According to Art. 67 paragraph 4 of the Migration Act 1958, the Delegate, after a visa refusal decision, does not have the authority to change the decision. For this reason, after a refusal decision has been made, it makes no sense to try to argue and prove your case by sending emails to the Delegate’s address, call and explain that he was mistaken, did not carefully study your documents, etc.
Subsequent visa applications, as well as an application for revision of the denial by one of the specialized divisions of the Administrative Appeals Tribunal (AAT), are considered strictly in the context of the case.
The following options are possible in case of refusal or cancellation of an Australian visa:
- Resubmission of the visa application, taking into account all the grounds and reasoning the Delegate specified in the letter of refusal. In many cases, this is the most appropriate strategy for action. Very often, for example, when applying for partner or tourist visas on your own, mistakes are made, or the information is presented in a confusing form for understanding. The Delegate, seeing an obvious error in the visa application, is not obliged to point out it, but is obliged, nevertheless, to make an informed decision.
- If there is such a possibility, a revision of the denial decision in one of the specialized divisions of the Administrative Appeals Tribunal of Australia. Departments: General division, General division Migration, Refugee Division (MRD). With the subsequent appeal to the Minister of Immigration, or to the Australian Federal Court.
The Administrative Appeals Tribunal of Australia
The Tribunal is a form of statutory court in Australia. It is empowered to independently review administrative decisions of the Australian Federal Government, including immigration decisions made by Delegates of the Department of Home Affairs (DoHA).
The Tribunal considers cases on the merits (merit review), including cases concerning citizenship. The proceedings are conducted from the outset and the decision is made in accordance with Australian law, following the same laws and principles that governed DoHA’s initial decision.
The Tribunal is empowered to overturn the decision on the immigration issue, replace it with another decision, and return the case to the Department for review/reconsideration in accordance with the instructions of the Tribunal. The Tribunal, according to the requirements of the Australian law, must make decisions on revision fairly, impartially, in an economical manner, in accordance with applicable laws and rules (norms, standards) applicable to a specific situation or circumstances, simply and quickly.
Difference between the Tribunal and the Court in Australia
Australia’s Administrative Appeals Tribunal is not a court or part of the Australian judicial hierarchy. The decisions of the Tribunal may in certain cases be reviewed by the Federal Court of Australia.
The main difference between the Tribunal and the Court is that in the process of considering cases in the Tribunal there is no respondent – the Delegate of the Department of Home Affairs (DHA). In other words, an applicant appealing to the Tribunal for a negative Delegate’s decision regarding your immigration case may be present in person or with his immigration agent. But that person, the DHA officer who made the negative decision, is not called as a defendant at the hearing. Instead of having a face-to-face debate with the Delegate of the Department of Immigration and Border Protection of Australia (DoHA) on any aspect that, in the applicant’s opinion, led to a negative decision by the Delegate, the applicant proves his case only to a third, independent party, which in this case, is the Tribunal.
The decision of the Tribunal will be final and must be executed (enforced) by the Australian Department, except in cases of personal interference with the Australian Secretary of Immigration.
What decisions are being considered by the Tribunal?
The Tribunal reviews DoHA denial decisions that are legally subject to appeal against:
- refusals and cancellations of visas under the Migration Act 1958 and the Migration Regulations 1994;
- decisions regarding Australian citizenship made under the Australian Citizenship Act 2007;
- access to information (judgments made under the Freedom of Information Act 1982).In fact, within the framework of the appellate defense, the following may be reviewed:
- most of the denials of an Australian humanitarian visa grant, or the cancellation of a humanitarian visa;
- refusal or cancellation of a business visa, including on the basis of Art. 134 of the Migration Act 1958;
- a decision to deport non-Australian citizens convicted of certain offenses under Australian criminal law;
- registration, de-registration, refusal to register Licensed Immigration Agents;
refusal of a visa grant or cancellation of a visa due to the requirements of a check for integrity – character test (including the absence of a criminal record);
- PIC 4020 (providing false information), including Art. 109 of the Migration Act 1958 (Migration Act 1958);
- decisions based on non-compliance with health requirements for applicants;
- knowledge of the language;
the authenticity of marriage, partnership, parental ties;
- authenticity of intentions regarding visiting Australia or studying in Australia;
sponsorship and nominations for legal entities;
- sponsor approval;
the order and correctness of the Department of Home Affairs (DHA) notices;
- violations by the sponsor-employer;
violation of visa conditions.
How can I help you in case of visa cancellation or refusal?
If you have received a visa refusal, do not delay the resolution of this issue. It is important to understand the reasons and meet the deadline for appealing the decision. The sooner you take action, the more time you will have to prepare thoroughly.
My services for dealing with failures include:
- Studying the immigration case and providing advice on the chances of success in the event of a case review;
- Providing advice on other immigration options – separately or in parallel with the case review;
- Preparation of all materials for the review of the case, including the writing of covering explanatory letters for consideration in the Tribunal or Court;
- Preparing a client’s case for a hearing before the Tribunal or Court;
Collection and preparation of evidence and arguments in support of a positive decision in the case review;
- Representing the client’s interests during the consideration of the case.The cost of immigration appeal protection services in the General Division, General division Migration, Refugee Division (MRD) of the Administrative Appeals Tribunal – AAT) varies depending on the readiness of the documentation, the applicant’s situation, and on average: AU$5,000 to AU$12,000.
Additional services for the Partner visas that are provided for an extra charge or by third parties include:
Translation of the documents by a NAATI accredited translator. It is possible to use alternatives to the NAATI translations as long as they are accordingly certified. Though such translations may not be accepted by the Australian Post Office when applying for the Australian Passport. Please discuss fees for the translations directly with NAATI accredited translators. An average cost of all translations required for a visa application ranges between AU$200 to AU$1,500.
Comprehensive submissions writing for extremely complex cases.
Australian Registered Migration Agent
Viktor Ovcharenko MARN 0964258