Whether you applied for a visa to remain in, or travel to, New Zealand or Australia, when you receive a negative decision from Immigration New Zealand or the Australian Department of Home Affairs, don’t panic all may not be lost!
It really pays to find out what the available options are and to carefully consider these options.
Generally, when someone is refused a visa they may have one or more of the following options:
Lodge a fresh visa application with resolved concerns – addressing the areas that either the New Zealand or Australian immigration authorities based the refusal on. You may need to wait for your circumstances to substantially change enough to make a stronger visa application.
Sometimes, applicants attempt to submit a new visa application at a different location in the belief that this would make it successful. This is never guaranteed, particularly since immigration authorities have access to the same online systems, with alerts and intelligence sharing capabilities.
We don’t recommend rushing into a fresh visa application, small investment in advice on how you can present a stronger application could improve your chances of success and give you a peace of mind.
Seek reconsideration of your visa application – in some instances, applicants may be eligible for the immigration authorities to reconsider their visa application. Usually, you would need to satisfy a number of conditions to be able to take up this option, including submitting your request for reconsideration within a specific time limit.
It is important to seek informed advice as soon as possible, particularly regarding your immigration status and prospects of success.
Lodge a complaint – if you believe that the immigration authorities failed to follow their own processes or that there was improper conduct on the part of an immigration official assessing your application, a complaint can be submitted. Please note if you are not satisfied with a decision made but can’t point to any process failures it’s unlikely that your complaint will be investigated.
Complaints can be submitted online to either Immigration New Zealand or the Australian Department of Home Affairs.
Submit an appeal to the Immigration & Protection Tribunal (if you were refused a New Zealand visa)
There are several different types of appeals that can be lodged with the Immigration & Protection Tribunal. Each has its own form to fill out and usually a fee to pay.
You can appeal each Immigration New Zealand decision only once. The Tribunal cannot accept an appeal if you have no right of appeal. Time is critical, as there is a set period within which appeals must be lodged.
It is important to seek professional advice and assistance as soon as possible, particularly regarding your right to appeal and prospects of success.
Submit an appeal to the Administrative Appeal Tribunal (if you were refused an Australian visa)
The Australian Administrative Appeal Tribunal (AAT) reviews a range of migration and refugee visa decisions made by the Minister for Immigration, or by officers of the Department of Immigration.
If you think that you received a decision that is wrong, you may be able to apply to the AAT for review of that decision.
Whenever a decision is made that is reviewable by the AAT, the Department of Immigration is required by law to advise the persons involved of their review rights. This included setting out who can apply for review, where an application can be made and the time limit within which the application must have been made.
It is imperative that when you receive a decision from the Department of Home Affairs that you consider the information about your review rights carefully and consult a professional as soon as possible. The AAT does not have discretion to accept an appeal that is lodged outside the relevant time limit or by a person who is not entitled to apply for review.
The most suitable option will depend on your personal circumstances, including your current visa status; whether you are onshore or offshore; whether you still have time remaining on your current visa or whether you are unlawful; and of course, on your resources, whether you can afford to pay for an appeal to the Tribunal or for a new visa application.
For further advice on most suitable options in your personal circumstances, talk to Elly Fleming, Solicitor, Pitt & Moore.
Disclaimer: The information contained in this publication is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances.