You were so excited. You were going to migrate to Australia!
You were convinced you met the criteria for the visa that you applied for. The whole world looked bright and wonderful, especially your future in Australia.
It’s been ages since you applied. When will my visa grant come through? You wonder to yourself. Surely it won’t be long now?
Then you see it.
The heading says “Refusal of a (insert appropriate name) Visa”.
What?! My visa has been refused?
No way!!! This can’t be happening! After all the money I paid? After all my hard work?
It’s an anonymous email from a nameless decision maker who has just ruined your life as you know it – all you have is a “Position number”. It dawns on you that you can’t call or email to complain. Suddenly you’re in a visa nightmare.
“B#st#rds!” you think. You know how desperate I am to stay in Australia. I am doing great things here.
Australia needs me!
That’s it, you think. My future in Australia is over. My life as I know it is ruined.
There are a few things you can do, and hopefully still pave your way to visa glory…
The first thing to consider is – Is the decision one that could be revoked (reversed) internally by the DHA?
The Department of Home Affairs (DHA) may, on rare occasions (as rarely as hens teeth if the truth be known) revoke a refusal decision if requested to do so – but there must be a significant error in the decision for them to do so. The DHA will only revoke a visa refusal decision if you can show:
▪ that there is a clear legal error in the reasons for the decision, or,
▪ if there has been a lack of “procedural fairness”.
Okay, so what does this mean?
What is a Legal Error?
A legal error is made when a case officer makes a decision after taking into consideration the wrong section of the Migration Act or Migration Regulations when making a decision.
A legal error may occur when a case officer takes into account an irrelevant consideration, or fails to take into account a relevant consideration.
Recently for example, we received a refusal decision from the DHA. The application was refused because the case officer decided that licensing was required for the particular occupation – a Drainer. As we had clearly established in many other cases that licensing was not required for Drainers, the DHA revoked the decision and granted the visa on the basis the case officer had made a legal error in her decision (much to the relief of our very happy client).
Another recent example for us was where a case officer had miscalculated the cost of medical care for one of our clients who is HIV+. We had applied for a two year student visa for our client, but the DHA had costed out the visa for a total of four years, and refused the visa on the basis that our client did not meet the health requirements of the visa, because he exceeded the costs threshold which is currently $49,000 (HIV is currently costed out by the Dept at about $13,000 a year – see our recent blog about health requirements and health waivers here)
What constitutes a lack of Procedural Fairness?
A failure to provide procedural fairness occurs when the proper procedural steps have not been taken when a case officer has made a decision to refuse a visa application.
A failure to provide procedural fairness can occur in many different ways. A good example would be where a case officer has given 28 days to respond to a request for further information – but refuses the visa application before the end of that 28 day period. This would amount to a procedurally unfair decision, which also contains a legal error (because a case officer is bound in most cases to give 28 days to respond to requests for further information made in writing).
In reality, it is unlikely that the DHA would revoke a decision because of an error. This is because the department would argue that a person who has had a visa application refused, has the right to seek a review of the decision at the Administrative Appeals Tribunal (AAT).
Appealing a decision at the Administrative Appeals Tribunal
Most of these applications that have been refused may be appealed and the Migration Review Division of the Administrative Appeals Tribunal. Some these applications that are refused whilst the applicant is offshore (outside of Australia) cannot be appealed at the AAT (MRD).
Some Visa applications that are refused on character grounds must be appealed at the General Division of the Administrative Appeals Tribunal, where different timelines and procedures apply.
No matter which division of the AAT is applicable to the Visa refusal, it is critical to keep in mind that there are strict timelines with respect to appealing a decision at the AAT.
(In a later article, I will cover review of character refusal and cancellations, and appealing to the General Division of the AAT, but not here. If you need help with refusals or cancellations based on character, it is strongly advised you book a consultation immediately so we can thoroughly review your case and give you the right advice!)
Applications for review of a decision at the Migration Review Division of the AAT.
Where there has been a decision to refuse a visa that has been applied for in Australia (an onshore application), and can be reviewed at the AAT, a review application must be lodged at the AAT within 21 days.
Where a visa applicant is outside Australia, but is sponsored by an Australian citizen, and Australian permanent resident, or an Australian Business, and a review application is permitted, the review application must be lodged within 70 days after the date of the decision.
When does the time start running?
• If you receive the decision by email, you are taken to have received the decision at the end of the day.
• If you receive the decision by post, you are taken to have received this decision seven days after the date on the refusal letter.
How do I lodge my application?
You can lodge an application for review of an adverse visa decision using a paper application form, or via the AAT’s online application system.
We lodge all of our AAT review applications online. The online system is easily accessible, easy to manage and we can view our application documents at any time, as well as upload supporting evidence whenever it is convenient. Even after a document has been uploaded we can view and download our documents easily from the online portal. Further, any documents that are uploaded to the system are automatically acknowledged by way of an auto response email containing a list of all of the documents uploaded – which is fantastic for record keeping.
Another advantage of the online system for lodging is that acknowledgement of an application for review is virtually instantaneous. Even better, the application can be lodged at any time of the day or night. Payment can also be made online at the time of application via credit card.
On the other hand, paper applications, even if emailed, may take days to be acknowledged by the Tribunal, and even though credit card payments are accepted, you may not find out that a payment has “bounced” when the paper application was being processed. This can be especially critical if your timeline for lodging is particularly fine.
There have been a number of cases where the credit card payment has not worked for whatever reason, and applicants have been unable to lodge an application for review of the decision because they have missed the deadline for lodgement.
Where the deadline for lodging is not met, the AAT has no jurisdiction to hear the matter, and an appeal to the Federal Circuit Court would almost certainly fail. Having said this, the court decided in a recent case, that the Department of Home Affairs’ letter was so incomprehensible with respect to the deadline for lodging the review application, it allowed a late lodgement because of it. It should be noted that the applicant in this case was unrepresented.
What evidence or documents should accompany an application?
Initially, the only document that should accompany a review application, are the application form, payment authorisation and the notice of refusal of the Visa application.
Help, I cannot afford the application fee!
The AAT rules allow an application to be lodged without a fee where the person lodging the application makes an application to have the fee reduced on the basis of financial hardship.
In very rare circumstances, the Tribunal may reduce this fee by 50%, however if the fee is not reduced, the lodgement will only be a valid lodgement if the full fee is paid.
Do I get any money back if I win my case?
Provided you have paid the full fee at the time of application for the review, you will receive 50% of your fee back if you “win” your case.
If I win my case, will the Tribunal grant my Visa?
The Tribunal cannot grant you a Visa, but if it finds that the reason for refusal does not apply, it will remit the application back to the Department of Home Affairs for further processing, on the basis that the reason for refusal has been “overturned”.
What happens after an application for review is lodged?
The first thing is that the Tribunal acknowledges the application by email, and provides a receipt for payment.
After that, it unfortunately becomes a waiting game. Most applications for review currently take between 12 to 18 months to reach a hearing. Some Visa refusals, such as visitor Visa refusals, and student Visa refusals may reach a hearing somewhat quicker.
It is possible to ask for matter to be expedited (or sped up) however there must be exceptional circumstances before the Tribunal will agree to expedite a matter.
Often, the Tribunal will seek further information prior to hearing, all further information can be provided to the Tribunal without it being requested. Sometimes if an applicant is lucky, the Tribunal will decide the matter “on the papers”. This means that the Tribunal has satisfied itself that the evidence provided to it is sufficient for it to reach a different decision. Unless instructed to do so by the applicant, the Tribunal will not make an adverse decision – in other words confirm the Department of Home Affairs decision without calling the applicant in for a hearing.
During the period prior to the hearing or resolution of the case, you will continue on the same Bridging Visa that was issued to you at the time you lodged your visa application – and it will have the same conditions with respect to work or study. If you have a Bridging Visa A, you will still be able to travel if you first apply for a Bridging Visa B. Holders of Bridging Visa C’s and below cannot travel – and if you do leave Australia, you will have to apply for another visa to return to Australia.
If your application is affirmed at the Tribunal, you will have either 28 or 35 days to leave Australia, depending upon when you lodged your visa application. If your matter is remitted, you will continue on your existing Bridging Visa until your visa application is decided by the Department of Home Affairs.
What happens at a Tribunal hearing?
Generally an applicant is notified there will be a hearing approximately 3 to 4 weeks before the hearing date. The Tribunal sends out an invitation to the hearing, and the response is required within seven days. The response to the invitation hearing allows the applicant to list any witnesses that they would like to give evidence on their behalf, and puts the Tribunal on notice if an interpreter is required.
The Tribunal prefers evidence that the applicant intends to rely on to be provided to it within seven days of the hearing date, however the Tribunal must accept all evidence provided to it up until the time it makes the decision.
At the hearing, the applicant and any witnesses must take an oath or affirmation that the evidence that they are providing is true. Once that happens the Tribunal Member (also called the Presiding Member), will explain the procedure he/she intends to follow, and the evidence that he intends to seek from the applicant and any witnesses that are present. Usually, witnesses will be sent out all the hearing room while the applicant gives their evidence. Once the main applicants evidence is provided in each subsequent witness will be brought in to the hearing room to give their evidence.
Witnesses may attend the hearing in person, or by video link or by telephone.
Once the Member has satisfied themselves that all the evidence that is relevant has been taken, he/she will bring the hearing to an end, and either give an oral decision immediately (which is quite unusual) or provide a written decision in the days or weeks following the hearing’s conclusion.
Most of the time, the Tribunal’s decision will be delivered by email. It is therefore imperative to update your email address with Tribunal immediately there are any changes to it.
What happens if the Tribunal “overturns” the Visa refusal decision?
As discussed above, the Tribunal cannot grant your visa. If the Tribunal finds that the reason your visa was refused no longer exists, it remits the application back to the Department of Home Affairs for further processing. Please note that just because the Tribunal remits your application, it does not mean that the Department of Home Affairs will automatically grant your visa. The DHA must assess the application to ensure that it meets every other criteria for the visa grant, and it is possible that the DHA may refuse the application because of a different reason.
What happens if the Tribunal affirms the refusal decision of the Department of Home Affairs?
If the visa refusal decision is affirmed, it may be possible to appeal the decision by way of judicial review at the Federal Circuit Court. However to do this, the Tribunal decision must be seen to contain a legal error. I will write a further blog article on this topic in due course.
Have you had an Australian Visa application refused? Not sure which way to go and whether it is worth seeking a review of the decision? Talk to us today or book yourself in for a consultation. We have extensive experience in AAT Reviews and Federal Circuit Court matters (to the extent that other law and migration firms refer their clients to us).
Contact us on +61 9573 5200 or book a consultation here.