Visa Refusal vs Cancellation: What’s the Difference?

“My visa got cancelled now what to do? Am I unlawful?”

“My visa has been refused, what should I do next?”

Here at NB Migration Law, we specialise in finding suitable solutions for our clients, from partner visas to parent visas, and every other visa subclass in between. We pride ourselves in providing practical legal assistance to migrants seeking a visa pathway to living in Australia. The reality is though, sometimes visa applications can be refused; or a visa can be cancelled and yes, there is a difference.

It’s important to understand the differences between a cancellation versus a refusal, and what can be done in either situation.

Visa Refusal vs. Cancellation: Let’s Explore

When the Australian Department of Home Affairs (ADHA) deems your application to be incomplete, inaccurate, or lacking necessary components and documentation, it will result in a Visa Refusal of your application. This shortfall stems from failure to meet visa criteria. However, a Visa Refusal is in most cases is a temporary setback, and you should know there are avenues for appeal or rectification for reapplication.

In contrast, a Visa Cancellation results in you becoming unlawful and you must legalise your status in Australia. Possible reasons may include substantial criminal history, perhaps you have missed a deadline to apply, or you provided fraudulent information.  It is crucial to seek guidance from an experienced Migration Lawyer if you find yourself in this situation.

If you have received a visa refusal, keep reading for next steps and solutions from NB Migration Law.

1. “Can I apply again after my Visa application was refused or cancelled?

If your visa application is refused in Australia, you have the right to appeal the decision in most cases. The appeal process for a visa decision typically involves applying for a review of the decision by a tribunal. Here’s a general guide on how to appeal against a visa refusal in Australia:

Not all visa refusals can be appealed. Your refusal notice should state whether you have the right to a review by the Administrative Appeals Tribunal (AAT), and the time frame within which you must apply.

2. Understand the Time Limits

There are strict time limits for lodging an appeal with the AAT. This time limit is usually set from the date you receive the decision. Failing to apply within this period typically means you lose your right to appeal. You may become unlawful, this should be avoided.

3. Apply for a Review by the Administrative Appeals Tribunal (AAT)

If your letter states that you can apply for a review, you must file an application to the AAT. This can be done online, by post, by fax, or in person. The AAT is an independent body that reviews government decisions, including visa refusals and cancellations. It is recommended you engage a Migration Lawyer to ensure there is not a repeat of previous mistakes, and that your reapplication is correct and contains all the right information.

There is a fee for lodging an appeal with the AAT. In some cases, this fee can be reduced or refunded, depending on the outcome of the appeal. In most cases, the full review application fee must be paid to the AAT at the time of applying for review.

4. Provide Additional Information

After you lodge your appeal, you can submit additional information or evidence to support your case. This information should address why you believe the Department of Home Affairs should not have refused or cancelled your visa.

5. Attend the Hearing

The AAT will review your case and may hold a hearing where you can present your argument. You have the right to be represented by a lawyer or migration agent during this process.

6. Wait for the Decision

After reviewing your case and the initial decision made by the Department of Home Affairs, the AAT will make a decision. The AAT can either affirm the original decision, vary it, set it aside, substitute a new decision, or remit it back to the Department of Home Affairs for reconsideration with specific directions.

If the AAT affirms the original decision and you believe there has been an error in law, you may have the option to appeal to the Federal Circuit and Family Court of Australia (FCFCA).. Legal advice and representation is highly recommended at this stage.

7. Understand Your Visa Status During the Appeal

If you held a valid visa when you received the refusal decision, in many cases you will continue to hold that bridging visa allowing you to lawfully stay in Australia while your review is being processed by the AAT. In the case of an appeal to the FCAFC, you may be able to secure a Bridging A visa until the court appeal is finalised.

It’s important to note that appealing a visa decision is a complex and time-consuming process. Seeking advice from a qualified and experienced immigration lawyer is strongly advised to navigate this process effectively. They can provide guidance specific to your case, including the likelihood of success on appeal and any alternative options you may have.

How to Lodge an Appeal with Legal Assistance

Seeking professional advice and guidance throughout the application process can significantly ease the burden and increase the chances of a successful outcome. It is crucial to ensure that all documentation is provided correctly and promptly, as incomplete or incorrect information can delay the processing of your application or even lead to its rejection.

Additionally, staying informed about any updates or changes to visa policies and regulations is crucial, as they can impact the application process and eligibility criteria. It is also important to be aware that the Department of Home Affairs may request further information or documentation to support your application. It is important to respond to these requests promptly to ensure that your application is not delayed.

That’s why it’s recommended to seek the assistance of an experienced migration law firm like NB Migration Law to guide you through the process and help ensure that your visa application is successful.

Find out if you’re eligible to apply or reapply with a free consultation with our team, click here.

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