Getting a Second Opinion from an Immigration Lawyer: What to Expect

What is a second opinion from an immigration lawyer?

A second opinion is an independent review of your visa matter by a lawyer who is not acting for you, carried out to confirm whether the application, the evidence and the strategy are right before a deadline passes. It is a review of the file, not a takeover of the matter. The reviewing lawyer reads what has been lodged, identifies what the decision maker is required to be satisfied of, and says plainly whether the current course is sound, whether it carries a risk that has not been addressed, and what would have to change.

The value of a second opinion comes from the fact that the reviewer starts from the law rather than from the file. Every visa application is decided under section 65 of the Migration Act 1958, which requires the Minister to grant the visa if satisfied that the prescribed criteria are met, and to refuse it if not so satisfied. There is no discretion to grant a visa to an applicant who does not meet the criteria, however sympathetic the circumstances. A second opinion therefore asks one question above all others: on the material that has actually been lodged, is the decision maker able to reach the state of satisfaction the section requires? Everything else follows from that question.

A second opinion is not a prediction of the outcome. No lawyer can tell an applicant what a delegate or a Tribunal member will decide, and a lawyer who offers that assurance is not giving a legal opinion. What a second opinion can do is identify the criteria in issue, the evidence that goes to each of them, the gaps between the two, and the deadlines that govern what can still be done. That is a concrete piece of work with a concrete output, and it is the output the applicant should expect to receive.

A second opinion is also not a complaint process. The purpose is to look forward at the matter, not backward at the person who prepared it. In practice, most files that come in for review are competently prepared and the review confirms the approach. Where a problem is found, it is far more often a gap in evidence or a missed statutory requirement than anything else.

When is a second opinion worth getting?

A second opinion is most useful while the application is still with the Department, because a file can still be corrected before a decision is made under section 65. Once a decision has been made, the options narrow sharply and the cost of fixing a problem rises. The strongest reason to seek a review is therefore timing rather than doubt: an applicant who has a real question about the strategy should ask it at the point where the answer can still be acted on.

There are several situations in which a review earns its cost. The first is where the Department has written to the applicant with information that appears to count against the application. Section 57 of the Migration Act 1958 requires the Minister to give the applicant particulars of relevant information, to ensure as far as reasonably practicable that the applicant understands why it is relevant, and to invite comment on it. Relevant information for this purpose is information that would be the reason, or part of the reason, for refusing to grant the visa, that is specifically about the applicant rather than a class of people, and that was not given by the applicant for the purpose of the application. A letter of that kind is the point at which the application is most at risk, and it is the point at which an independent set of eyes is worth the most.

The second situation is a refusal. A notification of refusal must, under section 66 of the Migration Act 1958, specify the criterion or provision the applicant did not satisfy, give written reasons, and state that the decision can be reviewed, the time in which an application for review may be made, who can apply and where the application can be made. Those reasons are the most useful document in the file for a reviewing lawyer, because they tell the reviewer exactly what the delegate was not satisfied about. A visa refusal reviewed against the delegate's own reasons is a far more productive exercise than a review conducted on the application alone.

The third situation is where the applicant has been told that an allegation of false or misleading information is in issue. Public Interest Criterion 4020 in Schedule 4 to the Migration Regulations 1994 requires that there be no evidence that the applicant has 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 it was made. A refusal under that criterion also brings an exclusion period that affects later applications. Allegations of this kind are technical, they turn on what was actually said and when, and they are among the strongest reasons to obtain an independent review quickly.

The fourth situation is where the applicant's lawful status is in question, or where a visa cancellation is on foot. Status drives everything else. It determines which visas can be applied for onshore, which bridging visa the applicant holds, and how much time there is to act.

What the lawyer needs to see before giving an opinion

A second opinion is only as good as the file it is based on, so the reviewing lawyer needs the complete record rather than a summary of it. An opinion given on a partial file is worth very little, and a reviewer who gives one without seeing the primary documents is guessing. Applicants are often surprised by how much material is asked for at the start, but the request is not administrative caution. Each document answers a question the reviewer must answer before an opinion can be given at all.

The core of the file is the following material:

• The decision record or refusal letter, in full, including the delegate's reasons and the attachments.
• Every form lodged with the Department, including the visa application itself and any later forms.
• The evidence that was actually provided in support of the application, as it was provided.
• All correspondence from the Department, including any letter inviting comment on adverse information and any request for further material.
• The applicant's current visa grant notice, or the notice for whatever visa or bridging visa the applicant now holds.
• Any Tribunal correspondence, where an application for review has already been made.

Two documents carry more weight than the rest. The first is the delegate's reasons, because they state the criterion that was not satisfied and the evidence the delegate relied on to reach that conclusion. The second is the evidence bundle as lodged, because the difference between what an applicant believes was submitted and what was actually received by the Department is one of the most common problems a review uncovers.

The reviewing lawyer also needs the immigration history, and that is a matter of fact rather than recollection. It covers every visa held, every application made, every refusal and every cancellation. My Migration Lawyers checks this history itself against the Department's records rather than asking clients to produce old grant notices and application copies that most people do not keep. That approach is deliberate. Reconstructing a history from memory introduces errors into the very part of the analysis where errors are least tolerable.

Where the matter concerns a partner application, the reviewer will also want to see how the relationship evidence was organised, because the partner visa criteria are evidentiary rather than conceptual. Where the matter concerns a protection visa, the reviewer will want the statement of claims and any record of what was said at interview, because consistency between the written claims and the oral account is central to how those applications are assessed.

What happens during the review

The review runs in a fixed sequence, and the first step is always status and time. The reviewing lawyer establishes what visa the applicant currently holds, whether any decision has been notified, and what deadline is running. Those facts control every option that follows, and they are established before any view is formed about the merits, because an excellent argument that is out of time is not an option at all.

The second step is to identify the criteria in issue. Every visa has prescribed criteria, and a refusal turns on a specific one. The reviewer works from the criterion backwards to the evidence, rather than from the evidence forwards to a general impression that the case is strong or weak. This is where a second opinion most often diverges from the applicant's own view of the matter. Applicants tend to assess their case on its overall fairness. A decision maker assesses it against a defined criterion and nothing else.

The third step is to test the evidence against each criterion in issue and to record what is missing. Missing evidence falls into two categories that must be kept apart. There is evidence that exists and was not provided, which is usually retrievable. There is also evidence that does not exist, which is not a document problem and cannot be solved by sending more paper. Being clear about which category applies is one of the most useful things a second opinion delivers, because it tells the applicant whether the matter is fixable and at what cost.

The fourth step is to check the statutory bars, because they determine whether a fresh application is even available. Section 48 of the Migration Act 1958 provides that a non-citizen in the migration zone who does not hold a substantive visa and who, since last entering Australia, has had a visa application refused or a visa cancelled may apply only for a visa of a class prescribed for the purposes of that section, and not for a visa of any other class. Protection visas are governed separately. Section 48A bars a non-citizen who has made a protection visa application in the migration zone that was refused from making a further protection visa application, and that bar applies regardless of the grounds on which the further application would be made. These provisions catch applicants who assume that a fresh application is always available. It is not.

The fifth step is the advice itself: what the options are, what each one requires, what it will cost and what the deadline is for each. An applicant who receives a second opinion should finish with a written document setting all of that out, not a conversation.

What a second opinion can change, and what it cannot

A second opinion can change how a matter is presented, what evidence supports it and which pathway is pursued. It cannot change the facts, and it cannot create a criterion the applicant does not meet.

While an application is still undecided, a great deal remains open. Material can still be put before the Department. A response to a letter raising adverse information can be prepared properly rather than in haste. Where the applicant does not hold a substantive visa and is applying for a partner visa onshore, the Schedule 3 requirements can be addressed directly rather than left to be inferred. An applicant may also withdraw a visa application by written notice to the Minister under section 49 of the Migration Act 1958, which is occasionally the correct course, although it carries consequences that must be worked through before it is taken.

After a refusal, the position is different and the difference is a matter of time rather than merit. The period for applying to the Administrative Review Tribunal is short, it runs from notification of the decision, and the Tribunal cannot extend it. The Tribunal has said so in terms in its own practice direction for migration, protection and character matters. That single rule does more damage to more applicants than any other in the system, because the remedy for missing the period is not an explanation or an apology. There is no remedy. An applicant considering a second opinion after a refusal should treat that period as the operative deadline and seek the review well inside it, not at the end of it.

What a second opinion cannot do is manufacture a case. It does not invent claims, and it does not dress up facts the applicant has not given. The reviewing lawyer presents the applicant's own account and the applicant's own evidence in the form the law requires, the applicant reads and corrects the written account before it is used, and the applicant decides which claims are advanced. An opinion that promises anything beyond that is not one to rely on.

Does a second opinion mean changing lawyers?

No. Obtaining a second opinion does not remove the applicant's current representative and does not by itself change anything on the Department's file. Representation changes only when the applicant lodges Form 956, the Appointment of a registered migration agent, legal practitioner or exempt person, appointing the new adviser. Until that form is lodged, the existing arrangement stands.

It is worth separating two things that are often confused. Form 956 appoints the person who gives immigration assistance. Form 956A, the Appointment or withdrawal of an authorised recipient, appoints or withdraws the person who receives departmental correspondence about the matter. Only one authorised recipient may be appointed at a time for a particular application, and the Department sends documents to the most recently appointed one. That detail matters more than it appears to. If correspondence is going to an address the applicant no longer monitors, a letter inviting comment on adverse information, or a notification that starts a review period running, may be received by someone who does not act on it.

Many applicants ask for a review precisely because they do not want an awkward conversation with their current adviser. That concern is understandable and it is misplaced. Seeking independent advice on a matter that affects a person's ability to remain in Australia is ordinary and reasonable, and a competent adviser will not be troubled by it. In a good number of reviews the outcome is that the existing approach is confirmed, the applicant returns to their adviser reassured, and nothing further is required.

Where the applicant does decide to change representation, the practical points are straightforward. The new adviser needs the complete file, the applicant should confirm in writing with the previous firm that the retainer has ended, and any deadline already running continues to run throughout. A change of representative never pauses a deadline.

Common problems a second opinion finds

Most of what a review turns up is evidentiary rather than legal, and most of it is fixable while the application is still undecided. The pattern repeats across matters, and knowing the pattern is useful because it tells an applicant what to look at first.

The most common finding is a gap between the evidence the applicant believes was lodged and the evidence the Department actually received. Documents are uploaded to the wrong application, attachments fail, and material gathered late in the process never reaches the file at all. Checking what was received, rather than what was sent, is a short exercise that regularly changes the analysis.

The second is a response that answers the wrong question. Where the Department has invited comment on adverse information, the response has to address the particular information put to the applicant and explain why it should not lead to refusal. A response that restates the strength of the application generally, without engaging with the specific matter raised, leaves the issue unanswered.

The third is correspondence going somewhere the applicant does not monitor. Because only one authorised recipient may be appointed at a time, and the Department writes to the most recent one, an outdated appointment can mean that a letter inviting comment, or a notification that starts a review period running, is not acted on in time.

The fourth is evidence organised by volume rather than by criterion. A large bundle that does not map onto the criteria in issue is harder to assess than a smaller one that does. In partner visa matters in particular, material is often arranged chronologically when the assessment is made against defined aspects of the relationship.

The fifth arises in protection matters, where the written claims and the account given at interview do not sit together. Inconsistency of that kind is assessed closely, and it is far easier to address before a decision than after one.

How My Migration Lawyers conducts a second opinion

My Migration Lawyers conducts a second opinion as a defined piece of work with a written output, separate from any decision about whether the firm goes on to act. The review begins with the file. Weiwei Zhang, Principal Lawyer, reviews the decision record or refusal letter, the forms lodged, the evidence as provided and the departmental correspondence, and the firm checks the immigration history itself against the Department's records rather than relying on what the applicant can locate.

The output is a written opinion covering four things: the criteria in issue, the evidence that goes to each, the options that remain open, and the deadline attaching to each option. Where a deadline has real consequence, because a person would become unlawful, an application would be invalidated or a review right would be lost, that consequence is stated in terms rather than implied. Where the honest answer is that the law does not permit what the applicant wants, the opinion says so. An opinion that only contains encouraging findings is of no use to the person paying for it.

Fees are quoted as a fixed amount for the review once the firm has seen the papers, so the applicant knows the cost of the opinion before any work begins. The fee for the review is separate from any fee to act on the matter afterwards, and the applicant is under no obligation to instruct the firm further. Consultations are conducted by video, and correspondence is by email so that the advice and the record of it are in writing.

The firm acts principally in partner and protection matters, and in refusals of both. A partner visa refusal and a protection visa refusal raise different questions and run on different review pathways, and the review is scoped accordingly. Applicants who want an independent review of a matter already on foot can request a consultation and send the file for review.