Visa refusal / cancellation

Where the decision to refuse or cancel a visa is made by the Minister personally, the person has no right of appeal to the Administrative Appeals Tribunal (AAT).


If a delegate of the Minister either refuses or cancels a person's visa and the person is in Australia they will have a right to have the decision reviewed by the AAT. If they are not in Australia, they may also have a right to have the decision reviewed, for example, if they have either a sponsor or nominator in Australia.


However, if a person's visa is mandatorily cancelled because they are serving a custodial sentence and have ever been sentenced to 12 months or more, or have been convicted of, had a charge proven or found guilty of a sexually based crime involving a child, they have no right of appeal at the AAT.


In these circumstances, the Department of Immigration & Border Protection (DIBP) will provide the person with 28 days to request revocation of the decision to mandatorily cancel their visa. A decision made by a delegate of the Minister to not revoke a mandatory cancellation decision is reviewable by the AAT.


Strict time limits apply on appeals to the AAT. Applicants in Australia seeking reviews of decisions must apply to the AAT within nine (9) days of being notified of the decision.


For applicants outside Australia, the application for review must be lodged by a sponsor or nominator within 28 days of the day of being notified of the decision.


The AAT will be deemed to have confirmed the decision if it does not make its own decision within eighty four 84 days of the date on which the applicant was notified of the original decision.


Whether or not there is an appeal avenue available to the AAT, an applicant may seek judicial review of the decision, if they believe the decision was not lawfully made.

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Australian visas - Appeals and Reviews

If your visa application is unsuccessful, it is usually possible to apply to have the decision reviewed. There are two major avenues through which to apply for review:

• The Tribunals
• The Minister for Immigration.

Our experience and services As legal professionals, we are called on to represent applicants or companies in cases where:

• Applications have been unsuccessful
• Immigration department officials have taken action or are about to take action which is improper or beyond their power
• Visas have been cancelled

How Nevett Ford Lawyers are able to assist:

• Reviewing case to advise on prospects of appeal
• Advise on other immigration options – separate or parallel to an appeal or review
• Preparing all aspects of the appeal, including written submissions to the Tribunal/ Court
• Preparing the case and client for the Tribunal or Court hearing
• Preparing and collecting evidence to support the case
• Representing and advocating for clients at the hearing

We have assisted applicants with appeals and merits reviews in the following contexts:

• Health
• Work experience
• Visa cancellations and refusals    
• Character
• Fraud
• Skilled migrants
• Language ability
• Genuineness of marital, spousal, de facto, same-sex relationship
• Genuineness of visitor/ student status
• Company sponsorships and nominations
• Eligibility of sponsors
• Persecution
• Credibility
• Whether notices from the Immigration Department were properly sent
• Breach of employer sponsorship undertakings or visa conditions and obligations

The Administrative Appeals Tribunal (AAT) 
Immigration Department decisions can be reviewed by application to the Administrative Appeals Tribunal. Generally speaking the Tribunal is are able to reconsider all the facts, circumstances and the law in a particular case and make a decision on the merits.  The Minister for Immigration
The Minister for Immigration has a personal power to intervene and grant a visa, despite refusal by the Immigration Department and the Tribunal. However, this power is not used often by the Minister and she/he is not obliged to use this power. The power may be used if the Minister considers it is in the public interest to do so, even if a person does not meet the legal requirements for a visa.

Courts It is also possible that some decisions of the Immigration Department or the Tribunal can be appealed to the Federal Courts. This type of review is different because it is generally confined to whether an "error of law" occurred in the making of the decision, rather than whether the decision was correct based on the facts.

The review and appeals processes are complex, and any right to review or appeal must be dealt with comprehensively and quickly. Why an application may be refused or a visa revoked
Applications may have been refused for a variety of reasons. Some examples include:

• Immigration officers may have misinterpreted and not properly applied the law to the facts or may have overlooked the facts
• The application was not properly prepared or presented
• The applicant was deemed not to meet visa criteria, including character and health
• The company/ employer sponsor was deemed not to meet sponsorship or nomination criteria
• The applicant was deemed to have provided false, misleading or insufficient information or documentation

Visas may be cancelled in the following contexts:

• Breach of visa conditions – eg work restrictions or study and attendance obligations
• Breaches of good character requirements
• Termination of employment, in the case of employer sponsored visas
• Termination of relationship, in the case of partner visas
• Discovery that false, incorrect or misleading information was provided in support of an application
• Allegations that the marriage, de facto relationship or same sex relationship was not genuine or did not really exist
• Visas were improperly granted – eg the Immigration Department made an incorrect decision in granting the visa

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Administrative Appeals Tribunal (AAT) Reforms

On 1 July 2015, the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) were merged with the Administrative Appeals Tribunal (AAT).

Like the MRT, the AAT conducts independent merits review of administrative decision under the laws of the Commonwealth and has the same powers to affirm, vary, set aside or remit decisions.

The AAT has recently issued practice directions which places obligations on representatives and applicants which did not previously exist with respect to MRT/RRT matters and which everyone needs to be aware of if wishing to conduct applications in this jurisdiction. Included in these directions, it is necessary to note following:

1. At the time of lodging the review application applicants are expected to provide all relevant evidence and detailed submission supporting clients,
2. Any additional clients/submissions must be lodged no later than seven days prior to the hearing and must identify clearly any changes to the previous claims and any new or additional claims,
3. There are clear requirements as to how submissions are to be prepared;  claims must be clearly and concisely identified and the issues in a review must be addressed with details of the relevant facts that support the claims made in the submission,
4. Prehearing submissions must be submitted at less seven days prior to the hearing setting out all of the claims and must be accompanied by a declaration from the applicant confirming that the submission has been read and that it accurately and completely presents the claims,
5. Witness statements also need to be prepared and lodged with theTribunal; if for any reason a witness is unable to sign the statement, it is necessary to provide a synopsis of what the witness will say on the hearing date.

The requirements of the AAT means that for most agents the way in which they conduct review applications will need to change significantly. As distinct from the old practice of lodging a review application and then preparing submissions sometime between the lodging date and the date of hearing, and in some cases, not at all, it is now necessary to immediately identify issues and prepare supporting submissions. This will require careful analysis and attention to detail from the outset.

 

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Amalgamation of key Commonwealth merits review tribunals (migration)

Legislation passed Parliament on 13 May 2015 enabling the amalgamation on 1 July 2015 of key Commonwealth merits review tribunals:  Administrative Appeals Tribunal (‘AAT’); Migration Review Tribunal (‘MRT’);  Refugee Review Tribunal (‘RRT’); and Social Security Appeals Tribunal (‘SSAT’). 

 

The amalgamated tribunal, known as the AAT, will undertake the same functions as the MRT and RRT, with administrative and corporate provisions harmonised where possible.  Provisions specific to management of the migration and refugee caseload, including Codes of Procedure, will remain in the Migration Act 1958.

 

Transitional legislation will enable any unfinalised application before the MRT and the RRT on 30 June 2015 to be deemed an application before the AAT on 1 July 2015.

 

From 1 July 2015, information about the merits review process (including contact details, forms and fees) can be found on the AAT website at www.aat.gov.au

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HIGH COURT decision - refusal of protection visa where "serious reasons for considering" applicant had committed serious non-political crimes

In FTZK v Minister for Immigration & Border Protection [2014] HCA 26 (27 June 2014) Article
1F(b) of the Refugees Convention excluded from the grant of refugee status a person of whom there were "serious reasons for considering" had committed serious non-political crimes. In reviewing a decision to refuse a visa the Administrative Appeals Tribunal (AAT) referred to various factors that combined to satisfy it that there were serious reasons for considering the applicant had committed a crime in China.

An appeal to the Full Federal Court was dismissed but the appeal to the High Court allowed: French CJ with Gageler J; Hayne J; Crennan with Bell JJ. The members generally concluded that most of the factors referred to were actions in Australia and had been referred to by the AAT as showing "consciousness of guilt" but were not logically probative of what had happened in China.

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