Why do visas get refused?
The law behind Australian visa applications is very complex and much of the complexity is not dealt with by the Australian Department of Immigration and Border Protection’s website. Visa applicants are encouraged to use the online DIBP ‘Visa Wizard’ to find the right visa for them and to then lodge online without any assistance from an immigration lawyer. This often leads to applicant’s getting their visas refused for not meeting visa \criteria they were not ever made aware of or did not fully understand. If an applicant fails to meet any criterion set for visa approval, the visa application must be refused. It is that simple.
How are Australian Visa Applications Structured?
Australian visa applications are informed by schedule 1 and schedule 2 of the Migration Regulations 1994. Schedule 1 sets ‘valid application’ criteria. Schedule 2 sets criteria that must be satisfied for the visa to be granted. Schedule 2 criteria are often broken into ‘time of application’ criteria and ‘time of decision’ criteria. Then the application is broken into criteria to be met by the main applicant and separate criteria for the family of the main applicant.
Refusal of ‘Invalid Applications’
If ‘valid application’ criteria are not met, then the application is deemed invalid and will be returned to the applicant without any processing having been undertaken. This can have disastrous consequences for the applicant as significant time may have passed since lodgement and therefore, find themselves, and families, in Australia without any visa or further options for obtaining a visa.
If you are application is deemed invalid, you will have no bridging visa to remain lawfully in Australia and you will have no right of appeal to the Administrative Appeals Tribunal – Migration Review Division.
In these circumstances, you should take advice as to whether you may have a right of appeal to the Federal Courts to have your application deemed valid.
Refusal of Australian Visa Applications for Failure to Meet Prescribed Criteria
Schedule 2 criteria will differ for every separate subclass of visa. The conditions that must be satisfied to achieve grant of a tourist visa will of course be different to the criteria that must be met for a partner visa, for example. As obvious as it sounds, it is an important distinction.
A visa application therefore should be prepared addressing all applicable time of application and time of decision criteria to remove any discretion that the case officer may have to refuse your visa.
Therefore, all applicants, even those intending to lodge themselves should get advice from a specialist immigration lawyer to ensure that all criteria are met and proper evidence is prepared to support the application.
Refusal Due to Failure to Disclose Matters
You have an obligation in all visa application to be upfront and honest answering all questions truthfully. You also have an obligation to disclose certain health matters and criminal charges and convictions. Often visas are refused because people decided not to disclose things that they thought would stop them getting the visa when in the end, the only thing that stopped them getting the visa was the non-disclosure itself.
If you have concerns about disclosing criminal convictions, health issues, relationship issues or any other matter, get advice on the issue itself and on the impact this will have on your visa application. This will then allow you to make a strategic decision on dealing with the issue in your application.
Public Interest Criterion 4020 – False , misleading, incorrect information or bogus documents.
If your visa is refused due to non-disclosure of information or provision of false, misleading, incorrect information or bogus documents in the visa application, or a visa you held in the 12 months before the date of visa application, then you will face refusal for failure to satisfy PIC 4020.
If refused under 4020, then you will face a 3 year ban on grant of any further visas unless you can meet the limited waiver provisions.
There is a waiver to PIC 4020 if the applicant can show that the grant of the visa is in the interests of Australia, or that there are compelling and compassionate circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen
Section 48 Bar from Lodging Further Applications
If you are refused a visa and move onto a bridging visa, then a further consequence of the refusal is that you are affected by what is known as a s 48 bar stopping you from lodging any further visa applications in Australia save for a limited range of visas that can still be lodged including subclass 820 / 801 partner visas and protection visas.
Appeals Against Australian Visa Refusals to the Administrative Appeals Tribunal – Migration Review Division
Being stopped from lodging further applications in Australia, means the success of your appeal against refusal is critical to you staying and achieving your Australian migration goals.
Time frames for review of refusal decisions are often very short (for example 21 days) and it is essential to lodge an appeal to the appropriate Tribunal within time frames or your right of appeal is lost.
Therefore, get competent immigration lawyers to advise on, prepare and act for your in your appeal.
If you have received a decision refusing your visa, or a notice of intention to refuse (NOITR) or a PIC 4020 ‘Natural Justice Letter’, then contact us immediately
How can Turner Coulson Help?
Turner Coulson Immigration Lawyers have a section dedicated to assisting you in your appeals:
Our immigration lawyers / advisors have over 20 years of experience arguing cases on behalf of clients in the AAT achieving success where the client would have lost if self-represented.
Don’t take a chance with your future. Call us now for a consultation so that you can get a clear picture of your chances of success and how your case should be argued. We can then take your matter for you to lodge, prepare and appear at the AAT for you –