Is review the right pathway?

Posted on June 30, 2017 by Emily

Success does not always come easily

When applying for a visa, the preferred outcome is always success. Dealing with a visa refusal can be difficult, particularly when you are unsure of the pathways that are available or the barriers that may be in place once it has been refused. As such, a visa application refusal can pose many challenging issues. However, you may be able to apply for a review to the AAT, pending a number of issues which may pose as a barrier to this path.

What choices do I have if my Visa application is refused?

Historically speaking, when changes occur to Immigration law, the number of visa applications which are refused increases. In Australia, this is often linked to tightening restrictions on the regulations, policies and legislation surrounding the types of visa applications that go through, while the Department of Immigration and Border Protection (DIBP) increases its scrutiny of applications.

The most recent changes to Immigration law in Australia are just such a change, with the Australian Government becoming much more selective with the types of skills and professionals that it allows to migrate here. In particular the approach taken by the DIBP has become much more forensic, with the focus now becoming much more towards applicants who can provide specialised skills and expertise to Australia.

However, if your visa application is refused, there are still options which might be taken to get that decision overturned. When considering a review you need to take into account the following matters:

  • What are the grounds of refusal?
    • Are there any character or disclosure issues
    • Is there a technical issue with the visa itself, ie. Time of application criteria, or time of decision criteria. This is important as it will need to be determined whether the position may be improved upon review, or if there is no real scope upon review.
  • What type of visa or non-visa application (for example an Australian Citizenship application) has been refused?
    • Is it a business visa, family visa or skilled visa, humanitarian visa?
  • Are there PIC 4020 issues to address?
  • Have you completely reviewed updated case law relevant to the grounds of refusal?

You should also consider whether any other requirements must be met or actioned to ensure your review rights are kept. Relevant information to be considered may include the following:

  • 457 refusal: If your 457 visa has been refused, you must have either an approved 457 nomination in place or one processing as per Minister for Immigration v Lee & Ors(2014) FCCA 2881 (10 December 2014) and Kandel v Minister v Immigration & Anor, (2015) FCCA 2013 (7 August 2015).
  • Student visa – Whether it is a refusal or cancellation, it is advised that you continue studying, therefore a current COE is vital.
  • Family eg: If a partner visa is refused based on the applicant not meeting schedule 3 criteria, there must be compelling and compassionate reasons shown to have the visa granted onshore at time of decision, as per Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (11 March 2016).

It is vital that you are also aware of the repercussions of having a visa application refused. The Migration Law encompasses a myriad of requirements and clarifies what is expected of migrating persons in the country temporarily or permanently.

An appeal to the AAT should not be used as a time buying exercise. If the AAT affirms your refused visa decision, you should seek advice as to whether you are likely to meet ministerial guidelines on what is appropriate to take before the minister and what isn’t.

 

Administrative Appeals Tribunal (AAT)

The Administrative Appeals Tribunal provides independent reviews of Australian Government decisions. By appealing to the AAT, you are guaranteed to receive a fair, accountable, accessible and just review conducted by a third party to the government department decision maker. This being the case, it is important to understand that appealing to the AAT should not be used as a time buying exercise. You also need to be aware of the time limit to lodge a review, as your case cannot be heard if the Member has no jurisdiction to review your case.

The area of the AAT that deals with visa and migration reviews of decisions made the DIABP is the Migration and Refugee Division (MRD). The MRD has the power under the Migration Act 1958 to:[1]

  • Affirm (not change) the primary decision
  • Vary the primary decision
  • Set aside the primary decision and substitute a new decision
  • Remit (return) a matter to the DIBP for reconsideration with specific directions

Additionally, for the duration of your appeal, you may be entitled to a Bridging Visa which allows you to remain in Australia until your appeal is reviewed. There are certain conditions attached to Bridging Visas which you should also seek counsel for to ensure you are not in breach of any visa you may be eligible to receive whilst waiting for your review to come up for a hearing.

As such, what kind of decisions the AAT can review, how the application for review must be made, the time limits for the application and the fees application for the review, are all dictated by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth).

 

Federal Circuit Court (FCC)

The Federal Circuit Court is an independent Federal Court under the Australian Constitution. Under the Migration Act 1958, the Federal Circuit Court of Australia can review some of the decisions made by the AAT, the Immigration Assessment Authority (IAA), and the Minister for Immigration and Border Protection.

The Federal Circuit Court may only review whether there is been a ‘jurisdictional error’ or an ‘error of law’ in a decision. This means to decide whether the decision is valid according to law. If such a finding is made, the FCC may refer the decision back to the original decision maker, as well as preventing the Minister from acting on the decision in most cases.

The Court cannot:

  • reconsider the facts and reasons for your visa application
  • take new factual information into account (unless it is relevant to a question of whether the decision maker made a jurisdictional error), or
  • grant you a visa.

When applying for a review to the Federal Court, it is preferred practice to get a counsel’s opinion on prospects of success .This is so because, in the Federal Court, the Minister is legally represented. At the end of the proceedings, the unsuccessful party can bear the costs of the successful party. This means that any fees that the successful party incurs (through legal representation etc.) would be owed to the successful party. Therefore, if you unsuccessfully appeal to the Federal Court, you would bear the Minister’s costs, leading to a debt to the Australian Government which must be paid before any Australian visas (onshore or offshore) can be approved.

Therefore, it is not recommended practice that a person lodge court proceedings to simply ‘buy more time’ in the country. If considering the option of appeal to the Federal Court, the number one place to go for advice is to a Registered Immigration Lawyer.

 

What is the best way to succeed in an appeal?

If your visa application is refused, it is essential to remember that if there is an option to appeal, it is important to seek legal advice from an Immigration Lawyer who is registered as a migration agent to ensure you fully understand the process and are able to determine whether you likely have prospects of success.  In particular, in ensuring that your application for review is conducted in a timely and professional manner, contacting a specialist Immigration Lawyer who is also a registered migration agent, can help you traverse the arduous and confusing processes of an appeal to the Administrative Appeals Tribunal (AAT) or Federal Circuit Court (FCC).

Immigration Solutions Lawyers is a leading immigration law firm which years of experience and a number of highly skilled lawyers who are also registered migration agents, ready to help you succeed in your appeal.

For further information visit our website or contact us on 1300 428 472.

 

[1] Administrative Appeals Tribunal. What is a merits review? <http://www.aat.gov.au/migration-and-refugee-division/applying-for-a-review/what-is-a-merits-review>