Anna & Co Lawyers

IMMIGRATION LAW

With countless successful cases, our clients can count on our Immigration Law practice group to manage the visa process as timeously and efficiently as possible to achieve a positive outcome.

ADMINISTRATIVE REVIEW
TRIBUNAL (ART)

The Administrative Review Tribunal (ART) has two main divisions that affect migration matters:

The Migration and Refugee Division – This division is responsible for reviewing most visa refusal decisions made by the Department of Home Affairs
The General Division – This division is responsible for reviewing most character-related visa decisions or citizenship refusals

The ART has the power to review matters that relate to decisions about bridging visas, family visas, nomination/sponsor applications, partner visas, permanent business visas, skilled visas, student visas, temporary work visas, some visitor visas, some humanitarian visa categories and citizenship.

The ART does not review decisions relating to fast-track humanitarian visas.

What visa-related powers does the ART have?

As mentioned above, the ART has the power to review a range of migration related decisions. The ART will conduct its own independent assessment of your application.

Through the appeal process the ART will review:

All documentation, evidence, forms and interview records held by the Department of Home Affairs
All submissions or evidence submitted by you to the ART
All evidence supplied at your hearing

The ART also has their own independent powers to conduct investigations. If, during this process, the ART comes across any adverse information against you, or anyone involved in the visa refusal appeal, they will notify you in writing and ask you to comment on this information. We generally recommend you obtain legal advice if this happens.

What is the process for an appeal in the ART (Migration and Refugee Division)?

The general process of an ART appeal in the Migration and Refugee Division is as follows:

1. Lodge your appeal application to the Administrative Review Tribunal

It is very important to do lodge your application within the provided time frame, which can be as little as 2 days. The best way to lodge your application is online.

When applying for an immigration appeal be sure to upload the required supporting documents needed to immediately begin the appeal process. This is normally the email or letter notifying you of the refusal or cancellation of your visa and a copy of the decision. You will be allowed to provide further documents to the ART at a later stage.

You should also pay the fee if required. Some ART appeals are free or you may be eligible for a reduced fee.

2. The ART will then send you a confirmation of application letter

3. You should start preparing your appeal case

We recommend that you carefully read the Department of Home Affairs decision and the reasons your application was unsuccessful. The best strategy for case will depend on your individual circumstances. Often it will involve:

Preparing a statement outlining your explanation of different aspects of your case
Obtaining supporting evidence such as medical reports or letters of support
Identify people who could be witnesses to support different aspects of your case
Doing legal research to explain why your case should win at the ART

4. The ART will send you a hearing invitation letter.

Prior to the hearing the ART may also ask you for further information or certain documents to help complete their assessment of your appeal. Even if the ART does not request it, we generally recommend you provide the ART with updated information and documents explaining why the Department of Home Affairs made the wrong decision in your case.

In some cases the extra information or documents you provide may mean a hearing is no longer required and a positive decision is made on your case. However, this is quite uncommon.

When you receive the hearing invitation letter you should complete it and return to the ART. This generally requires you to confirm if you need an interpreter for the hearing and to include the details of any witnesses you may plan to bring.

5. You attend your ART hearing with your witnesses and migration lawyer (if you are represented).

The ART hearing is an important opportunity to explain your circumstances in person and to answer any questions the Tribunal member may have. The ART will provide you with an interpreter if you need one. You can bring witnesses to the hearing to provide evidence as well. You should tell the ART in advance if you plan to bring witnesses with you.

Your migration lawyer may also provide legal arguments at the of the hearing in support of your case.

6. The ART may ask for more information or documents

In some cases the ART will ask for further information after the hearing based on issues that were raised. This may include medical reports, letters of support or other documents.

7. The ART makes a decision in your case.

When assessing your case, the ART will undertake a review of all of the facts of your matter, including new information and the reasons behind the original decision. In some cases, a decision may be given on the spot at the hearing but generally you will receive this after the hearing. It can take anywhere from 2 weeks to 2 years to receive an ART decision.

If the AAT makes a decision in your favour, generally speaking, the matter will be remitted back the Department of Home affairs where they will typically either revoke the visa cancellation or grant the refused visa.

If your immigration appeal is unsuccessful you may be able to further appeal the matter to the Federal Circuit Court or Federal Court of Australia.

What decisions can the ART make?

The Administrative Review Tribunal member will decide to affirm, vary, set aside, or remit the decision made by the Department of Home Affairs.

If the ART affirms the decision, it means the decision made by the Department of Home Affairs is not changed. If this happens you will need to immediately consider your next best steps such as appealing the decision to court, applying for another visa or leaving Australia
If the ART varies a decision, it means the decision made by the Department of Home Affairs is changed or altered in some way
If the ART sets aside a decision, it means the ART agrees or partially agrees the original decision made by the Department of Home Affairs was wrong
If the ART remits a decision, it means it sends the matter back to the Department of Home Affairs to make a new decision in accordance with the ART’s instructions or recommendations. This means you won your appeal case! Generally if your matter is remitted, you will need to wait to hear from the Department of Home Affairs before your visa is granted.

Do you have any question about visa appeals in the ART? Book a free 15 minute consultation online now and arrange to speak with one of our experienced Immigration lawyers!

VISA CANCELLATION

What are the reasons for a visa cancellation?

There are 4 reasons why your visa may be cancelled:

You were non-compliant with visa conditions
You do not meet the Australian visa character requirements
You provided false information or documents on your visa application
You asked for your visa to be cancelled

You will usually be sent a letter from the Department of Home Affairs notifying you of their intention to cancel your visa before it is cancelled. This letter usually allows you to provide information by a due date explaining why your visa should not be cancelled.

Can a cancelled visa be reinstated?

The good news is yes, in some circumstances, your cancelled visa can be reinstated. Generally this happens in 2 different ways:

By successfully appealing the visa cancellation decision to a tribunal or court
By successfully applying for revocation if your visa was cancelled under the mandatory cancellation provisions

The reinstatement of a cancelled visa is generally a complex process and our migration lawyers are experts at navigating this process and putting forward the best case possible for our clients. We recommend you obtain migration advice as soon as you receive a letter indicating your visa may be cancelled (this can be referred to as a Notice of Intention to Consider Cancellation – NOICC) or as soon as your visa cancelled. This is because in some cases you may have as little as 2 days to appeal the visa cancellation decision.

How do I appeal a visa cancellation?

Receiving a visa cancellation notice can be very distressing. You should read your visa cancellation notice carefully because each decision is different. This letter should advise:

If you have the right to appeal your decision
The timeframe available to lodge the appeal
The relevant appeal body your appeal should be directed to

If your letter does not outline this information we suggest that you obtain legal advice.

Generally, a visa cancellation decision is appealed to the Administrative Review Tribunal and if this is the case it will be clearly stated in your visa cancellation notice. You can read more here about how to appeal a decision to the ART.

Some visa cancellation decisions are appealed to the courts instead. For example, when the Minister for Immigration personally decides to cancel your visa based on character grounds. You can read more about this process on our Court appeals page.

SECTION 501 VISA CANCELLATION

Under section 501 Migration Act, the Minister has the power to refuse or cancel a visa if they are not satisfied that a person passes the character test.

What are the grounds for a section 501 cancellation?

The 501 cancellation power is generally a discretionary power. However, the Minister MUST cancel your visa if you are currently in prison and you have:

A substantial criminal record, or
Been convicted of a sexually based offence against a child

All visa holders and visa applicants can be affected by section 501 cancellation. It does not matter how long you have held your visa for, even if you came to Australia as a child or you were born here.

What is the character test?

Section 501 Migration Act outlines the character test. The Minister will have regard to:

Your past and present criminal conduct
Your past and present general conduct

Reasons for 501 cancellation include, but are not limited to:

You have a substantial criminal record
You have been convicted of offences in Australia or overseas
You have committed an offence while in immigration detention
You have been in or associated with a criminal group, organisation or person
You have been convicted in Australia or overseas with a war crime or crime against humanity
You have been assessed by ASIO to be a risk to national security
You have an Interpol notice in force against you

Can I appeal a section 501 visa cancellation?

You can appeal a 501 visa cancellation or refusal. Generally, a character cancellation can be appealed to the Administrative Appeals Review (ART), though there are exceptions to this. You will require legal representation at the ART.

The appeal options should be outlined in your 501 cancellation or refusal decision notification from the Department of Home Affairs. If you have received a 501 cancellation or refusal, you should speak to a lawyer about the appeals process. Our expert migration lawyers can assist you in determining if you have grounds to appeal a decision, assist you with the appeals process and represent you at the AAT.

SECTION 116 VISA CANCELLATION

Section 116 Migration Act provides the Department with a broad range of visa cancellation powers.

What are the grounds for a section 116 cancellation?

Reasons the Minister may cancel a visa under section 116 include (but are not limited to):

You have provided incorrect information for your current visa
Your circumstances have changed and you are no longer eligible for your visa
Your visa was granted based on a fact or circumstance that did not exist
You have not complied with a condition of your visa
You present a risk to the Australian community
You present a risk to individuals in Australia

In particular, we recommend that you speak to a lawyer if you believe that you have provided incorrect information to the Department or have committed a criminal offence in Australia.

I have committed a crime – can my criminal activity result in 116 cancellation of my visa?

Criminal activity may result in a section 116 cancellation of your visa on the basis that you may present a risk to the Australian community.

If you have committed a crime, the Department may consider section 116 visa cancellation and they will issue you with a Notice of Intention to Consider Cancellation (NOICC). You will have a short timeframe to provide information to the Department about your situation.

If you have been convicted of a crime and have been given a prison sentence of 12 months or more, please see section 501 cancellation.

Can I appeal a section 116 visa cancellation?

A section 116 visa cancellation can be appealed. The appeal options should be outlined in your section 116 visa cancellation notification from the Department of Home Affairs. If you receive a 116 cancellation, we recommend that you speak to a lawyer about your appeal options. Our expert migration lawyers can assist you in determining if you have grounds to appeal a decision and assist you with the appeals process.