Visa Refusal
Pursuant to section 65 of the Migration Act 1958 for all valid visa applications made or submitted to the Department of Home Affairs, the decision maker must either grant or refuse the visa application. Therefore, if the decision maker is not satisfied that the visa applicant meets all the relevant criteria for the visa, the visa application will be refused.
What Can You Do If You Have Received a Visa Refusal
If you receive a notification letter from the Department of Home Affairs that you have a visa refusal, your available options can be one or more of the following:
- Lodge a new visa application
- Challenge the refusal decision to the Administrative Appeals Tribunal (AAT) or the Immigration Assessment Authority (if you are a fast-track review applicants who have been refused a protection visa)
- If the decision is tainted by a jurisdictional error, challenge the decision to the appropriate forum such as the Courts.
The eligibility to pursue one or more of the above options will depend on the unique circumstances of each applicant. For instance, a visa applicant in Australia may be prevented to lodge a further visa in Australia, unless exempted.
We encourage you to contact our office immediately after you receive a visa refusal notification letter because there is generally a strict timeframe for you to act. If you delay seeking assistance, your options may become very limited, and your matter can become highly complex.
Receiving a Visa Cancellation
It is also not uncommon that once a visa is granted to a holder, that the visa is cancelled. There can be many reasons for the visa to be cancelled, and similarly, there are wide ranges of legal powers that are available to the Minister and/or their delegate to cancel a visa. In some cases, a visa can also be cancelled automatically or by operation of law.
If you are in Australia when you receive a visa cancellation, you will become an unlawful non-citizen. If this happens, it is very important for you to seek immigration assistance and contact our office, so you can regularise your status to be lawful in Australia and take further action. Like in a visa refusal case, your available options can be one or more of the following:
- Lodge a new visa application.
- Challenge the cancellation decision to the Administrative Appeals Tribunal (AAT)
- If the decision is tainted by a jurisdictional error challenge the decision to the appropriate forum such as the Courts.
Generally, you may be requested to provide information and/or comments before your visa is cancelled, based on the principle of natural justice. This is usually done by sending a Notice of Intention to Consider Cancellation (NOICC). If you receive this letter, contact us immediately because there is a very strict timeline to provide a response.
If you are outside Australia when your visa is cancelled, you may not be given any opportunity to provide any comments. That is, your visa can be cancelled right away. However, you may then request for the visa cancellation decision to be revoked. Likewise, there is a strict timeline to request for a revocation of a visa cancellation decision.
Merits Review
As mentioned above, one of the options to challenge a visa refusal or a visa cancellation decision is to lodge an appeal to the Administrative Appeals Tribunal (AAT). This is referred to as lodging a merits review.
Merits review option is available to review an administrative decision, such as decisions to refuse or cancel a visa. The AAT, as the review body, will ‘stand in the shoes’ of the original decision maker and make a fresh decision. It can also consider new evidence submitted to it after the refusal or cancellation decision, including at a hearing.
The process is quite different to a judicial review process (hyperlink to Judicial review page once developed), where it is concerned only with whether an administrative decision was properly and legally made within the legal limits of the power of the decision maker.