Overview

Navigating the documentation and eligibility requirements for an Australian visa can be challenging. Even with careful preparation, applicants may inadvertently omit essential details or misinterpret guidelines, leading to visa refusals or cancellations. Despite this, there are alternative pathways to achieve migration goals. This article outlines common reasons for visa refusals or cancellations and explores the available options in such circumstances.

Recent Visa Refusals and Cancellations

There has been a notable increase in visa cancellations on character grounds since 2014, due to the introduction of new mandatory cancellation provisions. When a visa is cancelled on character grounds, the applicant may be permanently barred from entering Australia, unless the Minister personally intervenes to grant permanent residency. If a visa application is refused on non-character grounds, the applicant may still be eligible for a limited range of visa subclasses while remaining in Australia, such as Bridging Visas and Partner Visas. Applicants for these visas must meet additional criteria if they do not hold a substantive visa at the time of lodging the application.

Reasons for Refusal or Cancellation

Discovering that a visa application has been refused can be distressing, especially if travel and accommodation plans have already been made. Common reasons for visa cancellations include:

• Incomplete application forms;
• Providing insufficient or false information;
• Failing to respond to follow-up inquiries;
• Possessing a damaged or invalid passport;
• Inability to demonstrate sufficient financial resources;
• Lack of health insurance;
• Failing to meet character requirements;
• Having a criminal history; or
• Inability to understand the legal implications of the visa application.

Process Following Visa Rejection

The Department of Home Affairs may reject visa applications under section 501 of the Migration Act 1958. If the applicant is in Australia when their visa is cancelled, they become an unlawful non-citizen. This may result in detention or placement in an immigration detention center until they are granted a visa, deported, or otherwise removed from the country. Additionally, individuals with cancelled visas are generally prohibited from applying for another visa while in Australia, although they may apply for a ‘removal pending’ bridging visa or a protection visa. Those deported are typically ineligible to apply for most visas, with a three-year exclusion period unless waived. If an applicant’s identity is in question, they may be barred from obtaining a visa for ten years.

A visa refusal may also restrict the applicant from obtaining another visa to Australia under the Public Interest Criteria (PIC) and). Under the PIC, the Department must find compelling circumstances affecting Australia’s interests or compassionate circumstances affecting an Australian citizen, resident, or eligible New Zealand citizen.

Once a visa application is refused, the applicant must disclose this in all future visa applications, potentially affecting their eligibility for visas to other countries. A positive immigration record, demonstrating compliance with visa conditions, is crucial for future travel opportunities. Unfortunately, visa cancellations can also impact family members who are dependent on the visa.

Appealing a Visa Refusal at the Administrative Appeals Tribunal (AAT)

If the Department of Home Affairs refuses a visa, the applicant can appeal the decision to the Administrative Appeals Tribunal (AAT). This appeal must be submitted in writing within 28 days of receiving the visa decision notice. However, individuals in immigration detention have only seven days to appeal. Missing the deadline generally means the Immigration Office and AAT will not consider the appeal. The appeal period may also vary depending on the visa type and the grounds for refusal, and a fee is usually required to review an appeal request. If the AAT appeal is unsuccessful, the applicant may request a personal Ministerial Intervention or seek to have their case heard by the Federal Circuit and Family Court of Australia.

The Administrative Appeals Tribunal (AAT) was established to provide a fair and just review process for individuals challenging visa refusals or cancellations. The creation of the AAT ensures that visa applicants have access to an independent body that can thoroughly reassess the decisions made by the Department of Home Affairs. The AAT examines the evidence, conducts hearings, and may overturn or uphold the Department’s decision.

Creation of the Australian Review Tribunal (ART)

The Australian Review Tribunal (ART) was established to further enhance the review process for immigration decisions. The ART aims to streamline and improve the efficiency of appeals, providing a specialized forum for cases that require a deeper understanding of immigration law. With the creation of the ART, the appeals process has become more structured, offering applicants a clearer path to challenge decisions that affect their immigration status.

Given the complexities involved in appealing to both the AAT and the ART, it is highly advisable to engage an experienced immigration lawyer to navigate the process. The appeal process requires a detailed understanding of Australian immigration law, and a lawyer can provide essential guidance, ensuring all necessary documentation and arguments are presented effectively. Moreover, a lawyer can represent the applicant at the hearings, advocating on their behalf and increasing the chances of a favorable outcome.

It is advisable to seek legal advice before proceeding with a visa application or appeal. At OZ Study and Visa Centre, our immigration specialists are available to assist with visa refusal or cancellation matters. 

Call +61 420 783 653 or contact our legal team today.