Hiring an Immigration Lawyer After Lodging Your Own Visa Application

Can you hire an immigration lawyer after you have already lodged your visa application?

Yes. You can appoint an immigration lawyer at any time after you lodge your own visa application, and at any point before the Department of Home Affairs decides it. Nothing in the Migration Act 1958 requires an applicant to be represented from the beginning, and nothing prevents an applicant appointing a representative later. Lodging an application does not close the file. The application stays open until a decision is made, and until that day the file can still be added to, corrected and argued.

The appointment is made on Form 956 Appointment of a registered migration agent, legal practitioner or exempt person. A legal practitioner is a lawyer who holds an Australian practising certificate granted under the law of a State or Territory. A separate Form 956 is completed for each matter, and every person included in the same application is treated as having appointed the same representative. In practice the completed form is given to the Department by attaching it to the existing application.

The same form does a second job that matters more than most applicants realise. Question 17 asks whether the representative has been authorised to receive written communication on the applicant's behalf. Where that authority is given, section 494D of the Migration Act requires the Department to give documents to the authorised recipient instead of to the applicant. From that point the Department's letters, requests and decision records go to the lawyer, and the applicant is taken to have received them.

Most people who lodge their own application do so for sensible reasons. The online forms are designed to be completed without help, the questions look straightforward, and the cost of doing it alone is nil. The difficulty is that the forms do not tell the applicant what the decision maker must be satisfied of, and they do not warn the applicant when an answer is about to create a problem. An application is not assessed on whether the boxes were filled in. It is assessed against criteria in the Migration Regulations 1994, and against public interest criteria in Schedule 4 that never appear on the form at all.

My Migration Lawyers acts for people at this stage every week, in partner visa matters and in protection visa matters. The work is different from preparing an application from scratch. The application has already been made, the answers are already on the record, and the task is to work out what the file now says about the applicant and what can still be done about it.

What changes on the day a lawyer takes over a lodged application

Three things change: who receives the Department's correspondence, who is accountable for the evidence that goes in next, and how the file is read against the criteria.

The first change is the correspondence. Once a lawyer is appointed as authorised recipient, all written communication about the matter is sent to the lawyer. This closes the most common single point of failure in self-lodged applications. Departmental letters are frequently sent to an email address the applicant created for the application and stopped checking, or to an address that was correct when the application was lodged and is no longer in use. The applicant does not see the letter, the response period runs out, and a decision is made on an incomplete file.

That risk exists because of how the law treats receipt. Where the Department gives a document by one of the methods in section 494B of the Migration Act, section 494C sets the day on which the person is taken to have received it. The period for responding, and the period for applying for review of a refusal, run from that deemed date. They do not run from the day the applicant actually opened the email. An applicant who was overseas, unwell or simply not looking at the right inbox still loses the time. A lawyer who is the authorised recipient receives the document on the day it is sent and records the deadline immediately.

The second change is accountability for the evidence. Before a lawyer is appointed, the applicant decides what to upload and when. After the appointment, a solicitor is responsible for what goes to the Department in that matter, and that solicitor has to be satisfied that the material is accurate, that it is the applicant's own evidence, and that it addresses a criterion rather than simply adding volume to the file.

The third change is the file audit. The first substantive step My Migration Lawyers takes on an application already lodged is to read every form as lodged and every document already uploaded, and to set them against the criteria the delegate must apply. That audit produces a written list of three things: the criteria the file already satisfies, the criteria it does not yet address, and anything in the lodged answers that creates a risk and needs to be corrected now rather than explained later.

What a lawyer can still change after the application is lodged

A lawyer can add evidence, correct answers and answer the Department, at any time before the decision is made. Those three powers cover most of what goes wrong in a self-lodged file.

Additional information may be given to the Department after lodgement. Section 55 of the Migration Act allows an applicant to give the Minister further relevant information until the application is decided, and the Minister must have regard to information given in that way. This is the provision that makes a late appointment worthwhile. An application that was lodged with thin evidence is not fixed by lodging it again. It is fixed by putting the missing evidence in front of the delegate before the decision, organised so that each criterion is answered.

Answers that have changed can be corrected, and in most cases they must be. Section 104 provides that if circumstances change so that an answer on the application form is incorrect in the new circumstances, the applicant must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer. The obligation applies despite the grant of any visa. Section 105 goes further and requires an applicant who becomes aware that an answer was incorrect when it was given to notify an officer in writing of the incorrectness and the correct answer. A change of address, a change of employment, a marriage, a separation, the birth of a child and a new criminal charge are all matters that can engage these sections. The Department's forms for this purpose are Form 1022 Notification of changes in circumstances and Form 1023 Notification of incorrect answers.

Requests from the Department can be answered properly. Under section 56 a delegate may invite an applicant to give further information. Under section 57 the delegate must give the applicant particulars of relevant information that would be the reason, or part of the reason, for refusing the visa, and must invite the applicant to comment on it. Relevant information for section 57 purposes is information that is specifically about the applicant or another person, is not just about a class of persons, and was not given by the applicant for the purpose of the application. Section 58 governs whether the response is to be in writing, at an interview or by telephone, and the period allowed. Under section 63 the visa cannot be refused until the comments are given or the period ends.

A section 57 letter is the single most important document an applicant will receive before the decision. It tells the applicant, in terms, what is about to sink the application. It is also the document most often answered badly by an unrepresented applicant, because the natural response is to express distress or to repeat the original claim, when what the delegate needs is evidence directed at the specific information raised. Those letters are a significant part of why Subclass 820 partner visas are refused.

Interviews can be prepared for. In protection matters the protection visa interview is where the claims are tested, and preparation means the applicant understands the process, the role of the interpreter and the significance of consistency with what has already been provided in writing. My Migration Lawyers prepares the client to give their own account accurately. The account remains the client's evidence.

What a lawyer cannot change after the application is lodged

No lawyer can change the facts that existed when the application was made, and several criteria are assessed as at that date. This is the honest limit of a late appointment, and any firm that suggests otherwise is not being straight with you.

Some criteria are time of application criteria. They are assessed by reference to the applicant's circumstances on the day the application was validly made, not the day the delegate reaches the file. If a requirement of that kind was not met on lodgement day, it cannot be met by later evidence, and the answer is usually a different application rather than a repair of this one.

A statement that was false when it was made cannot be unsaid. Public Interest Criterion 4020 in Schedule 4 to the Migration Regulations requires that there is no evidence the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to the application, or in relation to a visa held in the twelve months before the application was made. Information is false or misleading in a material particular if it was false or misleading at the time it was given and it is relevant to any of the criteria for the decision. Omission counts. A refusal under PIC 4020 for a bogus document or false information carries a three year non grant period for later applications, and a refusal for failure to satisfy the decision maker as to identity carries a ten year period.

Two points about PIC 4020 are worth stating plainly, because they are widely misunderstood. The first is that the applicant does not need to have known the document was false. The Full Court of the Federal Court held in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 that what matters is whether the information or document carries a quality of purposeful falsity, whether or not the applicant knew of it. An applicant is responsible for what was given on their behalf. The second is that a genuine mistake is a defence that has to be made out. Where the applicant can explain an innocent mistake, PIC 4020 may still be satisfied, and the place to make that explanation is the response to the section 57 letter, not the review that follows a refusal. The waiver in PIC 4020(4) is narrow. It requires compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. There is no waiver at all for the identity requirements.

A lawyer also cannot make the Department decide the application sooner, cannot move a file up a queue, and cannot extend a statutory deadline. The period for applying to the Administrative Review Tribunal for review of a protection visa refusal cannot be extended by the Tribunal. Time limits of that kind are the clearest reason to appoint a lawyer before a decision arrives rather than after it.

The problems most often found in applications lodged without a lawyer

The recurring problems are not exotic. They are the same handful of failures, and each of them is fixable while the application is still on hand.

Evidence is supplied in volume rather than against a criterion. A file with two hundred pages of photographs, boarding passes and social media screenshots can still fail, because the delegate is not looking for volume. In a partner visa the delegate is looking for evidence across the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the couple's commitment to each other. Material that does not speak to one of those aspects does not help, and burying the material that does help makes the file harder to decide in the applicant's favour.

Supporting statements are weak or missing. In partner visa matters, Form 888 statements from people who know the couple carry real weight when the author explains how they know the applicant and the sponsor, over what period, and what they have observed. Statements that recite the same paragraph in the same words do the opposite.

Changes of circumstance are never notified. Applicants routinely change address, change employer, separate, reconcile, or have a child, and do not tell the Department, in the belief that these things can be mentioned at the end. Sections 104 and 105 do not work that way, and an unnotified change that is discovered by the Department later is treated very differently from one disclosed as soon as practicable.

Correspondence is missed. This is the failure that turns a winnable application into a refusal, and it is entirely preventable by appointing an authorised recipient.

Claims are left unstated. In protection matters, a claim that is not put is not assessed. The client decides which claims are advanced, and the role of My Migration Lawyers is to make sure the client understands what the law requires before that decision is made, and then to present the client's own account and evidence in the form the law requires.

Is it better to withdraw the application and lodge a new one?

In most cases no. An application that is already on hand can be corrected and supplemented, while a new application starts the assessment again, attracts a further visa application charge, and is assessed against the criteria as they stand on the day the new application is made rather than the day the first one was lodged.

The decision is a legal one and it turns on the particular file. A few points are settled and can be stated plainly. Withdrawing an application is not a refusal, so withdrawal does not engage section 48 of the Migration Act. Section 48 limits further applications by a person in Australia who does not hold a substantive visa and who has had a visa refused or cancelled since last entering the migration zone, and the classes that remain available are prescribed by regulation 2.12. Protection visas are among the classes that remain available, which is a point regularly stated the wrong way round.

Withdrawal also has consequences beyond the application itself. A bridging visa granted in association with an application depends on that application remaining on foot, so the applicant's lawful status is part of the analysis and not an afterthought. Where the applicant's status is the live issue, the question is not simply whether the first application is strong. It is what the applicant will be allowed to hold while any further application is decided.

There is one situation where lodging again is genuinely the better course. If the application is for the wrong visa, or a time of application criterion was not met on the day it was lodged, no amount of additional evidence will save it. In that case the sensible step is advice on which visa the applicant can validly apply for now, and a decision about what to do with the existing application taken with that advice in hand. That is a different exercise from repairing the file, and it should not be started by withdrawing first and asking questions afterwards.

If the application has already been refused, the position changes again. Most refusals carry a right of review to the Administrative Review Tribunal, the period for applying is short and is applied strictly, and it runs from the day the applicant is taken to have received the decision. Anyone in that position should read what happens after a visa refusal before doing anything else, because the review application comes first and everything else can be dealt with afterwards.

How My Migration Lawyers takes over an application that is already lodged

The firm starts with the file as it stands, not with a new form. The first step is a consultation, held by video, in which the applicant explains what has been lodged, what has happened since, and what the Department has already sent. The applicant does not need to have anything tidy or complete for that conversation. The point is to identify what the file now says and what is still open.

The firm then reviews the application as lodged. That means every answer on the forms, every document uploaded, every letter received and every date on the record. It is the only reliable way to find the answer that will cause trouble later, and it is work that cannot be skipped in a matter where somebody else, including the applicant, prepared the application.

The applicant then receives written advice. It sets out the criteria that must be satisfied, where the file currently stands against each of them, what evidence is required, what risks exist in the answers already given, and what is to be done about each one. Where a correction is required under section 104 or section 105, the advice says so and the correction is made as soon as practicable.

Form 956 is then lodged, with the firm appointed to provide immigration assistance and, in almost every matter, as authorised recipient. From that point the Department deals with My Migration Lawyers. Requests under section 56, invitations to comment under section 57 and any interview invitation come to the firm, the deadlines are recorded on the day the document is received, and the response is prepared with the client.

All work on the matter is supervised by Weiwei Zhang, Principal Lawyer at My Migration Lawyers. Every letter of advice and every submission to the Department is settled by her. In protection matters and in partner visa matters alike, the applicant's statement remains the applicant's own evidence. It is prepared from what the client says, it is read back and corrected by the client, and it is not signed until the client confirms that it is accurate.

Applicants who lodged their own application and have since received a letter they do not understand, or who have simply realised that the file is thinner than it should be, can request a consultation with the firm. The earlier in the process that happens, the more of the file is still open to repair.