Things to consider before appealing the decision
If you're an international student and your visa application has been rejected, it's completely normal to feel frustrated, confused, or even defeated. After all, the process of getting a visa to study abroad can be long, costly, and full of uncertainty. However, it's important to remember that a rejection doesn't necessarily mean the end of your educational dreams in another country. There are options available to appeal or improve your chances next time.
In this blog, we'll provide an overview of what appealing a visa rejection decision involves and some key advice on approaching the situation. Please note that this article is not legal or migration advice but rather general information to help guide you through the available options.
An alarming rise in student visa rejections
Recently, student visa applications in Australia (and other countries) have been rejected much more frequently than before. The reasons for these rejections are complex, but the outcome is clear: it's very stressful for students as their dreams of studying abroad quickly seem to fade. Rejections can happen for various reasons, such as changes in migration policies, unmet requirements, or errors in the paperwork.
Why was my visa refused?
Before deciding whether to appeal the decision, it's crucial to understand why your visa was rejected. Review the refusal letter or notification carefully, as it will explain the specific reasons for the refusal. This is where the key to your appeal lies — you may be able to show the Tribunal that the case officer overlooked something, or there might be new evidence proving you meet the requirements and the reasons for the refusal do not apply to your situation.
What is the Administrative Appeals Tribunal (ART)?
In Australia, the Administrative Appeals Tribunal (ART) is an independent body that reviews decisions made by government ministers, departments, agencies, and state governments. This includes reviewing migration and visa decisions. The ART considers a wide range of decisions, assesses the facts of the case and relevant laws, and then makes a decision that could:
Confirm the original decision
Modify or change the decision
Overturn the original decision and replace it with a new one
Send the case back to the decision-maker for reconsideration
The ART allows applicants to have their visa refusals reviewed, which can be important if you believe the decision was incorrect or unfair.
Who can appeal a student visa decision?
Only individuals already in Australia and applying for a new student visa can appeal the decision. After receiving the visa refusal decision, you generally have 28 days to lodge your appeal. If the appeal is accepted, your bridging visa remains valid, allowing you to stay in Australia. This process can take months or even years.
What does it mean to appeal a rejected visa decision?
Appealing a rejected visa decision means formally submitting a request to the relevant authorities for them to reconsider their decision. In Australia, an appeal is a formal legal process that allows you to submit additional documents and evidence or even attend a hearing. If you decide to appeal and do not include new documentation, your appeal will be reviewed based on the information you originally provided when applying for your visa.
Before Appealing the Decision:
Carefully review the reason for rejection: Understanding the reasons behind the refusal is the first step in deciding whether to appeal. If the reasons are clear and you can provide additional documentation to clarify or resolve the issue, then appealing may be a valid option. However, it might be worth considering other options if the rejection is due to something you cannot easily fix.
Clearly state why you disagree with the decision. This letter is also an opportunity to address any aspects you might have overlooked in your original statement. Start working on it immediately while the details of your case are still fresh in your mind.
Consult an immigration expert or lawyer: While this blog is not legal advice, we recommend speaking to an immigration agent or lawyer if you wish to remain in Australia and explore your options.
BWonder Agency: your allies in the visa process: At BWonder Agency, we understand how complex obtaining a visa to study abroad can be, and we want you to know that we're here to guide you through it.
Whether you need help filling out forms, reviewing your information, or ensuring everything is in order, our team can be your ally. We are not migration agents, but we offer complete support in organising and reviewing your documents at no cost to you during the process. If you choose to continue your own, we can still guide you and provide the support you need to ensure you have the right backing every step of the way.
Stay calm and organise your documents: If you decide to appeal, ensure your documents are organised clearly and concisely. A common mistake when appealing is submitting confusing or incomplete information. Gather all the evidence to demonstrate your credibility as a student: your study plan, academic results, statements from professors, attendance certificates, financial resources, etc.
Evaluate the impact on your academic timeline: The appeal process can take time and may not be fast enough to meet your academic deadlines. If your application is rejected near the start of classes or the time to resolve the appeal is uncertain, you might consider other plans.
How does the ART make its decision?
The ART will determine whether you genuinely intend to study in Australia and return to your home country once your studies are complete. In making its decision, the Tribunal will consider your immigration history, current circumstances, and other relevant information.
Some useful information you can provide to help their decision-making process includes:
Why you are studying in Australia rather than in your home country
Evidence that you have reasons to return to your home country, such as property, assets, family, dependents, proposed employment, and a return ticket
Proof of enrolment in an Australian institution
Evidence of previous relevant studies and your academic commitment
How your proposed studies relate to future employment
Evidence and details of why the Department of Home Affairs' decision was incorrect
This information must be clear and organised to increase the chances that the ART will favourably review your case and overturn the visa rejection.
How to appeal by yourself:
Submit the appeal: You must submit your appeal to the ART within the allowed timeframe. You can submit your appeal online.
Upload supporting documents: After completing the online appeal form, you will be directed to a webpage where you must upload relevant supporting documents. You should upload a PDF copy of the Rejection Decision Record.
Confirmation of appeal receipt: After submitting your appeal online and making payment, you should receive an auto-generated email from the ART confirming they've received your appeal. The standard letter from the ART will indicate that they have not yet evaluated the validity of your appeal.
Processing time: Generally, you will not receive further correspondence from the ART while waiting for your appeal to be processed. The ART will only contact you once a Tribunal Member has been assigned to your case and a hearing date has been set.
Decision-based on documents: The Tribunal Member may be able to decide based only on the documents already in their file without needing a hearing. If this isn't possible, you will be invited to attend a hearing.
Attending the hearing: If you cannot attend the scheduled hearing date, you must email the ART as soon as possible to request a rescheduled hearing. Your request will be considered at the Tribunal Member's discretion.
Legal representation: Your migration agent or lawyer can attend the hearing with you. However, they will generally be unable to speak on your behalf during the hearing.
Requesting additional information: The Tribunal Member may ask you to provide further details after the hearing, if necessary before they can decide whether your application meets the relevant legal requirements.
Final Decision: After the hearing, the ART will send you a written decision notification.
What happens if the ART appeal is successful?
If your appeal to the ART is successful, your application will generally be referred back to the Department of Internal Affairs for a final determination and decision.
The Department's processing time for these requests is typically relatively short, ranging from 4 to 8 weeks. However, processing times can vary significantly, and it could take months before you receive a decision from the Department.
Generally speaking, upon receipt of the ART instruction, the Department will only verify whether the visa applicant meets the relevant health and character requirements before approving your application.
Common errors that can lead to visa rejection reaffirmation:
1. Not attending classes regularly.
2. Failing too many subjects.
3. Work more hours than allowed by your visa.
4. Engage in criminal activities.
5. Not paying tuition fees.
6. Cancel your courses.
7. Enroll in a course unrelated to the one you appealed to.
8. Not paying taxes in Australia.
9. Failure to complete the course within the expected time frame.
10. Repeated cancellations and re-registrations in courses.
11. Not being enrolled in any course violates the visa requirements.
12. Completing several low-level courses in different subject areas.
13. Spending time in Australia without significant progress or purpose.
14. Drastic changes in the study area without clear justification.
15. Recent choice of courses that do not align with stated career goals.
16. Traveling very little back to the home country may suggest a preference to stay in Australia.
17. Earning potential in Australia as an incentive not to return may be a significant factor considered when assessing the genuineness of the student.
What happens if the appeal is unsuccessful?
Although appealing a decision can be a useful path, it does not always guarantee that you will get a positive response. If your appeal is rejected, the times you were given are reactivated, giving you 28 to 35 days to leave Australia. If you do not wish to leave Australia, you have two additional possible avenues of review:
1. Ministerial Intervention: You can request the Minister to exercise his discretion and grant you a visa or replace the decision with a more favourable one. This is a request for Ministerial Intervention.
2. Appeal to the Federal Court: You may be able to appeal to the Federal Court or the Federal Magistrates' Court. However, remember that there are strict deadlines for filing these appeals.
It is important not to lose hope, and you could consider other options, such as:
• Apply for a visa in another category: If your rejection was due to a specific type of visa (for example, a student visa), you may qualify for another type of visa.
• Explore other study alternatives: Sometimes, changing the destination country can open new doors.
How much does it cost to appeal to the ART for a student visa rejection? Currently, in 2024, the application fee for the ART is AU$3,496. If your appeal is successful, half the payment is refunded. If the appeal is withdrawn or unsuccessful, there will be no refund.
How can I contact ART?
You can contact ART in the following ways:
• Send an email to reviews@art.gov.au.
• Submit your application on their website.
• Call 1800 228 333.
Conclusion:
Rejection of a student visa is not the end of the road, although it can be a big obstacle. Before deciding whether to appeal, reflect on the reasons for the denial and explore other solutions. If you choose to appeal, ensure you are well informed and consult with an immigration expert or BWonder Agency, who will walk you through the process at no additional cost. We are here so that you have the necessary support at every step.
Remember that this blog is only a general guide. To obtain more detailed and specific information about your case, you must seek the advice of an immigration expert. We are with you every step towards your educational dream!
Legal Notice: This does not constitute legal advice. The content in this blog is intended for general guidance and informational purposes only. It is not intended as legal counsel and does not establish an attorney-client relationship. While we try to ensure the information is accurate and current, it may not apply to your situation. You should not base decisions solely on the information provided here. Australian immigration law is highly complex, so it is important to consult a qualified legal professional who can advise you on your unique circumstances before proceeding.
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