Visa Refusal or Cancellation

A visa may be refused or cancelled by the Minister or their delegate from the Department of Home Affairs in various circumstances. This can either occur with or without notice depending on the circumstances.

If notice is provided, the Minister or their delegate will generally provide the applicant with a notice of intention to consider refusal and cancellation and invite the applicant to provide written submissions to the Minister within the prescribed statutory time period.

It is important that the person provides a detailed and comprehensive response before the time period lapses and before a decision is reached. Failing to do so could have severe and negative consequences for the person.

In some cases, a visa can be cancelled automatically and without notice. This occurs only in very limited and prescribed circumstances. The person may have the right to request the decision maker to revoke the visa cancellation. Time-periods for a response are very short.

If you have received a notice of refusal or cancellation from the Department of Home Affairs, we recommend that you seek legal advice immediately and without delay as strict statutory time periods may apply.

Failing to respond to a notice of refusal or cancellation may not only hinder a person’s prospects of disputing the decision, but it may also cause significant adverse consequences including:

• Causing the applicant to remain in Australia unlawfully

• Mandatory detention;

• Removal from Australia; and

• The Minister imposing conditions on the applicant

Appealing the Decision

If the Minister or their delegate has reached a decision and has provided a person with a notice of refusal or cancellation, it may be possible to appeal the decision.

The relevant jurisdiction will depend on your individual circumstance and the issues in dispute.

We can protect your interests and assist you in the following:

Administrative Appeals Tribunal

The Administrative Appeals Tribunal conducts its matters differently to a traditional court. The process is far less formal and less technical than court proceedings. Decisions are made with as much expedition as the requirements of the Administrative Appeals Tribunal Act 1975 (Cth) and proper consideration of the matter permit.

Appeals to the Tribunal are almost always the first step in the review process. You cannot normally proceed to the Courts until the AAT first hears the case.

The Tribunal has the power to conduct a ‘merits review ‘of the decision and reconsider the facts, law, and policy relating to the decision without considering the original decision of the Minister.

If the Tribunal decides in the applicant’s favour, the original decision will be set aside and the matter is usually remitted back to the Department for continued processing if it relates to a visa application refusal. If the visa was cancelled, the Tribunal may simply reinstate the person’s visa.

Federal Circuit Court of Australia

In most instances, migration matters that have progressed through the Administrative Appeals Tribunal will be heard in the Federal Circuit Court of Australia unless the Federal Court of Australia has original jurisdiction.

The court performs a ‘judicial review’ to determine whether or not a ‘jurisdictional error’ in relation to an error of law occurred during the Administrative Appeals Tribunal decision. If there was no jurisdictional error in the Administrative Appeals Tribunal decision then it will not be possible to seek review at the Federal Circuit Court.

The Federal Circuit Court will not reconsider the facts of a matter or take new factual information into account (unless it is relevant to the question of whether the Minister or their delegate made a jurisdictional error).

If the applicant’s matter is successful in the Federal Circuit Court, the matter will be remitted for redetermination to a differently constituted Administrative Appeals Tribunal.

Federal Court of Australia

Only in prescribed circumstances will a matter be heard in the Federal Court of Australia. The Federal Court has powers to perform ‘judicial review’ in prescribed circumstances. The matter will be heard in a similar manner to the Federal Circuit Court of Australia, however the Federal Court of Australia will also exercise the judicial power of the Commonwealth.

The Federal Court will not reconsider the facts of a matter or take new factual information into account (unless it is relevant to the question of whether the Minister or their delegate made a jurisdictional error).

High Court of Australia

The High Court of Australia generally hears appeals from courts of inferior jurisdiction in instances where special leave is granted to have the matter heard before the High Court, but in some cases, matters may begin in the High Court itself.

Matters that come before the High Court of Australia are in relation to the High Court’s function to interpret and apply the laws of Australia with respect to the constitutional validity of laws, and hearing appeals that are from the Federal Circuit Court of Australia or Federal Court of Australia.

The decision of the High Court of Australia is full and final, and the decision binds the parties and all the courts and tribunals in Australia.

We offer a free 20 minute consultation with Director Craig DoRozario or Solicitor Tom Foran, both of whom are qualified migration agents and lawyers. You can arrange an appointment by completing the contact form on this page or phoning our office on 07 5532 3133 during office hours or phoning our 24 hour emergency service on 18004POTTS.