Aussie Visa Services / PROCESS: Visa Refusal to Judicial
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Process Refusal to Judicial 6742 VISA REFUSED 1
Invitation for Comment[s58] re Visa Refusal [s66] is only a MAY:
1) Sent a Invitation for Comment [s58] re Visa Refusal [s66] o This includes if invited under[s56] to give additional information
o AND to comment on information [s57] o Time frame to comment [R 2.15(1)(b)(ii)(C)] 28 days after notification if in Aust o Time frame to comment [R 2.15(1)(c)(i)] 28 days after notification if outside Aust
2) Invitation sent by mail [s494B(4)] [Regs 2.55(3)(c)(ii)]
3) Receive Invitation 7 working days after date of Document [S494C(4)(a)]
4) Reply to Invitation [R 2.15(1)(b)(ii)(C)] 28 days [s58]
5) Can extent the period by 7 days if in Aust [Regs 2.15 (4)(b)]
Decision to Refuse a Visa that Can be Granted in Aust:
6) After considering a valid application for a visa [s46], the Min may refuse a Visa Application [s65(1)]
7) Refused on the basis of not meeting the circumstances for granting the visa [s40]
8) Note can be refused under Character Grounds same are cancelation [s501]
Sending Decision to Refuse a Visa(Mail):
9) Notify the applicant [s66]
10) Minister must notify [Reg 2.16(3)] by method specified in [s494B]
11) Decision sent by mail [s494B(4)] [Regs 2.16(3)
12) Receive Letter 7 working days after date of Document [S494C(4)(a)]
13) Must give reason for refusal [s66(2)(a)]
14) Must state the method of review [s66(2)(d)(i)] [s338(2)]
15) Time of the review application [s66(2)(d)(ii)]
16) Who can apply for the review [s66(2)(d)(iii)]
17) Where the Review can be made [s66(2)(d)(iv)]
Sending Decision to Refuse a Visa(Fax and Email):
18) Decision sent by email or Fax [s494B(5)] [Regs 2.16(3)]
19) Receive end of day sent [S494C(5)]
Visa Refused:
20) If application for SV was invalid has BVA for 28 days after Notification [010.511(b)(vii)]
21) SV refused has BVA for 28 days after Notification [010.511(b)(ii)]
22) Visa ceases to be in effect on 28 days are notification of refusal [s82(1)]
23) Now unlawful non citizen [s14] and [s15]
24) Now s48 Bared o Can only get certain visa’s [reg 2.12] [s48] o Visa refused or cancelled while in Aust [s48(1)] o If leave and re-enter deemed to still be in Aust [s48(3)]
25) Liable to be detained [s189] and
26) Removed from Aust [s198]
27) Need to apply for BVA [010.511(b)(ii)]or BVE [050.511(b)(iii)(A)] on basis of going to apply for a MRT or RRT
28) Need to apply for BVB or BVE to leave country [050.212(2)], has to have purchased tickets to leave within 2 weeks
RRT: Refused a Protection Visa SC 785
29) Must be a RRT Decision[s338(1)(b)], [s411(1)(c)], letter from DIBP will say that
30) Have 28 Calendar Days after notification to apply [s412(1)(b)]
31) Can only be made by subject to Primary Decision [s412(2)]
32) Subject must be in Aust [s412(3)]
33) Pay prescribed fee if any [s412(1)(c)] (no fee to apply but $1604 if not successful)
34) Apply on approved form [s412(1)(a)]
35) RRT must review[s414(1)] a valid application [s412]
36) New information, RRT does not have to consider old information [s416(c)]
37) RRT may Affirm the decision [s415(2)(a)]
38) RRT may vary the decision [s415(2)(b)]
39) If RRT Affirms decisions, you have BVA for 28 Days after notification [010.511(b)(iii)(A)
40) Minister may substitute more favorable decision [s417(1)]
41) BVE will expire 28 days after Notification [050.511(b)(iii)(A)],
42) Cannot see any way to get another BVA/BVE unless you have applied for the FCC
Can apply for MRT(apply for review): All but Protection and Character
43) Must be a MRT Decision [s338(2)-(9)]
44) Must be In Australia [s338(3)]
MRT Application:
45) Decision is a MRT decision [s338(2)(a)-(d)] [Reg 4.10 (1)(a)] as about refusal and is in Aust
46) Have 21 days to apply for MRT after receiving notice [Regs4.10(1)(a-d)]
47) MRT application can be lodged by [Reg 4.11(1)]
48) MRT application must be made by non-citizen in Aust[s347(2)]
49) The MRT application fee [Regs 4.13(1)] is set at $1540
50) The MRT fee is increased every 2 years based on CPI [Regs 4.13A] and is currently $1604
51) If you are in severe hardship [Reg 4.13 (4)], the fee can be halved on application
Apply for BVA as making application for MRT:
52) Already should have BVA for 28 days after notification, if later need to apply for a BVE but would have missed MRT timeline as well, you are f……….. and then the MA is sued and he is f…… too. Ha Ha [Regs4.10(1)(b)]
53) Step 1 already have BVA as above
54) Step 2 On the basis of applied for MRT may have to apply for another BVA or could
55) Step 3 On the basis of wanting to work will depend on previous BV, could apply
Apply for BVE as making application for MRT:
56) Eligible non citizen[s72], he can apply for a BVE [s73]
57) Step 1 On the basis of going to apply for MRT [050.212(4)(c)]
58) Step 2 On the basis of applied for MRT [050.212(4)(b)]
59) Step 3 On the basis of wanting to work [050.212(6A)(c)]
Decision from MRT:
60) MRT decision [s368], must make a written statement [s368(1)] o [S368(1)(a)] decision of the tribunal o [S368(1)(b)] reason for the decision o [S368(1)(c)] findings o [S368(1)(d)] evidence finding based on o [S368(1)(e)] records date and time “na” if given orally o [S368(1)(f)]records date and time if given orally
61) MRT must give applicant a copy of decision within 14 days [s368A(1)(a)] by a method listed in s379A[s368A(1)(b)]
62) Receive decision [s379A] of the MRT by post [379C(4)(a)] to Aust address 7 working days after the date of the document
63) By fax or email [s379C(5)] received document at end of day sent
64) BVA will expire 28 days after Notification[010.511(b)(iii)(A)],
65) BVE will expire 28 days after Notification [050.511(b)(iii)(A)],
66) Cannot see any way to get another BVA/BVE unless you have applied for the FCC
Apply to Federal Circuit Court:
67) Application to the Federal Circuit Court has to be made within 35 days of the Decision[s477(1)]
68) Filing fee is $545
69) FCC has the same Jurisdiction as HC as per the constitution s75 [s476(i)]
70) The date may be extended on application [s477(2)(a)]
71) If the date is extended a valid BV will keep you a Lawful NON Citizen, is not automatic, application may be granted for a BVE [050.212.(3A)(b)(i)]
72) Application is made by applicant who is subject to the decision[S478(b)] OR
73) Person prescribed in the Regulations (lawyer or MA) [s478(c)]
74) As the BV will expire 28 days after notification of the decision by the MRT,[010.511(b)(iii)(A)] a new BV will have to be applied for to ensure does not become an ULNC. [010.211(3)(b)(i)]
75) You do not need a BV to apply for a JR, it just makes you lawful
76) You must apply for the JR while BVA, BVB, BVC are current [010.5119b)(iii)] so you can apply for another BV of the same after application, if your BV ceases before application for JR you may be granted a BE on application
77) You can apply for a BVE after application for a JR [050.212(3A)(b)(i)]
78) The FCC has no jurisdiction over an Migration matter only acts of law, ie review administrative decisions to see if effected by an error or law[s476(2)]
79) The FCC has no jurisdiction over a “privative clause decision” meaning a decision by the DIPB from the MA or Reg [s476(2)(b)]
80) There are two kinds of error of law:
o Procedural errors or natural justice or procedural fairness: § Decision must always hear from the applicant § Bias, not being open minded, made up the decision before seeing all the evidence § Procedural Legitimate Expectations
o Substantive Errors; § Relevant/ irrelevant considerations § No Evidence § Unreasonableness, aka irrationality § Misconstruction of statutory terms § Bad faith and abuse of Power § A wrong fact but only in regards for MRT to have jurisdiction (eg date for review) §
Ministerial Interventions: (also see separate sheet)
81) Minister can substitute a more favourable decision [s351]than a MRT decision [s349] 82) If in public interest Minister can substitute an AAT decision for a MRT[391]
83) Minister can substitute a more favourable decision [s417]than a RRT decision [s415]
84) If in public interest Minister can substitute an AAT decision for a RRT[s454]
85) If in public interest Minister can set aside a AAT Protection Visa Decision for more favourable[s501J]
86) Not available if decision not reviewable 87) Must inform min of any court proceedings 88) Cases the minister can look at: o Public Interest § Situation involves unique or exceptional circumstances and in public interest to help o Referral by review Tribunal § Tribunal requests Minister to exercise public interest powers o Unique of exceptional circumstances § Significant threat to applicants personal safety, human rights or human dignity if return to home country § Denied basic human rights in their home country § In human to return home eg torture § International Rights conventions · Article 17 no-one she be subject to unlawful attacks · Article 23 family is entitled to protection, including harm to Aust family · CROC convention on the rights of the child
89) There is no limit to the number of times an applicant can apply for a Ministerial Intervention but he/she can only apply for BVE once and once only.[050.212(6)(c)] and may continue to have permission to work if their last visa did not have a work limitation, [050.212(6A)]as long as they did not become an unlawful NC between the time of the Tribunal Decision and the application to the Minister
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