Visa refusals, cancellations and review

Refusal and cancellation are not the same thing

A refusal is a decision that an application did not meet the criteria - no visa was ever held. A cancellation ends a visa that was already granted, commonly for character reasons, a breach of visa conditions, or incorrect information. The distinction decides which review path is open to you, what your immigration status is right now, and how section 48 of the Migration Act 1958 restricts what you can apply for next. Both decisions are notified in writing.

The decision record is the most important document you hold

Whatever happened, the Department must notify you. That notice sets out the reasons, the criteria that were not met, whether a right of review exists, which body conducts the review, and the deadline to lodge. Two things about it matter more than anything else. First, the deadline is calculated from the date you were notified, not the date you opened the letter. Second, general guidance found online is not a substitute for what your own record says, because the period differs by decision type and circumstances.

• Identify whether the decision was a refusal or a cancellation, and the section it was made under.
• Find the review body named in the notice and the deadline stated.
• Note the date of notification and keep the envelope or the email header that proves it.
• Check your current visa or bridging visa status and any work, study or travel conditions.
• Keep the notice and every attachment intact.

Merits review at the Administrative Review Tribunal

The Administrative Review Tribunal commenced on 14 October 2024 and replaced the former Administrative Appeals Tribunal. Merits review means the Tribunal reconsiders the facts, the law and the policy, and may affirm, vary or set aside the decision and substitute its own. Not every decision carries a right of merits review - some character-related and some offshore decisions are excluded - so whether the door is open to you depends on the specific decision, and your decision record will say.

The review period is short and it varies

Review periods for migration and citizenship decisions are counted in days from notification, and the period that applies depends on the decision type and on your circumstances, including whether you are in immigration detention. Some periods are measured in working days rather than weeks. These periods generally cannot be extended once they have passed. We have deliberately not printed a single figure here, because printing one would be misleading: the number on your decision record, checked against the Tribunal's current information, is the number that governs your matter.

The section 48 bar, and why reapplying may not be possible

Section 48 of the Migration Act 1958 provides that a person in the migration zone without a substantive visa, who has had a visa refused or cancelled, may generally only apply for a visa of a class prescribed by the Migration Regulations - not for any visa they choose. Section 48A separately restricts a further protection visa application after a protection visa has been refused or cancelled, subject to a narrow ministerial power in section 48B. In practice this means lodging a new application onshore after a refusal is often either impossible or invalid, and it should be checked against the current Regulations before anything is filed rather than assumed.

Judicial review is a different and narrower thing

Judicial review is available in the Federal Circuit and Family Court of Australia, and it is not a second opinion on whether you should have the visa. The Court considers only whether the decision-maker, or the Tribunal, made a jurisdictional error - whether the law and the proper process were followed. The Court cannot grant a visa. At its highest it can set the decision aside and return the matter for reconsideration. It also has its own filing period, separate from the Tribunal's.

Ministerial intervention is a last resort, not a strategy

Where review is exhausted or unavailable, a request can be made asking the Minister to intervene personally - under section 351, under section 501J for some character cancellations, or under section 48B to allow a further protection application. These are personal, non-compellable powers. The Minister is not obliged to consider a request, not obliged to give reasons, and a decision not to intervene cannot be appealed. Requests are assessed against published guidelines describing exceptional circumstances, and intervention is used sparingly. It does not pause any other deadline, which is the point most often misunderstood.

The first 48 hours

What happens immediately after a refusal or cancellation often decides whether anything remains open.

• Read the whole notice and record the date you were notified.
• Identify the review body and the deadline, and diarise it immediately.
• Check your visa or bridging visa status, and whether you still hold work rights.
• Do not lodge a new visa application until section 48 has been checked.
• Collect the original application, the supporting documents and all correspondence.
• Get advice quickly. Some periods are measured in days.

Who can assist, and how we work

In Australia, immigration assistance may lawfully be given by lawyers and by registered migration agents, each under their own regulatory framework. At Legal Care Australia this work is carried out by lawyers admitted to practise in Western Australia, in English and in Vietnamese. Being able to read a decision record with someone in your own language matters here, because the document that sets your deadline is often the one people understand least. This page is general information, not advice about your matter.

Process

1. 1

   Send us the decision record in full as soon as you receive it, including every attachment.

2. 2

   We identify the review pathway that is open and the deadline that actually applies to your decision.

3. 3

   We check whether section 48 or section 48A restricts what you can lodge onshore.

4. 4

   Where merits review is available, we advise on prospects and prepare the application and supporting material.

5. 5

   Where merits review is not available or has concluded, we advise on judicial review or, in narrow cases, ministerial intervention.

6. 6

   We confirm every deadline in writing, in English or Vietnamese as you prefer.

What to prepare

• The decision record in full, with all attachments.
• Your passport and current visa or bridging visa evidence.
• The original application and everything lodged with it.
• Any request for further information from the Department and your response.
• Evidence relevant to the ground of refusal or cancellation.
• All correspondence with the Department.
• A current VEVO status check.
• Identification for you and anyone included in the application.

Risks, deadlines and common mistakes

• Missing the review period. It generally ends the right to merits review permanently.
• Lodging a new application without checking section 48, producing an invalid or refused application.
• Remaining in Australia without a valid visa after a cancellation, which creates separate consequences.
• Expecting judicial review to re-argue the merits. It cannot.
• Relying on ministerial intervention, which carries no timeframe, no right to a decision and no appeal.