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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Australian migration law update: Jurisdictional error (Federal Court Judgment) - Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61 (14 April 2016)

In Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61 (14 April 2016) the Full Court allowed the appellant’s appeal and set aside the orders of the primary judge.

The appellant was born in England in 1943 and migrated to Australia with his parents when he was seven years old.  Under the Migration Act 1958 (Cth) (the Act), the appellant was taken to have been granted an “absorbed person” visa which allowed him to stay in Australia indefinitely.  The visa was subject to the provisions of the Act including the discretion of the Minister to cancel a visa on character grounds under section 501 of the Act.

In 2012 the appellant pleaded guilty to certain sexual offences and was sentenced to 12 months imprisonment.  In 2015, the Minister cancelled the appellant’s absorbed person visa pursuant to section 501(2) of the Act.  

The primary judge dismissed the appellant’s application for judicial review.

The Full Court held that the Minister’s decision involved jurisdictional error because the Minister had failed to take into account the relevant consideration that a possible consequence of that decision was that the appellant would face prolonged and possibly indefinite detention because of his ill-health.

 

There was consideration and discussion of the Full Court’s judgment in NBMZ v Minister for Immigration & Border Protection (2014) 220 FCR 1 which concerned section 501(1) of the Act.  Justices Kenny and Perry said the NBMZ is authority for the proposition that, in exercising power under section 501(1) or (2), the Minister must take into account the legal consequences of a decision under the Act.  Kenny and Perry JJ further explained: ‘There is also another difference between this case and NBMZ, but again it does not alter the Minister’s obligation to take into account this indefinite detention is in prospect as a legal consequence of his proposed decision.  This difference lies in the fact that in NBMZ it was virtually certain on the facts of that case that, if the Minister refused to grant a visa under section 501(1), it would not be reasonably practicable to remove the visa applicant from Australia in the immediate future and that, by operation of the Act, he would be kept in detention for an indefinite time. 

 

In the present case, the material before the Minister did not show that it was virtually certain that it would not be reasonably practicable to remove the appellant if his visa were cancelled.  Rather, this material indicated that there was a real possibility that the appellant’s removal would not be reasonably practicable on account of his ill-health and that, if this were the case, the appellant would face indefinite detention (by operation of sections 189, 196 and 198).  Again, this difference did not affect the Minister’s obligation to take into account the legal consequences of his proposed decision (although it might affect his decision-making in other ways).  The Minister was obliged in this case as in NBMZ to take into account that the material before him disclosed that the appellant’s indefinite detention was in prospect if he cancelled the appellant’s visa, as a consequence of sections 189, 196 and 198 of the Act.    

 

In addition to allowing the appeal on the above ground, North J also held that the Minister’s decision was vitiated by a number of other jurisdictional errors.

SOURCE: Dan Star - Law Institute Journal, June 2016

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Consequences of visa refusal or cancellation

When a person’s application for a visa is refused or his or her visa is cancelled under section 501 of the Migration Act, unless he or she already holds a protection visa, the person becomes an unlawful non-citizen.


Under the Migration Act, as an unlawful non-citizen the person must be placed in immigration detention and detained until he or she is either granted a visa, deported, or removed from Australia.


In addition to being detained and possibly removed from Australia, a person who has a visa refused or cancelled under section 501:

• will be prohibited from applying for another visa (other than a protection visa or a ‘removal pending’ bridging visa) while in Australia
• if removed from Australia following cancellation of their visa, will not be eligible to be granted most types of visas (and therefore to return to Australia) if their visa was cancelled because of a substantial criminal record, past or present criminal conduct, or a combination of past or present criminal and general conduct

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Can my employer cancel my visa?

No. Employers cannot cancel visas. Only the Department of Immigration and Border

Protection (DIBP) can grant, refuse or cancel visas.

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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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Mandatory visa cancellation powers and reviewable decisions

Powers of mandatory visa cancellation, without notice, have been introduced by the government for persons serving full time imprisonment and who have a substantial criminal record:

• This mandatory cancellation is not reviewable by the Administrative Appeals Tribunal (AAT), but can be revoked by the Minister for Immigration personally or the Minister's delegate
• The decision not to revoke the cancellation by the Minister's delegate is reviewable by the AAT
• Where cancellation is revoked by the delegate of the Minister or the AAT, the Minister personally can set aside the revocation and cancel the visa on character or national interest grounds​
• There are also new personal powers for the Minister to cancel visas under section 106 & section 116 of the Migration Act 1958 ('the Act') and this decision is not reviewable by the AAT
• A decision to cancel a visa under the new section 133A and section 133C of the Act are not reviewable by the Migration Review Tribunal (MRT)
• ​A decision made personally by the Minister to cancel a protection visa is not reviewable by the RRT
• A decision made by a delegate of the Minster to cancel bridging visa for a person who is in detention because of that cancellation, is reviewable by the MRT

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Visa cancellation

A visa can be cancelled on grounds such as visa condition breaches or providing false information or documents to the Department of Immigration & Border Protection (DIBP). If your visa is cancelled on these grounds you can apply for a bridging visa, but you should speak to an immigration lawyer immediately and obtain advice.

A visa can also be cancelled on "character grounds" . This may be because you have a criminal record or otherwise deemed to be of 'bad character'. If your visa is cancelled on these grounds, you are not entitled to a bridging visa and you will be detained. Sometimes people who are in prison have their visas cancelled so that on the release date they are immediately placed in Immigration detention.

Prior to making a decision to cancel your visa on character grounds the Department of Immigration & Border Protection (DIBP) will write to you setting out the grounds of the cancellation and inviting you to respond.

Many types of visas can be cancelled including;

• Temporary working 457 visa
• Student visa
• Permanent visas including ENS 186 and RSMS 187 visas
• Spouse visa

Please contact Nevett Ford Lawyers (Melbourne) to speak to one of our 5 dedicated and experienced immigration lawyers if you require advice and assistance by contacting us by telephone: 03 9614 7111 or by email at: rcurtisgriffiths@nevettford.com.au.

Legal advice and assistance is highly recommended.

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