Visa application refusals

Migration Act 1958 (Cth) gives Minister for Immigration the power to make decision to grant or refuse to grant visas. However, this power cannot be applied arbitrarily. The principles of rule of law, procedural fairness and natural justice must be applied in all cases. Even the Minister himself, in discharging his duties and exercising powers under the Migration Act 1958, is not immune from these legal obligations.

For example, under section 65(1) of the Act, after considering a valid application for a visa, if the Minister is satisfied that,

• health and other criteria for it prescribed by this Act or Migration Regulations 1994 have been satisfied; and
• the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
• any amount of visa application charge payable in relation to the application has been paid;

the Minister is to grant the visa; or if not so satisfied, is to refuse to grant the visa. This means that once a visa applicant satisfies all criteria for the grant of a visa, then it must be granted. Similarly, if an applicant fails to satisfy a minor criterion, unless the law allows discretion, the Minister will not have the power to grant that visa.

When a visa application is refused, it is possible to seek merit review of the decision at the Administrative Appeals Tribunal (AAT).

The AAT has the power under Part-5 of the Migration Act 1958 to review migration matters (other than refugee, i.e., certain protection visa matters). Visa refusal decision that can be reviewed under this provision is called Part-5 reviewable decision.

Most refugee decisions are reviewable under Part-7 of the Migration Act 1958 and known as Part 7-reviewable decisions.

Review of a fast-track reviewable decision (s473BB of the Act), relates to the review of certain refugee decisions by the Immigration Assessment Authority (IAA) under Part 7AA of the Act.

Visa applications refused on character grounds are also reviewable at the AAT.

At Salomonn Migration & Advocacy, we create effective strategies to prevent possible visa refusals, for example, researching whether a client is or will be for another kind of visa instead of what they initially aimed for, or withdrawing an application before it could be refused.

We also specialise in formulating lawfully effective strategies at merit review stage to bring success.

Visa cancellations:

Visas get cancelled for varieties of reasons under a wide range of powers under the Migration Act 1958. For example,

• s109 – cancellation of visas based on incorrect information or bogus documents
• s116 – cancellation of visas on specific grounds
• s128 – cancellation without notice of visas of persons outside Australia and
• s134B – emergency cancellation on security grounds
• s133A – cancellation by the Minister on s109 grounds
• s133C – cancellation by the Minister on s116 grounds
• s140 – “consequential cancellation” that is, cancellation of visas in circumstances where other visas have been cancelled under s109, 116, 128 or 137J
• s134 to s137 – Business visa cancellation
• s137J – Student visa cancellation
• s137Q – Regional Sponsored Employment visas cancellation (for subclass 119 (RSMS), subclass 187 (RSMS), and subclass 857 (RSMS) visas)
• For s500A – Refusal or cancellation of temporary safe-haven visas
• For s501 – Refusal or cancellation of visa on character grounds.

Depending on the individual circumstances, each of these cancellation power functions either as a discretionary power, or as a mandatory power, or may be invoked by operation of legal provisions. It is applicable to all visa categories except for special purpose visas (as outlined in section 33(10) of the Act) and criminal justice visas (as outlined in section 44(1) of the Act).

Whether a refusal or a cancellation, strict time limit applies within which a review application must be lodged, or else the Tribunal would not have jurisdiction to review the matter.