Visa Refusal & Cancellation

There can be situations when DIAC refused or cancelled a visa and you meet the prescribed criteria for the grant of the visa. This is called “error of law”.

When does Error of Law occurs?

It occurs when the decision-maker has misunderstood or misapplied a statute, for example, by applying the wrong criteria, or asking the wrong question. Often this occurs because the decision-maker has failed to read or understand the statute. In addition, where policy exists, decision-makers can fail to realise its limitations, sometimes believing that the policy empowers them, rather than the law.

Sometimes DIAC case officer makes errors in implementing the law. Migration law is very complex and it involves number of policies, procedures and regulations. DIAC also uses Procedure Advice Manual (PAM3). It is a guide to assist case officers to make decisions and gives directions (what to do) in different situations. It also advises when case officers should exercise discretion for example see below PAM extract.

Exemptions

In some circumstances, officers may exercise their discretion to not require a 457 visa skills assessment from a visa applicant who would otherwise have been required under policy to do so. Officers may consider exercising this discretion if the visa applicant:

•      currently holds a 457 visa as a primary sponsored person and is currently employed in the nominated occupation in Australia or

•      holds the relevant Australian qualification (Certificate IV or above) for the nominated occupation, gained by studying in Australia and so on……………..

Each case is to be considered on its merits. For example, even if a visa applicant meets one of the exemptions described above, it is still open to officers to require the visa applicant to provide a 457 visa skills assessment, if officers have bona fides concerns.”

In the above example “bona fide” concern to one person may not be a “bona fide” concern to other person. In spouse or partner visa, establishing relationship or genuineness of relationship could be viewed differently and assessment will vary from person to person especially when there is lack of evidence. In case of student visa genuineness of sponsor providing funds to the student is another issue.

Recently I came across case where Regional Sponsored Migration Scheme (RSMS) nomination was refused because DIAC case officer thinks that there is no ongoing relationship between partners of the nominating business (employer). It is surprising that without conducting any investigation, DIAC case officer came to this conclusion and the nomination was refused after approximately 1 year from the date of the lodgement jeopardizing nominee (applicant) career and future.

The above issues can be dealt more effectively at MRT as suppose to DIAC because MRT will look at the “merits” of the case.

 

We provide exert advice on visa refusals or cancellations and can act on your behalf in lodging review application with MRT or RRT.  

 

Under the Migration Act, visas are generally cancelled under following section

  • section109 cancellation of any visa for providing bogus documents or incorrect information
  • section 116 cancellation for, among other things, failure to comply with conditions
  • section 134 cancellation of business skills visas
  • section 137J automatic cancellation of student visas
  • section 501 cancellation on character and other public interest grounds

We can help you with

  • Student visa refusal or cancellation
  • 457 Visa refusal or cancellation
  • Partner Visa refusal or cancellation
  • Regional skilled migration scheme (RSMS) nomination/visa refusal or cancellation
  • Skilled Migrant or General Skilled Migration Scheme visa refusal or cancellation
  • Tourist  visa refusal or cancellation
  • Business visa refusal or cancellation
  • Employer Sponsored visa refusal or cancellation

We represent clients all over Australia who wish to lodge MRT/RRT appeals. Call us on 0404 011 560 to benefit from our experience.