Visa Cancellation & Refusals
At Wise Visa, we know that receiving bad news that your visa application
has been refused, or your visa has been cancelled, can be a devastating
experience for many visa applicants. However, it is also very important to
know that such a decision may be appealed or reviewed. It may not necessarily
be the end of the road to you. There may be alternative options available for
you to pursue.
Therefore, if your visa is cancelled or refused, time is of the essence in
deciding your next step. Acting quickly and decisively on whether you can apply
for a review or appeal an adverse decision is significant.
The Department of Home Affairs will advise you of your review or appeal rights
when notifying you of a refusal or cancellation decision. Time limits are strict
and usually short, so it is important that you seek the best migration advice from
our experienced Registered Migration Agents or Lawyers as soon as practicable.
Partner Visa
Partner Visas can allow married or de facto including same or opposite sex couples
to enter or stay in Australia with their partner. If you are in a genuine and committed
relationship with a non-Australian and you are an Australian Citizen, Australian permanent
resident, or an eligible New Zealand Citizen, there are a number of options for you and
your spouse or de facto to reside permanently in Australia.
A Temporary Partner Visa: There be a waiting period of two years from the date
your application.
A Permanent Visa: after the two years waiting period (if applicable) and your relationship
still exists then you are eligible for permanent residence visa.
You must be sponsored by your partner who must be one of the following: \
- An Australian Citizen
- An Australian Permanent resident
- An eligible New Zealand citizen.
Administrative Appeal Tribunal (AAT)
If you recently been refused visa application or your visa has been cancelled and you
disagree with the decision of the department of immigration, you can apply for a review
on merit basis to AAT the decision made by the Department of Immigration and Border
Protection.
The AAT conducts a 'de novo' review on the merits of the case. This involves a reconsideration
of all evidence and all issues of fact and law. The AAT is not limited by reasons given
in the decision under review. Further investigations may be undertaken (if appropriate) and
additional evidence may be obtained and considered.
The AAT have the power to affirm, vary or set aside DIBP’s decision, or to return the matter
to DIBP for reconsideration with specific directions. The AAT can consider a wide range of
visa-related decisions, including refusals and cancellations. Decisions are based on the merits
of each case.
Your application for review MUST be lodged with the AAT within the required time frame.
In most cases the relevant time frame for application is 21 days from the date of a decision
to refuse a visa application, and 7 days from the date of a decision to cancel your visa.
The AAT can decide to:
-
Affirm: DIBP’s decision, meaning that is agrees with DIBP’s decision and
it will not be changed.
-
Set aside: DIBP’s decision, meaning that the decision will be changed.
In this situation, the AAT has the option of substituting DIBP’s decision with a new decision
or returning the matter to DIBP for reconsideration (see below).
-
Remit: DIBP’s decision, meaning that the matter will be returned to DIBP for reconsideration.
The AAT may then give DIBP directions that it must consider when reconsidering its decision.
Protection Visa
Protection Visa applicants can be allowed to live and work in Australia on permanent basis if
visa applicant has a well-founded fear of being persecuted for reasons of race, religion,
nationality, political opinion or membership of a particular social group (e.g. homosexual,
same sex marriage, disabled people etc.).
The visa applicant and his/her family members must arrive legally in Australia and have valid
visa at the time of their application for protection visa. The applicant and his/her family
members must meet certain health, character and security requirement. Additionally, they must
either, meet:
- Condition to be called a refugee as defined by Migration Act 1958, or
- Complementary protection criteria in the Migration Act 1958.
There are basically three categories for Protection Visa:
- Permanent Protection Visa (Sub-class 866)
- Temporary Protection Visa (Sub-class 785)
- Safe Heaven Enterprise visa (Sub-class 790)
Federal Court Appeals
Visa applicant can apply for a review of some decisions made under the
Migration Act 1958 to the Federal Circuit Court of Australia (the Court).
These include decisions made by the Minister for Immigration and Border Protection
(the Minister), the Administrative Appeals Tribunal (AAT).
The people responsible for making decisions under the Migration Act include the Minister
and the Members of the AAT (the decision makers). These decision makers look at the
merits of your application and whether you should or should not be granted a visa.
The Court may only review a decision in order to determine if a ‘jurisdictional error’
has been made. This means the Court determines if the decision has been made according
to law. The Court is independent of the decision makers. The Court does not consider the
merits of your application and whether you should or should not be granted a visa.
If the Court finds a jurisdictional error, it can:
- refer your case back to the decision maker, and.
- prevent the Minister from acting on the decision.
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.
Visitor Visa (subclass 600)
This visa allows you to visit and remain in Australia on temporary basis.
This Visa may be granted for up to three, six or twelve months.
Requirements
You might be able to get this visa if you are travelling to Australia:
- as a visitor
- for business visitor activities
- to visit family
- on a tour with a registered travel agent from the People’s Republic of China.
If you are in Australia, you can apply for the Tourist stream of the Visitor visa online
provided you currently have a valid visa that does not have condition 8503 imposed.
If you are outside Australia only certain passport holders can apply for this visa online.
If you cannot apply online, you can lodge a paper application.
