Your Visa for Australia was Refused, what next?

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Your Visa for Australia was Refused, what next?


 

A Ministerial Intervention?

As I always write in all my blogs, why get into this picklewhen you could have avoided this situation in the first place.

Before I outline the Ministerial Intervention process below I was just recently presented with a situation where a Filipina was being represented by another Filipino Migration Agent at the Administrative Appeal Tribunal.

Clearly he was out of his league. On the day of the hearing he did not even appear before the AAT and now this poor Filipina is frantically searching for a solution for her dilemma as the AAT upheld the department decision to refuse her a partner visa application.

She rang me to discuss her situation but I instantly referred her to a Migration Law Specialist who could explain to her the situation that she faced and what else she could do.

Her next stage to this matter is to seek MINISTERIAL INTERVENTION according to the Migration Law Specialist.

Now, keep in mind that not all agents are created equal, not all agents have the same experience, and not all agents have to ability to provide certain services in this profession. So my advice is not to rush out and seek the services of an agent even if they are highly recommended as agents as a general rule specialise in certain aspect of the application process.

This is very clearly spelt out in my book, AVOID THE MIGRATION MINEFILED, Safely Migrate to Australia from the Philippines.

Let’s now have a look at the information provided at the department’s website regarding this avenue of appeal if you are in this type of a pickle.

The information below describes the public interest powers contained in sections 351, 417 and 501J of the Migration Act 1958.

These powers can only be used by the minister and are non-compellable. This means they act as a ‘safety net’ only and the minister is not legally bound to intervene, or consider intervening.

When can I make a request for ministerial intervention?

You can make a request for ministerial intervention if you have received a decision by a merits review tribunal. This is because the minister’s public interest powers need a merits review tribunal decision to exist before he can intervene.

A ‘merits review tribunal’ means the Administrative Appeals Tribunal (AAT).

However, there are certain limited circumstances where the minister cannot intervene even after a decision by the AAT.

These include where:

  • the decision not to grant a visa is not a decision that can be reviewed by the tribunal
  • the tribunal has sent your case back to us for further consideration and one of our decision-makers has made a subsequent decision on the visa
  • your tribunal decision was made before 1 September 1994
  • a finding by the tribunal that our decision is not able to be reviewed by it
  • a finding by the tribunal that the application made to the tribunal was invalid as it was not made within the required timeframe.
  • a decision of the AAT that is not in respect of a migration decision or a protection visa decision.

Note:    Before 1 July 2015, a merits review tribunal decision also included decisions from the Migration Review Tribunal and the Refugee Review Tribunal. These two tribunals merged into the AAT, so the AAT is now the only merits review tribunal that can make a decision that then enables you to request ministerial intervention.

The department will advise you if your request cannot be considered under the minister’s public interest powers.

You can seek ministerial intervention if this is your initial request for the minister to intervene and you are currently appealing the merits review tribunal decision through the courts. However, the minister only intervenes in a relatively small number of cases and you should not discontinue any application for judicial review on the expectation that he will intervene in your case.

Are you the partner of an Australian citizen, permanent resident or eligible New Zealand citizen?

In recent years, changes were introduced to let certain partners lodge Partner visa application in Australia, where they were previously barred from doing so under section 48 of the Migration Act 1958.

If you are eligible, you should do this rather than ask the minister to intervene in your case.

The minister generally does not want to consider cases where:

  • it may be open to a person to lodge a valid application for a Partner visa as a result of these changes
  • a person lodges a Partner visa application as a result of these changes and is subsequently refused a visa.

Who can ask the minister to intervene?

You, or your authorised representative, can make a request for intervention if you have had a merits review tribunal decision.

Other people cannot make a request on your behalf. They may, however, provide letters in support of your request. These letters will be taken into account when assessing your request.

A merits review tribunal may also refer your case to back to the department, where they consider information provided in the course of your review application should be brought to the minister’s attention. Where this occurs, the department will write to you for further information and supporting documentation.

Note: It is very important that you provide all information and supporting documentation as quickly as possible. The minister is not compelled to intervene in your case so you should not discontinue any application for judicial review on the expectation that the minister will intervene.

The department may also initiate a request on your behalf in some circumstances.

How do I ask the minister to intervene?

You can ask the minister to intervene in your case in writing stating the reasons why you should remain in Australia.

Requests for ministerial intervention should be sent to:

Postal address

Minister for Immigration and Border Protection

Parliament House

Canberra ACT 2600

How will my request be assessed?

The minister has issued guidelines (the Minister’s Guidelines) to departmental officers outlining the types of unique and exceptional circumstances the minister wants to be brought to his or her attention. For a list of the circumstances which might be considered to be unique or exceptional and the types of documents which could support your claims are available on the department’s website.

See: https://www.border.gov.au/Trav/Refu/Mini/circumstances

Your first or initial request for intervention is very important. If you have not previously asked the minister (or a former minister of the department) to intervene, your request will be forwarded to the minister for possible consideration.

You and/or your authorised representative will be informed in writing of the outcome of your request for intervention.

While there is no limit on the number of times you can ask the minister to intervene in your case, when a minister has declined to intervene in your case, the minister generally does not want to consider any further requests for intervention from you. You are expected to leave Australia if your initial request is unsuccessful.

In most cases, the minister will only consider a further request from you if:

  • there has been a significant change in your circumstances since your last request
  • this change in circumstances must raise new, substantive issues which have not previously been provided by you or considered by the minister
  • these circumstances must also, in our opinion, present unique or exceptional circumstances
  • you hold a bridging or other visa, or have applied for one.

Note: This does not apply if you are in immigration detention.

What is expected of YOU?

Unless you are in immigration detention, you must hold a current visa throughout your request for intervention. This means you must hold a bridging or other visa, or have applied for a bridging visa. If you do not, the minister may choose not to intervene.

Your request for ministerial intervention must provide information on your circumstances, and why you consider them to be unique or exceptional.

You should also include certified copies of any documents which support your claims to stay in Australia. These documents should be obtained prior to making a request and should confirm that statements you make are factual.

Example: A marriage certificate supports the claim that someone is married.

It is very important that you provide certified copies of any documentation that supports your claims at the time of your request. Where you cannot provide supporting documentation, you should tell the department why documents are not available or why it is not reasonable for you to provide this information. If you do not provide supporting documentation, or compelling reasons for why it cannot be provided we might not place weight on your claims.

A list of unique or exceptional circumstances and examples of supporting documentation are available on our website.

See: https://www.border.gov.au/Trav/Refu/Mini/circumstances

Certified copies are copies authorised, or stamped as being true copies of the original. In Australia, copies can be authorised by a magistrate, Justice of the Peace, Commissioner for Declarations, solicitor, registered medical practitioner, bank manager, postal manager and an Australian public service officer with five years or more service. For a full list of people who can certify documents please see the Statutory Declarations Regulations 1993, available through the Attorney-General’s Department website.

See: http://www.ag.gov.au/Publications/Pages/Statutorydeclarations.aspx

If you want to have a document certified overseas please contact the closest Australian mission for details of people who can certify documents in that country.

See: https://www.border.gov.au/about/contact/offices-locations

Documents not written in English must be accompanied by an accurate English translation of each of those documents. The translation should be undertaken by a translator accredited by the National Accreditation Authority for Translators and Interpreters (NAATI). A list of available translation services is available through the Yellow Pages or the NAATI website.

See: http://www.naati.com.au/

The department might also ask you to provide additional information after you have provided supporting documents.

See: https://www.border.gov.au/about/contact/offices-locations

You may be asked to undertake a health examination, provide police clearances or have the genuineness of a claimed relationship tested if we consider it necessary.

If you claim that you have a qualification or skill in need by Australia, we might also ask you to have your qualifications and skills assessed by the relevant Australian assessment authority. If we ask you to provide additional information, you must do so within the time-frame specified.

Unique or exceptional circumstances.

The minister has provided guidance on the types of unique and exceptional circumstances he wants brought to his attention.

See: https://www.border.gov.au/Trav/Refu/Mini/circumstances

Options if the minister refuses my request for intervention.

You should not assume the minister will intervene in your case. As this power is intended to operate as a ‘safety net’, the minister generally only intervenes in a relatively small number of cases. This means you are expected to continue to make arrangements to depart Australia while your request is being processed.

If the minister does not intervene, you are expected to leave Australia as soon as possible. If there are reasons why you cannot leave, you should contact our nearest office as they may be able to provide assistance to help you obtain a travel document or make arrangements for your departure.

See: https://www.border.gov.au/Lega/Lega/Help/Location/australia

Bridging visas

You may apply for the grant of a Bridging visa while your request is being considered. Your application will be considered in accordance with the relevant legislation in place at the time of application.

See: Bridging Visas

Form 1008 – Application for bridging visa – To replace a ceased bridging visa, to change bridging visa conditions or to provide lawful status during judicial review.

So there you have it in a nutshell.

If you are intending to lodge a Partner visa or SkillSelect visa or Tourist visa from the Philippines to Australia then Contact us and we will ensure that if we can’t assist you with your application we can certainly refer to you a Migration Agent that can.

Thank you and Mabuhay!

September 29, 2015