What to do when your visa is refused?

If you have a visa refusal, and wondering what your options are, then this blog is for you. This blog will discuss:

• Visa refusal
• Appealing the visa refusal
• Reapplying
• Example scenario

A visa refusal means that the department has assessed your visa application and decided that you do not meet the legal rerquirements for that visa.

You can find the reasons for your visa refusal in the refusal notice issued by the Department of Home Affairs. The case officer who assessed your application will have stated the reasons why your visa was refused referencing the specifc legal requirements.

First and foremost you have to go through your visa refusal to check whether you have the right to appeal the decision by the department. You can find it under “Review rights” under your visa refusal notice.

There is a deadline to appeal and its usually 28 days from the date you were issued your visa refusal notice.

Will there be a positive outcome if you were to appeal?

The Administrative Review Tribunal will decide on your the matter after your hearing and may:

• Affirm the orginal decision of the Department of Home Affairs
• Alter the decision by the Department of Home Affairs
• Set aside the decision by the Department of Home Affairs and substiture a new decision
• Send the decision back to the Department of Home affairs for reconsideration.

If you are not satisfied with the decision of the Tribunal you can appeal to a court, usually to the Federal Circuit Court.

Benefits of appealing:

• You get a second chance to present your case
• Provide new evidence to make your stance strong
• Make any clarifications
• And if you dont hold a substantive visa, then you will be eligible for a bridging visa while the review is ongoing, which makes your stay in Australia lawful. Because, once the deadline for the 28 days are up, you cannot stay in Australia legally.

Downsides of appealing

The process takes months

The Tribunal has a fee of AUD 3,580. This fee excludes professional fees charged by a registered migration agent or a lawyer representing your case. So, its quite expensive.

When an appeal is worhtwhile?

You should consider appealing if:

• You believe that there is a misunderstanding with the evidence you provided.
• You forgot to include key documents or explanations, like genuine relationship statement
• You can show new or updated evidence like, New English Langugae tests.
• You think the case officer didnt give you a fair chance to respond
• You think the case officer applied the wrong tests as stated in the refusal notice

When appealing might not be beneficial

If the refusal was based on deliberately false or misleading information, the Tribunal is very unlikely to overturn the decision. So if the chances of the decision being overturned are slim, then spending money and time on an appeal in the tribunal would not be a worthwhile use of your time or money.

Example:

• Submitting fake employment or financial documents
• Concealing previous visa refusals or criminal matters

You can apply for a new application and any new application will be assessed on its individual merits. If you lodge a new application, you may be granted a bridging visa which will remain in effect until a decision is made on your new visa application. Most of the time, if you have a visa refusal you will attract a section 48 bar.

Section 48 bar: This bar means that if you have a visa refused or cancelled while you are in Australia , you won’t be allowed to apply for most of the visas while you are onshore in Australia.

Section 48 bar doesn’t apply to a bridging visa refusal or a refusal under character grounds

Section 48 applies if you:

• Are in Australia
• Not hold a substantive visa
• have a substantive visa application refusal or cancellation after entering Australia

There are some visas that you can apply even if you are Ssection 48 barred, they are

• Partner (Temporary) 820 visa
• Partner (Residence) 801 visa
• Protection visas
• Medical Treatment (Visitor) visa
• Territorial Asylum (Residence) visa
• Border (Temporary) visa
• Special Category (Temporary) visa
• Bridging visa A
• Bridging Visa B
• Bridging Visa C
• Bridging Visa D
• Bridging visa E
• Bridging Visa F
• Bridging Visa R
• Resolution of Status Visa
• Child (Residence) 802 visa and 837 visa
• Retirement (Temporary) 410 visa
• Investor Retirement 405 visa

The bar for these visas are not completed exempted, there are additional criterias that applicants will have to fulfill if they are to apply for the above visas.

For example if you are to apply for the partner visa, while being subjected to a Section 48 bar, then the partner visa application must be made within 28 days after the refusal or cancellation notice was issued.

Sara’s Student visa was refused while she was in Australia. Because she’s now only on a Bridging Visa, section 48 prevents her from applying for another student visa. However, she’s in a genuine relationship with John an Australian citizen, so she may be able to apply for a Partner visa, which is exempt from the section 48 bar. However, she has to do it within 28 days from the date of refusal.

If not Sara can appeal the decision from the department to the Administrative Review Tribunal (ART) if she has the rights to review.