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Migration Review Mechanisms

Issue

  • If the decision of refusal of visa due to not meeting the requirements of clause 485.216(1) of Migration Rules, 1994 renewable or not for a Skilled Provisional (Class VC) visa in the Post Study Work Stream.
  • If it is a reviewable decision, what are the time limits that apply and who would be the review applicant.
  • Considering the current COVID pandemic, if the decision is reviewable, can the client, Max, seek expedited review for this decision given the directions put in place for reviewable decisions.
  • If the client, Max, appealed to the Administrative Appeals Tribunal (AAT), type of the Bridging Visa which the client can hold.
  • If the current location of Max can affect the review of the Visa.
  • If the client, Sally, considering her situation, has options and time limits associated with each option in relation to the refusal decision of the AAT.
  • If Sally holds the Bridging Visas and if yes then what Bridging Visa would the client hold in each circumstance.

Rule(s)

Migration Regulations, 1994

Migration Act, 1958

Administrative Appeals Tribunal Act, 1975

Application

Non-Compliance of clause of Migration Rule and refusal notice of visa

The Migration Rules, 1994 has a provision for the applicant to provide evidence of applying for the Australian Federal Police (AFP) check during the 12 months immediately before applying for the application of Visa[1]. The applicant has applied for the Australian Federal Police (AFP) check but it has not been submitted after requests of the Department. In such a situation, the application gets refused by the Department of Home Affairs. If the parties fail to comply with the direction to file evidence and to proceed with application consideration, the application will be displaced considering the period to comply with the provided direction[2].

Since, the application was refused due to not complying with the conditions of the visa[3], it can be reviewed by the Tribunal. The condition is to provide evidence of APF within 12 months immediately before the application for granting the visa has been made[4]. The mandatory conditions not fulfilled resulting into cancellation of visa is reviewable by the Tribunal[5]. The condition regarding reviewable of application of cancelled visa is to have the applicant holder in Australia at the time of the decision and the time of review application[6]. Since Max is in Australia, the condition can be fulfilled to get the cancelled visa reviewed here.

The timeline considering the review of the refused application provides it to be reviewed immediately and the tribunal should provide the notice regarding the decision within a practical time[7]. The review applicant in this matter will be the visa applicant himself, Max.

Covid Pandemic and Expedite Review of Refused Visa

There are no such criteria provided to expedite the review of the application process before the Administrative Appeals Tribunal (AAT) due to the COVID-19 pandemic. The department of home affairs has provided for the visa holders of Bridging Visa A, B or C, to stay in Australia while their existing visa application for the review of their refused visa application is processed and a decision is provided by the Administrative Appeals Tribunal (AAT).

If the client seeks to expedite the review of the decision of the Administrative Appeals Tribunal[8] (AAT), then the client has to provide compelling reasons for the priority processing before the authorities in the matter of review be able to the visa application. the client can provide significant adverse circumstances which exist in the case of the applicant to which is distinguished from other applicants and is considerable for the authorities.[9]

A submission requesting an expedited review for the client: (Email)

< Administrative Appeals Tribunal >

<05/09/20>

Subject: Submission Requesting Expedited Review

To: mrdivision@aat.gov.au

Respected Sir/Madam,

This is regarding the review of the appeal in the visa refusal of Skilled Provisional (Class VC) visa in the Post Study Work Stream. I would request to expedite the review as I need to have a visa confirmed by the authority for my medical issues arise out of COVID -19 pandemic and it will help assist my health issues with my medical records to get proper test and treatment in furtherance of the medical procedures of the patients of such acute or chronic diseases.

The expedite review of appeal for the refusal by the Administrative Appeals Tribunal can allow me to be in my good health and bear the treatment and expenses being a lawful person in Australia.

Kindly consider my situation and reasons for asking the expedite review. If any documents or shreds of evidence required, a response will be appreciated.

Thanks, and Regards,

Sincerely,

<Max>

Gender: male

Age: 28

Nationality: New Zealand

Contact Details: xxxxxxxxxx

The client has withdrawn another visa application of student visa as well. Although a student visa under the subclass 500 can be cancelled if the information provided in the visa application previously was incorrect this study is complete and now the person has intentions for another partner visa application[10].

Appeal to Administrative Appeals Tribunal (AAT) and Bridging Visa

 The client would hold the same condition visa i.e. Bridging Visa A till the review of the application is processed by the Administrative Appeals Tribunal (AAT). The client can apply for specific Bridging Visa considering their need to travel, work or study in Australia till the review of the decisions by Administrative Appeals Tribunal (AAT) has not processed.

A Bridging Visa is a kind of bridge which gaps the visa issues and resolve the same for the immigrants till the dispute is resolved and the firm decision is provided by the respective authority. It is a temporary visa granted depending on certain circumstances of the applicant. All this type of Bridging Visa allowed the applicant to remain in Australia lawfully but only Bridging Visa B (BVB) allowed to leave Australia and re-enter the nation while processing of the refusal of the application of visa is processed and a decision is provided by the Administrative Appeals Tribunal (AAT)[11].

If the client wishes to apply for Bridging Visa A[12], the client will not have the travel rights on this particular visa so leaving Australia will not be an option until the client is applying for Bridging Visa B[13]. Considering the work permit with respect to Bridging Visa A, one has to show the financial issues to get to approval of working under this Bridging Visa. The client can also have the option to apply for Bridging Visa B. Under the application of Bridging Visa B, the client can have this visa valid for 3 months only. A simple form has to be filled and submitted to the department in order to get the approval for Bridging Visa B. Since the client holds the Bridging Visa A, he is eligible to apply for Bridging Visa B in order to leave Australia if he wishes to.

The client can also apply for Bridging Visa E[14] till the processing of the Administrative Appeals Tribunal (AAT) is finalized. Under this visa, the validity ends once the client leaves Australia and the work rights will be provided with the grant letter only.

Current Location of Client and Review of Visa

The current location of the applicant affects the review of the visa application considerably and undoubtedly it is a significant factor for the application process before the Administrative Appeals Tribunal (AAT). Since the client, Max has not reverted for a long time, his presence in Australia is suspicious. Considering the review rights for the appeal filed in Administrative Appeals Tribunal, the applicant if stays in Australia can himself file and take participation in the processing of the Tribunal with all the required pieces of evidence and witnesses[15]. On the other hand, if the applicant is not staying in Australia at the time of review, then only close relative, Australian sponsor or nominator can file for the appeal over the refusal of the visa of a Skilled Provisional (Class VC) visa in the Post Study Work Stream.

If the applicant is staying outside Australia and has a sponsor/nominator, then the visa applicant is required to be nominated or sponsored by that particular Australian citizen. On the other hand, if the applicant has a close relative staying in Australia as an Australian citizen, then the details of relatives are to be included in the visa application and the visa applicant must have an intention to visit the Australian citizen who is a close relative of the applicant.

Fulfilling these requirements will allow the processing of the appeal in the Administrative Appeals Tribunal.

Onshore Partner visa and rejection by AAT

The subclass 820 provides for a partner visa termed as onshore Partner Visa. It is a temporary visa which has to be applied first to get a permanent Visa at usually takes approximately two years to get the visa of permanent nature. The conditions required for applying onshore Partner Visa is to have a genuine relationship with the citizen of Australia who is a permanent resident and also the family of the spouse should be in Australia only if any family accompanies the applicant.

Since the client has not a substantive visa while lodging for an application of visa, they have to fulfil the additional requirements for the grant of the onshore partner visa.

In this particular case, the client had overstayed her visa resulting in the expiry of the existing visa when applying for the onshore partner visa. As the visa application of the client has been rejected or not fulfilling the Schedule 3 criteria. The client must have not satisfied either the criteria of 3001, 3002 and 3003. It is evident that the Department of Home Affairs' decision has been taken against the client, Sally, without considering the whole account of the relevant considerations made in the application and the decision has been put forward based on the departmental stage only. The parties have also to show that there was a de facto relationship for 12 months before the date of the visa application[16] but this requirement can be waived in certain circumstances including their relationship has been registered under state or territory law of Australia[17]. The relationship between the applicant and the and his sponsor is examined and considered from the aspects of financial arrangements, environment, social activities, future intentions and support from immediate family[18].

Considering the situation, the client has two options with themselves now. The client can try and appeal again for the onshore partner visa for the client can appeal to the Administrative Appeals Tribunal (AAT) again. The refusal letter must have the time limit to apply for a visa or to appeal in the Administrative Appeals Tribunal (AAT). The client can either have a period of 28 days[19] for a period of twelve months[20] depending on the criteria that have been considered and provided in the refusal notice through the Administrative Appeals Tribunal (AAT).

The onshore partner visa has been rejected in other cases where the condition of the applicant to be in a genuine and continue with his relationship with the sponsor is found to be not fulfilled. Interview of the decision before the AAT, it was found that the application has met the spouse and married within 15 days of their stay in Australia. For the financial aspects of the relationship also led to many doubts and concern over the genuineness of the relationship resulted into the refusal of the partner visa by the authorities[21].

Circumstances and Bridging Visa

Depending on the circumstance which is favourable to the client, Sally, there are different types of Bridging Visa available which can be applied to ensure the lawful stay of the client. Since the client has overstayed her Visa and is looking forward to having a valid onshore partner visa appeal in the Administrative Appeals Tribunal, she can apply for the Bridging Visa E. Under this Bridging Visa, the client can apply in the Bridging general category[22] while the processing of the appeal of refusal decision of the Administrative Appeals Tribunal is heard and decided. Sally will have the working rights provided that the financial hardship is shown through evidence which resulted in the compelling need of work under this category of Bridging Visa. One of the interesting features with the Bridging Visa E is the security bond which may be required by immigration compliance with the conditions of this particular visa. The client will not be allowed to travel and the Visa will be valid till the new substantive visa is granted. The visa will cease after 28 days of the conformation of notifications of visa refusal by Administrative Appeals Tribunal. The client has the option to apply for Bridging Visa A as well till the refusal decision over the onshore partner visa is processed and a decision is provided by the Administrative Appeals Tribunal. Under which category of Bridging Visa, the client will have the freedom to have the working rights as provided in the earlier visa which has been overstayed by her but will not be allowed to travel until the client makes an application and get an approval for the Bridging Visa B which facilitate leaving Australia as well.

Conclusion on Administrative Appeals Tribunal Act

Considering the matter of the client, Max, the client can file for review of the refusal decision by the Department of Home Affairs in the Administrative Appeals Tribunal and parallelly can apply for any of the Bridging Visa as per the need of the client and suggested through the comparison of circumstances and features of the visas. On the other hand, for the refusal of onshore Partner Visa by Administrative Appeals Tribunal, the client Sally can have Bridging Visa E or a considering her circumstances when the onshore Partner Visa has been in procession before the Administrative Appeals Tribunal.

Bibliography for Administrative Appeals Tribunal Act

A. Legislations/ Acts

Administrative Appeals Tribunal Act, 1975

Migration Act, 1958

Migration Regulations, 1994

B. Cases

Durante (Migration) [2020] AATA 262 (4 February 2020)

Kjoller and Secretary, Department of Social Services (Social services second review) [2020] AATA 77 (29 January 2020); Senior Member D O'Donovan

Mengue (Migration) [2020] AATA 2343 (10 June 2020).

Nguyen (Migration) [2018] AATA 4496

Zubair v Mimia (2004) 134 FCR 344 at [28]-[32}

C. Websites/ Other

Australian Government, Bridging Visa A (BVA), (2020), <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/bridging-visa-a-010>

Australian Government, Travel on a Bridging Visa, (2020), <https://immi.homeaffairs.gov.au/entering-and-leaving-australia/travelling-and-your-visa/travel-on-a-bridging-visa >

Pax Migration Australia, What can I do when my Australian Visa gets rejected? What decisions can the AAT review?, (n.d), < https://paxmigration.com.au/what-can-i-do-when-my-australian-visa-gets-rejected/ >

[1] Clause 485.216 of Migration Rules, 1994.

[2] Kjoller and Secretary, Department of Social Services (Social services second review) [2020]

AATA 77 (29 January 2020); Senior Member D O'Donovan

[3] s 116 (c) of Migration Act, 1958.

[4] Ibid 1.

[5] Zubair v Mimia (2004) 134 FCR 344 at [28]-[32].

[6] s 42 of Migration Act, 1958.

[7] r.4.24 Migration Regulations 1994.

[8] s 501; 501CA of Migrations Act, 1958.

[9] r. 3.2 (a) of Prioritising Cases in the Migration and Refugee Division. These directions have been given under section 18B of the Administrative Appeals Tribunal Act 1975.

[10] Mengue (Migration) [2020] AATA 2343 (10 June 2020).

[11] Australian Government. Travel on a Bridging Visa. (2020). < https://immi.homeaffairs.gov.au/entering-and-leaving-australia/travelling-and-your-visa/travel-on-a-bridging-visa >

[12] Subclass 010

[13] Australian Government. Bridging Visa A (BVA). (2020). < https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/bridging-visa-a-010 >

[14] Subclass 050 and 051.

[15] Pax Migration Australia, What can I do when my Australian Visa gets rejected? What decisions can the AAT review?, (n.d), < https://paxmigration.com.au/what-can-i-do-when-my-australian-visa-gets-rejected/>

[16] r.2.03A(3) of Migration Regulations 1994.

[17] r. 2.03(4)-(5) of Migration Regulations 1994.

[18] Durante (Migration) [2020] AATA 262 (4 February 2020).

[19] Schedule 3 criterion 3001.

[20] Schedule 3 criterion 3002.

[21] Nguyen (Migration) [2018] AATA 4496

[22] 050(Bridging (General) of Bridging Visa E.

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