Most people are well aware that a visa application can be refused, however, not many are conscious of the fact that once visa is granted it can be cancelled regardless of whether it is a temporary and permanent one. Visa cancellation reasons and how to avoid it is a separate topic which shall be discussed in future issues. This article will concentrate on the rights of visa applicants once a visa application is refused or visa holders facing visa cancellation.
Issues surrounding visa cancellations and refusals are highly complex and differ from each other. The similarity, however, is the fact that both may be overturned by the Administrative Review Tribunal (AAT).*
Most people panic when they receive a letter from the Department of Immigration and Border Protection (DIBP) advising them of visa refusal or cancellation and many simply give up without challenging the decision. What is important to realise is that in many cases it is possible to have your visa successfully reinstated or granted** as a result of an outcome from the AAT decision. Currently, 36% of Migrant visa and 16% of Refugee applications are being set aside by the AAT (meaning, going back to the DIBP for reconsideration following initial refusal). It is not unusual for the DIBP to wrongly refuse or cancel someone’s visa therefore considering challenging their decision is a sensible way to go.
Whilst feelings of despair and confusion are understandable it is highly advisable to use the time wisely and seek professional advice as soon as possible. The first and most vital peace of information required to be identified is the timeframe for lodging a valid application for the AAT review. Once you miss the deadline there is nothing you can do in most cases. In addition to correctly establishing the timeframe, a migration professional will check validity of the DIBP letter itself as in some instances the Department fails to issue valid cancellation letters. The migration law requires the DIBP to follow a set of rules when considering to cancel someone’s visa. If a mistake occurs in the process it is possible to have the visa cancellation deemed invalid.
Do not ignore visa refusal or cancellation letters as such leads to a person becoming an unlawful non-citizen who consequently can be detained in a detention centre indefinitely or deported back to the country of origin. Any other attempts to lodge a valid visa application by a person who is unlawful non-citizen will have significant limitations and processing challenges.
* Certain conditions apply to lodging a valid application for appeal or review (term most commonly used).
**While the AAT does not have a jurisdiction to grant a visa they set decision aside meaning the DIBP cannot refuse a visa on the issue in question and must consider the application again (which may lead to a visa grant).