Can I reapply for a protection visa after refusal? In short - Yes, it's possible. According to the Migration Act, individuals can seek a review of their protection visa application if it's refused. Seeking legal advice is crucial in such circumstances. To be eligible for reapplication, you must meet specific requirements, including holding a valid visa unless in immigration detention. If you lack a valid visa, regularisation is necessary before seeking reapplication. Timing is essential; requests for reapplication must be made separately within six months of refusal, with exceptions for certain countries. Once eligibility criteria are met, consulting an Australian Migration Agent is advisable. They can assess whether your circumstances warrant reapplication and provide guidance on gathering relevant supporting documents. Making a separate request under Section 48B of the Migration Act is vital. The Department of Home Affairs will review your application, considering factors like character grounds and protection claims. If your application is refused, engaging in the appeal process through the Federal Circuit Court or Administrative Appeals Tribunal may be an option. It's essential to understand your rights and options and ensure that your application is thorough and well-supported.
Discovering that your visa application has been declined can be an overwhelming ordeal, prompting individuals to seek explanations and explore potential avenues for recourse. At Australian Migration Agents, we empathise with this situation. It is crucial to promptly and strategically navigate the aftermath of your refusal, considering potential ramifications and charting your course of action.
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What are my options?
Seek a Review or Appeal the Decision
If your protection visa application faces refusal, avenues for review and appeal may be available. You could seek a review of the decision from an independent tribunal or court. For onshore protection visa applicants who lawfully arrived in Australia, an application for review can be made to the Administrative Appeals Tribunal (AAT). The AAT has the authority to review the decision on its merits and consider any new information or evidence provided. It's essential to lodge your review application within 28 days of receiving the refusal. However, if the visa was refused on character grounds, stricter time limits apply, requiring an application within 9 days of notification.
If AAT review isn't an option or if you are dissatisfied with the outcome, seeking a judicial review by the Federal Circuit Court of Australia may be possible. The court can only review based on legal errors, not the facts or merits of your case. Applications for judicial review must be lodged within 35 days of receiving the refusal or review decision.
Navigating these processes effectively is crucial. Seeking advice promptly can help ensure you understand your rights and options.
Reapplication
Another avenue is to lodge a request under Section 48B of the Migration Act 1958 (Cth), seeking the Minister for Home Affairs' intervention. According to this section, the Minister for Home Affairs holds the authority to intervene in your case, either by approving the visa or allowing you to lodge another protection visa application. Section 48B grants discretionary power to the Minister for Home Affairs to intervene in instances of protection visa refusals.
However, the Minister only exercises intervention in a limited number of cases and does not entertain repeat requests. If the Minister does not intervene in your case, you are expected to leave Australia when your current visa expires. The process of reapplication is as follows:
- Eligibility: To be considered for reapplication, you must meet certain requirements, such as having new protection claims that you could not have provided in your original application and holding a valid visa (unless you are in immigration detention). If you do not hold a valid visa, you must regularise your visa status before making a request for reapplication.
- Timing requirements for Section 48B Requests: You must make a request for reapplication separately from any other request for ministerial intervention, and within six months of your refusal or review decision, unless you are from a country that is subject to a shorter or longer time limit. Such countries include: Afghanistan, Iraq, Libya, Somalia, South Sudan, or Syria.
- Making a request: Once you have met these requirements, you should make an appointment with an Australian Migration Lawyer to discuss whether your circumstances are exceptional and if the information you are now presenting could not have been provided earlier during your application or the Tribunal process.
- Provide comprehensive information and evidence: You must provide comprehensive information about your circumstances and include all relevant supporting documents. This may encompass personal statements, updated details about your situation, or any other documentation that strengthens your case. The submission should be thorough and self-contained.
- Separate Request Submission: It's crucial to make a distinct request under Section 48B, separate from any other Ministerial Intervention power requests. Failure to do so may result in your request not being considered. Be explicit about your intent to invoke Section 48B.
Can I apply immediately after visa refusal?
No, you cannot immediately apply for another protection visa after a refusal. The Minister expects all relevant circumstances and protection claims to have been disclosed during the initial application process. Additionally, subsequent requests for intervention under section 48B of the Migration Act will not be considered if the claims have already been addressed during the initial application or Tribunal process.
What is the difference between visa refusal and cancellation?
Visa refusal occurs when an individual's application for a visa is declined by the immigration authorities, typically due to factors such as incomplete documentation, failure to meet eligibility criteria, or concerns about the applicant's character or intentions. This decision is made before the visa is granted.
Visa cancellation, on the other hand, happens after a visa has already been granted but is subsequently revoked by the immigration authorities. This can occur for various reasons, including breaches of visa conditions, changes in circumstances, or the discovery of false information provided during the application process. Protection visa refusal or cancellation may result from issues such as incomplete documentation, failure to meet eligibility criteria, or concerns about the applicant's character or intentions.
Can I apply for a different visa type?
After being denied a protection visa or assessed as not meeting Australia's protection obligations, the Minister expects you to leave Australia promptly and adhere to the country's immigration laws. You won't be allowed to seek another visa, except for a protection visa or a 'removal pending' bridging visa, while in Australia. If you are deported from Australia due to their visa cancellation linked to a significant criminal record, past or present criminal behaviour, or a mix of both, you will not qualify for most visa types, and thus, won't be able to return to Australia.
How can Australian Migration Agents help?
Navigating protection visa applications can be complex, especially if your protection visa is cancelled. Understanding the circumstances surrounding your application and recognizing when applying for a protection visa is your last resort is important. Ultimately, having a knowledgeable person to guide you through the process can make all the difference.
That's where a support person, such as the team at Australian Migration Agents, can be invaluable. We can help you understand Australian community and migration law, ensuring you meet visa status requirements. Additionally, if you need assistance with language, an interpreting service can provide support. Our team of Australian Migration Agents will help you to engage with all support necessary to guide you through the system, whether you want a review, an appeal, or lodge an alternative application.
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