Visa Refusals – what to do when the unthinkable happens

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You double-click to open up an email from the Department of Immigration.

Your heart is pounding at the prospect of finally having your Australian Visa – one you’ve worked hard at, one you’ve submitted copious amounts of supporting documents for.

The email pops open and you scan it quickly, wide-eyed in anticipation.

Your eye freezes on one word, there in bold at the top of the email – REFUSAL.

Your heart sinks. A feeling of shock and dismay washes over you, which is quickly replaced by panic. You read the email again several times in disbelief. How did this happen? What did you do wrong? What can you do now?

If you have ever had a Visa refused, the above scenario will be all too familiar. Aside from the emotional effect this can have on you and your family, Visa refusals themselves are extremely complex. With your life in Australia on the line, it is absolutely essential that you fully understand the refusal and, more importantly, your options moving forward.

Here are just some of the considerations involved when facing a Visa Refusal:

Tribunal deadlines

Not all Visa refusals will give you the right to appeal the decision at Tribunal. Those that do will come with an extremely strict time limit – one that does not necessarily begin its countdown from the date listed on your refusal letter.

There have been numerous court cases dealing with “notification of review rights,” demonstrating that something as seemingly straightforward as determining tribunal deadlines can be extremely complex.

It is absolutely crucial that you act quickly and immediately to determine when this deadline is up, so you don’t miss your opportunity to appeal if this is your preferred course of action.

Understanding the reason for refusal

Once you know whether you have tribunal rights and when the deadline is, the next step is to figure out why your Visa was refused. This is important in helping you decide on your actions going forward. For example, if the decision was factually based and is not something you could potentially “argue” against (such as your age at time of application), this may steer you away from deciding to appeal at Tribunal, knowing you will lose.

Alternatively, if the decision is something that is subjective to an extent (such as whether you had a “genuine intention”), this may be something worth appealing against.

Deciding whether to go to Tribunal

Whether or not tribunal is a good idea is not as simple as establishing whether you will win or not. There are always pros and cons to weigh up, regardless of the expected tribunal outcome.

For example, you may strategically decide to take a case to tribunal in order to “buy some time,” even where a negative decision is likely. Conversely, even if you expect to win, tribunal cases generally take over a year to finalise (often even longer). If you are offshore, for example, you may receive a quicker outcome by simply re-lodging the application.

Real-life Example:

NationalVisas.com.au lodged a complaint for an application that was refused (but in our opinion should have been granted). The manager of the department, after reviewing the case, essentially admitted that there may have been some poor decision-making. She strongly encouraged re-lodgement of the case, assuring us she would handle it personally, which at the end of the day results in a far quicker positive outcome than going to tribunal despite the likelihood of winning.

Other Visa options and Section 48 Bar

If you are onshore, another important consideration is your immigration status in Australia after a Visa refusal. Becoming an unlawful non-citizen can have consequences, including possible detention, removal, and bans on returning to Australia on certain Visas.

Unlike Visa cancellations, a Visa refusal doesn’t immediately render you unlawful in most cases, as your Bridging Visa generally remains valid for 28 days after refusal. This means you have a limited window to act before you become unlawful.

Unfortunately, once you have had a Visa refused, your options become much more limited. This is due to the “Section 48 Bar,” which prohibits you from making another application for most Visas from inside Australia if you no longer hold a substantive Visa (e.g., if you only hold a Bridging Visa) and have had a Visa refused or cancelled in Australia since your last entry.

Section 48 can affect you in many ways. Consider the following:

  • Although Section 48 prevents you from applying for a Visa from inside Australia, it does not prohibit you from applying while offshore. If you leave, this also has implications for whether you have right of re-entry during processing.
  • If you do still hold a substantive Visa, it may be a better option to quickly apply for another Visa before Section 48 kicks in (once your substantive Visa expires).
  • There are some Visas you can still apply for when Section 48 barred. However, whenever you apply onshore for a Visa while holding only a Bridging Visa (or if you are unlawful at time of application), there are almost always additional requirements to meet that make the Visa much more difficult to obtain (called Schedule 3).

Other things that are worth considering also include issues surrounding work rights, and whether unavoidable unlawfulness could be managed in such a way as to avoid any serious adverse consequences while preserving your other options.

Need information specific to your refusal?

Visa refusals are complex on many levels, and each refusal is different in its own right based on the individual situation. The best way to ensure you are managing all the issues outlined in this article effectively is to obtain professional migration advice.

We recommend you book a one-hour Skype or office consultation with one of our migration agents as a first level investigation of the best way forward.

Ivanna Cheng
Migration Advisor
MARN 1066462

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Ivanna Cheng

Migration Advisor at National Visas
Ivanna Cheng has been an Australian Registered Migration Agent for over 3 years. Her major area of expertise is Employer Sponsored Visas but she also has ample experience with Partner Visas, General Skilled Migration, Visitor Visas and Student Visas.

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