Urgent Immigration Lawyer Advice: What to Prepare Before You Call

What should you prepare before calling an immigration lawyer urgently?

Before contacting an immigration lawyer about an urgent matter, prepare four things: the decision or letter you received, the date on it, the visa and passport details of everyone affected, and a short written timeline of events. Those four items are what a lawyer needs to work out whether a deadline is running, how long is left, and what options remain open. Without them the consultation becomes a conversation about what might be true rather than advice on what to do.

The reason is simple. Almost every urgent migration problem in Australia is a deadline problem. A visa refusal starts a period in which review may be sought. A request from the Department of Home Affairs sets a date by which information must be provided. A visa that is about to cease sets the date by which a further application must be made. In each case the decisive fact is a date on a document, and the document is usually sitting in an email account or an ImmiAccount inbox.

People in this position often do the opposite. They write a long account of what happened over several years, then leave out the letter itself. A lawyer cannot advise on a refusal without the decision record, because the period for review, the review body and the reasons for the decision are all set out in that document and nowhere else. The notification given under section 66 of the Migration Act 1958 is the starting point for everything that follows.

The four items to have ready before the call are these.

• The complete letter or notice, including every attachment. A refusal notification usually comes in two parts: a short covering letter and a longer statement of reasons. The reasons attachment is the important one.
• The date on the letter and the date it arrived. Note the method as well. An emailed decision, a decision placed in an ImmiAccount and a posted decision are treated differently.
• Visa and passport details for each person affected. The passport biographical page and the most recent visa grant notice are enough. Where the grant notice cannot be found, the passport number and date of birth allow a lawyer to check the visa record directly.
• A short written timeline. Six to ten lines is enough. Dates of entry to Australia, applications lodged, refusals, changes of representative and changes of address matter far more than a narrative of feelings.

What is not needed is a complete file. Visa history, previous application details and Tribunal records can be obtained by a lawyer through the Department and the Tribunal. Waiting to assemble everything before making contact is the most common way a short deadline is lost. Send what you hold, say what you do not hold, and let the lawyer chase the rest.

If a refusal decision is the reason for the call, the visa refusal review options page sets out how review of a refused visa works and what the first steps are. If the matter is a partner visa or a protection visa, the same preparation applies, and the pages on partner visa matters and protection visa matters set out how each type of matter is handled.

Which date starts the deadline after a visa refusal?

The date that starts the deadline is the day you are taken by law to have received the decision, which is not always the day you read it. This is the single most misunderstood rule in Australian migration practice, and it is the reason review rights are lost by people who did nothing wrong.

Sections 494B and 494C of the Migration Act 1958 set out how the Department may give a document and when that document is taken to have been received. The Act provides for several methods, including delivery by hand, sending by prepaid post, transmitting by electronic means, and giving the document to an authorised recipient. For each method the Act fixes the moment of deemed receipt. That moment is a matter of law. It does not move because the email went to a spam folder, because the applicant was overseas, because the address on file was out of date, or because a former representative received the letter and said nothing.

Two consequences follow, and both are practical rather than theoretical.

First, the clock may already have been running for some time before the applicant becomes aware of the decision. A person who discovers a refusal when checking an ImmiAccount weeks later is not given a fresh start from the day of the discovery. The correct question at that point is not how long has been available, but how much is left.

Second, the period for applying for review in the migration and protection jurisdiction is short and it is applied strictly. The Administrative Review Tribunal has stated in its practice direction for migration, protection and character matters that it cannot extend the time for filing an application for review of these decisions. There is no discretion to exercise, no application for an extension to be made, and no explanation that will restore the right once the period has passed. Illness, absence from Australia, a missed letter and the failure of a previous adviser all produce the same result.

This is where a great deal of published advice is wrong. Many articles state a single number of days as though one period applied to every decision. It does not. The period depends on the type of decision and on the circumstances of the person affected, including whether the person is held in immigration detention, and it is stated in the notification letter itself. The letter tells you which body reviews the decision and by when an application must be made. Read that paragraph first and the reasons second.

The correct first action, before any discussion of merits, is to fix the date. Work out the method of notification, apply the deeming rule for that method, and write the resulting date at the top of the page. Every other decision in the matter, including whether it is worth engaging anyone at all, follows from that single date. A lawyer who does not ask for the notification letter within the first minute of an urgent consultation is not doing the work properly.

What documents does an immigration lawyer need to see first?

The first documents a lawyer needs are the notification of the decision, proof of current visa status, and identity documents for each person affected. Everything else can follow. The purpose of the first exchange is not to build a file. It is to establish three facts: what has been decided, what status each person currently holds, and what deadline applies.

The notification comes first. Send the full document, not a photograph of the first page and not a summary of what it says. Where the decision was delivered through an ImmiAccount, the notification and the attached statement of reasons can be downloaded from the correspondence section of the account. Where a previous representative received it, that representative is obliged to hold the file and the document can be requested from them in writing.

Proof of current status comes second. This means the most recent visa grant notice for each person, or, if it cannot be located, the passport number and date of birth so that the visa record can be checked. Status matters because it changes the options available. A person who holds a substantive visa, a person who holds a bridging visa and a person who holds neither are in three different legal positions, and the advice differs in each case. Where an onshore partner visa application is being considered by a person who does not hold a substantive visa, the additional criteria in Schedule 3 to the Migration Regulations 1994 apply, and the Schedule 3 waiver criteria are then central to the advice.

Identity documents come third. The biographical page of each passport is sufficient at the outset. Full certified copies, translations and civil documents are part of the application work, not the urgent triage.

Four further documents are worth sending if they exist, and worth saying so if they do not.

• Any request for more information made under section 56 of the Migration Act 1958, or any invitation to comment on information under section 57, together with the date by which a response is required.
• Any notice about the possible cancellation of a visa. The relevant response period is stated in the notice, and the visa cancellation grounds differ according to the section relied on.
• Any correspondence from the Administrative Review Tribunal, including the acknowledgement of a review application already lodged.
• Form 956, where a registered migration agent or legal practitioner has previously been appointed, and Form 956A, where an authorised recipient has been nominated. These two forms determine who the Department and the Tribunal write to, and an out of date appointment is a frequent cause of missed correspondence.

What should not delay contact is the material a lawyer can obtain independently. Movement records, visa history, lodgement dates and Tribunal file details are all available to a representative once instructed. Nobody should spend three days searching for a bridging visa grant notice from four years ago while a review period runs.

What should you write down before the consultation?

Write down a dated timeline, the name of every person and organisation who has acted on the matter, and the one question you most need answered. A page of structured notes converts a distressed conversation into a usable brief, and it is the difference between advice and reassurance.

The timeline should be plain and factual. Date of arrival in Australia. Each visa held, in order. Each application lodged, with the date and the person who lodged it. Each decision received, with the date on the letter. Any change of address or email address. Any period spent outside Australia. Any change of representative. Ten dated lines will usually carry more information than ten paragraphs of explanation, and they can be read in under a minute.

The list of people matters more than most applicants expect. Note who prepared each application, whether that person was a registered migration agent, a legal practitioner or neither, what was paid, and what was produced. Where a previous adviser lodged an application that the applicant never read, that fact needs to be stated openly at the start rather than discovered later. It is common, it is not a source of shame, and it changes the advice.

The question matters as well. People arrive at an urgent consultation with a general fear and leave without an answer because no specific question was ever asked. Write the question down. Whether a review application can still be made. Whether a further application can be made in Australia. Whether it is lawful to remain while the matter is dealt with. Whether the relationship evidence held is capable of supporting a partner visa application. A written question forces a direct answer.

One caution applies to the account itself. The statement of events must be your own account, described accurately, including the parts that are unhelpful. A lawyer presents your evidence in the form the law requires and tests it for consistency. Facts that are adjusted to fit what seems likely to succeed almost always surface later, in a Tribunal hearing where the inconsistency does the damage rather than the original fact.

What can an urgent consultation actually achieve?

An urgent consultation can identify the deadline, confirm which routes remain open, and set out what must be lodged and by when. It cannot extend a statutory period, and no lawyer, however senior, can restore a review right that has already lapsed.

In practice a first consultation on an urgent matter does four things. It fixes the operative date from the notification document. It identifies the review or application pathway that is still available, if any. It identifies the evidence that must be gathered and who must provide it. It gives an honest assessment of whether the matter is worth running at all, which sometimes means advising that it is not.

It is equally important to be clear about what a consultation does not do. Speaking to a lawyer does not stop the clock. Only a valid application, lodged within the period and in the approved form, preserves a right of review. Booking an appointment three days before a period expires and then supplying documents after it has expired protects nothing.

One further point is frequently misunderstood. Section 48 of the Migration Act 1958 restricts the making of a further visa application by a person in Australia who does not hold a substantive visa and who has had a visa application refused or a visa cancelled, subject to limited exceptions. A separate bar in section 48A applies to a further protection visa application made in Australia after a protection visa refusal. Lodging something new is therefore rarely an alternative to seeking review, and acting on that assumption has cost applicants the only pathway they had. Where the refused application was a partner visa, the options are set out on the partner visa refusal page. Where it was a protection visa, the position is explained on the protection visa refusal page.

Is your situation actually urgent?

A situation is legally urgent when a document in your possession carries a date by which something must be done. Anxiety is not the test. Silence from the Department of Home Affairs, a long processing time or a change in the law are all distressing, and none of them creates a deadline.

Four situations are genuinely urgent, and each is identified by a date on a document.

• A refusal decision has been received and a period for applying for review is running.
• A request for information or an invitation to comment has been received and states a date for response.
• A notice about the possible cancellation of a visa has been received and states a period in which to respond.
• A visa is about to cease and no further application has been lodged, which affects whether the person will hold lawful status and what criteria will then apply to any onshore application.

Three situations feel urgent and are not, at least in the legal sense. An application that has been pending for longer than the published processing time is not a deadline. A request from a sponsor or a family member to move faster is not a deadline. A refusal that was received and dealt with by a former adviser some years ago, where the review period has long passed, is not a live deadline either, although it may still affect what can be done now.

The distinction is worth drawing because the two categories call for different responses. Where a date is running, the priority is to work out the exact date and act within it, and everything else waits. Where no date is running, there is time to prepare properly, gather evidence and make a considered decision about the application to be made. Treating the second as though it were the first leads to rushed applications, and rushed applications on partner and protection matters are where avoidable refusals come from. Where there is time to run a matter properly, the evidence is gathered before lodgement rather than argued about after a refusal.

What to do when the deadline is close and nobody is acting for you

Work out the date first, then act on the date rather than waiting for the file to be complete. A person who has a decision letter and no representative still has everything necessary to take the first step, because the letter states the review body and the period in which an application must be made.

Take these steps in this order.

• Open the notification and find the paragraph that states the review rights. Note the review body and the period stated, and note how the document was given to you.
• Calculate the date. Apply the deeming rule for the method by which the document was given. Write the date down and treat it as fixed.
• Do not lodge a new application in the hope that it replaces the refused one. Section 48 of the Migration Act 1958 will often prevent it, and where it does not, the new application may be weaker than the review that was given up to make it.
• Appoint a representative in writing. Form 956 appoints a registered migration agent or a legal practitioner, and Form 956A nominates an authorised recipient for correspondence. Where a previous appointment is still in place, it should be withdrawn so that correspondence is sent to the right person.
• Request your file from any previous adviser in writing, and do not wait for it before acting. The file is useful. The deadline does not pause while it is produced.

If a former agent or lawyer holds documents and does not respond, say so at the outset. The position is common enough that it does not change what can be done, provided the deadline has not passed. What does change the position is delay caused by waiting for that response.

Where the period has already expired, say that too, and say it early. There is no advantage in presenting an expired matter as a live one. The remaining options in that situation are narrow, and they are different from the options available before expiry, so an accurate starting point produces better advice.

My Migration Lawyers acts for clients across Australia on partner visas, protection visas and refusals of both, and consultations are conducted by video. Where a date is running, the most useful thing you can do is send the decision or notice with your enquiry rather than describe it. To start, use the consultation request form and attach the letter, or send the same material through the contact page. My Migration Lawyers is led by Weiwei Zhang, Principal Lawyer.