A visa refusal can be a significant setback, but it doesn’t always mean the end of your immigration journey. Appealing a visa refusal with the Administrative Review Tribunal allows applicants to challenge a refusal decision and seek a review of their case. Understanding your options and acting within strict time limits is essential to improving your chances of success. Stone Group Lawyers provides expert legal representation and strategic advice to guide you through the visa appeal process.
Common Reasons for Visa Refusal
The Department of Home Affairs may refuse a visa application for various reasons, including:
Incomplete or incorrect documentation – Missing or improperly completed forms and supporting documents.
Inconsistent information with previous visa applications – Discrepancies between past and current applications.
Incorrectly claiming work experience or points – Providing false or misleading information in a points-based application.
Failing to meet time of application criteria – Not meeting eligibility requirements at the time of visa lodgement.
Health or character concerns – Failing to satisfy health requirements or character grounds, including past criminal records.
Adverse immigration history – Prior visa refusals, overstaying a visa, or breaching visa conditions.
Your Options After a Visa Refusal
Appeal the Visa Refusal Decision
If eligible, you may lodge an appeal with the Administrative Review Tribunal (ART) to have your refusal decision reviewed. It is important to note that not all visa decisions have appeal rights. The refusal notice issued by the Department of Home Affairs will indicate whether the decision is reviewable, however we also recommend checking with a migration lawyer in case the notification is invalid.
Apply for a New Visa
In some cases, submitting a new visa application may be a more viable option, provided the initial refusal was due to technical errors or insufficient supporting documents. This option, however, may not be viable for applicants who are subject to the section 48 bar.
Seek Ministerial Intervention
In very limited circumstances, you can request the Minister for Immigration to intervene and grant a visa on compassionate or compelling grounds.
Where Are Visa Refusal Appeals Heard?
Administrative Review Tribunal (ART) – Reviews most visa refusal decisions and considers new evidence where applicable.
Federal Circuit and Family Court of Australia – Judicial review options are available if a legal error occurred in the decision-making process.
The Visa Appeal Process: Step by Step
Step 1: Assess Your Eligibility for an Appeal
We begin by carefully reviewing your refusal or cancellation decision to determine whether a appeal rights are available and whether it’s in your best interest to proceed. Our lawyers will advise you on your review rights, time limits and whether the case meets jurisdictional requirements. You will get clear, practical guidance on your prospects of success so you can make an informed decision. Where appropriate, we’ll also explore other options that may be available to you.
Step 2: Lodging Your Appeal with the Tribunal
If your refusal is a reviewable decision and you choose to proceed, we will prepare and lodge the appeal on your behalf. Timing is critical, so you can trust us to ensure your application is submitted within the strict time limits and with the correct accompanying documentation. We also take steps early to request the relevant Departmental file and identify the key issues in dispute.
Step 3: Pre-Hearing and Preparation
This step is where the groundwork is laid for a strong case. We work closely with you to build a persuasive submission tailored to the legal and factual issues in your matter. That might involve obtaining expert reports, gathering supporting evidence, preparing witness statements, and addressing any gaps or risks in your case. We’ll also correspond with the Tribunal as needed, respond to information requests, and prepare you thoroughly for what to expect on the day of the hearing.
Step 4: Attending the ART Hearing
The format of an ART hearing can vary depending on the type of visa refusal or cancellation being reviewed. In many cases, the process is inquisitorial, meaning the Tribunal Member plays an active role in asking questions of the applicant to clarify the facts and assess credibility. However, some hearings may be conducted differently, involving a representative of the Department of Home Affairs.
As your legal representatives, we attend the hearing with you. We monitor the conduct of the hearing closely, ensuring that proper legal procedures are followed and identifying any potential grounds for judicial review if the need arises later.
Throughout the hearing, we take detailed notes, particularly where clarification may be needed or where post-hearing submissions might be required to address issues that arise during questioning or discussion. While the focus is on you as the applicant, the Tribunal Member may also ask us, as your representatives, to clarify matters raised in written submissions or supporting documents.
Our role is to ensure nothing is missed, and your case is presented as clearly and persuasively as possible.
Step 5: What Happens After the Decision?
Once a decision is made, we will explain what the outcome means and advise you on your next steps. If the decision is favourable, we will assist with any further visa processing or follow-on applications. If it’s not, we’ll help you understand your options, including whether a judicial review, ministerial intervention request, or a new visa application is available. Either way, you will have clarity and support as you move forward.
Costs and Timeframes for Visa Appeals
Application Fee: For accurate and current fees, we recommend checking the ART website. Protection visa applicants can apply for free, however if the review is not successful, a fee is payable following the ART’s decision.
Processing Times: Can range from a few months up to a few years, depending on case complexity and the Administrative Review Tribunal’s workload.
Legal Fees: Additional costs apply if seeking assistance from a migration lawyer.
Staying in Australia During the Appeal Process
Applicants with an appeal pending may be eligible for a bridging visa, which allows them to remain lawfully in Australia. Work rights and travel overseas may be restricted based on the bridging visa conditions.
What Happens If Your Appeal Fails?
If your visa appeal is unsuccessful, options include:
Reapplying for a visa if eligibility criteria are met.
Seeking a judicial review through the Federal Circuit and Family Court of Australia if a legal error occurred.
Requesting Ministerial Intervention under limited circumstances.
Why Work With an Experienced Migration Lawyer?
Navigating the ART review process and visa refusal challenges requires expertise. Working with a professional ensures:
Accurate and complete documentation.
Strong legal arguments based on immigration law.
Guidance through tribunal hearings and judicial review options.
Frequently Asked Questions About Visa Refusal Appeals
What are the deadlines for lodging a visa appeal?
Review deadlines can vary depending on the type of application refusal. We recommend checking the timeframe outlined on your refusal decision record, and checking with a migration lawyer to ensure the correct timeframe has been given to you.
Can I get a refund if my visa is refused?
Visa application fees are generally non-refundable, but ART appeal application fees may be partially refunded if the appeal is successful.
Can I appeal a visa refusal from overseas?
Some visa refusals can be appealed while you are outside Australia. This will depend on the type of visa that has been refused.
What are my chances of success with a visa appeal?
Success rates depend on the reasons for refusal, supporting evidence, and the strength of legal arguments.
What happens to my family’s visas if my appeal is unsuccessful?
If your appeal fails, any dependent family member visas linked to your application may also be affected. Seeking professional immigration advice is recommended.