Frequently Asked Questions (FAQ’s)

Immigration lawyers are legal practitioners that hold Australian legal practicing certificates which are granted under an Australian state or territory. 

Our Highly experienced Immigration lawyers can provide immigration ‘advice’ in connection with a legal practice. Unlike Migration Agents, they do not need to be registered with the Office of the Migration Agents Registration Authority (OMARA). Furthermore, lawyers in Australia may advise on both judicial review and merits review of visa applications which have been refused or cancelled.

Migration agents, in contrast, typically deal with visa applications and are limited to providing immigration ‘assistance’ and cannot advise in respect of judicial review appeal cases.

The legislation and policy surrounding immigration is constantly updating, so it may be worthwhile contacting us and speaking to one of our knowledgeable lawyers that is able to provide you with the best advice suiting your current circumstances. Australia has a non-discriminatory immigration policy, so most applicants may apply to travel and/or migrate to Australia from any country depending on your circumstances. 

If you are interested in migrating or travelling to Australia, you will need to make a visa application. There is a significant amount of work involved during the immigration process and to avoid making any critical errors, we recommend contacting one of our Immigration Lawyers to guide you through this process.

A visa refusal is when a pending visa application is rejected by the Department of Home Affairs.

Prior to a visa refusal, you may (but not in all cases) receive an adverse information section 57 Natural Justice letter (‘s57 letter’). This s57 letter will generally list adverse reason(s) for why the Department of Home Affairs is intending to refuse your visa application.

There is a strict timeframe which appears in these letters, and you will need to draft and submit a response prior to the deadline in order to prevent a visa refusal. To be successful, your response will typically need to reference the latest migration laws, regulations, and policy and address all the issues raised by the Department.

In the event your visa is refused, you may have options to either apply for a different visa, appeal your case to the Administrative Appeals Tribunal (‘AAT’) or leave Australia. If you wish to appeal your case to the AAT, you will have a limited window to do so.

If you are going through a visa refusal and require guidance, we recommend contacting one of our Immigration Lawyers to assist you through this process.

Visa cancellation is when your visa has been previously granted but subsequently cancelled. Prior to having your visa cancelled, the Department of Home Affairs will usually first send you a Notification of Intention to Consider Cancellation (‘NOICC’) letter (unless a mandatory cancellation is required). You will have to respond fast as there is a certain limited timeframe to argue why your visa should not be cancelled. If your visa has already been cancelled, dependent upon the basis for the cancellation, you may have an option to request that this decision is ‘revoked’. If this application is unsuccessful, you may then have an avenue to request a merits review of the decision not to ‘revoke’ the initial cancelation at the Administrative Appeals Tribunal (‘AAT’).

In our experience, we have found that the most common reasons for visa cancellations include:

• Providing false, misleading, or bogus documents/information in your visa application;
• Breaching a visa condition i.e. working more than 20 hours per fortnight while holding a Student visa;
• Ending a de facto or married relationship under a Partner visa (where no other exemption applies);
• No longer meeting the character requirements of the visa (including Permanent Residency visas);
• Having been sentenced to a term of imprisonment for more than 12 months; or
• Not abiding by your employment obligations on a working visa.

A visa cancellation may be made with little-to-no prior notice. Visa cancellations usually have far more serious consequences and you will typically only have a very short window to submit a subsequent revocation request or appeal from the date of cancellation.

If you are going through a visa cancellation and require guidance, we recommend urgently contacting one of our Immigration Lawyers to assist you through this process.

The purpose of the Partner visa is to allow the spouse or de facto partner of:

• an Australian citizen;
• Australian permanent resident; or
• eligible New Zealand citizen

To come and live in Australia on a temporarily or permanent basis. The applicant is initially granted a temporary visa (if unable to prove a ‘substantial relationship’) and is eligible for permanent residency if the relationship still exists after a two-year waiting period. At this stage, you will be required to provide further evidence to the Department of Home Affairs to establish your eligibility for permanent residency. You may be either in or outside Australia when your permanent visa is granted.

To be successful, the visa applicant will generally need to be continually sponsored by their partner until their permanent residency visa is granted (noting there are some instances where exceptions to this rule apply). It is important to consider the steep criterion in establishing the genuine nature of the relationship and the eligibility of the Australian Sponsor i.e., previous sponsorships, concurrent relationships with third parties and/or a criminal record.

If your relationship breaks down before you are eligible for permanent residency, you are obligated to advise the Department of Home Affairs immediately. At which time, there is a risk, unless certain prescribed circumstances exist, that your temporary visa will be cancelled, and your permanent visa application may be ineligible for grant. At this stage, you will be required to find an alternate visa should you wish to remain in Australia.

There are a substantial amount of considerations with Partner Visa and the above information only accounts for a very brief overview of the visa program. If you require advice regarding your partner visa, we recommend contacting one of our Immigration Lawyers for assistance.

A No Further Stay condition (‘condition 8503’) on your visa means that you are not eligible to apply for most other temporary and permanent visas whilst you are in Australia. Once you leave Australia, you may apply for other visas to return back to Australia. For information on each condition, you may check the list of visa conditions on your visa grant.

You may attempt to waive the No Further Stay condition whilst onshore by submitting a prescribed form. We have found that successful applications are generally supported by detailed submissions which provide clear arguments for why the Department should waive condition 8503 in line with the relevant criteria to be met and associated policy guidance available to the decision maker.

If you require assistance with completing a waiver application and detailed submissions, we recommend contacting one of our Immigration Lawyers for assistance.

A No Work condition (‘condition 8101’) on your visa means that you are restricted from working whilst in Australia.

Fortunately, you may be eligible to remove condition 8101 if you are able to demonstrate a compelling need to work. In assessing your application, the Department will consider whether the cost of reasonable living expenses exceeds your ability to pay for them.

You may attempt to remove condition 8101 from your visa by submitting a prescribed form and evidence to support the claims made. We have found that successful applications are generally supported by detailed submissions and structured evidence which provide clear arguments for why the Department should waive condition 8101.

If you require assistance with completing a Form 1005 and detailed submissions, we recommend contacting one of our Immigration Lawyers for assistance.

A bridging visa is different to a substantive visa as its purpose is to keep you lawfully present in Australia and act as a placeholder whilst your immigration matter is being resolved.

There are currently five types of bridging visas and are generally considered best to worst in the following descending order:

• Bridging visa A (‘BVA’);
• Bridging vias B (‘BVB’);
• Bridging visa C (‘BVC’);
• Bridging vias D (‘BVD’); and
• Bridging visa E (‘BVE’);

Unlike the other bridging visas, a BVB allows the visa holder to depart and return to Australia during a specified travel period.

If you are currently unlawful or require assistance with obtaining a certain bridging visa, we recommend contacting one of our Immigration Lawyers for assistance.

The Genuine Temporary Entrant (‘GTE’) requirement is a criterion that generally needs to be satisfied for the grant of a temporary visa application.

In your visa application, you will need to persuade the decision maker, with supporting evidence where possible, that you are indeed a GTE and not intending to overstay in Australia longer than stated in your application or your visa term. Factors the Department may consider include:

• Your immigration history (prior instances of overstay);
• Your present circumstances in your country of usual residence;
• Your assets overseas;
• Your age (relevant if a minor); and
• Potential reasons for why you would otherwise be inclined to overstay your visa in Australia.

To satisfy the GTE requirement, you will typically need to show that you have good reason to return to your home country after the expiry of your temporary visa. We have found that successful visa applications are generally supported by detailed submissions and structured evidence which provide clear arguments for why an applicant satisfies the GTE criteria.

If you require assistance with your detailed GTE submission, we recommend contacting one of our Immigration Lawyers for assistance.

Enquiry calls often tend to go into details with additional information being provided by callers to better describe their circumstances and problems. Whilst this is an essential part of the enquiry process, it is equally important to understand that further strategy planning and consideration of your specific eligibility for a particular visa, or set of circumstances, is required. The initial discussion with your lawyer is an opportunity for you to ascertain whether or not this firm is the right fit for you and experience how well informed we are on the relevant immigration processes. Our team will always then ensure that a structured and well thought out immigration strategy is devised for you moving forward once you are engaged as a client of our firm.

Formal legal advice will always be reserved until an enquiry is an official client of the law firm by entering into a Cost Agreement and signing an Authority to Act.