Can I Challenge a Finding That My Application Is Invalid?

Can I appeal an invalidity finding to the Administrative Review Tribunal?

An invalidity finding cannot be appealed to the Administrative Review Tribunal, because section 47(4) of the Migration Act provides that a finding that an application is not valid is not a decision to refuse to grant a visa. The Tribunal reviews refusals, not findings that no valid application was ever made. Applicants who send a Tribunal application in response to an invalidity notice usually lose time they cannot afford. Our article on the ART review process explains which decisions the Tribunal can review.

How do I show the Department its invalidity finding is wrong?

An applicant shows the Department its invalidity finding is wrong by writing to it promptly with evidence that each validity requirement was met on the day of lodgement. Common examples are proof that the full charge was paid, proof of where the applicant was physically located when the application was lodged, or evidence that the correct form and pathway were used. If the Department accepts the evidence, it can treat the application as valid and continue to process it. A freedom of information request can show exactly what the Department relied on.

When is judicial review of an invalidity finding possible?

Judicial review of an invalidity finding is possible where the finding involves a legal error, such as a misreading of the Schedule 1 validity requirements or a failure to deal with evidence that the application was valid. Judicial review is heard in the Federal Circuit and Family Court of Australia and is not a re-hearing of the facts. Court time limits are strict, and an unsuccessful applicant may be ordered to pay costs. Our article on partner visa judicial review explains what a court can and cannot do.

Is it better to lodge a new application instead?

Lodging a new valid application is often faster and safer than challenging the finding, especially where the applicant is still eligible for the same partner visa. The new application must meet every validity requirement that applies on the new lodgement date, and the applicant's position may have changed since the first attempt, for example where a substantive visa has expired in the meantime and Schedule 3 now applies. Our article on the partner visa without a substantive visa explains that risk.

What happens to my visa status after an invalidity finding?

An invalidity finding can leave the applicant without the bridging visa they expected, because a bridging visa connected to a partner visa depends on a valid substantive application. An applicant whose earlier visa has already expired may therefore be in Australia unlawfully without realising it. Current visa status should be confirmed immediately, and advice obtained on a bridging visa or a fresh application. Our guide to bridging visas in Australia explains the main types.

How does My Migration Lawyers deal with an invalidity finding?

My Migration Lawyers reads the invalidity notice against the Schedule 1 requirements to work out whether the Department made an error or whether the application genuinely failed a requirement. The firm then advises whether to write to the Department or lodge again, and where a legal error may exist it explains the judicial review option and its risks so the couple can decide with full information. Because lawful status is often at stake, the firm treats these matters as urgent. Applicants can speak with our partner visa lawyers.