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Can I apply for a Protection visa after refusal?

Managing Associate (Lawyer)
January 26, 2024
6
minute read

Learning that your visa application has been refused can be a daunting experience, leaving individuals search of answers and potential avenues for relief. Here at Australian Migration Lawyers, we understand. It is essential to promptly and strategically navigate the aftermath of your refusal taking into account potential consequences and outlining your next steps.

What are my options?

Review and appeal

If your protection visa application is refused, you may be able to seek a review of the decision by an independent tribunal or a court. If you applied for a protection visa onshore and arrived in Australia lawfully, you may be able to apply for a review by the Administrative Appeals Tribunal (AAT). The AAT can review the decision on the merits and consider any new information or evidence that you provide. You must lodge your application for review within 28 days of receiving the refusal decision. However, if your visa was refused on character grounds, stricter time limits apply and must lodge an application within 9 days after the day on which you were notified of the decision.

If you are not eligible for a review by the AAT or if you are dissatisfied with the outcome of the review, you may be able to apply for a judicial review by the Federal Circuit Court of Australia. The court can only review the decision on the grounds of legal error, and cannot reconsider the facts or merits of your case. You must lodge your application for judicial review within 35 days of receiving the refusal or review decision.

Reapplication

Another option is to submit a request under Section 48B of the Migration Act 1958 (Cth), seeking the intervention of the Minister for Home Affairs. Pursuant to s 48B of the Migration Act 1958 (Cth), the Minister for Home Affairs has the authority to intervene in your case, either by approving the visa or permitting you to submit another protection visa application. 

Section 48B empowers the Minister for Home Affairs to intervene in cases of protection visa refusals. It is a discretionary power that can breathe new life into your application. However, the Minister only exercises intervention in a limited number of cases and will not consider repeat requests thus, understanding the intricacies of this provision is crucial before proceeding. 

Eligibility:

To be considered for reapplication, you must meet certain requirements, such as having new protection claims that you could not have provided in your original application and holding a valid visa (unless you are in immigration detention). If you do not hold a valid visa, you must regularize your visa status before making a request for reapplication. 

Timing requirements for Section 48B Requests:

You must make a request for reapplication separately from any other request for ministerial intervention, and within six months of your refusal or review decision, unless you are from a country that is subject to a shorter or longer time limit. Such countries include: Afghanistan, Iraq, Libya, Somalia, South Sudan, or Syria.

Making a request:

Once you have met these requirements, you should make an appointment with an Australian Migration Lawyer to discuss whether your circumstances are exceptional and if the information you are now presenting could not have been provided earlier during your application or the Tribunal process. 

Provide comprehensive information and evidence:

You must provide comprehensive information about your circumstances and include all relevant supporting documents. This may encompass personal statements, updated details about your situation, or any other documentation that strengthens your case. The submission should be thorough and self-contained.

Separate Request Submission:

It's crucial to make a distinct request under Section 48B, separate from any other Ministerial Intervention power requests. Failure to do so may result in your request not being considered. Be explicit about your intent to invoke Section 48B.

Reapplying for a protection visa is not a guarantee that you will be granted a visa. The Minister for Immigration has the discretion to decide whether or not to allow you to reapply, and whether or not to grant you a visa. If the Minister does not intervene in your case, you are expected to leave Australia when your current visa expires. However, engaging the services of a migration lawyer can significantly enhance your application's quality. Experienced professionals can provide invaluable insights, identify potential issues, and guide you through the process.

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Book consultation

If you are interested in getting more information about a Protection visa, get in touch with Australian Migration Lawyers for a consultation.

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