Australian migration - Appeals and Reviews

If your visa application is unsuccessful (refused), it is normally possible to apply to have the decision reviewed. There are two major avenues through which to apply for review:

• The Tribunals (Administrative Appeals Tribunal (AAT)); and / or   
• The Minister for Immigration.

Our experience and services
As legal professionals, we are called on to represent applicants or companies in cases where:

• Applications have been unsuccessful
• Immigration department officials have taken action or are about to take action which is improper or beyond their power

How we are able to assist:

• Reviewing case to advise on prospects of appeal
• Advise on other immigration options – separate or parallel to an appeal or review
• Preparing all aspects of the appeal, including written submissions to the Tribunal/ Court
• Preparing the case and client for the Tribunal or Court hearing
• Preparing and collecting evidence to support the case
• Representing and advocating for clients at the hearing

We have assisted applicants with appeals and merits reviews in the following contexts:

• Health 
• Visa cancellations and refusals    
• Character
• Fraud
• Work experience
• Skilled migrants
• Language ability
• Genuineness of marital, spousal, de facto, same-sex relationship
• Genuineness of visitor/ student status
• Company sponsorships and nominations
• Eligibility of sponsors
• Persecution
• Credibility
• Whether notices from the Immigration Department were properly sent
• Breach of employer sponsorship undertakings or visa conditions and obligations

The Administrative Appeals Tribunal (AAT) 
Immigration Department decisions can be reviewed by application to the Administrative Appeals Tribunal. Generally speaking the Tribunal is able to reconsider all the facts, circumstances and the law in a particular case and make a decision on the merits.

The Minister for Immigration
The Minister for Immigration has a personal power to intervene and grant a visa, despite refusal by the Immigration Department and the Tribunal. However, this power is not used by the Minister very often and she/he is not obliged to use this power. The power may be used if the Minister considers it is in the public interest to do so, even if a person does not meet the legal requirements for a visa.

Courts
It is also possible that some decisions of the Immigration Department or the Tribunal can be appealed to the Federal Courts. This type of review is different because it is generally confined to whether an "error of law" occurred in the making of the decision, rather than whether the decision was correct based on the facts.

The review and appeals processes are complex, and any right to review or appeal must be dealt with comprehensively and quickly.
Why an application may be refused or a visa revoked
Applications may have been refused for a variety of reasons. Some examples include:

• Immigration officers may have misinterpreted and not properly applied the law to the facts or may have overlooked the facts
• The application was not properly prepared or presented
• The applicant was deemed not to meet visa criteria, including character and health
• The company/ employer sponsor was deemed not to meet sponsorship or nomination criteria
• The applicant was deemed to have provided false, misleading or insufficient information or documentation

Visas may be cancelled in the following contexts:

• Breach of visa conditions – eg work restrictions or study and attendance obligations
• Breaches of good character requirements
• Termination of employment, in the case of employer sponsored visas
• Termination of relationship, in the case of partner visas
• Discovery that false, incorrect or misleading information was provided in support of an application
• Allegations that the marriage, de facto relationship or same sex relationship was not genuine or did not really exist
• Visas were improperly granted – eg the Immigration Department made an incorrect decision in granting the visa

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What is a Binding Child Support Agreement?

A Binding Child Support Agreement allows you to make a financial agreement regarding child support payments and how they are paid. 

Each party wishing to enter into a binding child support agreement must obtain independent legal advice before making or entering into the agreement. 

You can also make a binding child support agreement that credits privately made lump sum payments or the value of a transfer of property against the liability that is payable under a child support assessment.  You can specify the rate at which the lump sum is to be credited at 100% or less.

If you include these provisions in the this type of agreement, you must have a child support assessment in place before the agreement can be accepted and the lump sum payment or value of the asset must be equal to or greater than the annual child support rate under the current child support assessment.

This is a complex area and we recommend you obtain legal advice from our Family Law Team by telephoning 03 9614 7111.

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How do you proceed with a divorce if you do not know where your spouse is?

You can still proceed with your Divorce application but you need to obtain an Order from the Court for “substituted service or dispensation of service”.

An Order for substituted service permits you to serve the Divorce documents on a third person who the Court is satisfied will bring the divorce documents to the attention of your spouse. 

An Order for dispensation of service gives your permission not to serve the Court documents on your spouse if the Court is satisfied that you have taken all reasonable steps to locate your spouse. 

An affidavit is required by you setting out the steps you have taken to locate your spouse.

For further assistance in preparing the affidavit, please contact the Family Law Team at Nevett Ford Lawyers on 03 9614 7111.

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