How to apply again after my Australian visa was refused or cancelled
Receiving news that your visa application has been refused, or your visa has been cancelled, can be a distressing experience for many people. Despite this, it is important to be aware that such a decision may not necessarily be the end of the road to you still being able to achieve your migration goals in Australia as there may be alternative options available for you to pursue.
You may be eligible to apply for another visa (potentially from onshore), depending on the circumstances of your case. Most importantly, the questions that arise are why was the decision to refuse or cancel your visa made by the Department? What were the reason/s or grounds for its decision? Another important factor impacting what options may be available to you, if any, is whether you are located onshore or outside Australia at the time of the decision.
If you do find yourself in this situation and you are onshore, you need to act quickly, as you will only have a limited period in which to apply for another visa (if eligible). If you do not leave Australia by the deadline, further negative consequences may result. This can include an exclusion period being imposed, which means a period during which you cannot be granted another visa if you apply for it, thereby affecting your ability to be granted a visa in the future.
As a general point, be aware that having a visa application refused, or a visa cancelled, means you will need to declare this in all future visa applications and associated forms that are lodged with the Department. This could also potentially affect your eligibility for grant of a visa to another country, or other relevant matters where having a visa refusal or cancellation may be an issue.
Having a good immigration record, meaning your history of visa refusals and/or cancellations and compliance with visa conditions can be an important factor in the decision to grant you a visa.
Family members who are your visa dependents may be affected by your visa being refused or cancelled. If, as the primary visa applicant, your visa application Is refused, so too will your family members’ application/s. Similarly, if the Department cancels your visa, it may also cancel visas held by any of your family members.
Non-character-related refusal or cancellation
If your visa application is refused or your visa is cancelled on non-character grounds, you may only be eligible for grant of a limited list of prescribed visa subclasses whilst you remain in Australia. This includes a Partner Visa and a Bridging Visa.
If you proceed to apply for a partner visa on this basis, you must meet additional requirements for visa grant if you do not hold a substantive visa at time of lodgement (this can be waived in limited circumstances).
A substantive visa is any visa excluding a bridging visa, criminal justice or enforcement visa.
This provision (called Schedule 3 criteria) may potentially apply to you if you have been the subject of a visa application refusal or visa cancellation, as you will likely be the holder of a bridging visa at that time. Why is this the case? In the most common scenario, where a visa is refused, you will have been granted a bridging visa at the time when you lodged your application for the (now refused) visa. It is possible that this bridging visa will have come into effect (although this may not necessarily be the case; you could still hold another substantive visa which remains valid at the time of the refusal decision).
In the case of a visa cancellation, you will not automatically be granted a bridging visa but must apply for one to lawfully remain in Australia. You will only be eligible for a Subclass 050 Bridging Visa E (BVE), which will allow you to make the necessary arrangements for your departure from Australia, or to apply for another visa. A BVE can also be granted if you seek to appeal the decision to the AAT or for judicial review, or to apply for ministerial intervention of your case. You can apply for a BVE either by email or in person by presenting to the Department. No fee is payable for a BVE.
Character-related refusal or cancellation
The more serious implications arise where a visa application is refused or a visa is cancelled on character grounds, which may result in permanent exclusion from Australia. In such a case, you would be unable to make a valid application for a visa whilst you remain in Australia. Additionally, any other visa application that you have lodged is taken to have been refused as well as all other visas that you hold (including any bridging visas that exist at the time of the cancellation) are also taken to have been cancelled.
Exclusion periods and re-entry bans
If you have had a visa refused or cancelled, you may be prevented from being granted a further visa to Australia through the operation of the below Public Interest Criteria (PIC) and Special Return Criteria (SRC).
if your visa has been cancelled, you may be restricted from applying for another visa for 3 years, unless the Department is satisfied that one of the following is satisfied:
- compelling circumstances that affect the interests of Australia exist; or
- compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen exist.
The 3-year exclusion period commences on the date when your visa was cancelled.
If you depart Australia in one of the following circumstances, you cannot be granted a further visa for 3 years (this can be waived in certain limited circumstances, as outlined above for PIC 4013):
- as an unlawful non-citizen (meaning you do not hold a valid visa); or
- as the holder of a Bridging Visa C (BVC), Bridging Visa D (BVD) or BVE.
However, PIC 4014 does not apply if you left Australia:
- within 28 days of your substantive visa ceasing; or
- as the holder of a BVC, BVD or BVE which was granted:
- within 28 days of your substantive visa ceasing; or
- whilst you held another Bridging Visa (which itself was granted while you held a substantive visa, or within 28 days of it expiring).
The 3-year exclusion period commences on the date when you left Australia.
If you supply a bogus document or false or misleading information in relation to your visa application, it may be refused under PIC 4020 and, as a result, you will be prohibited from being granted a visa to Australia for a period of 3 years.
The Department may waive this requirement in certain limited circumstances, as outlined above for PIC 4013 and 4014.
If the Department is not satisfied as to your identity, you may be excluded from being granted a further visa for 10 years. There is no waiver for this requirement.
If you leave Australia as a result of a deportation order, or if your visa is cancelled on character grounds, you may be subject to permanent exclusion from Australia under SRC 5001, unless the Minister personally grants you a permanent visa. There is no waiver for this requirement.
If you are removed from Australia (as an unlawful non-citizen), you will be subject to a 12-month exclusion period (this can be waived in certain limited circumstances as outlined above for the PIC referred to above).
The 12-month exclusion period commences on the date when you were removed from Australia.
Under SRC 5010, if you currently, or previously, held a specified type of student visa, you cannot be granted a visa unless you have been outside Australia for at least two years since you ceased your course of study or training. SRC 5010 does not apply in the following circumstances:
- the course was designed to be completed for a period of 12 months or less; or
- if the course was designed to be completed over a period of more than 12 months, the Foreign Minister or foreign government that supported the grant of the student visa also supports the grant of the current visa being applied for (this can be waived in certain limited circumstances as outlined for the PIC and SRC referred to above).
SRC 5010 applies to the following applicants:
- current or former holder of a Foreign Affairs student visa;
- current holder of a Student visa which was granted with financial support from a foreign Government; and
- previous holder of a student visa which was granted with financial support from a foreign Government, who has never held a Foreign Affairs student visa and who does not currently hold a substantive visa.
A Foreign Affairs student visa refers to a visa granted to a student in a full‑time course of study or training under a scholarship scheme or training program approved by the Foreign Minister or AusAID Minister.
A student visa refers to the following visa subclasses:
- Subclass 500 (Student) visa;
- Subclass 570 (independent ELICOS Sector) visa;
- Subclass 571 (Schools Sector) visa;
- Subclass 572 (Vocational Education and Training Sector) visa;
- Subclass 573 (Higher Education Sector) visa;
- Subclass 574 (Postgraduate Research Sector) visa;
- Subclass 575 (Non-Award Sector) visa; and
- Subclass 576 (foreign Affairs or Defence Sector) visa.
The 2-year exclusion period commences on the date when you ceased your course of study or training.
Whether you are located onshore or outside Australia, your ability to be granted a further visa will depend on meeting the above PIC and/or SRC criteria, as they apply to the visa which you seek to apply for (be aware that not all visas are subject to the above exclusion criteria). Another important point to note is that for certain visas, exclusion criteria apply to the whole family group that is applying for the visa. The effect of this ‘one fails, all fail’ criteria is that if any family unit member applying for a visa is subject to an exclusion period, the primary visa applicant will not satisfy visa grant requirements, even if they themselves are not subject to the exclusion period.
We also make the point that, apart from exploring your options for applying for another visa as has been discussed above, you may also consider your options in having your refusal or cancellation decision re-considered. This may be in the form of:
- Applying to have your case reviewed by the Administrative Appeals Tribunal (AAT);
- If your AAT appeal is unsuccessful, you may be able to apply to the Minister to personally intervene in your case (referred to as ministerial intervention); or
- If your AAT appeal is unsuccessful, you may be able to have your case heard by the Federal Circuit Court of Australia.
Given the potentially serious and far-reaching implications of a visa refusal or cancellation as has been discussed in this article, you may like to consider whether having the decision re-considered by an appeal body could be a worthwhile pathway for you to take (provided this option is available to you). Whether it is worth taking this action will depend on the individual circumstances of your case and whether you can put forward a strong argument and evidence to support your position.
If you do not appeal the decision, another option may be to apply to the Department to waive the relevant PIC and/or SRC as they apply to the visa for which you seek to apply. Again, you must have a strong reason/argument to have any chance of success in this regard (see discussion above about waivers as they apply to the PIC and SRC).
Whichever avenue you take, whether that be to apply for another visa, or to appeal the original decision, it is important to ensure that all relevant timelines and lodgement deadlines are adhered to. If you miss any critical dates, you will lose your opportunity to proceed with your selected pathway. This could leave you with no other option but to depart Australia and to consider your next steps from offshore (if indeed there are any available to you).
Estimated costs and time delays that you can expect should also be factored into your decision in relation to which path to take following a visa refusal or cancellation.
If you are affected by a visa refusal or cancellation, we highly recommend that you speak with a migration professional who can help by explaining what options you may have, the potential benefits and disadvantages of each alternative course of action, the likely time and costs involved, and which option is likely to get you the ultimate result that you hope for. Australia’s migration laws are complex and ever-changing; being well informed will put you in the best position to achieve the best outcome for you.
To help make this process easier for you, we have prepared a series of detailed information guides which explain further the important aspects to consider if you are affected by a refusal or cancellation of your visa.
Please refer to our detailed guides for further information on the AAT review process, important information on what is involved in a Tribunal appeal and points to consider in deciding whether to appoint an immigration agent or lawyer for your appeal.
In the case of a student visa being refused or cancelled, please refer to our article which further discusses the difference between a refusal and cancellation and the options which may be available to you (in addition to seeking a review) to assist you if you find yourself in this situation. You may also find our articles on some common reasons for a student visa to be refused and what you should do if your student visa is refused helpful.
Please also refer to our guide on what you should do if your visa is cancelled for further important information.
Australia’s migrations laws are complex, and each case is different. There are also several terms which are defined in the migration provisions (and whose meanings may differ from their ordinary usage). We recommend that you seek professional advice if you are affected by a visa refusal or cancellation, as being fully informed will give you the best chance of achieving a successful resolution to your case. A migration professional can help you to do this.
For up to date advice on what you should do if your Australian visa is refused or cancelled, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.