If the immigration department makes a mistake (which they do, more often than you realise) mid-application, do you know when to tell them that they're wrong, or would you be more concerned that you actually missed out on something? After all, a lot is at stake here, and you can't run your arguments on "I think...".
From time to time, we see departmental case officers sending out s56 requests (otherwise fondly known as "RFIs", short for Requests For Further Information) asking for documents that have already been provided to an application. This not only causes confusion on the part of the visa applicant but also prolongs visa processing times. With proper guidance, these issues can usually be resolved quickly with no negative implications.
But then there are other times when things can get a bit trickier to handle for the self-sure visa applicant doing their own application for the first time.
In a recent matter of the 186 visa (DAMA stream) that we have taken over, the case officer sent through a notice to the visa applicant saying that the skills assessment of the visa applicant had "expired" as it was more than 3 years old. If the case delegate was right, and a skills assessment that's valid within 3 years was indeed a document required at the time of application, the entire application would fail.
However, in this particular case, even though the skills assessment outcome was more than 3 years old, we argued that the legislative requirements were met, as we propose the case officer had misapplied the wrong regulations for the DAMA stream. We laid out all the primary evidence, case law and relevant legislative provisions supporting our arguments. Surely enough, our client received her visa grant in less than 2 months thereafter. The subclass 186 visa is also a permanent visa, which means she was finally an Australian permanent resident. She could not have been more pleased with the outcome.
If you're into legal dramas (I know I am!), you may have come across the familiar phrase of "you have the right to remain silent and that anything you say may be used as evidence in the court of law." Well - this applies to Australian immigration too. Anything you say to the case officer (including when you call 131881 and get a different receptionist every time) - and even what you provide in your incoming passenger card - can be used against you in your visa and citizenship applications.
In one recent case at the Administrative Appeals Tribunal, a non-citizen's repeated failure to disclose criminal convictions on their incoming passenger card across multiple entries led to their visa cancellation, as the authorities claimed that such omissions can compromise the integrity of the immigration program.
While most visa applicants strive for full disclosure, there are instances where the Department of Home Affairs, in fulfilling its duty to maintain program integrity, may uncover information leading to visa or citizenship cancellations. But what if there is a misapplication of the law?
Our client faced a challenging situation in February 2018 when their Australian citizenship was cancelled due to the decision-maker at the Parramatta Office applying incorrect law. The typical recourse in such cases involves either appealing to the AAT (Administrative Appeals Tribunal - currently the "ART" or "Administrative Review Tribunal"), would cost almost $2,000* and take 1-2+ years, or the visa applicant will have to depart Australia. However, we pursued a lesser-known third option, convincing the Department to vacate the decision on the grounds of misapplied law. This strategy allowed the processing to continue as if the initial cancellation had never occurred. After submitting additional requested documents, the citizenship was successfully reinstated in April 2018, providing a more efficient and cost-effective resolution to the client's case.
This is why having an experienced immigration advisor by your side is crucial. At Kin Migration, we understand the intricacies of the immigration law, know when to advocate and when to take a step back for your best interests. We are familiar with how best to communicate with these case officers who can make or break your Australian dream.
We also guide you on what to say - and importantly, what not to say - to ensure your application process goes smoothly. Our expertise extends much, much further than merely filling out forms; we are all about strategically navigating a complex system to achieve the best outcome for you and your family.
*Appeals with the Administrative Review Tribunal now cost at least $3,496.
The content on this page does not constitute legal or immigration advice. Australian immigration doesn't have to be complex and we can help with your unique circumstances. To seek legal advice or information that is specific to your situation, please contact us.
