The first step after an adverse immigration decision is to identify exactly what has happened. A visa refusal, a Notice of Intention to Consider Cancellation, an actual cancellation, a section 57 invitation and a character decision each create different rights, deadlines and strategic choices.
Start with the decision or notice
The Department’s document usually identifies the legal basis of the concern, whether review rights exist and any response deadline. Do not assume that every refusal is reviewable, that every cancellation follows the same procedure, or that every time limit can be extended.
Common complex issues
Cancellation and NOICC responses
A Notice of Intention to Consider Cancellation is an opportunity to respond before a cancellation decision is made in many cases. The response should address the actual statutory ground and the discretionary factors relevant to the decision.
Character issues
Character refusals and cancellations can involve the character test, substantial criminal record, risk assessments, Ministerial Direction factors and strict review procedures. VACCU involvement may arise in some character matters.
Natural justice invitations
A section 57 invitation may put adverse information to an applicant for comment. The response should deal precisely with the information identified and any reliability, context or explanatory evidence.
Onshore Partner visa status issues
Schedule 3 can arise where an onshore Partner visa applicant did not hold a substantive visa at the relevant time. The relationship evidence and the Schedule 3 analysis are separate issues.
Section 48 bar
After certain refusals or cancellations in Australia, section 48 can limit the visa classes that can be validly applied for while the person remains in Australia. The available options depend on the person’s current status and circumstances.
No Further Stay waiver
A No Further Stay condition can prevent many onshore visa applications unless a waiver is available. The waiver criteria are specific and should be assessed before making further visa plans.
Health waiver
Some visa subclasses permit a health waiver where the applicant does not meet the ordinary health requirement. Whether a waiver is available and how it is assessed depends on the visa and the relevant public interest criterion.
False or misleading information concerns
Integrity concerns can arise from false documents, incorrect information or inconsistencies across applications. The legal effect depends on the criterion engaged, the facts and the visa subclass.
Review, reapplication or another pathway?
An ART review is not always available, and a fresh visa application is not always possible or strategically preferable. The choice should be made after checking review rights, current visa status, bars, the refusal or cancellation reason and whether the underlying problem can lawfully be addressed.