Visa refusals, cancellations and review

Points worth knowing

• Tribunal review: 28 days, or 14 in detention, and no extension. For most migration and protection decisions, an application to the Administrative Review Tribunal must be made within 28 days after notification, or within 14 days if the applicant is in immigration detention. The Tribunal cannot extend these periods. Different rules apply to certain character decisions; under the expedited character process the limit is 9 days.
• Who can apply. For most onshore refusals and cancellations the visa applicant or former holder applies, and must be in Australia when the application is made; for refused nominations and sponsorships, and for a sponsored or nominated visa refused to an applicant outside Australia, the sponsor or nominator applies. The decision letter must say whether the decision is reviewable, the time limit and who may apply.
• What the Tribunal does. The Tribunal reconsiders the decision on its merits and can affirm it, set it aside and substitute its own, or send it back to the Department with directions. An application fee is payable and is indexed each July; half of it is refunded if the decision is set aside, varied or remitted, and a 50 per cent reduction is available for financial hardship.
• Court review: 35 days and legal error only. An application to the Federal Circuit and Family Court must be made within 35 days of the date of the decision, and the Court may extend that period only if satisfied it is necessary in the interests of the administration of justice. The Court decides only whether the Tribunal made a jurisdictional error; it does not reconsider the merits and cannot grant a visa.
• After a refusal onshore, your options narrow. A person in Australia without a substantive visa who has been refused a visa since last entering, or whose visa was cancelled on certain grounds, may only apply onshore for the visa classes listed in the regulations, which include partner, protection, child, certain skilled regional and bridging visas.
• Cancellation. The Department may cancel a visa where the facts the grant relied on no longer exist or never existed, where a condition has not been complied with, or where the holder's presence poses a risk to the community, among other grounds. If you are in Australia, before cancelling on these grounds it must notify you of the grounds and invite you to respond within a specified time. A visa may also be cancelled for incorrect information given in the application.
• Character. A visa may be refused if you do not satisfy the Minister that you pass the character test, and cancelled if the Minister reasonably suspects you do not pass it and you do not satisfy the Minister that you do. Cancellation is mandatory where you have a substantial criminal record, which includes a sentence of 12 months or more, and are serving a full time prison sentence. After a mandatory cancellation you must be invited to make representations seeking revocation, within 28 days of the notice; a decision not to revoke can then be reviewed at the Tribunal, unless the Minister made it personally.
• Natural justice letters. If the Department has information that would be a reason to refuse your application and that is specifically about you, it must give you the particulars and invite you to comment. For applicants in Australia the period to respond to a written invitation is generally 28 days, 7 days if the invitation was given at an interview or by phone, and 5 days in detention.
• Ministerial intervention. After a Tribunal decision the Minister may personally substitute a more favourable decision if satisfied it is in the public interest. The Minister's published instructions exclude many requests, for example from people who hold a temporary visa other than a bridging visa, or whose refusal is still under review. It is a last resort, not a further appeal.

Common questions