Visa Refusals, Visa Cancellations & Visa Appeals

Visa Refusals

If you have had your visa refused, there may be options available to you.  Depending on your circumstances, Nevett Ford Lawyers may be able to assist in finding you a solution to your previous visa refusal.

 

Visa Cancellations

If you have been issued with a Notice of Intention to Cancel (NOIC) by the Department of Immigration there may be options available to you.  Nevett Ford lawyers will assess your individual circumstances based on its merits and advise you of the options that may be available to you.

 

Visa Appeals

In a majority of circumstances, when the Department refuses or cancels a visa, applicants are offered the opportunity t lodge an appeal of the decision issued by the Department.

This appeal is conducted by the Administrative Appeals Tribunal (AAT) and Nevett Ford Lawyers has extensive experience in assisting clients in the appeal process.  We can prepare written submissions on your behalf in support of your case and we can appear as your representative with you at the AAT.

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Immigration Law & Immigration Lawyers in Australia

Migration is a complex process, and some cases present more complications than others. To obtain the most up-to-date information and ensure your application will be carried out correctly, you need an immigration lawyer / agent you can trust.
 
Our immigration lawyers and agents are registered with the Office of the Migration Agents Registration Authority (MARA) and are fluent in current laws and procedures, to ensure the information we provide you is up-to-date. Also, as registered agents, our lawyers and agents have proven they are of good character and are bound to operate by MARA’s code of conduct.
 
Our lawyers and agents can advise you on immigration matters, providing you with the most current and relevant information for your situation. This helps you choose the option that’s best for you.
 
We’ll also help you prepare and lodge an application. Though this sounds simple, it can be complicated, requiring a variety of documents and legal requirements that must be met for your application to be successful.
 
Finally, we’ll also liaise with the Department of Immigration and Border Protection on your behalf, which can take a lot of the stress out of the process, especially if you’re applying from another country.


We can also assist you if your visa application has been refused.  There are often avenues for you to appeal the decision - such as the Administrative Appeals Tribunal (AAT), Federal Courts or the Minister for Immigration.


Contact us today if you need advice and assistance with Australian visas.

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Lee Case Overturned Clarifying Appeal Rights for 457 Refusals

As a result of the 2014 Lee case (Minister for Immigration and Border Protection v Lee [2014] FCCA 2881), the Administrative Appeals Tribunal (AAT) has had no jurisdiction to review 457 visa refusals unless there was an approved nomination at the date the appeal was lodged.

This was a significant barrier to appealing refused 457s, particularly where the reason for refusal of the 457 was an issue with the nomination.

 

The Lee case has been overturned by the Full Federal court in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182. As a result, it is now possible to lodge an appeal for a 457 refusal where at the date of the appeal:

• There is an approved nomination; or
• A nomination application is still pending; or
• There is a refused nomination, but the nomination has also been appealed to the Administrative Appeals Tribunal (AAT) (formerly the 'Migration Review Tribunal (MRT)'.

However, it appears that it would not be possible to appeal a 457 visa refusal if:

• A nomination has been refused, but not appealed to the MRT; or
• A nomination has previously been approved, but has now expired.

 

 

 

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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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Migration Review Tribunal (MRT)

The Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT) conduct merit reviews of visa and visa-related decisions made by the Australian Department of Immigration & Border Protection (DIBP).

"Merits review" is an administrative reconsideration of a case. A merits review body makes decisions within the same legislative framework as the primary decision maker, and may exercise all the powers and discretions conferred on the primary decision maker.

• MRT: Reviews a wide range of decisions in relation to visas other than protection visas
• RRT: Reviews decisions in relation to protection visas.

The tribunals are usually constituted by a single member. The tribunals have the power to affirm the primary decision made by the Department of Immigration & Border Protection (DIBP), vary the primary decision, set aside the primary decision and substitute a new decision, or remit (return) a matter to the department for reconsideration with specific directions.

In reviewing a decision to refuse or cancel a visa, the tribunals are required to conduct a merits review that is ‘independent, fair, just, economical, informal and quick’. We aim to make the correct decision in individual cases, and to influence decision-making through quality and consistency of our decisions.

Please contact Nevett Ford Lawyers (Melbourne) to speak to one of our 5 dedicated and experienced immigration lawyers if you require advice and assistance with your appeal case at the Migration Review Tribunal - telephone: 03 9614 7111 or by email at: rcurtisgriffiths@nevettford.com.au. 

Legal advice and assistance is highly recommended.

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