What Happens If a Protection Visa Is Refused After Applying on a Tourist Visa?

It is possible in Australia for you to apply for a Protection Visa after arriving on a tourist visa. However, doing so should be weighed against other migration options as initiating the Protection Visa process is a significant legal step that fundamentally impacts your migration pathway.

Protection visas are intended for individuals who face significant harm or a real risk of persecution in their home country, and eligibility depends on being able to demonstrate these dangers.

When the Department of Home Affairs issues a protection visa refusal, the consequences are immediate and can be overwhelming for those seeking safety, especially if you cannot safely return to your home country due to significant harm or a real risk.

Understanding your rights and position should your application be refused and navigating the implications, including the potential for removal from Australia, is critical to maintaining your lawful standing here and to exercising your rights under legal process.

Understanding What a Refusal of a Protection Visa Means

The refusal of a protection visa application is a formal determination by the Department of Home Affairs that an applicant does not meet Australia’s protection obligations.

For many applicants, the journey to that point begins on a substantive visa, such as a Visitor Visa (Subclass 600). Once that initial visa expires while a protection claim is being assessed, the applicant’s right to remain relies entirely on a bridging visa, which gives the applicant legal status in the country while their application for a permanent visa - such as a Protection Visa - is considered.

Protection visa applications can also be refused or cancelled on character grounds, such as having a criminal record or if the applicant has provided false information, knowingly or otherwise.

A refusal or cancellation decision may occur for reasons beyond the merits of your protection claims, including character grounds, a criminal record, or if you have provided false or misleading information.

A refusal marks a shift in status and finalises the primary processing stage. In its wake,a strict set of deadlines is triggered, about which you should be well informed.

Because, in such a case, you no longer hold a substantive visa and your legal right to stay in the community becomes fragile. The path forward requires urgent legal intervention to navigate the complexities of the Migration Act 1958.

Bridging Visa Impact and Lawful Status

The moment a refusal is issued, your bridging visa status becomes a ticking clock, counting down to a series of strict deadlines

The first important number is that, for most applicants, a bridging visa (typically a “BVA”) remains in effect for 35 calendar days following the notification of the refusal.

Firm time limits apply, and it is essential to act quickly within this period to avoid becoming an unlawful non-citizen, a status which has numerous unwanted legal consequences.

Failure to take the next legal step within this window can lead to bridging visa expiry.

Being an unlawful non-citizen in Australia carries severe risks, including the possibility of being taken into immigration detention. Missing the time limit for taking action can result in the loss of review rights and has immediate consequences.

It is a common misconception that one can simply wait or apply for a different visa once a protection visa is refused. This is not the case

Australian law is designed to strictly limit the movements and stays of those without valid visas and the system is geared to take swift action on such individuals.

Moreover, maintaining your lawful status is not just about staying out of detention; it is the prerequisite for accessing any further merits or judicial review.

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Rights of Review: The Administrative Review Tribunal (ART)

If you believe the Department’s decision was incorrect, you have the right to seek a merits review through the Administrative Review Tribunal (ART).The ART is an independent body that looks at your case “de novo,” meaning they can consider new evidence objectively and make a fresh decision on whether you are owed protection. The review process at the ART involves the review tribunal making review decisions under the Migration Act 1958 and the Migration Regulations 1994, ensuring that the decision is fair and in accordance with Australia’s migration regulations.

The deadline to apply to the ART is incredibly strict.

Valid applications for appeals must be lodged within 28 days of being notified of the refusal.

This is non-negotiable and this timeframe cannot be extended under any circumstances for community-based applicants.

When lodging a review application, applicants must pay an application fee, which is usually a standard application fee set for such reviews.

Lodging a valid review application within this period is essential, as it typically extends your bridging visa protections, allowing you to remain in Australia lawfully while the Tribunal processes your case.

Judicial Review in the Federal Circuit Court

If the ART affirms the original refusal, the next potential step is judicial review in the Federal Circuit Court. Unlike the ART, which reviews the facts and merits of your specific protection claim, the Court only examines whether a legal error occurred during the decision-making process.

The Court cannot grant you a visa based on the facts of your case; it can only set aside the Tribunal's decision if it finds the law was applied incorrectly. For example, if the Tribunal failed to consider a piece of vital evidence or misconstrued the definition of a "refugee," the Court may remit the case back to the ART for a new hearing.

This is a highly technical area of law that requires a precise identification of jurisdictional error to be successful.

Potential Removal and Section 48 Bar

A final refusal, where all review avenues have been exhausted or missed, results in what is known as “the section 48 bar”. This refers to a provision of the Migration Act 1958 which is triggered when a visa is refused and the appellant is therefore prevented from applying for the vast majority of other visas while in Australia.

Additionally, an individual’s visa conditions, including any breaches or non-compliance, may impact eligibility for further applications or Ministerial intervention.

While there are some narrow, rarely used, pathways still remaining, most individuals will find themselves unable to lodge any further substantive applications once their final appeal has been rejected.

Once your review rights are exhausted and your bridging visa ceases, you are subject to removal from Australia.

The Department expects individuals to make arrangements for their own departure; failing to do so can lead to involuntary removal and potential re-entry bans. It is important to ensure you have a valid travel document when leaving Australia, as this is required for departure and may affect your ability to travel or apply for future visas.

Understanding the weight of the section 48 bar is vital for long-term planning, as it often means that any future visa strategy must be managed from outside the country.

Cómo pueden ayudar los abogados australianos especializados en inmigración

Navigating a protection visa refusal requires more than just filling out forms; it requires a sophisticated understanding of case law and Departmental policy. As experienced migration lawyers in Australia, we provide comprehensive protection visa help to individuals at their most vulnerable moments. Our team specializes in assisting protection visa applicants and asylum seekers, drawing on our extensive experience in handling complex visa cases. We assess refusal letters to identify grounds for appeal, prepare persuasive Administrative Review Tribunal submissions, and provide expert representation at hearings.

Facing the Australian immigration system alone can be daunting, but you don’t have to do it without assistance.

Only a registered migration agent or lawyer can legally provide certain immigration legal services, and not everyone may be eligible for all types of assistance. We provide the immigration legal advice necessary to protect your rights and explore every available legal avenue. If you have received a refusal notice, time is pressing and your most limited resource.

If you need additional help beyond legal advice, you can contact other organisations for further information and support.

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Reservar una consulta‍

Si está interesado en obtener más información sobre un visado, póngase en contacto con Australian Migration Lawyers para una consulta.

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We are here to support your journey

The complexity of Australian migration law means that a single mistake in timing or evidence can have life-altering consequences. We are committed to providing clear, honest, and effective legal strategies for those seeking protection in Australia. If your visa has been refused, contact us today to schedule a consultation and ensure your case is handled with the professional rigor it deserves.

Even if your protection visa is refused after applying on a tourist visa, do not lose hope – there may still be options available to you.

Preguntas frecuentes

How long do I have to appeal my protection visa refusal?

You generally have 28 days from the date you are notified of the decision to lodge an application for review with the Administrative Review Tribunal (ART). This body is responsible for reviewing visa decisions. This is a strict statutory deadline that cannot be extended.

Can I work while my protection visa is under review at the ART?

In most cases, your bridging visa includes work rights while the Department is considering your application. Generally those rights will continue while your case is under review at the ART, provided you lodged your review application on time.

What is the section 48 bar, and does it apply to me?

The section 48 bar applies if you are in Australia, do not hold a valid, substantive visa, and have had a visa application refused or cancelled, including through all appeal processes. It prevents you from applying for most other visas onshore, meaning you may have to leave Australia to apply for a different visa.

What happens if I miss the 28-day deadline for the ART?

If you miss this deadline, the ART is unable, under existing law, to hear your case. This usually means your bridging visa will expire shortly thereafter, and you will be expected to depart Australia or face potential detention and removal.

Can I request ministerial intervention after my protection visa is refused?

Yes, a person can submit a request for ministerial intervention after a protection visa is refused, but only in specific circumstances or exceptional circumstances. Ministerial intervention requests are considered at the Minister's discretion under the Migration Act 1958, often only if the person's application meets certain criteria or following circumstances that justify intervention. An authorised representative can assist you in preparing and submitting a request for ministerial intervention, ensuring your case highlights any exceptional or unique factors. Not all requests are granted, and the Minister is not obliged to consider every request.