Visa Appeal Lawyer: When You Need One and What They Do

What does a visa appeal lawyer do?

A visa appeal lawyer applies to the Administrative Review Tribunal for review of a visa refusal or cancellation, and then runs that review from lodgement to decision. The work is not a letter of complaint about the officer who refused the visa. It is a fresh case, built around the criteria the delegate found were not met, and argued on evidence the Tribunal is allowed to consider for the first time.

The first task is confirming that a right of review exists. Not every decision can be reviewed, and not every person affected by a decision is entitled to apply. That question is answered by the Migration Act 1958, not by how unfair the decision feels. A lawyer checks the decision record, the notification, and the applicant's location and status before anything else is promised.

The second task is the deadline. A lawyer works out the date the applicant is taken to have been notified under section 494C of the Migration Act 1958, counts the review period from that date, and lodges the application before it expires. This is the most important single step in any appeal, because the Tribunal has no power to extend the period once it has passed.

The third task is reading the decision properly. A refusal letter states a conclusion. The reasons sit further down, in the delegate's findings, in the material the Department relied on, and in the requests the applicant answered late, incompletely or not at all. A review that answers the wrong question is wasted, so the lawyer identifies exactly which criterion failed and why it failed.

The fourth task is evidence. The Tribunal is not confined to the documents that were before the delegate, which makes the review the proper opportunity to file the statements, records and expert material that were missing. The account remains the applicant's own account. My Migration Lawyers presents the client's evidence in the form the law requires, the client reads and corrects every statement made in their name, and the client decides which claims are advanced.

The fifth task is the written case. Submissions name the legal test, apply the evidence to it, and deal directly with the findings that produced the refusal. In a partner visa review that usually means the matters in section 5F or section 5CB of the Act and the circumstances prescribed by regulation 1.15A of the Migration Regulations 1994. In a protection review it usually means section 36(2)(a) and section 36(2)(aa), and the credibility findings that sit underneath them.

The sixth task is the hearing. The applicant is normally invited to attend, give evidence and answer questions about the parts of the case the Tribunal is not yet satisfied about. Preparation is what separates an applicant who answers the question asked from an applicant who contradicts their own file. A lawyer prepares the applicant and the witnesses, attends the hearing, and makes oral submissions on the day.

Those six tasks apply whether the decision under review is a refusal or a cancellation. My Migration Lawyers acts on visa refusals and on visa cancellations, which run on different provisions and, in character matters, on a far shorter deadline.

When do you need a visa appeal lawyer?

You need a visa appeal lawyer when the reason for the refusal is a finding you now have to argue against, rather than a document you simply forgot to attach. A missing police certificate is an administrative problem. A finding that a relationship is not genuine, or that an account of past harm is not credible, is a legal problem, and it will not improve on its own at the Tribunal.

Five situations in particular call for legal advice, and they call for it in the week the decision arrives rather than a month later.

The first is a refusal that turns on credibility. Where a delegate has found that the applicant was not truthful, the Tribunal will approach the same evidence knowing what the delegate concluded. That finding has to be confronted with documents, corroboration and a consistent account, not with an assurance that the applicant was telling the truth.

The second is a refusal where the applicant's immigration status is about to change. A refusal can end a bridging visa, and the consequences of becoming unlawful are far harder to unwind than the refusal itself. Timing advice at this point is worth more than argument.

The third is a refusal where a further application in Australia is barred. Section 48 of the Migration Act 1958 prevents a person in the migration zone who has had a visa refused or cancelled since their last entry from applying for most visa classes onshore. Regulation 2.12 of the Migration Regulations 1994 prescribes the limited exceptions, and the partner visa classes are among them. Whether a fresh application or a review is the better path is a decision that needs to be made with the bar in mind.

The fourth is a cancellation or refusal on character grounds under section 501. The review period for those decisions is nine days under section 500(6B) of the Act, it cannot be extended, and a decision made by the Minister personally cannot be reviewed by the Tribunal at all.

The fifth is a refusal where the review right belongs to somebody else, or to nobody. Offshore partner visa refusals are the common example, and they are dealt with below.

There are matters where a lawyer adds little. If the refusal was caused by a form that was never lodged, or a fee that was never paid, the honest advice is often that a fresh application is faster and cheaper than a review. A partner visa refusal that turns on the genuineness of the relationship is the opposite case, because the Tribunal is being asked to reach a different conclusion on the same question, and that requires evidence assembled for the purpose.

How long do you have to appeal a visa refusal in Australia?

An application for review of a reviewable migration decision or a reviewable protection decision must be made within 28 days after the day the applicant is notified of the decision, under section 347(3) of the Migration Act 1958. A shorter period applies to a person who is in immigration detention on the day they are notified, and a separate nine day period applies to character decisions under section 500(6B). None of these periods can be extended.

The word "notified" does the work here, and it is where most late applications come from. The clock does not start when the decision is read. It starts on the day the applicant is taken to have received the notification under section 494C of the Act. Where the Department sends the decision by email or another electronic method, the applicant is taken to have received it at the end of the day it was transmitted. Where the decision is posted to an address in Australia, the applicant is taken to have received it seven working days after the date of the letter. A decision that sits unopened in an old email account is still a decision the applicant has been notified of.

The consequence of missing the period is not a discretion the Tribunal exercises against the applicant. It is jurisdictional. An application made after the period has ended is not properly made, so the Tribunal never acquires the power to review the decision. There is no submission that cures it and no explanation that revives it, however good the reason for the delay. The Tribunal's own practice direction states that it cannot extend the time for filing an application for review of a migration or protection decision.

This is different from the general rule in the Administrative Review Tribunal Act 2024. In most other areas of the Tribunal's work, section 19 of that Act allows a person to ask for an extension of time. Migration and protection applicants do not have that door open to them. Any material suggesting otherwise is describing a different jurisdiction.

The fee rules also differ between the two streams, and they catch people out. For a migration review the fee must be paid before the deadline for applying, and part of it is refunded if the review produces a favourable outcome. For a protection review no fee is payable when the application is lodged. A fee becomes payable only after the review, and only if the Tribunal affirms the decision or sets it aside and substitutes a new one. The current amounts are published by the Tribunal and change from time to time, so they should be checked rather than assumed.

One more warning about older material. The Administrative Review Tribunal replaced the Administrative Appeals Tribunal on 14 October 2024. Anything written before that date refers to a 21 day period for migration reviews, to regulation 4.10 and regulation 4.31 of the Migration Regulations 1994, and to "Part 7-reviewable decisions" for protection matters. Those references are no longer correct. The period is now set by section 347(3) of the Act, and protection refusals are reviewable protection decisions dealt with under Part 5.

Who can apply to the Tribunal for review?

Only the person the Migration Act gives the review right to can apply, and that person is not always the visa applicant. Section 347A of the Act sets out who may apply for each category of reviewable decision, and the answer depends on which subsection of section 338 makes the decision reviewable.

For an onshore refusal such as the Subclass 820 partner visa, the application for review can only be made by the non-citizen who was the subject of the decision, and that person must be physically present in Australia when the review application is made. A holiday taken at the wrong moment can therefore destroy a review right that otherwise existed.

For a sponsored visa refused while the applicant was outside Australia, the review right belongs to the sponsor or nominator rather than to the visa applicant. This is the position for the Subclass 309 offshore partner visa and for the Subclass 300 prospective marriage visa. The partner in Australia lodges the review, gives the evidence and attends the hearing, while the applicant remains overseas.

There is a harder case that is frequently stated incorrectly. Where a Subclass 100 permanent partner visa is refused while the applicant is outside Australia, there is no merits review available at all. A combined Subclass 309 and Subclass 100 application refused offshore does not carry two review rights, and a couple who assume otherwise can lose months waiting for a hearing that will never be listed. Advice on that point should be obtained before anything is lodged, not afterwards.

Protection refusals follow their own path. A protection visa applicant is in Australia by definition, and the review right belongs to the applicant. Where family members are included in the application, their position follows the primary applicant's, which is why a protection visa refusal has to be assessed for the whole family unit rather than for one person.

What can the Tribunal actually do with your case?

The Tribunal reviews the decision again on the merits, which means it decides for itself whether the criteria are met rather than checking whether the delegate made a mistake. Under section 54 of the Administrative Review Tribunal Act 2024 it has the powers and discretions of the original decision maker, so it stands in the delegate's position and applies the law to the facts as they are at the time of its own decision.

Two consequences follow, and both matter more than anything else in this article for an applicant deciding whether a review is worth running.

The first is that new evidence is allowed. Material the Department never saw can be put before the Tribunal, including documents that did not exist when the application was refused. A relationship that has continued, a child born since the refusal, a medical report obtained since the interview, a corrected Form 888 statement from a witness who misunderstood the first one, all of this can be filed. Applicants who believe they must prove the delegate erred in law are describing judicial review, which is a different process in a different forum.

The second is that the applicant still has to satisfy the criteria. The Tribunal is not deciding whether the refusal was harsh. It is deciding whether the applicant meets the legal test, and it will reach its own view of the evidence, including its own view of the applicant's credibility.

Section 105 of the Administrative Review Tribunal Act 2024 gives the Tribunal four possible outcomes. It can affirm the decision, vary it, set it aside and substitute a new decision, or set it aside and remit the matter for reconsideration in accordance with its directions. For migration and protection decisions the power to remit is restricted by section 349(2) of the Migration Act 1958 to matters prescribed in the Regulations.

In practice, a favourable outcome in a partner or protection matter is usually expressed as the decision being set aside and the application remitted to the Department with a direction that the applicant meets the criterion that was found against them. The Tribunal does not grant the visa. The Department then continues processing the application, and the remaining criteria, including health and character, still have to be met.

What happens if the Tribunal affirms the refusal?

If the Tribunal affirms the refusal, the visa application remains refused and three paths remain, each narrower than the review that has just finished. None of them is a second merits review, and all of them run on their own timetable.

The first is an application to the Federal Circuit and Family Court of Australia. That is judicial review, and it is not a rehearing. The court does not decide whether the applicant meets the visa criteria and it will not read new evidence about the relationship or the claims. It decides whether the Tribunal made a legal error of the kind that takes its decision outside the power the Act gives it. The time limit is 35 days from the date of the migration decision under section 477 of the Migration Act 1958, and unlike the Tribunal deadline, the court has a discretion to extend that period where it is satisfied it is necessary to do so.

The second is a request for ministerial intervention under section 351 of the Migration Act 1958. The Minister may substitute a more favourable decision for the Tribunal's decision if the Minister thinks it is in the public interest to do so. Three features of that power are commonly misunderstood. It is only available after a Tribunal decision, so it cannot be used to skip the review. It is non-compellable, meaning the Minister cannot be required to consider a request or to exercise the power. And it is not a further appeal on the merits, so a request that simply repeats the Tribunal case rarely achieves anything. Section 417, which previously applied to protection matters, has been repealed, and section 351 now covers both reviewable migration decisions and reviewable protection decisions.

The third is a fresh visa application, where one is legally available. Section 48 of the Act prevents most onshore applications after a refusal or cancellation, but regulation 2.12 of the Migration Regulations 1994 prescribes exceptions and the partner visa classes are among them. A person who is barred and who applies for a partner visa must also meet extra validity requirements at lodgement, including a completed sponsorship form signed by the sponsoring partner, and an application lodged without it is invalid rather than merely weak. If the applicant no longer holds a substantive visa, the Schedule 3 criteria will also apply to the fresh application.

The practical point is that the strongest version of the case belongs at the Tribunal, not after it. The review is the last stage at which the facts are decided. Everything after that is about law, discretion or starting again.

How My Migration Lawyers runs a visa appeal

My Migration Lawyers acts on visa refusals and cancellations from a Sydney practice, with consultations held by video anywhere in Australia. The matters the firm takes on are concentrated in partner visas and protection visas, including refusals of both, because those are the reviews where evidence and preparation change what the Tribunal is working with.

The first step is an assessment, not a lodgement. The firm reads the refusal decision, the notification, the application as lodged and the material the Department relied on. That produces three answers: whether a review right exists and who holds it, the exact date the period expires, and which criterion has to be argued. Where the honest answer is that a review has little prospect of changing the outcome, the client is told that before an engagement is signed rather than after.

Where the matter proceeds, the review application is lodged and the Tribunal is notified that the firm acts. The evidence is then rebuilt against the criterion in issue. For a partner matter that usually means financial records, evidence of the household, social evidence and Form 888 statements that address what the delegate doubted, together with a relationship statement in the client's own words. For a protection matter it usually means a statement of claims that is consistent with what has already been said, country information, and material that meets the specific credibility findings made against the applicant.

Written submissions are filed before the hearing, so the Tribunal reads the legal argument and the evidence together rather than hearing it for the first time on the day. The client is prepared for the hearing in advance, including the questions the Tribunal is likely to ask about the weak parts of the file. Weiwei Zhang, Principal Lawyer at My Migration Lawyers, is responsible for the conduct of these matters and appears at the hearing with the client.

If a decision has been made on your visa and the period for applying to the Tribunal is running, the most useful thing you can do is have the decision read by a lawyer this week. You can request a consultation online and send the refusal letter with the request, and you will receive a reply by email.