There are instances where visa applications are rejected
by the immigration department. In such cases, the letter
informing the individual about the rejection would specify
whether they have the right to review the decision. If the
letter is silent on this issue, it is best to immediately
consult with an immigration specialist. It may be noted that
the review process is managed by different government
departments depending on specific case and not all visa
rejections have a right to review.
Since the right to review is subject to strict time limits,
it is advisable to consult a qualified immigration
professional immediately after receipt of the rejection
letter. The review process is quite complicated and there
are many agencies involved. The time period for review
therefore varies depending upon the case. In such cases
where the time limit is crossed, the petitioner may lose all
rights for review.
When receiving the rejection letter, applicants will
generally be informed about the tribunal in which the appeal
is to be lodged. There are two kinds of appeal tribunals
where merit reviews are conducted. These are The Migration
Review Tribunal and Refugee Review Tribunal. In case the
review is not granted by the tribunals, applicants can
approach the courts for a judicial review.
The migration review tribunal deals with migration cases of
general nature. On the other hand the Refugee Review
Tribunal is meant for cases related to Protection visas. It
is important to determine and apply review applications to
relevant review tribunals.
Another type of tribunal deals exclusively with matters
related to cancellation of visas, deportation, passports and
citizenship. This tribunal is called the Administrative
Appeals Tribunal.
There are several important issues which one must keep in
mind while applying for reviews:
1. The tribunals consider reviews placed before them
independent of the original findings. This is to ensure that
the applicant gets a fair chance to put forth his case.
2. After due consideration based purely on merits of the
case, the tribunal may uphold the original decision, change
or completely overturn it.
3. The tribunal does not have the power to grant visa. In
case the tribunal considers the review application
positively, it may return the file back to the visa granting
authority for reconsideration. The tribunal can direct the
Department of Immigration to proceed with the processing of
the case since the qualifying criteria has been found to be
met. It is possible that the applicant has not completed all
other visa formalities and some procedures are still
pending.
4. In some rare cases which involve jurisdiction, a visa
applicant whose case has been rejected by the tribunals, can
approach the courts for a judicial review. Since a judicial
review process is highly technical, it is advisable to take
legal assistance as soon as possible. The cases of judicial
review are heard in various courts including the High court.
5. Once again, the courts cannot by themselves issue visa
even if it finds that the applicant is lawfully entitled for
the same. The case is sent back to the proper authority with
appropriate court noting. It must be noted that the visa
application can still be rejected on grounds other than
those in question.
6. A visa applicant has, as a last resort, another authority
to which an appeal can be made for grant of visa. The
Minister for Immigration has been vested with the power to
grant visas irrespective of whether an application meets the
criteria laid down under the Migration act. Since this power
is over riding other statutory requirements, only rarest of
rare cases are considered. The Minister for Immigration can
only exercise this power after an applicant has gone through
the normal process and has failed to obtain a visa.
Normally, cases which impinge on national interest are
looked at favorably. To prepare a sound and impactful case
for consideration of Minister for Immigration, it may be
required to take the assistance of a migration professional.
