Get hold of the critical documents
Here are four things I ask for when I meet a client to discuss a visa refusal by the Department of Immigration:
- Any Natural Justice Letter (NJL) that may have been sent you or your advisor;
- A copy of your response to the NJL;
- A copy of the Decision record; and
- A copy of the Letter or email notifying you of the visa refusal – the notification.
Understand you appeal rights
Sometimes you might not have any right to make an appeal. This happens often to visa applicants how lodge applications overseas at a time when they themselves are overseas, and in respect of which there is no Australian sponsor.
Be clear whether you have appeal rights.
Be clear you know the date by which any appeal must be lodged. It is usual that you’ll have 21 calendar days (not workings) to make a valid application for review. Note: You will only have 7 days if your visa is cancelled. Getting a visa refused is very different to getting a visa cancelled.
Importantly, a cancellation means you might temporarily be without any visa. Any other outstanding applications might also be refused and any bridging visa you might hold, might also be cancelled.
Most preferred option after visa refusal
Ideally, you might simply relodge. This is possible while you are in Australia only if you hold a substative visa. Be clear that appealing is your best option. Sometimes you might be able to simply relodge.
Understand your immigration status and how this could change because of the visa refusal.
Usually, you’ll have a right of appeal to the Administrative Appeal Tribunal (AAT). This is typically done by filing a review application and this must be done usually with 21 days of the decision to refuse your visa
Lodge a review application with the AAT with the correct application fee (preferably online).
- Sometimes, it may be useful to see if there is a possibility to ask the Department to revisit the decision if the decision maker had made a fundamental mistake in the decision (which would amount to jurisdictional error).
- It is important to note that the timeframe for the review application with the AAT must not be missed by contemplating re-visit option.
Do FOI with DIBP and AAT
- send a request to the previous Migration Agent/Immigration Lawyer to obtain all the documents they hold on behalf of their client (if the primary application was lodged by a Migration Agent or an Immigration Lawyer).
- Once all the documents from the AAT, DIBP, Previous Migration Agent/Immigration lawyer have been received, review all the documents.
- Discuss the matter with the client, take further instructions and request further documents, if necessary.
- Commence drafting submissions well ahead of the hearing invitation.
- Finalise the first draft and send that across to the client for review.
- Once all the necessary changes have been made, finalise the submission and send that to the AAT with all the attachments.
- As soon as the hearing invitation has been received, get the client in and take the client through the submission.
- Discuss any potential issues the member might dig into. Prepare the client for the hearing.
- It is advisable for the client to come to the office prior to the hearing (if possible) and proceed to the Tribunal with the client.
- Be thorough with the content of the submission. Be with the client at the hearing and provide any support the client need at the hearing, with the permission of the member.
- Always request a copy of the recording at the end of the hearing.
- If you are ready contact our office to book a consultation in Sydney, Melbourne, Brisbane