This is Part 1 of our Australian migration law FAQ series. It answers the ten questions clients ask most often about visa applications, refusals, cancellations and review. The main laws are the Migration Act 1958 (Cth), the Migration Regulations 1994 (Cth) and the Administrative Review Tribunal Act 2024 (Cth). Every case turns on its own facts, so this is general information only.
Choosing a representative
1. Should I engage a migration lawyer or a registered migration agent?
Both can help with visa applications. A registered migration agent can generally handle a complete, uncontested application. If your case involves a previous refusal, visa cancellation, character issues, a health waiver, ART review, judicial review or a citizenship dispute, it usually needs legal analysis and representation in proceedings, and is better handled by a practising lawyer. A lawyer can also advise on any criminal, family law or commercial issues involved. For the differences in qualifications and regulation, see How a migration lawyer differs from a registered migration agent.
Refusals and review
2. What can I do after my visa application is refused?
A refusal doesn't necessarily mean you have run out of options. First read the decision record carefully to identify the specific criteria the refusal was based on, then consider:
- applying to the Administrative Review Tribunal (ART) for review within the statutory time limit (if the decision is reviewable);
- lodging a fresh application where the law allows, or applying for a more suitable visa;
- applying to a court for judicial review if the decision involves a legal error.
Review deadlines vary with the type of decision, and some are very short. Missing a deadline usually means losing the right of review, so act quickly once you receive the decision.
3. What is administrative review?
The ART replaced the Administrative Appeals Tribunal (AAT) on 14 October 2024. It conducts merits review of most Home Affairs visa decisions, making a fresh decision on the law and evidence at the time of the review. Applicants can provide new evidence and written submissions and attend a hearing. The Tribunal can affirm the decision, set it aside or send it back for reconsideration. For more detail, see Part 4: Administrative Review Tribunal and judicial review.
4. Can I appeal straight to the Federal Court?
The court won't reconsider whether the visa should be granted. It only looks at whether the decision involved a legal error, such as misapplying the law, procedural unfairness or acting beyond power. Most judicial review of migration decisions starts in the Federal Circuit and Family Court of Australia (Division 2), and must be filed within a strict time limit after the decision. If ART review is available, you generally need to use it first.
Visa cancellation and character
5. Can a visa be cancelled after it's granted?
Yes. Under sections 109, 116 and 501 of the Migration Act, among others, a visa can be cancelled for giving incorrect information, breaching visa conditions, no longer meeting the basis on which it was granted, or failing the character test. Cancellation can mean losing lawful status, immigration detention and being barred from applying for other visas for a period.
6. What should I do if I receive a Notice of Intention to Consider Cancellation (NOICC)?
A NOICC (Notice of Intention to Consider Cancellation) is your chance to respond before Home Affairs makes a decision. Reply in writing within the deadline in the notice, answer each ground for cancellation with an explanation and evidence, and set out your ties to Australia, your family circumstances and any other relevant factors. For the steps involved, see Responding to a Notice of Intention to Consider Cancellation (NOICC).
7. What is the character requirement?
Most visa and citizenship applications must meet the character requirement. Under section 501, a person may fail the character test if they have a "substantial criminal record", are associated with a criminal group, have a family violence conviction, or are considered a risk to the community. When exercising discretion, the Minister or Home Affairs must consider the ministerial direction in force at the time, including protection of the community, family violence, the best interests of children and ties to Australia.
8. Can a criminal matter affect my visa?
It can. Even before any conviction, criminal charges can attract the attention of Home Affairs. A sentence of imprisonment totalling 12 months or more is a "substantial criminal record" under section 501. How you plead and the sentence you receive can directly affect your immigration status, so criminal and immigration issues are best assessed together. See Criminal matters and visas.
Timing and preparation
9. How long does visa processing take?
It depends on the visa subclass, how complex the case is, requests for further information, health and character checks, and the processing priorities set by ministerial direction. Processing times on the Home Affairs website are a guide only, not a promise. Make sure your application is complete, accurate and consistent when you first lodge it, to cut delays from further requests.
10. What should I check most carefully before lodging?
Check the conditions on your current visa (especially condition 8503 "No further stay"), the information you gave in past applications, and that every document is genuine and consistent. Giving false or misleading information to Home Affairs can trigger public interest criterion 4020, leading to refusal and a bar on being granted another visa for a period. For other questions, see our series: Part 2.
How we help
Chua Tan Associates has practised in Melbourne since 1990. Two of our lawyers are Accredited Specialists in Immigration Law, accredited by the Law Institute of Victoria. We advise and act on visa applications, refusals, cancellations, character issues, ART review and judicial review, in English, Mandarin and Cantonese. For more information, see our Australian immigration law services page.
Chua Tan Associates has practised in Melbourne since 1990, acting for clients in Australia and overseas in English, Mandarin and Cantonese. For a confidential consultation, call +61 3 9602 3988 or email chuatan@tpg.com.au. This article is general information only and is not legal advice.
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