Having an application for a visa refused can be a distressing event for anyone affected by the decision. The visa application process is complex, requiring in-depth and up-to-date-knowledge of the legislative provisions. It can be onerous, requiring the provision of personal information and documents to the Department. It can also be an expensive and lengthy process, with some visa classes being subject to significant processing delays. It therefore often involves investing a significant amount of effort, time and money. And it can be personally stressful.
Applying for a visa to Australia also marks the pursuit of personal goals and desires, whether that be to travel and study in Australia, to live with your Australian partner or spouse, or to work in Australia.
Whatever your purpose in seeking an Australian visa, a refusal can feel like the end of the road for your goals, and no longer being able to fulfil your plans.
But this is not always the case. There may be options that you can consider pursuing, which may comprise applying for a review of the decision to an independent Tribunal, re-applying for the same visa or for another visa subclass (what you can do will depend on your individual circumstances and your ability to meet visa eligibility requirements).
To avoid these complications in the first place, you should always endeavour to submit a complete, correct and well-supported application. This will lessen the chances of a refusal, and thus prevent these issues from arising. This will also likely result in a smoother application process and avoid additional processing delays. All round, a better outcome for you.
In this article, we discuss the steps you can take to prevent the likely chances of your application being refused. But sometimes, mistakes can, and do, happen. This can be due to a simple oversight, or as a result of not being informed about what is required to qualify for visa grant, for example. If the result is ultimately a negative one and your application is rejected by the Department, we outline some potential options that you may think about taking as a next step in your visa pathway.
How can you avoid a visa refusal in the first place?
By arming yourself with the right information – this is the first step in improving your chances of success. This means thoroughly researching the visa options available, determining which is most relevant to your personal situation, and selecting the right visa for you once you have confirmed that you satisfy all visa grant requirements. This also involves ensuring that you can supply all relevant documents, in the correct form, as required for your application.
To help improve your chances of getting it right, we highly recommend that you engage the services of an expert. Migrations agents and immigration lawyers are trained professionals in migration law, with access to important materials, some of which are not widely published (e.g. Immigration policy). They also have the skills and experience to conduct research where specific issues arise in relation to individual cases, especially with more unusual circumstances. Use our guide on how to select the best agent for you. We always welcome your call – talk to us today to see how we can help you through this process.
Why are some applications refused?
Due to the complexity and frequent changes made to the migration laws, it is not always easy to get it right. Unless you have a complete knowledge of all issues pertaining to an application, and you are informed about required forms and documents which must be supplied to the Department, it is likely your application will fall short, which can happen for a range of reasons, including failing to address a requirement for visa grant, or misinterpreting how a legislative provision applies. Or it could simply be a case of not providing all required documents at time of lodgement. Immigration has no obligation to follow-up with you to request outstanding documents. It can refuse the application immediately.
Each visa subclass is subject to a series of prescribed requirements which must be satisfied to qualify for visa grant. Potential applicants are often surprised at the level of detail and evidence that is required as part of this process, one example being those applying for the partner visa class. To be eligible for grant of a partner visa, a key requirement relates to your relationship, and whether it meets the relevant definition of a ‘spouse’ or ‘de facto partner’ for visa purposes (these terms are specifically defined in the legislative provisions). If you do not thoroughly address each aspect of the relevant definition as it applies to your personal situation, and provide detailed supporting evidence, your application can be refused. In addition, de facto relationships, for example, are subject to additional requirements for grant of a partner visa, which are not relevant to married couples.
You also need to ensure that you apply for the correct visa subclass. If you are considering applying for a partner visa, there are currently 3 options for you to select from, namely, an onshore partner visa, which consists of a combined subclass 820/801 (being a temporary and permanent visa application). The equivalent offshore option is the subclass 309/100 visa subclass. And there is a prospective marriage subclass 300 visa option also available. Selecting the right visa is essential to a successful application result.
How can you lessen the chance of a refusal of a partner visa? By being aware of the types of issues that the Department pays particular attention to, and which can increase the risk of greater scrutiny of your application, and potentially a refusal. Knowing this information up-front will allow you to better prepare your application and address these potential issues so that you avoid complications arising in the first place. Being aware of the most common refusal reasons for partner visas will enable you to anticipate potential problems that can arise which may affect your own application, by addressing them head-on rather than waiting for the Department to follow-up these issues up with you or, in the worst case scenario, automatically refusing your application.
Further complicating the process, the rules are getting tougher, especially for partner visas, with major changes recently announced expected to be enacted into law at any time. Migration law is an area which undergoes frequent changes, with new developments often announced by the Government. Keeping up-to-date with this information is crucial to a successful application result. To demonstrate how critical this is, being aware of these anticipated changes to the provisions allows you to plan and proceed with your own application accordingly. This may involve applying for the visa as soon as possible, or otherwise adjusting your visa application plans.
Another visa class which has a surprisingly high complexity level involved for what appears to be a relatively straight-forward application is a subclass 485 graduate visa . Not being aware of all the prescribed requirements that must be satisfied and therefore failing to address them in your application can result in a refusal. Having a graduate visa refused may have potentially more serious consequences affecting your ability to either re-apply for a graduate visa, or it may impact on your overall permanent residency pathway. Eligibility for a graduate visa is only for a very limited time, and you don’t want to miss your chance of obtaining this visa, given how beneficial it can be in your overall pathway to achieving permanent residence in Australia.
Having an awareness of the types of reasons why graduate visas are most commonly refused can help you to anticipate any such issues arising with your own application by addressing them head-on, rather than risking a refusal, or the Department requesting further information from you in relation to any such issues that may arise (if they do indeed follow-up; otherwise, it can automatically refuse your application).
Skilled visas also involve a high degree of complexity. Consisting of several options, ranging from Employer Sponsored and Nominated visas, to Skilled (Independent), Skilled (State Sponsored) and Skilled (Regional) visa subclasses. Each visa subclass is subject to prescribed visa grant criteria, which can include Skills Assessment and minimum English language competency requirements.
What can you do if your visa application has been refused?
Receiving a visa refusal letter can be a distressing and stressful experience, especially if it has a greater personal impact. The rejection of a partner visa can be particularly difficult, especially if you have been unable to satisfy Immigration that your relationship is genuine. Sometimes, a refusal can result simply from insufficient evidence being provided with your application, or as a result of misunderstanding what is being asked of you in an interview with the Department, for example.
Other times, an application may be subject to additional requirements for visa grant, such as where Schedule 3 criteria applies. Achieving a successful result in this type of case can be more complex, and largely dependent on presenting a persuasive argument for why the visa should be granted.
Or it might be that you do not meet a prescribed requirement such as an age-based limit or have the minimum number of years work experience that are prescribed for the visa class for which you are applying. Missing a critical deadline for lodgement, such as failing to apply for a graduate visa within 6 months of completing your qualification will also result in a refusal.
It is important that you have a clear understanding of the reason/s why your application has been refused, and the options which you have going forward. If the refusal is based on failing to satisfy an age requirement, for example, this would effectively put an end to continuing with the application. If the refusal is due to more complex and discretionary factors, such as meeting the definition of a ‘marriage’ or ‘de facto relationship’ for the purposes of a partner visa, or due to Public Interest Criteria (PIC) 4020 or the Health Criteria, for example, there may be grounds for proceeding with an review of your application (otherwise known as an ‘appeal’), provided you have this option.
Whatever action you decide to take next, you need to act quickly. If you are considering applying for a review, strict deadlines apply. Missing this deadline effectively ends your option to appeal, and you would then need to assess what other options and/or step/s you can take. This could mean having to depart Australia and applying for a new visa offshore (provided you meet the relevant eligibility requirements).
What is the process involved in a review?
The AAT is made up of several Divisions, including a Migration & Refugee Division, which has the power to review migration matters in relation to the refusal and cancellation of sponsorship, nomination and visa applications in prescribed circumstances.
There is also a General Division, which can consider cases relating to Australian Citizenship applications, and where a visa has been refused or cancelled based on character grounds.
Not all migration matters can be considered by the Tribunal, such as where the Minister for Immigration personally decides to refuse or cancel a visa based on character grounds.
Reviews of migration matters are conducted by the Administrative Appeals Tribunal (AAT), which is an independent organisation with the power to conduct a merits review of cases which meet prescribed requirements.
What is a merits review?
This is a process whereby the Tribunal considers your original application, as lodged with Immigration, in addition to any new information which you supply as part of the review, to decide whether the Department made the correct decision to refuse your application. In making its decision, the Tribunal will apply the same legislative provisions as were applied by the Department in arriving at the original decision.
If you are eligible to have your application reviewed by the AAT, you should very carefully consider whether you wish to proceed with the review once you are fully informed about what is involved and weighing up the potential advantages and disadvantages of taking this path. A key benefit of a review is the fact that it can be your last chance to ‘save’ the application, by having ‘a fresh set of eyes’ consider the evidence presented.
You may also be eligible for a bridging visa if you apply for a review, which will allow you to remain in Australia whilst you await a decision by the AAT. Thus if, for example, you are granted a Bridging Visa A (BVA) upon lodgement of your visa application (which has been refused), the BVA will generally continue to remain in effect until 35 days after the AAT had made a decision on your case (unless the AAT remits your application to the Department). Note that there are several scenarios prescribed in the migration provisions which determine the period that the BVA will remain in effect, and you will need to confirm this information as it applies to your personal situation. It is beyond the scope of this article to cover every possible scenario that may eventuate in this regard.
Should you seek professional assistance if you are applying for a review?
Given the often complex issues involved with a visa refusal and the appeals process, we would highly recommend that you carefully consider whether engaging an expert in migration law to help guide you through this process would be beneficial to you.
Tribunal wait times
One important factor in deciding whether to proceed with an appeal is the approximate wait time which you can expect in reaching a conclusion on your application. How long the process will take depends on a range of factors, including the application type and the Tribunal’s processing policies in terms of the allocation of priority cases and to facilitate the efficient management of applications that come before it.
Based on the most recent data released by the Tribunal for the period from 1st June 2018 to 30th November 2018, some visa classes can take in excess of one year to finalise, and often even longer. Visa classes that are currently experiencing particularly long delays include student visas, partner visas and employer sponsorships and nominations, which are all currently taking over 400 days to reach a decision.
What happens if your appeal is unsuccessful?
If the Tribunal decides to ‘affirm’ the decision of the Department, meaning that it does not vary the original refusal decision, you might be able to take your case further by:
- Appealing the decision to Federal Circuit Court of Australia (or the Federal Court, however most migration matters will be heard in the Federal Circuit Court in the first instance). This is a judicial body where you will need to engage a lawyer.
The court cannot decide whether a visa should or should not be granted. That is, the Court’s role is not to decide whether it would have made the same, or a different, decision than the original decision-maker. But rather, it can consider whether a legal mistake has been made by the decision-maker (i.e. whether a ‘jurisdictional error’ has been made by Immigration and/or the AAT), which is different to a merits review conducted by the AAT.
- Apply to the Minister for Immigration requesting that he personally intervene in your case. This would only be relevant for cases where unique or exceptional circumstances exist and requires the Minister to be satisfied that it is in the public interest to grant the visa. To apply, there must first be a decision made by the AAT (i.e. you cannot directly apply to the Minister without first pursuing a review of your case).
Be aware that the Minister is under no obligation to consider or intervene in your case. This would likely therefore be an option you may consider pursuing as a last resort where all other options have been exhausted. Very few requests for ministerial intervention are successful.
What if you decide not to appeal, what other options may be available?
If your visa application has been refused, you may be able to re-apply for the same visa subclass, depending on your personal situation at that time and whether you meet all valid visa lodgement and grant requirements. Sometimes, this is not possible, as would be the case if you have missed a critical deadline for lodgement of a graduate visa application.
A key factor which will determine whether you can lodge a new visa application onshore will depend on the visa which you hold at that time, and whether Section 48 of the Migration Act applies.
Having ha your visa refused, Section 48 will apply if you are onshore and you do not hold a substantive visa (which is a visa other than a bridging, criminal justice or enforcement visa). If this is the case, you may apply only for a selected list of visas whilst you remain in Australia (namely, a partner, humanitarian and other less common visa classes).
You may also be subject to Schedule 3 criteria if applying for a partner visa onshore when you do not hold a substantive visa. This is an additional requirement for visa grant but can be waived in certain limited circumstances.
In some instances, there may be no further options for you to remain in Australia, in which case you will need to depart and consider your next steps from offshore. Having the right information is key to making the decision that is best for you.
In conclusion, we note that the above discussion provides an overview of the things you can do to prevent your visa application from being refused. We have also discussed potential options that you may think about taking as a next step in your visa pathway if your application is unsuccessful. Australia’s migrations laws are complex, and each case is different. We recommend that you seek professional advice before you proceed with applying for any visa class, as being fully informed about the process and requirements that apply will give you the best chance of achieving a successful outcome on your application, and thus lessen the chance that it will be refused. If you are faced with a refusal decision, it is all the more important to be informed about the process involved and how you can make your review application as strong as possible. A migration professional can help you to do this.
For up to date advice on the visa process and requirements, how to avoid a refusal, and what you can do should your application be refused, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.