Visa Refusals Lawyers
Has your visa application been refused by the Department of Home Affairs? While this decision will likely come as extreme disappointment, there may still be chances to rectify the prior wrong. At Visa Plan Lawyers, our team of visa refusal lawyers can work with you and win at the Administrative Appeals Tribunal (AAT).
Visa refusals occur on various grounds, as determined by the Department of Home Affairs. In some instances, a prior visa refusal may prevent a further visa application to be made, pursuant to section 48 of the Migration Act.
If a related visa application has been refused due to nomination refusal, a review of that visa refusal must be lodged to the AAT. With respect to the visa application, the AAT can and will only decide whether the requirements for a nomination application are satisfied at the time of its decision. There is abundance of more documents to be provided to the AAT, but at the absolute minimum you will most likely need to provide:
- ASIC business name extract (current and historical)
- Sponsorship evidence or work agreement for migration purposes
- Business tax returns, financial statements that include a detailed profit and loss statement and balance sheet, and business activity statements
- Current organizational structure chart (including current and proposed employees, and their position titles and resident status)
- Roles and duties of the nominated position or occupation and how they relate to the position description in ANZSCO
- Employment contract or letter of offer that complies with relevant awards for the nominated occupation or position
- Salary surveys, advertisements and payroll reports that relate to equivalent work in the same location
- Visa status of the nominee, and information about the nominee’s English language ability, such as English language test results
- Invoices or contracts for employee training, training program with course outline, details of investment in industry training funds or bodies
- Local job advertisements for the nominated position that were not successfully filed, and the Regional Certifying Body’s certificate issued to the applicant in respect of this position
Partner Visa Refusal
The primary concern of the AAT is to decide whether or not you are in a spousal or de-factor relationship with the sponsor of your application under the rules of the Migration Regulations 1994. In other words, the AAT must be satisfied that your relationship is genuine and ongoing. References will be made to the following factors:
- Mutual commitment to a shared life together, to the exclusion of all others
- Physical cohabitation
- Validity of marriage, and recognition and acceptance of the de facto relationship by people around you
Numerous documents can be helpful in establishing that the relationship is satisfactory for migration purposes. At the bare minimum you will most likely need to provide:
- Statement that is signed by you about your circumstances
- Proof of joint financial arrangements, such as bank statements, real estate details, wills, loans, bills, superannuation documents
- Household arrangements, such as living arrangements and distribution of housework
- Timeline of significant events that have occurred in the relationship
- Evidence of significant events, such as photos of engagement ceremony, wedding reception, honeymoon, etc
- Evidence of other significant events, such as itineraries and receipts for joint travel
- Proof of ongoing contact over the period of your relationship, such as emails, phone calls, letters, chat history, video conferencing
- Certified birth certificates and evidence of joint responsibility for any children of the relationship
- Evidence that you present yourself as a couple socially, such as joint invitations to social activities or photographs of you in social situations
- Evidence that explains why specific information in the Department decision is incorrect
Student Visa Refusal
The key interest of the AAT is whether you genuinely intend to stay temporarily for the purpose of completing the enrolled studies in Australia. The AAT would and must consider:
- Your circumstances
- Your immigration history
- Any other relevant matter
The references will be made by the AAT to the following factors:
- Reasons for not undertaking the study in your home country
- Information about ties to your home country that would encourage your return, for example:
- Evidence of properties or assets held in home country
- Evidence of immediate family members and any dependants in your home country
- Evidence of current or proposed employment in home country and intention to return or commence that employment
- Return ticket to your home country
- Confirmation of your enrolment in an educational institution
- Evidence of your past study
- Information about the relevance of the course to your past or proposed future employment
- Information that explains any gaps in your study history or a failure to complete studies, such as medical reports that you have been unwell or have a physical or mental illness that may have impacted your studies
- Information from other people who can confirm or support your case
- Evidence that explains why specific information in the Department decision is incorrect
- Any other information or documents that prove your circumstances
Appeal for Visa Refusal
Q: What happens when I apply for visa refusal to be reviewed by the AAT?
When you have lodged your appeal to the AAT, you will receive acknowledgement that your application is received. In the meantime, the Department is also notified that your application is lodged to the AAT. There is a significant backlog of cases with the AAT causing a long delay. It does not mean that you have to do nothing until your hearing is scheduled. You need to start building your case as early as you can so you can maximise your chance of success.
Q: How much is it to appeal to the AAT for visa refusal?
The application fee to the AAT is currently set at $3,153.
Should you decide to engage a migration lawyer or agent, the professional fee may vary considerably depending on complexity of the matter, professional merits and experience of the agents or lawyers.
Q: Should I engage a migration agent or lawyer for visa refusal?
You are not under any obligation to have a migration agent or lawyer to represent in your migration appeal, but attempting to appeal on your own is strongly not advised. Without proper knowledge of the procedures and the law on which your appeal relies, the chances of failure are significant. Good AAT lawyers should be able to formulate persuasive arguments, provide robust legal submission and train you for advocacy at the hearing.
Q: Can I travel overseas whilst waiting for the AAT migration review?
If you want to travel overseas, you must check with the AAT about the status of your application for review before making any travel arrangements. You would then need to check whether you have a valid visa to be lawfully allowed to re-enter Australia after you travel overseas. If not, you would need to apply for a visa with the facility that enables you to return lawfully.
Q: What happens at a hearing with the AAT migration hearing?
- A delegate of the Department is usually not present at the hearing and has probably provided the Tribunal with all relevant documents.
- You are entitled to have access to, or a copy of, the materials before the AAT in relation to your case, although some restrictions may apply.
- You can make written submissions or provide documentary evidence at any stage of the review.
- You may nominate AAT visa lawyers to represent you in the preparation and running of your case, such as Visa Plan. We can provide written submissions and documentary evidence, and contact the AAT on your behalf. We can also accompany and assist you at the hearing, but we cannot make any oral presentation unless leave is granted by the presiding Member.
- At the hearing, the presiding Member hears the case with the documents and information that have been provided, and makes a decision independent of the Department’s determination.
Q: How long does it take until the AAT migration hearing?
Average time frames for different visa categories are published on the AAT’s website. The average number of calendar days for the migration hearings is 616 calendar days made up of:
- Bridging Visa – 19 calendar days
- Family Visa – 686 calendar days
- Nomination/ Sponsor Approval – 1,117 calendar days
- Partner Visa – 1,065 calendar days
- Permanent Business Visa – 1,076 calendar days
- Skill Linked Visa – 159 calendar days
- Student Cancellation – 668 calendar days
- Student Refusal – 488 calendar days
- Temporary Work Visa – 1,127 calendar days
- Visitor Visa – 351 calendar days
- Other Visa – 561 calendar days
Q: Can I win against the Department of Home Affairs for visa refusal at the AAT?
It is definitely possible to win against the Department. It is a branch of the Government with a large number of employees of which some inevitably lack competency to make correct decisions. As an experienced AAT specialist law firm, we have encountered many erroneous decisions by the Department. If you feel your case was prejudiced having resulted in an adverse result, speak to us now before it is too late. Never assume that the Department is always correct!
Q: What are the success rates at the AAT migration review hearing?
The average success rate in the Migration Division of the AAT is 36% at the time of writing this although the rates may vary over time, according to the AAT statistics. Partner visas have the highest success rate of winning at the AAT at 58%, whilst employer nomination and sponsor had the lowest rate amongst substantive visas, being 29%.
Q: What happens if I lose at the AAT migration review hearing?
If you lose at the AAT, your options for further appeal are significantly limited to judicial review and ministerial intervention. Therefore, it is crucial that your AAT visa appeal is handled by the best AAT lawyers, as it is your only opportunity to argue on the basis of the merits of your case. Judicial review, by contrast, is only available in cases of jurisdictional error by the AAT.
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