Protection Visa Subclass 866 Rejected: What Happens Next?

Protection visa rejected: what happens next?

With a protection visa rejected by the Department of Home Affairs, the applicant receives a written refusal notice with reasons, usually continues to hold a bridging visa for a limited period, and has a short and strict deadline to apply to the Administrative Review Tribunal. If a valid review application is lodged in time, the applicant can normally remain in Australia lawfully while the Tribunal decides the case. If nothing is done, the bridging visa ends and the person becomes an unlawful non-citizen.

A protection visa rejected by the Department is, in legal terms, a refusal under section 65 of the Migration Act 1958. The decision maker was not satisfied that one or more of the criteria for a Subclass 866 visa were met. The word "rejected" is the word most people use, and it means the same thing. It is not the end of the matter. For most people, a protection visa rejected at the first stage is the beginning of a second and often more important stage.

The steps that follow a protection visa rejected by the Department are, in order of urgency:

• confirm the date the refusal notice was taken to have been received, because the review deadline runs from that date;
• lodge a valid application for review with the Administrative Review Tribunal before the deadline expires;
• confirm what bridging visa the applicant holds and what conditions apply to it;
• obtain and read the full decision record to identify the findings that caused the refusal; and
• prepare the evidence, statements and submissions needed to answer those findings at the Tribunal hearing.

The first two steps cannot wait. The analysis of the reasons, which is explained in detail in the Subclass 866 refusal ART review guide, can be completed after the review application is lodged. The review deadline, however, cannot wait for that analysis.

This article explains what happens after a protection visa rejected decision at each stage: the refusal notice, the deadline, the bridging visa, the Tribunal, the bar on a further protection application, the limits on other visas, and the options that remain if the Tribunal also refuses. The general requirements for the visa itself are set out in the Subclass 866 Protection Visa complete guide.

What does the refusal notice say when a protection visa is rejected?

The refusal notice states that the visa has been refused, gives the reasons for the decision, states whether the decision can be reviewed by the Administrative Review Tribunal, and states the time within which review must be sought. Section 66 of the Migration Act 1958 requires the Department to give this information in writing.

For a protection visa rejected by the Department, the notice is usually sent to the email address or postal address the applicant gave for correspondence, or to the applicant's registered migration representative. The reasons are often attached as a separate decision record. That record sets out the claims, the evidence considered, the findings of fact, and a conclusion on each criterion expressed in words such as "I am not satisfied".

Three things in the notice matter immediately.

The date of notification

The Migration Act 1958 contains rules that deem a notice to have been received on a particular date. Under section 494B and section 494C, a notice sent by email is generally taken to have been received at the end of the day it was sent, and a notice sent by post is taken to have been received after a set period. The review deadline runs from that deemed date. It does not run from the day the applicant opened the email or collected the letter. A protection visa rejected by a notice that sat unread in a spam folder still starts the clock.

The statement of review rights

The notice will state whether the decision is reviewable and where to apply. For almost every Subclass 866 refusal, review is available at the Administrative Review Tribunal. The notice should be read carefully, because a refusal made on character grounds under section 501 follows a different review pathway from an ordinary refusal.

Whether it is a refusal at all

A notice that says the application was invalid is not a refusal. An invalid application has not been decided on its merits. A notice of invalidity does not carry the same right of review, and the consequences for bridging visas are different. Anyone who believes they have a protection visa rejected decision should confirm whether the notice is in fact a refusal or a notice of invalidity before assuming which pathway applies.

The notice is the single most important document in the file for a protection visa rejected by the Department. It should be kept, saved in its original form, and given to a lawyer at once.

Protection visa rejected: how long do you have to act?

The time to apply for review after a protection visa rejected decision is short and strictly applied. The period is fixed by section 347 of the Migration Act 1958 and the Migration Regulations 1994, it runs from the date the refusal notice is taken to have been received, and the Administrative Review Tribunal has no power to extend it.

This is the point on which the most damage is done after a protection visa rejected decision. People assume that the deadline is flexible, that the Tribunal will accept a late application if there is a good reason, or that they can wait until they have gathered evidence. None of these assumptions is correct. An application lodged one day late is outside the Tribunal's jurisdiction. The Tribunal cannot hear it, however strong the case.

Several features of the deadline need to be understood.

The deadline cannot be extended

There is no discretion to accept a late application for review of a protection visa refusal. Illness, travel, a lost email, a change of address or a misunderstanding about the date will not rescue a late application. A protection visa rejected and not reviewed in time generally leaves only the limited options described later in this article.

The applicant must be in Australia

The application for review must be made while the applicant is physically in Australia's migration zone. Only the person who was refused can apply. A person who leaves Australia before applying loses the right to seek review.

The application can be lodged before the evidence is ready

A valid review application does not need to contain the full case. It needs to be made in the approved way, within time, with a copy of the decision, and with the application fee paid. Evidence, statements and submissions can be provided afterwards, before the hearing. The correct approach with a protection visa rejected by the Department is to lodge first and prepare second.

Deemed receipt can shorten the real time available

Because the period runs from deemed receipt, the real time available to act may be shorter than the applicant thinks. A person who learns of the decision late, for example because the notice went to an old representative, may have very little time left. The article on urgent immigration lawyer advice explains what to prepare when time is short.

The procedural steps for lodging the review application are explained in Protection Visa Refused: Can You Appeal to the ART?. My Migration Lawyers checks the deemed date of receipt as the first step in every matter where a protection visa has been rejected, because every other step depends on it.

Protection visa rejected: can you stay in Australia?

Yes, for a limited time. A person with a protection visa rejected by the Department usually continues to hold the bridging visa granted with the protection application, and that bridging visa generally stays in effect while a valid review application is before the Administrative Review Tribunal. If no review application is made in time, the bridging visa ends after a set period and the person becomes an unlawful non-citizen.

Most Subclass 866 applicants hold either a Bridging visa A or a Bridging visa E while the application is decided. A Bridging visa A is usually granted where the person held a substantive visa, such as a visitor visa or student visa, when the protection application was made. A Bridging visa E is usually granted where the person did not hold a substantive visa at that time, or later lost it. The differences between these visas are explained in the article on bridging visas A, B, C and E.

During the review period

When a protection visa rejected by the Department is taken to the Tribunal in time, the bridging visa associated with the protection application generally continues until the Tribunal decides and for a period afterwards. The conditions on the bridging visa, including any work conditions, usually continue as they were. The applicant should check the bridging visa grant notice and the Department's records to confirm the exact conditions.

If no review application is made

If a protection visa rejected by the Department is not taken to review within the time allowed, the bridging visa ceases after the review period and a further short period. The person then has no visa. An unlawful non-citizen in Australia can be detained under section 189 of the Migration Act 1958 and must be removed under section 198 as soon as reasonably practicable once there is no pending application or review.

Work rights with a protection visa rejected

Work rights with a protection visa rejected by the Department depend on the conditions of the bridging visa held. They do not change simply because the visa was refused. A person who loses the bridging visa loses any work rights attached to it. A person who later obtains a new Bridging visa E, for example in connection with judicial review, may have different conditions imposed.

The point for anyone with a protection visa rejected by the Department is simple. Lawful status in Australia depends on acting within the review period. Lodging a valid review application in time is what keeps the bridging visa running.

Protection visa rejected: what happens at the Administrative Review Tribunal?

The Administrative Review Tribunal reconsiders the whole application afresh. It is not limited to the material that was before the Department, it can accept new evidence, and it can either affirm the refusal, set it aside and substitute a new decision, or send the matter back to the Department with directions. The Tribunal applies the same legal criteria as the Department. The general review process is described in ART Review: What to Expect After Your Visa Is Refused.

For many people with a protection visa rejected at the first stage, the Tribunal is the most important stage of the whole process. The Tribunal member will read the file, consider the reasons for the refusal, invite the applicant to a hearing, question the applicant in detail, and decide the case on all the material before it at the time of the decision.

New evidence at the Tribunal

Because review is a fresh decision on the merits, a protection visa rejected by the Department can be supported at the Tribunal with evidence that was never given to the Department. This can include a supplementary statement, witness evidence, documents from the home country, medical or psychological reports, and current country information. The article on evidence in a protection visa application explains the kinds of evidence usually relied on.

New evidence must be directed at the findings that caused the refusal. A protection visa rejected because the decision maker found the applicant could relocate within the home country needs evidence about relocation. A protection visa rejected on credibility needs a careful explanation of each inconsistency. Evidence that does not address the dispositive finding rarely changes the result.

New claims raised for the first time

Section 367A of the Migration Act 1958 requires the Tribunal, in certain circumstances, to draw an unfavourable inference about the credibility of a claim or evidence that was not raised before the primary decision, if the applicant has no reasonable explanation for raising it late. There can be good reasons for a late claim, including trauma, fear, shame or a lack of understanding about what was relevant. Those reasons must be explained with care. The statement remains the applicant's own evidence, reviewed and corrected by the applicant, and the applicant decides which claims are advanced. The article on the protection visa statement of claims explains why the statement must be the applicant's own account.

The hearing

The hearing is usually held by video or in person, with an interpreter where needed. The Tribunal member asks the questions. A representative can make submissions and may be permitted to ask questions. Preparation for the hearing is covered in detail in Protection Visa ART Hearing: Questions, Evidence and Legal Preparation. The role a lawyer plays in that preparation is explained in Protection Visa ART Hearing: How a Lawyer Can Help You Prepare.

The possible outcomes

The Tribunal may affirm the refusal, which means the protection visa rejected by the Department stays refused. It may set the decision aside and remit the matter to the Department, usually with a direction that a criterion is met. Or it may substitute its own decision. A remittal is the outcome most applicants are seeking, because it sends the application back to the Department on a favourable footing.

Protection visa rejected: can you apply for another protection visa?

No, not while you remain in Australia, unless the Minister personally intervenes. Section 48A of the Migration Act 1958 provides that a non-citizen in the migration zone whose protection visa application has been refused cannot make a further application for a protection visa. The bar applies whatever the grounds of the new claim and even if circumstances have changed.

This is one of the most misunderstood rules after a protection visa rejected decision. Many people believe they can simply lodge a new application with a better statement or with new claims. That application would not be valid. The Department would not consider it, and it would not give the person a new bridging visa.

The bar in section 48A also applies where an application was made on the person's behalf, including by a parent for a child, whether or not the person knew or understood the application. It applies to people who leave and return on a bridging visa in some circumstances, because they are treated as having remained in the migration zone.

The section 48B exception

Section 48B allows the Minister to decide that section 48A does not apply to a person, if the Minister thinks it is in the public interest to do so. The power is personal to the Minister. It is non-compellable, which means the Minister has no duty to consider a request. Requests are assessed against the Minister's instructions, which focus on whether there is significant new information that was not before the earlier decision makers and that could result in a different outcome.

A section 48B request is not a substitute for Tribunal review. It is generally only considered after the review process has been completed, and it does not stop removal while it is being considered. For someone with a protection visa rejected recently, the priority remains the Tribunal.

Protection visa rejected: can you apply for a different visa?

Only certain visas. Section 48 of the Migration Act 1958 provides that a person in Australia who does not hold a substantive visa and who has had a visa refused since last entering Australia may only apply for the visa classes prescribed in regulation 2.12 of the Migration Regulations 1994. Most visas cannot be applied for onshore with a protection visa rejected and no substantive visa held.

The partner visa pathway

One important exception is the partner visa. A person to whom section 48 applies may still apply for a Subclass 820 partner visa and the associated Subclass 801 visa. However, additional validity requirements apply. The sponsorship form must be lodged with the application, and supporting declarations from two Australian citizens or permanent residents confirming the relationship must be provided at the time of application.

A person who does not hold a substantive visa when applying must also meet the Schedule 3 criteria, or show compelling reasons for those criteria not to apply. This is explained in the article on the Schedule 3 partner visa waiver. The wider question of applying after a refusal is covered in Partner Visa After a Visa Refusal: Can You Apply in Australia?.

Bridging visas remain available

Regulation 2.12 includes the bridging visa classes. This allows a person affected by section 48 to apply for a bridging visa in connection with a valid application, such as a partner visa application or a judicial review application.

Choosing between pathways

A person with a protection visa rejected by the Department may have both a protection review and a partner visa option. The two pathways are not mutually exclusive, but the choice and timing affect bridging visas, credibility and the evidence each case requires. The decision should be made with advice, and the review deadline for the protection visa rejected by the Department should be protected in the meantime. The firm's wider visa refusals practice covers the partner visa and other pathways that may sit alongside a protection review.

Protection visa rejected again at the Tribunal: what happens next?

If the Administrative Review Tribunal affirms the refusal, the protection visa rejected by the Department remains refused, the bridging visa ends after a set period, and the remaining options are judicial review in the Federal Circuit and Family Court of Australia and a request for Ministerial intervention. Each option has narrow criteria and its own timing.

Judicial review

Judicial review is not a second hearing on the facts. The court does not decide whether the applicant is a refugee. It decides whether the Tribunal made a jurisdictional error, meaning a legal error of the kind that makes the decision invalid. Examples include misunderstanding the legal test, failing to consider a claim that was clearly raised, denying procedural fairness, or reaching a finding with no evidence to support it.

An application for judicial review must be made within a strict time limit fixed by section 477 of the Migration Act 1958. The court has a limited power to extend that time. A person who applies for judicial review may be eligible for a further Bridging visa E while the court proceedings continue. More information is on the judicial review service page. If the court finds a jurisdictional error, it usually sends the matter back to the Tribunal to be decided again.

Ministerial intervention

Section 351 of the Migration Act 1958 allows the Minister to substitute a more favourable decision for a decision of the Tribunal, if the Minister thinks it is in the public interest to do so. The power is personal and non-compellable. Requests are assessed against the Minister's instructions, which describe the kinds of unique or exceptional circumstances that may be referred to the Minister. A request for intervention after a protection visa rejected at the Tribunal does not automatically give a bridging visa, and it does not prevent the Department from asking the person to depart.

Section 48B after the Tribunal

Where there is significant new information about the protection claims that was not before the Department or the Tribunal, a request under section 48B for permission to make a further protection application may also be considered.

These options are narrow. They are not a reason to delay the Tribunal review, and they work best when the Tribunal stage has been handled properly.

Protection visa rejected: what happens if you do nothing?

If nothing is done after a protection visa rejected decision, the review deadline passes, the bridging visa ceases, and the person becomes an unlawful non-citizen who can be detained and must be removed from Australia as soon as reasonably practicable. Doing nothing is the one choice that removes almost every other option.

Once the review period has passed, the Tribunal cannot accept an application. Section 48A prevents a new protection application. Section 48 limits other visa applications. Without a bridging visa, the person has no lawful status, no work rights and no protection from removal.

Leaving Australia with a protection visa rejected also has consequences. A person who departs as an unlawful non-citizen, or while holding certain bridging visas, may be subject to an exclusion period under public interest criterion 4014, which can affect future visa applications. A person who leaves before applying for review loses the right to seek review, because the application must be made from within Australia.

The practical lesson is that the period immediately after a protection visa rejected decision is the period in which the most can be done. Advice obtained in that period can preserve options that are lost permanently once the deadline passes.

What mistakes should be avoided after a protection visa is rejected?

The most common mistakes with a protection visa rejected by the Department are missing the review deadline, assuming a new application can be lodged, relying on the wrong date of receipt, and presenting a new version of events at the Tribunal instead of explaining the earlier evidence.

The mistakes that most often cause lasting harm are these:

• waiting to lodge the review application until evidence has been gathered, and running out of time;
• calculating the deadline from the date the notice was opened, not the date it was taken to be received;
• lodging a new protection visa application, which is invalid because of section 48A;
• leaving Australia before the review application is made;
• ignoring emails from the Department or the Tribunal, or failing to update contact details;
• giving the Tribunal a new account that contradicts the earlier statements without explaining why; and
• relying on Ministerial intervention instead of the Tribunal, when intervention is discretionary and rarely available before review.

Each of these mistakes is avoidable. The article on how a lawyer can assess a protection visa appeal explains how the assessment is made for a protection visa rejected by the Department.

How My Migration Lawyers assists when a protection visa is rejected

My Migration Lawyers acts for people with a protection visa rejected by the Department or the Tribunal, from the day the refusal notice arrives through the Tribunal hearing and, where needed, judicial review and Ministerial intervention. The firm acts in many protection visa refusal matters, including complex cases involving credibility findings, internal relocation, complementary protection, late claims and section 48A issues, and is capable of handling them.

For every protection visa rejected matter, the firm's work follows a clear sequence:

• The firm confirms the date of deemed receipt of the refusal notice and the review deadline, and ensures a valid review application is lodged in time.
• The firm confirms the client's bridging visa and conditions, so the client knows where they stand while the review proceeds.
• The firm reads the full decision record, identifies the findings that caused the refusal, and advises the client in writing on which findings are open to challenge.
• The client's own account is presented in the form the law requires. Any supplementary statement is the client's own evidence, reviewed and corrected by the client, and the client decides which claims are advanced.
• The firm gathers supporting evidence and current country information, prepares written submissions directed at the legal tests in section 5J, section 36(2)(aa) and complementary protection, and prepares the client for the hearing.
• Where the Tribunal refuses the visa, the firm advises on judicial review, section 48B, Ministerial intervention and any partner visa pathway.

Matters are led by Weiwei Zhang, Principal Lawyer. More information about the firm's work is on the Protection Visa Refusals page, the Protection Visa Lawyers page and the Subclass 866 Protection Visa service page.

With a protection visa rejected, the review deadline is already running. Book a consultation with My Migration Lawyers, call 1300 040 300, or send an enquiry through the contact page.