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Visa Refusals

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Visa Refusals

An image of a worried woman holding her head while looking over a document that has a large "Rejected" stamp on it.

What Can You Do About a Visa Refusal in Australia?​

If you’ve received a visa refusal, one of your first questions might be whether the Department of Home Affairs made the correct decision. Our experience has shown that errors can sometimes occur during decision-making, particularly when subjective or discretionary criteria are involved.

You may have the right to appeal if your visa refusal is based on any of the following:

  • Genuine Temporary Entrant criteria for Visitor Visas
  • Genuine Student for Student Visas
  • Genuine need for an employment visa nomination
  • Criteria for Partner Visa refusals
  • Requirements for family visas, such as Parent Visas
  • Visa cancellations
  • Misinterpretations of criteria for General Skilled Visas
  • Overlooked documents by the Department

The Department does not always reach the correct decision, which is why an independent review body—the Administrative Review Tribunal (ART)—is available to assess your application from a fresh perspective.

Applying for a visa to Australia can be a complex and stringent process. Various factors can lead to the refusal of a visa application. Understanding these common reasons can help applicants prepare better and improve their chances of success.

What to Do If Your Australian Visa Application is Refused?

Facing an Australian visa refusal can be overwhelming, casting uncertainty over your future in Australia. However, a refusal doesn’t necessarily mean the end of your journey. Emigrate Lawyers is here to guide you through your options.

1. Understand the Reason for Refusal

The first step is to carefully read the refusal letter from the Department of Home Affairs. This letter will outline the specific reasons why your visa application was denied. Understanding these reasons is crucial as it will guide your next steps and determine the best course of action.

2. Seek Professional Advice

Consulting with a registered migration agent or an immigration lawyer can provide you with expert advice tailored to your situation. They can help you understand the complexities of the refusal reasons and advise on the likelihood of success in appealing the decision or reapplying.

3. Review Your Options for Appeal

Depending on your visa type and the reasons for refusal, you may have the right to appeal the decision. The main avenue for appeal is the Administrative Review Tribunal (ART).

The Department of Home Affairs’ judgements are reviewed by the ART. If you are eligible to appeal to the ART, you must do so within a timeframe specified  in your refusal letter. The ART can reconsider the case and potentially overturn the refusal.

Administrative Review Tribunal (ART)

ART REVIEW APPLICATIONS

The ART is able to consider a wide range of visa-related decisions, including refusals and cancellations. ART decisions are based on the merits of each particular case.

The following actions are within the ART’s power:

  • affirm (not change) the DHA’s decision; or
  • vary the decision; or
  • set aside the decision, and substitute it with a new decision; or
  • return the matter to the DHA for reconsideration with specific directions.

ART Review Process – How Can Emigrate Lawyers Help?

Stage 1: ART Review Application Lodgement Stage 2: Awaiting ART Review/Lodgement of Written Submissions Stage 3: ART Review & Hearing Attendance

The letter that you receive from the DHA regarding the decision to refuse or cancel your visa will refer to the exact time frame within which you must lodge your review application.

Your application for review MUST be lodged with the ART within the required time frame. In most cases, this will be 21 days from the date of a decision to refuse a visa application, and 7 days from the date of a decision to cancel a visa.

As such it is critical that you notify us of the DHA’s decision as soon as possible, to allow us sufficient time to prepare and lodge your review application within the required time frame.

PLEASE NOTE: The ART will NOT accept late applications under any circumstances. This means that if you do not lodge your application within the relevant time frame, the ART will not be able to review the DHA’s decision to refuse or cancel your visa, and you will have no other recourse to request a review of this decision.

Once your application has been lodged, the ART will confirm the lodgement date in writing, and your application will enter the queue of applications awaiting review. The time that it takes the ART to review an application (and to schedule a hearing, if required) is dependent upon the type of application, as well as ART processing priorities. In some cases, it may take more than 12 months for the ART to review an application and schedule a hearing. However other applications may be assessed quite quickly. Please contact us if you would like further information regarding likely timeframes for the review of your application.

Whilst your application is awaiting review, we will ask you to provide information and documents in support of the grounds for your application i.e. any evidence that supports your reasons for applying for a review of the DHA’s decision. We will then prepare written submissions in support of your application, and lodge these with the ART for consideration.

Bridging Visas

You MAY qualify for a bridging visa upon lodgement of your review application. This would enable you to remain lawfully in Australia whilst you await the outcome of your application. The type of bridging visa that you qualify for (if any), along with the conditions of that visa, will generally depend upon your circumstances at the time that you lodged the visa application that is under review.

When your case is due to be considered by the ART, you will be given the opportunity to provide further information and documents in support of the grounds for your application.

The ART will review all relevant written information and documents that you have provided, along with any relevant information provided by the DHA. It will then either make a decision based on these written materials or schedule a date for a hearing.

If a hearing is scheduled: You will be given the opportunity to present information regarding your case in person and answer any questions that the ART may have regarding your review application. We will represent you at the hearing, make oral submissions in support of your application and help you to answer the ART's questions. The ART will then make its decision following the hearing. This may take several weeks, depending upon the material that the ART must consider, and the complexity of your case.

Unsuccessful at the ART: What Are Your Next Steps?

If you have been unsuccessful at the Administrative Review Tribunal – there are still several steps you can take to address your visa refusal:

1) Judicial Review

If you believe that the ART made a legal error in its decision, you may have the option to seek a judicial review. This involves applying to the Federal Circuit and Family Court of Australia or the Federal Court of Australia to review the legality of the ART’s decision.

  • Grounds for Judicial Review: Judicial review is not a re-hearing of your case. The court will only consider whether the ART made an error of law, such as failing to follow proper procedures or misinterpreting the law.
  • Legal Representation: It is advisable to seek legal representation when pursuing a judicial review, as this process can be complex and requires a thorough understanding of legal principles.
2) Ministerial Intervention

In certain exceptional cases, you can request the Minister for Immigration to intervene in your case. Ministerial intervention is discretionary and is typically only granted in compelling or compassionate circumstances.

  • Compelling Reasons: Provide strong evidence of compelling or compassionate reasons that justify the Minister’s intervention. This could include significant hardship, strong ties to Australia, or other extraordinary factors.
  • Limited Availability: Ministerial intervention is not available for all types of visa refusals, and the criteria are stringent. Consulting with a migration agent or lawyer can help assess your eligibility for this option.

Do You Need Legal Assistance with an ART Appeal?

While you don’t need a lawyer or Registered Migration Agent to lodge an appeal, an experienced immigration lawyer can significantly increase your chances of success.

At Emigrate Lawyers, we have a solid track record of successfully appealing visa refusals—even in challenging cases. Our team will offer honest advice about your prospects and provide the following support:

  • Understanding what the Tribunal seeks in your case
  • Preparing you thoroughly for the hearing
  • Gathering additional supporting documents to strengthen your appeal
  • Accompanying you to the hearing to ensure fairness
  • Submitting detailed written arguments showing why the Department’s decision was incorrect and why your visa should be granted

FAQs

What Are the ART Processing Times? What if You Receive a Visa Refusal Outside Australia? Can I have another person participate in the hearing? How long does a hearing take? Is the hearing recorded? When will I get a decision?

When appealing a visa refusal or cancellation, it may take a few months to years to present your case to the Tribunal. Although your appeal is a priority, the ART manages a substantial caseload, potentially extending timelines to about two years. Since its establishment on 14 October 2024, the ART is working to process cases more efficiently. During the appeal process, you’ll typically hold a Bridging Visa with work rights to stay lawful in Australia.

If you received a visa refusal outside Australia, your options may vary depending on the visa type. Generally, Partner visas or other sponsored visas, such as employer-sponsored visas, can be appealed by the sponsor residing in Australia.

You may have another person present at the hearing to assist you. This may be your representative, if you have appointed a representative, or your sponsor or a family member. A person assisting you can give you support and may be invited or permitted by the Member to present arguments or comment on specific matters.

The average length of a hearing is two hours. Some hearings are shorter and some are much longer. The Member may adjourn a hearing to allow for a break. You may ask for a short break if you need one at any time during the hearing.

All hearings are audio recorded. You may ask us for a copy of the recording at the end of the hearing.

As each case is different, it is difficult to say how long it will take for us to make a decision in your case. In some cases, the Member may announce the decision at the end of the hearing. However, in most cases a decision will not be made at the end of the hearing but will be given to you at a later date.

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Why Choose Emigrate Lawyers?

Our team of seasoned immigration lawyers possesses in-depth knowledge and extensive experience in handling migration applications. We stay updated with the latest legal developments to offer you the best possible advice and representation.

We recognise that every client’s situation is unique. At Emigrate Lawyers, we take the time to understand your specific circumstances and tailor our services to meet your individual needs. Our goal is to provide you with the most effective legal strategies to ensure a successful outcome.

We believe in transparent and predictable legal costs. Our fixed fee guarantee ensures that you know exactly what to expect, with no hidden charges. This allows you to focus on your case without worrying about financial uncertainties.

Your satisfaction is our top priority. We are committed to delivering exceptional service and achieving the best possible results for our clients. Our track record speaks for itself, with countless successful Protection Visa applications and satisfied clients.