Visa Refusal

Visa Refusal Consultation With Nilesh Nandan

 

Visa Refused – Visa Refusal Questions Answered

Nilesh Nandan is an Australian immigration lawyer with 2 decades of experience. He is Special Counsel at MyVisa Australia. In this article he answers frequently asked immigration questions when Visa Applications for Australia are denied. Disclaimer.

Ask your own general question at the MyVisa Visa Refusal Blog, or book in a consultation with Nilesh to discuss your own Visa Refusal options.

Surprise visa refusals

In a perfect world, you would expect to get 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.

I don't want to be surprised!

Adverse information letters prior to visa refusal

Sometimes you will receive from the Department a letter which invites you to comment on Adverse Information (which has come to the attention of the Department) and which the Department feels might be a reason why your visa application could be refused.

It is important that you take very seriously any “Invitation to Comment” letter that is sent through to you. One reason to be careful is that 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. The second reason to be very careful is that any information you provide in response to the adverse information letter could further prejudice your application. This could potentially become an even greater issue for you than if you simply made a different submission.

Pre-visa refusal responses

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 what it is precisely 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 yourself be fully aware of the implications of the letter you have received from the Department … until of course you receive a refusal. It may well be too late after a refusal decision (and after you’ve made your own responses or provided additional information) to then fully and properly present your case for success, if the matter was to be reviewed on appeal before a Member of the Administrative Appeals Tribunal (AAT).

Help me before my visa is refused!

Contacting visa applicants before refusing their applications

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 make a decision 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 prior to granting you a visa. This is particularly so if you are from a country where applications are known to have a high incidence of fraud, or, indeed, if your own immigration history raises red flags in the mind of the decision maker.

My experience is that these applications which do not have any appeal rights are decided quite quickly and without much effort or interest on the part of the Department to contact visa applicants to ask for further information prior to 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 is possible after the submission of your application.

Help! I've received a letter from Immigration

Visa decisions are final

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 really quite pointless to go back to your case officer and argue for a reversal of the refusal decision.

Can you again lodge a fresh visa application after an application has been refused?

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 not so if the application is made offshore and there is no sponsor.

Help me to apply for a new visa!

Time period to apply for appeal after visa refusal

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 Administrative Appeals Tribunal. 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 that the appeal period is much shorter in the case of a visa “cancellation”.

Help me to lodge my visa refusal appeal!

Can you apply for another Australia visa after a visa refusal?

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, if you are the holder of a student visa which expires in two and a half years time and you had previously made an application for a partner visa which was refused today, then you might be able to make a further application for another visa (but not a partner visa) while you are in Australia.

Bridging visa holders receiving a visa refusal

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.
If, on the other hand, you were the holder of a student visa, and immediately before the student visa expired you had lodged a partner visa application, and today you are the holder of a bridging visa granted to you in association with the partner visa application, and today you receive a refusal from the Department, you will not (subject to some limited exceptions) be able to make a valid application for another visa in Australia and obtain a bridging visa in association with that new application.

Help me with a bridging visa appeal!

Some exceptions to rule that bridging visa holders getting refused can’t lodge another visa

You might be able to lodge a protection visa application – or one of a very limited class of visas – if you hold a bridging visa at the time you receive a visa refusal notification. This is far less convenient than if you were the holder of a substantive visa like a tourist visa or a student visa at the time you received a notification of visa refusal because you’d have more options.

Australia student visa refusals

If you are overseas, and you’re making your first application for a student visa for Australia, and it is refused, then 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 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.

Most common reasons for student visa refusal

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 criteria 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 the home country because of the situation being either so good in Australia, or so bad in the student’s home country, that it is unlikely the student will return there after his or her course of study.

Interviews leading to student visa application rejection

You should expect to be interviewed in relation to 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 for 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. If there is a great divergence between your study history abroad, and the study you wish to undertake in Australia, then you will need to provide some logical and plausible explanation as to why your direction of study has changed. You should also be able to clearly articulate how your course of study in Australia will help you achieve your future plans.

Get student visa refusal advice!

Australian visitor visa refusals

Visitor visas for Australia fall into 2 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 sponsored family 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.

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 purposes of the visa granted to you.

Visitor visa refusal after overstaying your visa

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.

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. In the event that a decision maker contacts your employer (or past employer) in your home country. 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 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 .

Lodging a bond to support a visa application

I often get asked why a bond was not asked for by the Department, and what the problem is 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 then your visitor visa is likely to be refused. You should take care not to provide misleading information in relation to 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 a period of 3 years (in the case of false and misleading information or bogus documents) or for a period of 10 years (in the case of false or misleading information or bogus documents in relation to 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. However, 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” for Australia.

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, holding some 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 making decisions in relation to partner visa application, a sponsored family visitor visa or a visitor 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 which is subject to more scrutiny in relation to visa applications. e.g. 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.

Get visitor visa refusal advice!

Refund of your visa application fee if your visa is refused

Unlikely. 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 installments, then the second installment will usually not be payable if your visa application is refused or withdrawn before the second installment is actually paid.

Cost of appealing after a visa refusal

Assuming you do have a right of appeal to the Administrative Appeals Tribunal (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 were applicable 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 is currently $1764. 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 is 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.

Lets meet to discuss costs of appeal!

What if you are not successful appealing a visa refusal at The AAT?

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 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 at the Administrative Appeals Tribunal. 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 which it is not authorised to make.

An incorrect decision is often referred to as a decision which 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. The Federal Circuit Court reviews decisions of the Tribunal with a view to confirming legal errors. If a legal error is confirmed, then the Federal Circuit Court 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 make a decision as to whether or not 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 a correct decision, 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 in view of the Tribunal’s findings. It’s important to note that the Tribunal is not empowered to grant any visa.

Legal error in administrative decision making

Whether or not the Tribunal’s decision is infected with legal error is a complex issue. It is not possible, usually, to identify error 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 which 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 and 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 just then have enough information from which to discern whether or not the decision ultimately made by the Tribunal was one which was infected with legal error.

Applications for ministerial intervention after visa refusal

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 of 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. It is critical that you do not 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).

Can migration agents assist with visa refusals?

The short answer is that some Migration Agents are extremely skilled in assisting clients with visa refusal advice and with assisting with the making of new applications successfully (or making applications for review) to the Administrative Appeals Tribunal successfully. Other Migration Agents, however, might not have the skill set 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 in relation to getting the next application approved (simply because of the fact of the prior refusal).

The use of specialised visa refusal lawyers

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 in relation to 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 practicing 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 Solicitors Rules and the Uniform Barristers Rules, either directly from clients in a direct brief situation or from Australian Legal Practitioners.

If you have a visa refusal, then 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 and in the Federal Circuit Court and the Federal Court in respect of challenges to immigration decision making.

What to do if your visa is rejected?

The better option is to get 2 or 3 separate opinions in relation to prospects for success in either making a fresh application (if that is possible) or making an appeal to the Administrative Appeals Tribunal. 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 Federal Circuit Court 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.

Visa Refusal Consultation With Nilesh Nandan

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