VISA REFUSALS & CANCELATIONS

Why do visa refusals happen?

Refusal of a favorable decision to grant a visa may happen for a number of reasons. The most important refusal reasons are categorized below:

• Breach of previous visa conditions;
• Providing incomplete or insufficient evidence;
• Failure to satisfy character or medical requirements;
• PIC 4020 (providing fraudulent or false documents), including Section 109 of the Migration Act 1958 (Cth);
• Work experience ineligibility;
• English language ineligibility;
• Applying for the wrong type of visa;
• Financial incapacity;
• Sponsor fails to meet the requirements;
• Delayed Applications for the onshore visa;
• Genuineness of marital, spousal, de facto, same-sex relationship;
• Genuineness of visitor/ student status;
• Not responding to the requests of the Embassy or Immigration case officer, regarding additional documentation or information;
• Failed interview.

Why do visa cancellations happen?

Department of Home Affairs (DoHA) has the power to cancel any kind of visas including Permanent visas in various circumstances. The most important cancellation powers are categorized below:

• Cancellation of a humanitarian visa, including based on Section 501 of the Migration Act 1958 (Cth);
• Business visa cancellation, including based on Section 134 of the Migration Act 1958 (Cth);
• Cancellation on grounds that presence of the holder in Australia is, or would be, a risk to the health safety or good order of the Australian community;
• Cancellation on character or certain other public interest grounds, including based on Section 501 of the Migration Act 1958 (Cth);
• PIC 4020 is not granted on basis of false or misleading information, including based on Section 109 of the Migration Act 1958 (Cth);
• False or misleading information provided to the Department of Home Affairs (DoHA) when entering Australia on inbound passenger card;
• Genuineness of marital, spousal, de facto, same-sex relationship;
• Genuineness of visitor/student status;
• False or misleading information provided when you entered Australia on your inbound passenger card;
• Where the Department forms the view that your continued presence in Australia may prejudice the relationship between Australia and another country.
• Cancellation for failure to comply with conditions and other grounds (General Grounds), including based on Section 116 of the Migration Act 1958 (Cth);
• Cancellation of permanent business migration visas where visa holders fail to abide by the conditions of their visa, including based on Section 134 of the Migration Act 1958 (Cth);
• Visa holder is offshore and no notice of intent to cancel is sent to the visa holder prior to cancellation, including based on Section 128 of the Migration Act 1958 (Cth);
• Consequential Cancellation of dependent family members visas where the main visa holder’s visa is canceled, including based on Section 140 of the Migration Act 1958 (Cth);
• Cancellation of Regional sponsored employment visas where the holder fails to abide by the conditions of their visa, including based on Section 137Q of the Migration Act 1958 (Cth);
• Sponsor fails to meet the requirements;
• Breach of employer sponsorship undertakings or visa conditions and obligations;
• Not responding or responding in a timely manner to the requests of the Department of Home Affairs (DoHA) regarding additional documentation or information;
• Change in your personal circumstances, such that the circumstances under which the visa was granted no longer exist (for example, if you are a holder of a Spouse Visa and your relationship breaks down).

What are your options in case of refusal or cancellation?

Each visa subclass criteria is written into the Migration Regulations (Cth) 1994. These criteria are part of the Australian Migration Law which is part of the Commonwealth legislation. The Minister or delegate as his representative uses these criteria to decide whether to grant or refuse a visa. If the application shows that the applicant and, if relevant, sponsor, meets those Regulations, then the visa must be granted. If it does not? By Law, the Minister or delegate as his representative must refuse it. According to Section 67 paragraph 4 of the Migration Act 1958 (Cth), the Minister has no power to vary or revoke the decision after the day and time the record is made. If the visa is refused it is refused. For this reason, after the decision is made, it is pointless to try to approach the Immigration and arguing your case by sending e-mails to the delegate’s address, calling the Case Officer, and explaining that he or she was mistaken, did not carefully study provided documents, etc. Subsequent visa applications, as well as appeals to review the refusal by one of the specialized divisions of the Administrative Appeals Tribunal of Australia (AAT), are considered strictly within the context of the visa application in question with regard to all of the information in the application, not the previous visa applications. That is why the following options must be considered in case of visa refusal or cancellation:

• Making another visa application with consideration to all reasons provided by the delegate in the visa refusal decision letter.

In the majority of cases, it is the most prudent strategy. There are too many examples of providing incomplete information while making the visa application for student or visitor visa applications prepared without professional migration assistance. The Minister or delegate as his representative observing an obvious error in the visa or sponsorship application is not obliged to notify the applicant about it, though the Minister or delegate as his representative must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. In other words, the refusal decision in such circumstances is inevitable.

• Appealing for review in the General division of the Administrative Appeals Tribunal (AAT) or General division Migration of the Administrative Appeals Tribunal (AAT) or Refugee Division (MRD) of the Administrative Appeals Tribunal (AAT) with future consideration moving further and appealing to the Minister of Immigration or the Australian Federal Court.

The Tribunal is a statutory body that provides an independent merits review of the administrative decisions of the Australian Federal Government, including visa, citizenship, and visa-related decisions made by the Minister or by officers of the Department of Home Affairs (DoHA) acting as delegates of the Minister. Proceedings are made from the very beginning, the Tribunal’s decision is made by the applicable law(s) and government procedures of Australia, the same laws and principles that guided DoHA in making its initial decision. The Tribunal is empowered to overturn the decision on the immigration issue, replace it with another decision, return the case to the DoHA for review in accordance with the instructions of the Tribunal. In conducting a review, the Tribunal must conduct hearings de novo and make a decision that is correct in the law applicable to a specific situation or circumstances. The Tribunal is not restricted to the material before the original decision-maker in making his decision if new evidence has arisen after the original decision was made. It has the power to overturn decisions and to substitute another decision, or return a case to the DoHA for reconsideration with directions. The Tribunal is required to provide a review that is fair, just, economical, informal, and quick. The Administrative Appeals Tribunal (AAT) is an Australian tribunal that provides for a quasi-judicial review of administrative decisions by the Government of Australia. It is not a court and not part of the Australian court hierarchy, however, its decisions are subject to review by the Federal Court of Australia and the Federal Circuit Court of Australia. The main difference between the Tribunal and the Court is that there is no respondent i.e. the Case Officer of the Department of Home Affairs (DoHA) in the Tribunal’s investigation process. In other words, the applicant who appeals to the Tribunal for an unfavorable decision of the Delegate may be present in person or together with representing immigration agent, but specifically, that person, that DoHA Case officer who made an unfavorable decision is not called as a defendant to the hearing, though DHA is represented at the hearings by a dedicated representative. Instead of pleadings face to face with the Delegate of the Department of Home Affairs (DoHA) of any aspects that, in the applicant’s opinion led to a negative decision by the Delegate, the applicant proves his case only to the third, independent party, which in this case is the Tribunal. The AAT may affirm, vary, or set aside the decision being reviewed:

• if the AAT affirms the decision, this means the decision made by the department is not changed;
• if the AAT varies the decision, this means the decision has been changed or altered in some way;
• if the AAT sets aside the decision and substitutes a new decision, this means it agrees or partially agrees that the decision was wrong and has changed all or part of the decision;
• if the AAT sets aside and remits the decision, this means it is sending the matter back to the department to be decided again in accordance with its instructions or recommendations.

Reviewable decisions include:

• certain visa and nominations refusals and cancelations provided that they are reviewable according to the Migration Act 1958 (Cth) and the Migration Regulations 1994;
• Australian citizenship refusals provided that they are reviewable according to the Australian Citizenship Act 2007 (Cth);
• decisions regarding access to the information provided that they are reviewable according to the Freedom of Information Act 1982 (Cth).

Essentially appeals and merits review provided in the following contexts:

• PIC 4020 (providing fraudulent or false documents), including Section 109 of the Migration Act 1958 (Cth);
• Business visa refusal or cancellation, including based on Section 134 of the Migration Act 1958 (Cth);
• Cancellation or refusal on character or certain other public interest grounds, including based on Section 501 of the Migration Act 1958 (Cth);
• Cancellation or refusal of a humanitarian visa, including based on Section 501 of the Migration Act 1958 (Cth);
• Health;
• Work experience;
• Cancellation or refusal of some Skilled visas;
• Language ability;
• Genuineness of marital, spousal, de facto, same-sex relationship;
• Genuineness of visitor/ student status;
• Company sponsorships and nominations, including based on Section 137Q of the Migration Act 1958 (Cth);
• Eligibility of sponsors;
• Persecution;
• Credibility;
• Whether notices from the Department were properly sent;
• Breach of employer sponsorship undertakings or visa conditions and obligations

How I can help:

• Reviewing case to advise on prospects of appeal;
• Advise on other immigration options – separate or parallel to an appeal or review;
• Preparing all aspects of the appeal, including written submissions to the Tribunal/ Court;
• Preparing the case and client for the Tribunal or Court hearing;
• Preparing and collecting evidence to support the case;
• Representing and advocating for clients at the hearing.