Migration Law

You may need legal advice if you:

• are unsure which visa you should apply for
• have had a visa or citizenship application refused
• have received a notice that your visa may be cancelled
• believe you may be unlawful or have overstayed your visa
• have been working in breach of your visa conditions
• want to bring a partner or family member to Australia
• want to apply for permanent residency or citizenship
• have been told your identity, character, or compliance with visa conditions is in question
• want to challenge or review a decision
• are seeking protection or making a refugee claim
• need advice about your rights and obligations as a visa holder
• want to change, withdraw, or update an existing application

A migration lawyer can help you understand your rights, obligations, and options.

If you receive a notice from the Department of Home Affairs saying your visa may be cancelled, it means the Department is considering cancelling your visa and has given you an opportunity to respond before a decision is made

It is important that you:

• read the notice carefully
• check the deadline for responding
• understand the reasons the Department has given
• get legal advice quickly

If you do not respond in time, the Department may cancel your visa. Visa cancellations can affect your ability to stay in Australia, work, study, or return in the future.

Internal review (within the Department)
In some situations, the Department may reconsider a decision if it receives new information, but this is limited and does not apply to most refusals.

Administrative Review Tribunal (ART)
Many visa refusals and cancellations can be reviewed by the Administrative Review Tribunal (ART). The ART can review the decision, look at all the facts again, consider new information, and decide whether the original decision should stand or be changed. Strict time limits apply, sometimes as short as 7–28 days. If you miss the deadline, you may not be able to seek a review.

Court review (judicial review)
If the ART has upheld the Department’s decision, you may be able to ask a court to review the decision. Courts do not reconsider the facts of the case. They only look at whether there was a legal error in how the decision was made. This process is called judicial review and usually requires a lawyer.

Ministerial intervention is generally considered a last-resort option. It allows the Minister for Immigration to personally intervene in certain circumstances and grant a visa where exceptional or compassionate circumstances exist.

Ministerial intervention is only available to people who are in Australia at the time of the request, and can only be requested after:

• you have had a visa refused; and
  • the Administrative Review Tribunal has also upheld that refusal; or
  • the court has also not given a favourable outcome.

Ministerial intervention is completely discretionary, and the Minister is not obliged to consider or grant any request. Not everyone is eligible, and obtaining legal advice can help you understand whether it may be available in your situation.

The family violence provisions may allow some people to continue with a permanent visa application after a relationship has ended because of family violence.

The family violence provisions mean that you may be able to stay in Australia on a permanent visa if:

• you have applied for or currently hold an eligible visa;
• you have experienced family violence;
• the perpetrator was your former partner or spouse;
• the family violence, or part of it, occurred during your relationship with this person; and
• you are no longer in a relationship with this person.

If you already have permanent residence and your relationship breaks down, your abusive partner cannot get your visa cancelled.

Family violence and secondary applicants

A secondary applicant refers to an individual applying for a visa as a family member of the primary visa applicant. Typically, this includes spouses, de facto partners, or children of the primary applicant.

Under family violence provisions, secondary applicants may now be granted a visa if they are no longer a member of the family unit due to family violence.

Further, if the primary applicant’s visa is refused due to domestic violence-related conduct, the secondary applicant may still be eligible for the visa.

Legal advice can help you understand whether the family violence provisions may be available in your situation.