Visa & Citizenship

VISA APPLICATION

The first step before making a visa application is to assess whether a person can make a valid application. The main criteria for a valid application are set out in Schedule 1 to the Migration Regulations 1994 (Cth). Additionally, there may be some limitations that prevent a valid application from being made. The next step is meeting the criteria for the grant of the visa. Our legal team ensures that your application is compliant, reducing your risks and maximising your chances of success.

PROTECTION VISA

One of the criteria for a protection visa is found in section 36(2) of the Migration Act 1958 (Cth). Australia has protection obligations to non-citizens who are refugees (refugee criteria) or non-citizens who face a real risk of significant harm as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country (complementary protection criteria), or members of the same family unit of those non-citizens. To qualify for a protection visa, a person must satisfy the legal definition of a “refugee” in section 5H, or meet the criteria for complementary protection, or be a member of the same family unit as another person who meets the refugee definition or the complementary protection criteria.

There are a number of exceptions to circumstances where a person is not owed protection obligation. Equally important is you have the right to procedural fairness that needs to be protected.

Before making a protection visa application, you should seek legal advice to understand your risks and prospects of success. We understand the tasks involved in making a protection visa application as we are extensively trained and experienced in protection visa matters. We will carefully analyse your claims and relevant country information to give you the best possible advice, and make strong submissions on your behalf, and protect your right to procedural fairness.

We have a very high success rate in protection visa applications because we take a very careful approach and conduct thorough research for every case.

SECTION 48 BAR AND OTHER VALIDITY ISSUES

A person who has had a visa application refused or has had a visa cancelled may not be able to make another valid visa application onshore, with some exceptions apply. The validity of visa applications may also be affected by other provisions in the Migration Act 1958, such as by sections 46A (unauthorised maritime arrival), 46B (transitory person), 48A (previous protection visa refusal), 91E (Comprehensive Plan of Action and safe third countries), and 91K (Temporary Safe Haven visa).

Other validity requirements relate to formalities such as the use of correct forms, compliance with lodgement requirements, and payment of applicable visa fees.

VISA REFUSAL

A visa must be refused if the applicant does not satisfy any of the criteria in Schedule 2 to the Migration Regulations 1994 (Cth). A visa refusal of this type may be reviewable by the Administrative Review Tribunal, depending on the circumstances. The Tribunal’s role is to re-assess the merits of the case afresh.

VISA CANCELLATION

Visas that have been granted may be cancelled under section 109 or 116 of the Migration Act 1958. Visa cancellations under these provisions follow specific legal procedures, influenced by factors such as the visa holder’s location, the cancellation grounds, and the relevant legislative authority.

Section 109 relates to visa cancellation on the basis of incorrect information or bogus document being given to a relevant entity, for example providing incorrect answers on a visa application or incoming passenger card, and providing bogus documents in a visa application.

Section 116 gives the Minister power to cancel a visa if one of the prescribed circumstances arises. This includes non-compliance with visa conditions, having a criminal conviction, and presenting a heath or safety risk to the Australian community or to an individual.

The power to cancel a visa under these provisions is discretionary. This means the Minister may decide not to cancel a visa if the visa holder is able to persuade the Minister that the visa should not be cancelled.

In high pressure circumstances, such as at airports during custom check, a person may not have the same opportunity to present arguments, and their visa may be cancelled on the spot. It is important that an immigration lawyer is engaged urgently.

A visa cancellation would result in the former holder becoming an unlawful non- citizen immediately after the cancellation. It may also result in consequential cancellations of visas held by other persons for reasons of being a member of the family unit of the person whose visa is cancelled. If you are facing a visa cancellation, seek legal advice immediately. Our team can assess your case and protect your rights.

PUBLIC INTEREST AND SCHEDULE 3 CRITERIA

There are a number of Public Interest Criteria (PIC) that a visa applicant must satisfy in order to be granted a visa. Which PIC apply depends on which visa the applicant applies for. Some of the most common PIC that may require legal assistance are those related to character or criminal history, health or medical conditions, provision of bogus documents or false and misleading information, and previous visa cancellations.

Schedule 3 criteria require that a visa application is made within the prescribed time since the applicant last held a substantive visa. Schedule 3 criteria are additional criteria applicable to unlawful non‑citizens and certain bridging visa holders. If the applicant does not meet the Schedule 3 criteria, the applicant may be able to ask the Minister to not apply the criteria.

VISA REFUSAL AND CANCELLATION ON CHARACTER GROUNDS

Discretionary power to refuse or cancel a visa under section 501

Despite satisfying all the criteria for the grant of the visa, the Minister has the power to refuse a visa application under section 501(1) of the Migration Act 1958 if the applicant does not pass the character test. In general, the character test that is under consideration is related to the person’s past and present conducts or circumstances. The Minister may also cancel a visa that has been granted at any time on character ground under section 501(2) of the Migration Act 1958, provided that procedural fairness requirements have been met.

Mandatory cancellation under section 501

Under section 501(3A) of the Migration Act 1958, the Minister must cancel a visa that has been granted to a person if the person has a “substantial criminal record” or has been convicted or found guilty of sexually based offences involving a child, and the person is serving a full-time prison sentence for an offence against an Australian law. “Substantial criminal record” for the purposes of this section means having been sentenced to death, life imprisonment, or a term of imprisonment of 12 months or more.

After a decision to cancel a visa is made (original decision), the Minister must invite the person to make a representation about revocation of the original decision. The Minister will then make a decision on whether the original decision should be revoked (revocation decision). The revocation decision is reviewable by the Administrative Review Tribunal. A person whose visa has been cancelled under section 501 may face a permanent ban from applying for most Australian visas, onshore or offshore.

Due to the potential permanent ban from applying for most other visas or re-entering Australia, in most cases seeking a revocation of cancellation may be the last and only opportunity to preserve the person’s lawful immigration status. Therefore section 501 cases are time intensive and high stakes.

MINISTERIAL INTERVENTION

The Minister has the personal power under sections 351 and 501J of the Migration Act 1958 to substitute another decision for the Administrative Review Tribunal decision. The intervention powers under any of these provisions are enlivened when a review decision is made. The process of seeking the Minister to exercise his/her powers under section 351 or 501J is also called Ministerial Intervention.

A Ministerial Intervention application must follow the criteria set out in the guidelines issued by the Minister. The guidelines set out the expectations and criteria in circumstances where an application may be appropriate or inappropriate to refer to the Minister.

Our experienced immigration lawyers can assess your prospects of success of a Ministerial Intervention application and help you prepare a submission that directly address the relevant criteria.

DEPORTATION, DETENTION, MIGRATION AND CUSTOM-RELATED OFFENCES

Deportation, detention, and migration offences can carry serious legal consequences. Time is critical, and your next move is often urgent.

Deportation is not the same as being removed from Australia as an unlawful non- citizen in detention. The power to make a deportation order is discretionary and can only be exercised on limited classes of persons, or on persons who are a threat to security have been convicted of certain serious offences. Removal from Australia of an unlawful non-citizen in detention (that is not a deportation order) is either voluntary or mandatory under certain circumstances. The legal consequences are different.

Allegations of customs-related offences can lead to an immediate visa cancellation at airports. It often requires an urgent court application to prevent the person from being removed from Australia. There may also be criminal consequences for violating the Customs Act 1901.

Our lawyers can represent you and provide strategic legal advice to help you understand your rights and explore possible legal avenues.

CITIZENSHIP

Australian citizenship can be acquired automatically, such as by birth or adoption, or acquired by application, such as by descent or conferral. At Davin Rey Lawyers, we make your citizenship application process seamless and stress free.