Most Visa cancellations and refusals can be reviewed and appealed. There are a number of different avenues to seek a review. It is important to obtain legal advice before lodging an appeal because, as we explain in this article, with the right advice you can significantly increase your chances of success.
The easiest way to seek review of a decision is by requesting an informal or internal review. Basically, this involves contacting the original decision maker (i.e. the officer within the Department of Immigration) and requesting that the decision be reconsidered. Alternatively, the decision-maker’s supervisor can also be contacted.
This is the quickest and cheapest way of having a decision reviewed (given it is free of charge).
It is important, however, to appreciate that this request for review will only be successful if there is a clear legal error made by the Immigration Department. In other words, only the clearest of cases succeed this way. So if your case involves complex issues (for example, where there are a number of other possible interpretations of a legal issue ) then this is not the appropriate way to seek review.
Most decisions to cancel or refuse visas can be reviewed externally. This means that an appeal can be lodged in relation to the decision made by the Immigration Department. Further, decisions to approve or cancel sponsorship applications can also be reviewed.
If an appeal is lodged, the decision will be reviewed by the Administrative Appeals Tribunal. This body is independent from the Immigration Department.
The Tribunal reviews the case on its merits. This means that the material which was available to the Immigration Department will be considered as well as any new evidence which is put before the Tribunal.
It is important that strict time limits apply for the lodgement of the appeal. The time limit is usually advised in the same letter in which the Immigration Department notifies to cancel or refuse a visa.
While the review process is ongoing, bridging visas remain valid. This means that if you are in Australia at the time you lodge your review application, you will be able to stay in Australia until a final decision is made.
Practical tips in relation to merits review
You can and should be represented by a qualified migration lawyer in the appeal process. While legal representation is not compulsory, it will significantly increase your chances of success. This is because when your lawyer prepares your appeal, they will be able to identify any additional evidence which may not have been available when the Immigration Department made its decision, but which can still be obtained to improve your prospects. For example, it may be that your case can get much stronger by obtaining some statements or character references from appropriate people. These documents can then be prepared in a professional manner, emphasising those key issues which the Tribunal focuses upon when making a decision.
In addition, your lawyer can attend the hearing before the Tribunal in person, and can make representations on your behalf. Please note the tribunal hearing is inquisitorial in nature, which means that the tribunal member who decides your case can and will ask a number of questions in relation to your appeal. If you are not well prepared or organised, you jeopardise your prospects, whereas a legal professional is well equipped to answer questions by the Tribunal.
If you want to find out more about how do Tribunal works, please click on this link here.
If you apply for judicial review, the original decision by the Immigration Department will be reviewed by the Federal Court of Australia, or the High Court. However, not all decisions can be reviewed by the courts. Specifically, unlike a merits review, where your entire case is considered again, in a judicial review, the only issue is whether the Immigration Department made an error of law when they decided your matter.
There can be a number of ways in which the Immigration Department can make an error of law. For example, when the decision-maker considers irrelevant issues in relation to your matter, or when they are unreasonable, exercise bad faith or fail to afford you procedural fairness, these are all instances where a judicial review can be sought.
Judicial review proceedings are more expensive than merit reviews, and you will certainly need legal representation if you want to achieve a successful outcome.
If all else fails, it may be possible to apply to the Minister to intervene in your case and reverse the Immigration Department’s decision. Ministerial interventions are rare, and you need to prepare detailed submissions as to why the minister should intervene in your particular case. We have a detailed post available on this very topic which you can access by clicking here.