If the Department of Home Affairs has rejected your application for an Australian visa on the grounds of failing the character test, do not worry because you still have options.
You may be able to ask for the decision to be reviewed by the Administrative Appeals Tribunal, or in extreme cases apply for a Ministerial Intervention.
Failing the Character Test does not usually apply to people that have just 1 or 2 minor traffic offenses. But, rather applicants can fail the test for substantial criminal record, meaning you have been sentenced to 12 months or more in prison, or multiple sentences that add up to more than 24 months in prison.
A suspended sentence is also considered a prison sentence.
If your visa has been refused you typically have 21, 28 days or 70 days to apply for a review of the department’s decision with the Administrative Appeals Tribunal.
Time limits to review a decision are statutory and cannot be extended for any reason. If you don’t lodge an application to review in the required timeframe the matter is finalised and you will need to leave the country unless you have another application pending.
What is the Administrative Appeals Tribunal?
The Administrative Appeals Tribunal is an independent review body, separate to the Department of Immigration. It applies the same laws and policies as the Department of Immigration but has the authority to review department decisions and potentially overrule them. Its role is to consider if the relevant laws and policies, along with the discretionary judgements of department case officers, have been properly applied to the facts of a visa application.
The Administrative Appeals Tribunal may agree with the department’s decision or it can revert the application back to the department on the basis that you meet the criteria for the visa. If the matter is reverted back, the department will continue to process the application. While this doesn’t guarantee a visa being granted, it is indicative that it will be if the criteria is fulfilled, and that the application will be granted eventually.
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When lodging an Administrative Appeals Tribunal, we prepare detailed submissions to assist the tribunal in understanding your matter and why the visa should be granted. We also help clients prepare for tribunal hearings so that when they are interviewed by a presiding tribunal member, they will be able to demonstrate their situation to their best ability.
The tribunal in this jurisdiction is investigative and designed to find out more information about your specific circumstances, so you need to know your application intimately. IST's Lawyer and Migration Agent Hanh Ho's expertly drafted submissions are the cornerstone of your review application and can mean the difference between success and failure. Good submissions addressing the issues pave the way for a good hearing and results. If you need to help, call our Lawyer and Migration Agent Hanh Ho on (+61) 04 06 888 639.
All Administrative Appeals Tribunal reviews are subject to an application fee – currently around $1750 AUD per review application. This must be paid when lodging your review application.
Protection visa reviews are exempt from this fee until after the decision is made, at which point the applicant will be required to pay if the review fails. Applicants may be eligible for a 50% discount on review application fees if they can demonstrate it will result in financial hardship. However, the 50% needs to be paid when lodging the review application.
Even if the Administrative Appeals Tribunal affirms the department’s decision to refuse a visa application, you may have an opportunity to have the decision reviewed by the Federal Circuit Court to determine if there was an error.
If you are unsuccessful in the Administrative Appeals Tribunal and in a Judicial Review, a final option may still be available to you, you may seek the Minister’s Intervention. However, the minister’s powers are discretionary. They may intervene if they believe it’s in the public interest, but they are not compelled to do so. IST does not advise clients to rely on a Minister's intervention, but rather IST prefers to make an extremely strong case and solve a case in the AAT Appeals Tribunal as there is little chance of success from a Minister's intervention.
There are several factors considered by the minister include:
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where there is a threat to a person’s personal security, human rights or human dignity on return to their country of origin, including people who may have been refugees at time of departure from their country of origin, but due to changes in their country, are not now refugees and it would be inhumane to return them to their country of origin because of their subjective fear (i.e torture or trauma, systematic program of harassment, denial of basic rights available to others in their country, etc.)
It is important to note that the minister receives many intervention requests each year so it’s important that your request be comprehensively prepared and all supporting documents provided at the time the application is submitted. If you’ve previously submitted a ministerial intervention request you can submit another but it must contain new information otherwise it will be rejected (and the subsequent decision finalised) without being forwarded to the minister for consideration.