refusal is to make an application for a visa for Australia to see your Australian partner or de facto partner. The correct visa in the case where you wish to visit Australia to stay with your Australian partner, or permanent resident partner, is a “Partner visa”.
One strategy is getting a visa to travel to Australia and lodging a partner visa after arriving in Australia. This might be easy for some applicants who hold certain passports, and who do not attract a “no further stay” condition, but it is prudent to consider making an application for the offshore partner visa first, before applying for a visitor visa.
Given the considerable delay in decision-makers deciding partner visa applications, a sponsored family visitor visa or a visitor visa application after an offshore partner visa application has been lodged might prove fruitful.
This strategy might be practical and useful for visitors from certain countries seeking to join their partner, but of no use if the visa applicant is from a country that is subject to more scrutiny about visa applications. eg. a country whose citizens are noted for abuse of the partner visa program. In this case, it is unlikely that a visitor visa will be granted while waiting for a partner visa to be decided.
Are you kidding! You are seriously unlikely to get any refund of fees. The Department will not usually refund any visa application fees and charges that you have paid if your visa is refused or withdrawn.
In the case of visa applications where the visa application charge is paid in multiple instalments, then the second instalment will usually not be payable if your visa application is refused or withdrawn before the second instalment is actually paid.
Most applications made with the Department of Immigration when you’re in Australia, or for which there is an Australian permanent resident sponsor, will allow for an appeal to be made to the Administrative Appeals Tribunal (AAT). In this way, most applicants have two opportunities to provide information to the decision-maker and to make out their case.
The first opportunity is at the departmental level (to the delegate of the Department of Immigration), and the second opportunity is to the member of the AAT. This is where it stops.
You have two opportunities (and only two opportunities) to make your case. However, there is an opportunity to obtain a remedy in case you feel that there is some reason that the Tribunal has made a decision that it is not authorised to make.
An incorrect decision is often referred to as a decision that is infected with legal error, and an error on the part of the Tribunal. The decision can then usually be challenged by way of application to the Federal Circuit Court (FCC). The FCC reviews the decisions of the Tribunal to confirm legal errors. If a legal error is confirmed, then the FCC will quash the decision of the Tribunal so that your case is remitted back to the Tribunal for reconsideration and a new decision by a differently constituted Tribunal.
The AAT is not able to make any decision to grant a visa. It will decide as to whether or not the criteria for the granting of a visa are satisfied or not. If the Tribunal feels that the decision of the delegate at the Department of Immigration was correct, then it will confirm the decision of the delegate.
If the Tribunal, on the other hand, 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 given the Tribunal’s findings. It is important to note that the Tribunal is not empowered to grant any visa.
Assuming you do have a right of appeal to the AAT after your visa has been refused, you will need to pay a fee to the AAT at the time of filing your application for review. A tribunal will then reconsider your circumstances against the same laws that applied to your application when considered by the delegate at the Department of Immigration.
The AAT charges a fee when an application is filed and that fee at the time of writing was $3,000. If you are successful in your application for review, then 50% of this fee is refunded to you. Of course, if you have a representative assisting you in managing your appeal and appearing at the Tribunal to make oral submissions, in addition to making written submissions both before and after the hearing, professional fees will be payable to that representative.
The fees payable to representatives who must be registered Australian Migration Agents (and who might also be Australian Legal Practitioners) will vary depending on their skills and knowledge and the level of assistance provided by the representative to you.
It is important to select a representative who adds value to your application and who is persuasive.
This happens only if your representative has credibility with the Tribunal and is competent and diligent in providing the Tribunal with all the relevant information, in a way that puts your best foot forward and assists the Tribunal in ensuring it has before it complete and correct information, so that the Tribunal may then make the correct decision.
It may well be too late after a refusal decision (and after you’ve made your responses or provided additional information) to then fully and properly present your case for success if the matter were to be reviewed on appeal before a Member of the Administrative Appeals Tribunal (AAT).
If you are in Australia at the time of the visa decision, and you have made a valid application for the visa earlier while in Australia, then you will usually have a right of appeal to the AAT.
The appeal would be a review of the decision of the delegate of the Minister to refuse your visa. This right of appeal typically lasts 21 days from the date of the decision. Note: the appeal period is much shorter in the case of a visa “cancellation”.
Usually, you’ll have two options if you fail at the AAT.
One option is to accept the umpire’s decision and exit Australia unless you have some other opportunity for a visa pending.
Another option is to make a special submission to the Minister for personal intervention about your circumstances if they are particularly unique.
A third possibility is one in which I specialise. This involves scrutinising the decision of the member(s) of the Tribunal and identifying a legal error. Can it be argued that the decision of the AAT should not stand? If yes, a Federal Circuit Court judge might deem it appropriate to order the decision of the AAT to be quashed.
Whether or not the Tribunal’s decision is infected with legal error is a complex issue. It is not possible, usually, to identify errors by simply reading the decision of the delegate.
Rather, one needs to have a forensic review of all of the information provided in respect of the application for a visa, together with all of the laws and regulations that are relevant to the consideration of the visa grant, and a review of the chronology of events in the exchange of information between the applicant, the Department and the Tribunal, as well as with any other government agencies.
This may include the transcript of the hearing before the Tribunal. Once all this material is to hand, you might then just have enough information from which to discern whether or not the decision ultimately made by the Tribunal was infected with legal error.
If your case is particularly unique, and typically where a visa refusal is an unintended consequence of Australian immigration rules, you may have a basis for seeking special intervention by the Minister for Immigration in your particular case.
This can be done after you have made an application for review to the AAT of the decision to refuse your visa. You mustn’t miss your opportunity to make an application for review to the AAT, as if you fail to make your application to the AAT, you might be denied the opportunity of making an application for ministerial intervention (which is only possible after your application has first been considered by the AAT).
The short answer is that some Migration Agents are extremely skilled in assisting clients with visa refusal advice, and assisting with the making of new applications successfully (or making review applications) to the AAT.
Other Migration Agents, however, might not have the skillset 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 about getting the next application approved (simply due to the prior refusal).
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 about 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 Solicitor’s Rules and the Uniform Barrister’s Rules, either directly from clients in a direct brief situation, or from Australian legal practitioners.
If you have a visa refusal, you should take steps to obtain advice from an Australian Legal Practitioner skilled in the area of Australian 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 (AAT), in the Federal Circuit Court (FCC), and the Federal Court in respect of challenges to immigration decision-making.
The better option is to get two or three separate opinions about prospects for success in either making a fresh application (if that is possible) or making an appeal to the AAT.
Our practice is a leader in the field of assisting with visa refusals, having successfully pursued hundreds and hundreds of cases at the Tribunal, and succeeding in a significant number of important cases in the FCC in respect of immigration administrative decision-making.
You can access our 20 years of experience in successful appeals against visa refusal by making an appointment to see us today.
Here are the first three things you should do immediately after your Australian visa has been refused:
These are the most important three things that any immigration lawyer will need. With this information, you have enough to have a meaningful conversation with an expert. Without it, you are wasting each other’s time.
This is perhaps the worst type of rejection, because you may now be unlawful. Invalid applications mean that any bridging visa you thought you held (as a result of having made a valid application) does not exist.
You should discuss this with your advisor immediately. You can call me for assistance.
In a perfect world, you would expect to get a notice from the Department before your visa application is refused.
Unfortunately, we don’t live in a perfect world, and it might well be that your application for a visa is refused without any notice given to you in advance of the decision.
Visa refusals are different to visa cancellations in many ways. Importantly, visa cancellations tend not to be made with prior notice. Visa cancellations usually have far more serious consequences than visa refusals. If you can appeal your visa cancellation, you only have 7 days to lodge the appeal if your visa is cancelled, but if your visa is refused, you’ll usually have 21 days to appeal. If this has happened to you and the clock is ticking, why not book a consult with me?
Please share your comments with me.
I’d love to know more about your experience!
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Hi I am Shamsun nesa, I got s57 letter because of my son’s health issues that means he born premature on that basis immigration is saying hypothetically he will be burden for Australian community. I want to know your thoughts .
Thanks
Hi Nitheesh
I have been rejected subclass 500 in 2020 and later i appealed to AAT and the decesion is unsuccessful in November 2021 and moved back to my home country. I want to apply for Australia again, I want to know that how many days the ban will be on me and what are other chances to move back into Australia.
Regards
my student visa refused , and i brought to federal circuit and now we are schedule on next month for hearing. what if i lose the case? what is my next step to do. can i apply to federal court, or covid visa or protection visa?
Hi sir,
How long does it take for the CO to give decision once you have commented to invitation to comment of PIC 4020.
Your response will be highly appreciated
Hi Sir.
I made a horrible mistake.
I applied for visa 190. Then last week I received a letter from immigration asking an evidence of australian study. Im a bit surprised so I reviewed everything.
And to my surprise in my EOI. I put yes.. that I study here in australia and with regards to my application i put no.
It was an honest mistake. I emailed them explaining that I made a mistake.
My question is: what is the cance of my bisa being rejected/ refused? 😞
I kept on logging in with my immi account and I can still see FOR FURTHER ASSESSMENT.
Hi , I got s57 natural justice on my student visa application for Australia, as i was not aware that my canada visit visa’s were rejected 3 times in 2011 , 2014 , 2016. In the first two i was under 18 and in the 2016 one I was not aware as the applications were not filled by me,
So should I reply back with apology or withdraw my case?
M an Australian citizen. I have been tried thrice family sponsored stream for my brother but refused..i still wan to apply with this stream . should i go with appeal or reapply??
Any help and advice would be appreciated..
I am currently on 482 visa which has expiry till August 2025 and got redundant from my sponsored employer in March 2023, since then I couldn’t find any other job with sponsorship option. My spouse was interested to pursue to study so we decided to apply for student visa for the Masters degree. We got a refusal on 2 July because of GTE with the option to go to AAT in 21 days. I have a few questions about this situation.
1. If I find a sponsor meanwhile, would he be eligible to study next year and if yes, would he be eligible to apply for a student visa as the 482 won’t outlast the studies.
2. How long does it take on average for an AAT case to go to hearing and can we get it resolved without it going to hearing as it’s just GTE?
3. If he does get approved from AAT, do he have to study at Holmes (original offer) or can he switch to Macquarie(interested university) from the start or after a term?
4. Does he have to study meanwhile the case is in AAT or can we both work full time?
5. Do we have any other window open here? I have current EOIs for Accountant 189, 190.
Thank you for your response in advance.
Hi Nilesh,
I have been on this journey since 2018 lodging EOI in 2019 for 491 family sponsored visa, sadly fires, floods and C19 slowed the process down to a point I had given up ever receiving an invite.
Out of the blue I get an unexpected invite to apply in August 2022. When I turned 40 I lost 10 points so expected to automatically lose points with English expiring, having checked skills assessment expired in January 2022. I called DHA to find out if there were extensions put in place due to global shutdown for lapsed documents, The lady was not aware of any extensions and advised I Lodge the invite and redo skills and english before a case officer is assigned and provide a cover letter. I didn't want to waste money to be rejected.
Having followed the advice of someone who should know the process I lodged the invite paid the fees and redone TRA skills and English, these were uploaded before medicals were finalised and before case officer contact.
Having had no contact from a case officer, I get notification my EOI has been removed, I then check immi account to read all are finalised check messages. No message uploaded.
2 hours letter email notification for refusal of visa due to skills assessment expired before invite and positive assessment uploaded after invite.
I can only appeal using my sponsor.
I called DHA as they advised me to lodge the invite redo the expired documents and upload a cover letter, sadly the person I spoke with wasn't interested she took no information from me but said she was going to check and put me on hold, to come back couple minutes later to say nothing could be done, I asked to speak with a supervisor and informed the desicion had been made I must follow what it says on refusal letter.
Wow, having paid all this money and taken advice from DHA I have been well and truly hung out to dry. It is my application but my family sponsor must now appeal.
Totally lost now can I appeal? Or start the whole process over? I have wasted so much time and money on a dream and I can't even get answers to why DHA advised I Lodge yet they still refuse having a cover letter explaining.
Allan
Firstly, thank you for your patience.
Thank you very much for your post. Here are the first three (3) things that come to my mind. There may also be other important issues that arise from your particular circumstances. Please seek specific immigration law advice before taking any further steps. It could be that I have misunderstood you :).
1. The rules to be satisfied at the time of getting the invitation as well, as at the time of making the application for the Visa, and as well as the time the Visa decision is made us well quite clearly specified in the regulations and unfortunately can be very harsh and unforgiving.
2. Without reading the decision record, my guess would be that there is no scope for you coming within the strict rules, which unfortunately means that you need to start the process again and hopefully at this particular time you can still achieve the required points outcome.
3. You have been advised correctly that once a decision is made by a delegate of the minister, then that decision cannot be re-visited by the delegate. You will need to consider appeal rights or other options, for example lodging a fresh application if your circumstances permit this etc.
Before I complete my response to you, can I just say how heartbreaking your circumstances are. You are not alone in these types of experiences, and I hope that others will take particular care when, considering whether or not, they meet visa and continue to meet VISA criteria at the various points in time I have noted above.
Regards Nilesh Nandan Immigration Lawyer & Special Counsel MyVisa® Immigration Law Advisory https://myvisa.com.au/
For greater clarity about your immigration issue you can book in a quick 10-minute-chat with me here: https://myvisa.com.au/10-Minute
*In the interest of speed, my communications are transcribed and transmitted using voice-to-text software – please ignore any unintended typographical or interpretation errors. Please also see the standard Notes and Disclosures which apply to my communications. These are located at the footer of my work emails.
I’m an international student pursuing Master in Australia. I applied for Subclass 500 subsequent visa for wife and daughter which was refused in 15th December for not providing family tie, I have submitted a fresh application since 19th February 2023 but I haven’t hear anything from the home affairs. Please how does it normally take for this type of case.