Immigration Lawyers and Migration Agents

Your Australian Visa Our Focus

We understand that having a visa refusal can be disappointing and you can feel quite stressed and unsure of what to do. 

In this blog, we explain the appeal process and what you can do if your visa has been refused by the Department of Home Affairs.

Generally, you have the option to appeal the decision through a merits review or judicial review. The process for appealing a visa refusal can vary depending on the type of visa you applied for, and the specific circumstances of your case.

Merits Review

Basically, merits review is a process that allows a decision maker to ‘step into the shoes’ of the original decision maker for example the delegate at the Department and make a fresh decision based on the evidence before it. In Australia, this is usually undertaken by a body known as the Administrative Appeals Tribunal (or the AAT). 

Appealing the decision at the AAT

The refusal letter will state whether you can appeal the decision at the AAT. If you have this option, you must make sure to lodge your appeal within the time frame that is provided in your refusal letter. The easiest way to lodge your appeal is online through the AAT’s website. 

Once you lodge an appeal at the AAT, your bridging visa will continue until you get a decision on your appeal. 

Attending a Hearing 

The AAT will then review your appeal application. Due to a large number of applications, it usually takes a long time before you are invited for a hearing. At the hearing, you can present your case and any evidence to support your appeal. The AAT will then usually make a decision to affirm the Department’s decision to refuse your visa or remit the decision back to the Department for reconsideration.

We would recommend getting legal assistance from an Australian Migration Lawyer to avoid any issues with your appeal and put your best case forward, especially when preparing for your hearing. 

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Judicial Review

In cases where you don’t have a merits review option, you may be able to appeal the refusal decision in court.

Unlike merits review, judicial review does not involve considering the merits of the case or deciding what the right decision was. Instead, it looks at the process through which a decision was made and determine if it was made in accordance with the law. 

Another thing to keep in mind is that unlike an appeal to the AAT, your bridging visa does not automatically continue when you apply for judicial review. You will need to lodge a bridging visa application before your current visa expires. We’re here to help if you need any assistance with this.

Appealing the decision in court 

To be able to appeal the decision in court, you need to have grounds to seek judicial review for example there was a legal error in the decision-making process, such as a breach of procedural fairness or an incorrect interpretation of the law. You may need to get a Barrister to look at your case and assess if there are any grounds for judicial review. 

Filing an appeal application 

To begin an appeal at court, you will need to file an application with the Federal Circuit and Family Court of Australia and within the specified time, which is generally 35 days from the date of the refusal.

After this you will need to follow the court procedures by serving the documents to the other party within the specified time, and then go through the court proceedings by attending a hearing and waiting for the court’s decision. This process can be very long, and it can take several years before you have a hearing. 

It's important that you comply with all the requirements and deadlines for filing a court application and serving the documents as required by the court. 

It can be helpful to get legal advice from a migration lawyer to help you navigate your appeal process because I understand it can be very confusing and there are strict time frames you have to work with. 

Do you need help with your refused visa application?

Our team of experienced Immigration Lawyers and Migration Agents look forward to assisting you with your appeal application. 

If you have a Student Visa refusal, a Partner Visa refusal, a 482 Employer-sponsor Visa refusal, a 407 Training Visa refusal, a Graduate Visa refusal, a 491 Visa refusal, a 190 Visa refusal or any other visa refusal, we can assist you. 

Based in Adelaide, South Australia, we provide Australian immigration advice to people and businesses from all over the world.

You can book an appointment online or call us at (+61) 8 8351 9956.

Book an Appointment

With enrolment cancellations by institutions and rising refusals, international students have started to feel the impact of the Australian migration strategy released in December 2023, aimed at reducing migration levels.

Universities Cancelling Course Offers for Students

Recent news has revealed that some Australian universities are cancelling enrolment offers to international students. Several universities have taken the extreme step of writing to students whom they had approved but who were still waiting for their visas to be granted, requesting they cancel their enrolment. This is devastating for those who have an offer and are already envisioning their course in Australia. This has already affected many international students, causing frustration and disappointment with the sudden decision.

Why Are Universities Cancelling International Student Offers?

Some institutions have chosen to limit the countries from which they will accept applications to increase their visa approval rate. There are concerns from some universities that they might no longer be classified as low-risk entities by the Department of Home Affairs, affecting their standing and operations.

The migration strategy released in December 2023 included several recommendations for international students, such as increased funding for visa integrity, higher English language requirements, and more rigorous scrutiny of lower-quality education providers by ranking them based on their risk level.

It appears that universities are cancelling admission offers to safeguard their reputation and avoid a high number of visa rejections.

Increase in Student Visa Refusal Rates for Some Countries and Some Institutions

There has been a significant increase in the number of visa refusals, which is expected to rise further in the second half of 2024.

High refusal rates: Over the last 15 years, student visa application approval rates have consistently been above 90%. However, recent government figures reveal a decline to 82% last year, with the approval rate for vocational education even lower, dropping to 70% in the last six months of 2023.

Which countries have higher refusal rates? According to a report by The Australian Financial Review on January 30, 2024, there was a significant decrease in student visa approval rates for applicants from some countries, such as India with a reduction from 73% to 42%, Pakistan from 64% to 30%, the Philippines from 81% to 36%, and Nigeria from 71% to 29% over four months from June to September 2023, as noted by Craig Mackey of IDP Education Australia, an international education company offering student placement in Australia.

Ian Aird, CEO of English Australia, another international education company, mentioned that in October 2023, student visa grants from Colombia were down by 34.79% over the same comparison period in 2022. Approval rates for visa applications for the education provider English Australia, from Thailand and Brazil in October 2024 compared to the year before, also experienced declines, with Thailand's rate dropping by 89.99% and Brazil's by 46.82%.

However, approval rates for countries such as South Korea, China, Singapore, and Taiwan were at 90% or higher, possibly due to financial capacity and genuineness of intention to study.

Why Are There Higher Rates of Student Visa Refusal?

The government aims to reduce the net overseas migration number, from 510,000 in the last year to 375,000 this current year, and then to 250,000, which is regarded as the "normal" level. Much of the reductions will be in student visas.

The student refusals are mostly based on the Genuine Temporary Entrant Criteria (GTE). In many cases, the GTE rejection seems to hinge on the economic status of the student's home country, rather than the individual's qualifications or demonstrated intent to study at the institution.

Unfortunately, it is getting tougher both for education providers and with Home Affairs. If you need any assistance, please contact us.

Do you need help with an Australian visa application?

Our team of experienced Immigration Lawyers and Migration Agents look forward to assisting you with your visa application.

Based in Adelaide, South Australia, we provide Australian Immigration advice to people and businesses from all over the world.

You can book an appointment online or call us at (+61) 8 8351 9956.

Sources:

https://e.vnexpress.net/news/news/education/australian-universities-cancel-offers-of-enrollment-to-international-students-4712973.html

https://thepienews.com/news/australia-students-awaiting-visas-told-to-withdraw-university-applications/

https://www.afr.com/work-and-careers/education/foreign-students-are-leaving-in-droves-after-visa-crackdown-20240216-p5f5m1

https://monitor.icef.com/2024/02/australia-visa-rejection-rates-spike-as-some-institutions-withdraw-admissions-offers-under-new-migration-settings/

https://www.universityworldnews.com/post.php?story=20240202130927534

The Genuine Temporary Entrant (GTE) is a requirement almost all migrants will have to pass in the process of immigrating to Australia. Failing the GTE requirement can result in a devastating visa refusal. Here is what you need to know about the GTE criteria so you don’t receive a visa refusal notification.

1. What Is The GTE?
2. How To Meet The GTE Criterion?
   1. What Factors Do The DoHA Look At? 
   2. Your Immigration History? 
   3. If You Are A Student
   4. Supporting Your Claims
3. Does Every Visa Have The GTE Criterion? 

What Is The GTE?

GTE is short for Genuine Temporary Entrant. Based on the documents provided by the applicant, the Department of Home Affairs (DHA) will determine whether the applicant has a true purpose of temporary stay and the intention to stay in Australia for the time being. 

The DHA will consider the applicant's background in their home country, the immigration history, the incentive to stay in Australia or return home. If you do receive a GTE visa refusal you may have the option to appeal and review the decision.

How to Meet GTE Criterion?

What Factors Do the DoHA Look At?

DoHA looks at factors which might make you wish to not return to your home country:

• Political or civil unrest
• Military service commitments
• Your financial circumstances in your home country

The DoHA will also look at factors which would encourage you to return home such as, if you have a job back home, and have approved study leave. Another example would be if you have a business or personal assets in your home country, or close family members this may also be considered.

Your Immigration History

DoHA checks your immigration history as well:

• If you have spent a long time in Australia, DoHA may consider that you are seeking to extend your stay in Australia and work here.

• If you have had previous visa refusals/cancellations

• Any previous issues with visa compliance - for example not completing studies on previous student visas, working in excess of work conditions, overstaying your visa

If You Are A Student

Some visas may require more information, take Student visa subclass 500 for example. You will have to provide all the mandatory information but you may also need to explain how the proposed course will assist you in your future career.

If you are requested to provide how the course will assist you, it would be very helpful to:

• Relate the new course to what you have previously studied
• Relate the new course to what you are currently doing in your work
• Relate the new course to your career plan

In your explanation, try to answer the following questions:

• Why you chose Australia to study instead of in your home country?
• Why did you choose the courses?
• What is the value of your course to your future?
• What is your plan after graduation?

One of the more important categories DoHA will question you about is the value of the course to your future. DoHA will consider:

• if the course is consistent with your current level of education
• if the course is relevant to past or proposed future employment in your home country or a third country
• expected salary and other benefits in your home country or a third country with your qualifications from the proposed course

When drafting your GTE statements, it is important that you pay very close attention to all the requirements if you fall under one or more of these categories:

• Student visa applicants over 30 years old
• Applicants who have not completed their studies and need to transfer to another school
• Applicants who have applied for a degree lower than their highest academic level
• People who have applied for a student visa in Australia many times
• Applicants who are not related to the previous education situation

Supporting Your Claims

Evidence documents to support the facts you listed in your statement should be provided at the time of application as well.

For example, if the applicant mentions that his future goal is to return home and open a restaurant, he can explain it in his GTE and prepare a corresponding business plan for opening a restaurant. However, if an applicant only said in his GTE statement, “I applied because I like it very much.” Such claim is not convincing and will not meet the GTE requirements.

Below is a real example of a refusal that a client received before consulting with Work Visa Lawyers.

Please note that it is common for a case officer to call you and ask you questions about your reasons for study in Australia. You may not receive any notice of this, so it is very important that you are prepared to discuss your case.

 Does Every Visa Have the GTE Criterion?

In short, no, but the majority of visas do use GTE requirements. The GTE is important because it applies to all Visitor Visas and some of the Temporary Visas. To put this in perspective, the Australian Bureau of Statistics recorded 780,500 Visitor visa movements in September 2018. Keeping the same amount of movements per month, in a year there would be 9,366,000 Visitor Visa movements. This means that nearly 10 million people would have had to pass the GTE requirements.

Some of the most common Temporary Visas that have the GTE criterion are:

• Student visa subclass 500  Recently released migration system review report has suggested that the GTE criteria for Student visa subclass 500 applications be replaced with something called Genuine student test, which will be focused on assessing whether the student has genuine studying intentions as compared to GTE where focus is on assessing whether the student is coming to Australia on a temporary basis and will not live here permanently.
• Visitor visa subclass 600
• Temporary work visa subclass 400
• Temporary Activity​ subclass 408
• ​Training subclass 407
• Work and Holiday visa subclass 462
• Working holiday subclass 417
• Medical treatment subclass 602
• Short-term stream subclass 482

It is important to remember that the GTE is often not the only criteria you will have to meet. For example, the Short-term stream subclass 482 which replaced the popular subclass 457 recently, has many requirements including IELTS and other skills assessments.

It is also important to show a range of documents to demonstrate an incentive to return home.
These could include:
- Employment to return to in home country.
- Close family ties and responsibilities in the home country - for example, if you are married and your partner is staying in home country during the visit, this is a positive GTE factor.
- Ownership of property or businesses in home country

Do you need help with an Australian visa application?

Lawyers and Registered Migration Agents from Work Visa Lawyers have rich experience in drafting GTE statements. If you need any assistance, please feel free to contact our team.

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications, including state sponsorship applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as Migration Review Tribunal, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

Sources

http://www.abs.gov.au/ausstats/[email protected]/mf/3401.0/

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/student-590/genuine-temporary-entrant

https://www.workvisalawyers.com.au/news/all/australian-visa-refusal-notification-options-for-the-appeal-review-process-tribunal-ministerial-review.html

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/student-500

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/visitor-600

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-work-400

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-activity-408

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/training-407

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/work-holiday-462

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/work-holiday-417

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-skill-shortage-482

https://www.workvisalawyers.com.au/news/all/top-10-facts-you-need-to-know-about-the-new-482-visa-1.html#Skills

https://www.workvisalawyers.com.au/news/all/ielts-now-offering-computer-delivered-english-tests-for-visa-applicants-in-australia.html

https://www.workvisalawyers.com.au/news/all/skills-assessments-occupation-lists-for-australian-tss-482-and-employer-sponsored-permanent-resident-visas.html

Picture this: you've been living in Australia for the last 10 years with your wife and child. You had a criminal history in your home country, but you moved away to get a fresh start and put that life behind you. You're here on a genuine visa and you're earning your keep by legitimate means. But then you get a notification from the Department of Home Affairs saying your visa has been cancelled due to "character grounds", and you have 9 days to lodge an appeal or you must leave the country. What are you going to do?!

Section 501 of the Migration Act 1958 gives the Minister for Home Affairs, or their delegate, the right to refuse or cancel a visa if they are satisfied that the visa holder does not pass the "character test". In addition, Subsection 501(3A) imposes an obligation on the Minister to cancel a visa if an applicant/visa holder fails the character test for specific reasons- which means if you tick the right boxes, the Minister must cancel your visa.

These laws have only recently been put into place but they apply retrospectively. This means that even though the law didn't exist when you moved to Australia and got your visa, it applies to you now. And that's how people find themselves in very difficult situations like in the example above.

What is the Character Test?

The character test is set out in Subsection 501(6) of the Migration Act and it lists a number of reasons for which a visa can or should be cancelled. The list is long, but it includes:

• having a substantial cirminal record
• having committed sexually based offences against a child;
• having committed offences while in or escaping from immigration detention;
• being involved in people smuggling or slavery; or
• being part of a criminal organisation (such as the mafia).

In our experience, the most common reason for cancellation of refusal is though incurring a "substantial criminal record".

Substantial Criminal Record

The Migration Act says a person has a "substantial criminal record" if they have been (and this is not an exchaustive list):

• sentenced to a term of imprisonment of 12 months or more;
• sentenced to death; or
• found unfit to stand trial, and has been retained in a facility or institution.

What Can You Do About a Visa Refusal or Cancellation for Character Reasons?

Refusal or cancellation decisions are appealable to the Administrative Appeals Tribunal. The tribunal is required to make a decision on the appeal within 84 days of the applicant being notified of the refusal/cancellation.

Just as with the Minister, the tribunal is required to weigh up the facts that arise in the matter with respect to Ministerial Direction 90, as follows:

Primary considerations:

• Protection of the Australian community from criminal or other serious conduct;
• Whether the conduct engaged in constituted family violence;
• The best interests of minor children in Australia;
• Expectations of the Australian community.

Other considerations:

• International non-refoulement obligations (not sending you back to a country where you will be persecuted);
• Extent of impediments if removed (how badly you would be affected by it if you are sent home);
• Impact on victims; and
• Links to the Australian community, including:
  1. Strength, nature and duration of ties to Australia (such as family, friends and community); or
  2. Impact on Australian business interests.

As you can see, Ministerial Direction 90 provides ample opportunity for a lawyer to develop an appeal argument. The tribunal’s decision ultimately turns on the weight it assigns to each consideration and whether it feels the positives outweigh the negative aspects of an applicant’s situation.

In our experience it is important to recognise an appeal’s strengths and weaknesses and focus submissions accordingly. For example, if an applicant has an extensive criminal record there is no value in trying to argue that they don’t. Instead, it is important to acknowledge it and provide an explanation and context for that offending as well as emphasising the positive aspects of their situation – such as family, cultural, or business ties to Australia. The discretion granted to the tribunal offers applicants the opportunity to put their best foot forward.  

Timing

Appeals of Section 501 refusals and cancellations are time sensitive processes, given that the tribunal is required to hand down a decision within 84 days. As such, it is important to be organised, focused, and strategic in where to focus your energy. Do not waste time!

If you do find yourself facing a section 501 refusal or cancellation you need to speak to an experienced immigration lawyer immediately to understand your options. Work Visa Lawyers is happy to discuss your options further, provide an assessment of the strengths and weaknesses of your case, and give you an indication of whether we consider there to be sufficient grounds to lodge an appeal.

Make an appointment now if you need help on a visa refusal/cancellation appeal.

Author:

Lochlan Reef MacNicol, Lawyer & Registered Migration Agent at Work Visa Lawyers

Do you need help?

Our team of experienced Immigration Lawyers and Migration Agents look forward to assisting you with your Australian visa or appeal.

Based in Adelaide South Australia, we provide Australian Immigration advice to people and businesses from all over the world.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956 or This email address is being protected from spambots. You need JavaScript enabled to view it.

You can also subscribe our Facebook: WORK VISA lawyers

Disclaimer

This information is correct at the time of publication but is subject to change without notice.  All information provided on this page is provided for purely educational purposes and does not constitute legal advice.  For advice on your situation, please speak with an Immigration Lawyer or a Registered Migration Agent.

An Australian Visa refusal can be devastating for everyone involved and can put your future in Australia in immediate jeopardy and uncertainty. However, your visa refusal does not necessarily mean it is the end of your pathway to Australia.

In this article, we answer some of the most commonly asked questions for applicants that have received visa refusals.

There are many visa applicants who have received a visa refusal and then appealed the decision to the Administrative Appeals Tribunal (AAT) for merits review, only to find that the AAT did not find in the applicants’ favour. If the AAT has affirmed the Department of Home Affairs’ decision to refuse your visa and you believe that an error was made in reaching this decision, you may be able to apply for a judicial review.

Principal Chris Johnston walks you through how to put together a quality Partner Visa Application

to give yourselves the best chance for a sucessful and speedy visa processing time.

So, you have decided to invest in Australia. You have a successful business in your country and thinking about starting a business in Australia.
That’s great, you may want to get an Australian Business Visa. The Business Talent (Permanent) Visa Subclass 132 is similar to Subclass 188 – Business Innovation Stream visa and shares a lot of common criteria
with the rest of business skills visas. These visas are great options for the business owners and investors who have had a proven history in successful business ownership and management over an extended period of time.
While you are excited to expand your business and lodge a business visa application you need to avoid making the mistakes that can cause your visa application being refused.
We know a visa refusal can affect your planned visa pathway. Therefore, to assist our clients in having a successful Business Visa application we have done some
research and studied 26 reviewable decisions from The Australian Federal Circuit Court, AAT, and Federal Court. We have Identified 5 Common Mistakes in the visa applications, and how you can avoid them
because we are here to save your Business visa Application.

The top reasons are:
1. PIC 4020 and “Bogus Documents” or “Misleading information”
2. Lack of Ownership in the Nominated Business
3. Insufficient Required Investment Funds
4. Funds Used to Make Investment are Unencumbered and Lawfully Acquired
5. Insufficient Points

1. PIC 4020 and “Bogus Documents” or “misleading information”

This is the Number One mistake that applicants made and as a result their visa application refused.PIC 4020 enables refusal of a visa if an applicant provides a bogus document or information that is false or misleading in relation to their application. 

PIC 4020 requires visa applicants to not give, or cause to give, false or misleading information of a material particular to not just Home Affairs in relation to a visa application, but also to: the Administrative Appeals Tribunal, a Medical Officer of the Commonwealth or a skill assessment authority.

It applies to not only the visa application, but to a visa that an applicant held in the 12 months before the application was made. Should an applicant be refused for failing this PIC for bogus documents or misleading information, they are subject to a 3-year bar (from being granted another visa) for any visa which has this PIC as a criterion.

In most of these cases the question of bogus documents arose about their financial documents such as tax return and the business assets.
On the other hand, there are few cases where the applicant mistakenly provided bogus document or information that is false or misleading.

We agree that the process is one of the most complicated visas, it involves numerous financial reports, evaluation reports, and auditing reports.

The best way to prevent a refusal is to lodge a complete and correct application, and to respond to all requests for further information within timeframes as notified by the Department. Any gaps or inconsistences in information and/or documents provided can result in further scrutiny being applied to your application, and therefore a greater delay and likelihood of your application being refused.

2. Lack of Ownership in the Nominated Business

To demonstrate business experience, the application requires you have experience in owning and actively managing a business in your home country.
Insufficient ownership in the main business is the second reasons for the Department of Home Affair to refuse the business visa application.
In some cases, the applicant did not have the minimum of 30% ownership requirement in the main business.
Even if they had the minimum ownership requirement, it may not have been at least 2 of the 4 fiscal years immediately before the date of invitation to apply for the visa.
To avoid making this mistake in your application make sure you know the requirements and criterial to be eligible for a business visa.

For both the Business Innovation and Investment 188 visa and the 132 Significant Business History Visa, in two of the four fiscal years prior to applying
you must have had an ownership interest in one or more main businesses, which means:

• have maintained direct and continuous management in the business
• have an ownership interest to the total value of at least:
• 51% if the turnover is less than AUD 400 000 or
• 30% if the turnover is AUD 400 000 or more or
• 10% if the business is a publicly listed company
  
  

For the132 Significant Business History Visa there is the additional requirement that: The total net assets of you, your partner, or you and your partner combined, 
must be at least AUD400,000 from the ownership interest in one or more qualifying businesses, gained over at least 2 of the 4 fiscal years immediately before you were invited to apply for this visa.

3. Insufficient Required Investment Funds

You probably think that the applicants in this case did not have required funds and as a result their visa application refused. Well, it’s not as simple as that.
Our research shows the applicants might have enough funds but some could not prove it due to different system of property valuation undertaken in their countries.
For example, in one of the cases the applicant told the Tribunal that in Iran the law provides that only 2% of the total value of the property is required to be recorded on the Title Deeds.
If you live in a country where the system of property valuation is different and as result you cannot prove correct value of your property or assets,
you need to get a legal advice from your lawyer before you lodge an application.

It is critical to remember to support your business visa application you must provide the certificate of title, title deed,
valuation certificate by an accredited property valuer and/or mortgage certificate.
If these certificates cannot show the correct value of your property and assets you cannot have a successful visa application.

4. Funds Used to Make Investment are Unencumbered and Lawfully Acquired

Coming to the fourth reason for Subclass 132 and 188 visa refusal where the Applicants failed to consider the funds being used to make the investment must be unencumbered and lawfully acquired.
Our research shows that the Federal Court and the Tribunal affirmed the decision to refuse the visa application where the source of investment fund is from use of;

• gambling proceeds,
• gifts from unrelated parties, and
• invalid trust

To avoid making this mistake as a business visa applicant you need to make sure that the funds used to finance your designated investment are personally owned and unencumbered and legally accumulated
as a result of your business and/or investment activities. You also need to provide a signed declaration listing the sources of funds for your asset portfolio, and that these funds were lawfully acquired.
Evidence to support your source of funds declaration:

• For business income, provide evidence of business ownership, performance and profit distribution. For example, company registration and shareholder records, financial statements or taxation records
• For investment income, provide evidence of investment activities and performance. For example, statements issued by stocks trading company, property purchase and sale contracts,
  leases or investment product contracts.
• For gifted or inherited assets, provide duly witnessed gift deeds or wills. Also provide other evidence demonstrating how the original owner accumulated the assets
• For a historical accumulation of wealth where official verifiable evidence is no longer available, provide bank records demonstrating continuous ownership of funds over a substantial period.
• For assets held in Australia, provide evidence which links the assets to the declared sources.

Through these investment structures, the investor may hold complying investments in any proportion.
“Eligible investments” for the purposes of the Investor Stream include:

• Ownership interests in a business
• Cash on deposit
• Stocks or bonds
• Real estate
• Gold or bullion
• Loan to a business
  
  

5. Insufficient Points

No matter which visa you wish to apply, points are always important for having a successful application.
The fifth and last common reason for Business Innovation Visa and 188 refusals is not having the required 65 points.

Our research shows that most visa applications were refused because the applicant did not have sufficient points, or did not provide evidence to prove he or she is entitled to more points.

The AAT usually remitted the business visa applications where the applicants provided further documents such as university qualifications or English language ability to receive the required points.

To avoid such an issue with your application, you need to know what the required points are for subclass 132 and 188. As an applicant you need to make sure that you have all the necessary documents to prove your points at the time you make a business visa application.

Well what are the minimum required points for subclass 132 and 188 are 65 points? The factors that can affect your points are:

• Age
• English language ability
• Educational qualifications
• Financial assets
• Business turnover
• Investor experience
• Special endorsement 

The link below will show you how much points you can have for the above factors.
https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/business-innovation-and-investment-188/points-table

We hope you have found our research of case decisions over the past four years helpful.
And when it comes to considering a Business Visa Application, you keep in mind that bogus documents, lack of ownership in the nominated business,
insufficient required investment funds, funds used to make investment are unencumbered and lawfully acquired and insufficient points
are the most common reasons for Business Visa application refusals. Remembering these pitfalls when preparing your application will put you in the best position for Visa success.

Do you need help with an Australian visa application? At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Partner Visas, Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:
(08) 8351 9956 or +61 8 8351 9956 or This email address is being protected from spambots. You need JavaScript enabled to view it.

Other Useful Blogs and Videos on 132 Visa and 188 Visas

 Introducing Business Visa Compare
8 Things you need to know about Business Migration for Australia (132, 188 & 888 visa)
Video – Your Guide to the Australian Business Talent 132 visa. Straight to Permanent Residency – PR Visa!

List of Cases Reviewed between 2019 – 2015

Akhavannejad (Migration) [2019] AATA 2223 (14 February 2019)
Zhang (Migration) [2019] AATA 1009 (10 January 2019)
Surya (Migration) [2017] AATA 976 (16 June 2017)
SADEGHIAN (Migration) [2019] AATA 3012
Kukadia (Migration) [2019] AATA 4527 (14 August 2019)
HOSSEINIANJEDANI (Migration) [2019] AATA 3511 (17 June 2019)
HOSSEINIANJEDANI (Migration) [2019] AATA 3511 (17 June 2019)
WU (Migration) [2018] AATA 1092 (9 March 2018)
Guo (Migration) [2019] AATA 487 (14 March 2019)
Lovely (Migration) [2019] AATA 5318 (28 November 2019)
Wong & Ors v Minister for Immigration & Anor [2018] FCCA 3490 (29 November 2018)
Chen & Ors v Minister for Immigration [2015] FCCA 1018 (22 April 2015)
Momtaz v Minister for Immigration [2019] FCCA 520 (7 March 2019)
Xie & Anor v Minister for Home Affairs [2019] FCCA 266 (7 February 2019)
Han v Minister for Immigration [2019] FCCA 3558 (11 December 2019)
Zhang v Minister for Immigration & Anor [2017] FCCA 134 (30 January 2017)
Smith (Migration) [2019] AATA 4939
Cai (Migration) [2017] AATA 416 (9 March 2017)
Ding & Ors v Minister for Immigration [2019] FCCA 160
Zhang (Migration) [2017] AATA 1662 (5 September 2017)
1404069 [2015] MRTA 781 (19 May 2015)
1408380 [2015] MRTA 459 (24 March 2015)
1413159 [2015] MRTA 537 (8 April 2015)
W0600780 [2007] MRTA 480 (7 September 2007)
1508766 (Migration) [2016] AATA 3715 (11 April 2016)
HOSSEINIANJEDANI (Migration) [2019] AATA 3511
Kukadia (Migration) [2019] AATA 4527 (14 August 2019)
Momtaz v Minister for Immigration [2019] FCCA 520 (7 March 2019)
Zhang v Minister for Immigration & Anor [2017] FCCA 134 (30 January 2017)
HOSSEINIANJEDANI (Migration) [2019] AATA 3511
HOSSEINIANJEDANI (Migration) [2019] AATA 3511
Zhang (Migration) [2019] AATA 1009 (10 January 2019)
Zhang v Buljan [2016] FCCA 2426 (15 September 2016)
Cai (Migration) [2017] AATA 416 (9 March 2017)

Click here to view the full table of case decisions.
This information is accurate on 9th January 2020.

There are several reasons why your Australian visa can be cancelled. 

The following scenarios are common:

• Cancelled due to breaching a visa condition.
• Cancelled on reasonable suspicion that conditions of the visa are being breached.
• Cancelled due to pending criminal charges.
• Cancelled due to providing false and misleading information.
• Cancelled due to failure of the character test.
• Student visa holders not meeting the requirements of their course or not being enrolled full time.

Visitor visa cancellation at the airport

Tourist visa holders are commonly caught by immigration officials for failing to declare their intentions for their visit or for bringing hazardous materials into Australia.

Recently, any visitor visa holder who breaches Australian biosecurity laws will have their visa cancelled and may be detained in immigration detention pending their removal from Australia. The cost of this removal will be met by the non-citizen.

Automatic cancellation of a visa

Your visa will be automatically cancelled if you meet the following criteria:

1. You are not a citizen of Australia; AND

2. you are currently serving a sentence of imprisonment in a custodial institution, on a full time basis for an offence against a law of the Commonwealth, State or Territory; AND

• while you have been in Australia you have been sentenced to a term of imprisonment for 12 months or more.

OR

• you have ever been convicted of a sexual offence against a child.

Cancellation process

An Australian visa can only be cancelled by the Department of Home Affairs or the visa holder writing to the Department to cancel their current visa. Any other third party cannot cancel your current visa.

You may receive a warning letter advising you that your visa may be cancelled. This is known as Notice of Intention to Consider Cancellation. If you receive this notice, you may choose to respond. As this notice is already a warning, it is best you seek legal advice upon first receiving this notice.

If you respond to the Notice and the Department accepts your response, then you will continue to hold a visa. If the Department does not accept your response or you do not respond then a Notice of Cancellation notice will be sent to you either by Post, Email or in Person.

My Visa is cancelled, what are my options?

If the decision is a discretionary visa cancellation

Once a Notice of Cancellation is received by you, it means you no longer hold a valid visa and you are considered unlawful. However you can appeal the decision in the Administrative Appeals Tribunal. During this time, you may be transferred to an immigration detention facility because you do not hold a visa.

If the decision is a mandatory visa cancellation

If your visa is cancelled automatically because of your criminal history then you will have 28 days from the date of the notice to request that the Minister reconsider the cancellation and revoke the decision.

You must make sure that your response reaches the Department in time. You must complete the Request for Revocation of a Mandatory Cancellation Under 501(3A) form within 28 days. Supporting evidence should also be given to support your claims in accordance with Ministerial Direction 79.

What if I have a visa application in processing at the time of my visa cancellation?

Cancellation decisions will, as a consequence, lead to any un-decided visa applications or visas held also being refused or cancelled. Any bridging visa you hold associated with a visa application will also be cancelled.

Visa cancellation trends

Data from the Department of Home Affairs shows that over a 12 month period there were 888 visa canceallations on character grounds alone. New Zealand nationals represented the greatest share of visa cancellations, however they also have the greatest representaion amongst visitor visa holders overall.   

Character cancellations undertaken from 1 January 2018 – 31 December 2018, By top 10 nationalities

Source: Department of Home Affairs

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Partner Visas, Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956 or This email address is being protected from spambots. You need JavaScript enabled to view it.

Business Visa

The subclass 188 Business and Investment visas are temporary residence visas. The 188 visa is an attractive business visa as it allows migrants to conduct business and investment activity in Australia or undertake entrepreneurial activity in Australia. Moreover, you would like to be a business owner, the subclass 188 business visa will allow you to manage a new or existing business in Australia.

Overview

When it comes to Australian immigration it is essential to know what deadlines you have and that you abide by them. The Department of Home Affairs adheres to strict time limits that apply to all applicants. With that being said, in November 2018 the Federal Court of Australia (FCA) set a new precedent that grants the AAT power to extend time limits for review cases. This meant that the Australian visa appeals and migration review tribunal, on a case by case basis, would be able to allow a refused applicant extra time to appeal the administrative decision. Less than a month later though, the Full Court repealed the decision of the FCA and decided that every applicant in a migration matter must apply to the Administrative Appeals Tribunal (AAT) within the allotted time limit.

(Article updated 04 November 2021)

In 2018, the Australian Government passed the Migration Amendment (Family Violence and Other Measures) Act 2018. This new legislation changes the way partner visas are processed and may significantly prolong the processing times for Partner Visas in Australia. Although the Department has not yet confirmed a start date, the 13th of November 2021 has been suggested and looks like a likely time for the changes to be implemented.  So what does this all mean for you and what should you do about it?

Australian Visa Refusal Notification Options for the Appeal & Review Process (Tribunal & Ministerial Review) AAT - Judicial Review - Visa Rejection - Intervention - Policy - Obligations - Requirments - How to Re-Apply

Key terms: Public Interest Criterion – 4020 – False or misleading information – Bogus documents – Visa cancellation – Visa refusal

UPDATE:

The Legislative Instrument which introduced the change has been disallowed on 5 December 2017. This means that all future applications will be subject to 12 months' of consideration for PIC4020.

Applications which were lodged between 18 November 2017 to 4 December 2017 will be subject to the 10 years' consideration.

Conditions targeting fraudulent or misleading information in visa applications made much tougher – PIC 4020 soon to cover last 10 years

Section 4020 is currently targeting bogus documents or information that is false and misleading provided to the Australian Government in the last 12 months prior to an application.

The changes will extend the time to documents and information provided in the last 10 years.

Here is a description of the changes:

PIC 4020 (1)(b) which relates to bogus documents, has been amended to broaden the powers to refuse a visa on the basis of bogus or fraudulent documents submitted in relation to visa applications:

- In the previous 10 years, rather than the previous 12 months; and

- In relation to previous visa applications, as well as visas previously granted 

2020 UPDATE for Partner Visa Processing Times is available here: https://www.workvisalawyers.com.au/news/all/2020-australian-partner-visa-processing-times.html

2018 Partner Visa Australian Processing Times For The 801 Visa. Refusals For Partner And Spouse 801 and 820 Visas Increasing. Why Your Partner/Spouse/Family Visa Is Taking A Long Time. 

2018 UPDATE For Partner Visa Processing Times: Increased Partner Visa Refusals for Partner Visa Subclass 801 and Partner visa subclass 820. Partner Visa Application Points Calculator and Changes That Affect Processing Times.

Australia Partner Visas continue to face long processing times and increased scrutiny by the DIBP

A recent query to the Department of Immigration and Border Protection (DIBP) in relation to a 2^nd stage Partner visa (subclass 801) application has resulted in the following response:

“The current processing time for Permanent Partner (subclass 801) visas is 12 to 18 months from your eligibility date.”

The processing times for the Temporary Partner (subclass 820) visas are also listed as 12 to 18 months on the DIBP website.

The eligibility date refers to the date you become eligible for processing of the permanent partner visa, which is usually just before two years after you lodged your initial partner visa application. You can find out if you are eligible by using the DIBP Partner (Permanent) Calculator.

This means that a typical partner visa applicant will have to:

• wait 12 to 18 months before the temporary partner (subclass 820) visa is granted
• wait another 6 to 12 months before you can apply for a permanent partner (subclass 801) visa
• wait another 12 to 18 months before you receive your permanent partner (subclass 801) visa

You will only receive a permanent partner (subclass 801) visa after 36 to 42 months’ (3 to 3.5 years) time!

The team at Work Visa Lawyers is always happy to help deserving applicants in successfully obtaining an Australian visa. More often than we hoped for, we come across many applicants who tried to submit an application themselves and face complications thereafter, or a refusal.

Here is a recently approved client, Wenru Pan describing her experience applying for a state sponsorship by herself, and later on with Work Visa Lawyers:

Dear Work Visa Lawyers,

I would like to say a big thank to your guys and I am really appreciate how the support has been for last four months working on my 190 state sponsored permanent visa.

My situation is really tricky and I have been rejected by the state nomination when I first tried to apply by myself. Then I decided to look for help from Chris who was highly recommended by one of my friends. Luckily, my state nomination was successfully approved after Chris’ magic.

Once the trust is built, I decided to let Chris to deal with my 190 visa submission as well. We submit the documents around early November (2016) and I was granted the permanent residency on 17th December, 2016. In other words, the whole process takes less than two months. I almost break the records among who I heard has been granted the permanent residency visa!!!!

I would highly recommend Work Visa Lawyers to all of you who are intending to live/ work in Australia for a long term purposes!

Thank you all the team members from Work Visa Lawyers

Best wishes,

Wenru Pan

All you need to know and do when your visa application is refused!

Receiving a refusal notification for your visa application is stressful and places you in a wave of uncertainty. However, quick action is required to resolve your visa status if your visa application was lodged onshore in Australia.

The same can be said if you received a Notice of Intention to Consider Cancellation (NOICC) for your current visa. It is best to quickly address the issues raised in the NOICC, than to challenge the decision to cancel your visa after the decision has been made.

What are the common reasons for a visa application to be refused?

The Administrative Appeals Tribunal (AAT) is the organisation responsible for reviewing decisions made by the Australian government. The Migration and Refugee Division (MRD) is a division under the AAT which reviews Australia visa decisions. Typically applicants and visa holders will submit an application for review when their visa application is refused, or when their Australian visa is cancelled. Additionally the MRD also reviews decisions regarding sponsorship and nomination under employer sponsored visas. Citizenship application decisions are also reviewed by the MRD.

When a decision is being reviewed by the Tribunal one of the following results occur:

• the decision is affirmed (i.e. there are no changes)
• the decision is set aside (i.e. the decision is substituted with a new and different decision)
• the original application (visa/citizenship/sponsorship/nomination) is remitted (i.e. returned) to the Department of Immigration and Border Protection (DIBP) for reconsideration with recommendations by the Tribunal on additional factors to be considered
• the decision is varied

The AAT conducts a merits review which is explained as follows on the AAT website:

“Merits review is an administrative reconsideration of a case. A merits review body makes decisions within the same legislative framework as the primary decision maker, and may exercise all the powers and discretions conferred on the primary decision maker.”

The Tribunal reviews the application afresh and may also consider new evidence or information submitted with the review application.

The AAT is independent of the DIBP and has the powers to review and reverse (set aside) the decisions made by DIBP.

AAT-MRD Statistics for 2015-2016

In the 12 months from 1 July 2015 to 30 June 2016 the AAT-MRD received 14,307 applications for review. The reviewed decisions include those for all Australian visas (including bridging visas) and exclude refugee and humanitarian visas.

The majority of the decisions submitted for review are:

• Partner visas (29%)
• Student visas (17%)
• Visitor visas (13%)
• Temporary work visas (11%)

During the same period a total of 12,511 decisions were handed out to active review applications. Out of the 12,511 decisions handed out:

• 37% were set aside
• 44% were affirmed
• 12% were withdrawn
• 7% were not reviewed (no jurisdiction or the review application was not submitted in time)

Other interesting statistics include:

• 46% of Partner visa reviews resulted in DIBP decisions being set aside
• 31% of Student visa reviews resulted in DIBP decisions being set aside
• 51% of Visitor visa reviews resulted in DIBP decisions being set aside
• 26% of Temporary work visa reviews resulted in DIBP decisions being set aside
• 23% of Nomination or Sponsorship approval reviews resulted in DIBP decisions being set aside

Should I submit a review to the AAT for my visa/sponsorship application that was refused?

You can submit a review application only if you are entitled for review rights. The decision to lodge a review application to the AAT depends on the circumstances of the visa/sponsorship refusal. Some of the common grounds for refusals include:

Partner visas – Schedule 3 issues, failure to demonstrate genuine relationship

Student visas – Meeting the Genuine Temporary Entrant (GTE) requirement, lack of financial capacity

457, RSMS and ENS visas – Demonstrating genuine position

Visitor visas – Meeting the Genuine Temporary Entrant (GTE) requirement

At Work Visa Lawyers we will assess the original application and supporting documents submitted and advise if the prospects for review are favourable. The Decision Record received by the applicant will also be studied in detail to identify weak areas of the original application and how we can address them in the review application.

What are my chances of success with the AAT-MRD review?

The chances of obtaining a positive outcome from the Tribunal to set aside a DIBP decision require the following:

- a thorough analysis of the refusal Decision Record

- in-depth knowledge about the visa applied and the requirements

- assessing the applicant’s circumstances and ability to address the issues highlighted by the DIBP delegate when deciding on the refusal

In summary it should be considered whether the applicant can provide better evidence or information that will meet the visa application requirements. If the original application can be improved then the chances for success with the review will be increased.

Applicants with complicated circumstances should also note that submitting an AAT review application is a pathway towards ministerial intervention. You can only request for a ministerial intervention if you have received a decision from the AAT. You should be aware that the Minister only intervenes in a small amount of cases and you should have unique or exceptional circumstances before applying for a ministerial intervention.

You can find out more about ministerial interventions here.

Sources:

1. http://www.aat.gov.au/resources/statistics
2. http://www.aat.gov.au/AAT/media/AAT/Files/Statistics/2015-16/MRD-Detailed-Caseload-Statistics-2015-16.pdf
3. http://www.aat.gov.au/AAT/media/AAT/Files/Statistics/2015-16/MRD-Migration-Caseload-Statistics-2015-16.pdf

This information is accurate on 25 August 2016

Do you need help with an Australian visa application or Review Application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.