PROCESS: Visa Refusal to Judicial

Aussie Visa Services / PROCESS: Visa Refusal to Judicial

PROCESS: Visa Refusal to Judicial

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
(DIBP may ask but not obliged to)

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)]
different if in Detention (7 working Days)

 

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)
Note this is the same for MRT even though RRT is not listed in BV’s

 

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
be automatic until 28 days after MRT decision [010.511(b)(iii)(A)]

 

55) Step 3           On the basis of wanting to work will depend on previous BV, could apply
on compelling need to work [010.211(4)(c)]

 

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