When dealing with visa applications, sometimes things don’t go as planned. For those of us working in migration, it’s not uncommon to see decisions from the Department of Home Affairs that seem, on the surface, unfair or mistaken. Normally, applicants would appeal a refusal through a tribunal review, but that process can be expensive and time-consuming for both the applicant and the system. Fortunately, in some rare cases, there is another option: getting the decision overturned at the Departmental level. Here, we’ll explore how this works and when it’s possible, with a few examples of how our agency, Green Wings Migration, has successfully navigated this process.
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When Can a Decision Be Overturned Without Going to Tribunal?
Most visa refusals require a formal appeal, but in some very specific situations, we can ask the Department of Home Affairs to re-examine and potentially overturn a decision on a refused visa Australia without having to go to a tribunal. These cases are limited to a few clear instances:
Missing Evidence Error: If the Department refuses a visa because they claim certain documents weren’t provided, but we can show that they were.
International Obligations: If the Department fails to exempt an applicant from a requirement due to international trade agreements, which should have applied in their case.
Premature Refusal: If the Department refuses the application before the period for submitting extra information or comments has expired.
Withdrawal Request Overlooked: If the applicant had previously asked to withdraw the application, and the Department still went ahead with the refusal.
Procedural Fairness Mistake: If the Department invites the applicant to respond to negative information (under Section 57 of the Migration Act) but makes the refusal decision before the response period has ended.
Accidental Withdrawal: If the Department accidentally marks an application as withdrawn without the applicant’s consent.
These instances provide a rare opportunity for us to request a “review” directly with the Department, essentially asking them to admit an error and correct it. This option has been put in place because, like anyone, case officers can make honest mistakes, and going straight to tribunal review would be unnecessarily costly and stressful for everyone involved.
The Risks of Requesting a Departmental Review
While this is a promising option, it’s essential to approach it with caution. These requests are only for very limited, special cases. It’s also important to know that making this kind of request is only possible after the timeframe for tribunal or court appeals has ended. This means that if we make a request and it’s unsuccessful, the applicant may lose their opportunity to appeal elsewhere. For this reason, we only pursue this option when we’re absolutely certain that the Department made a clear error that can be proved.
Are you facing challenges with the Department of Home Affairs? Receive strategic advice, explore potential solutions and receive a written report within 24 hours of your meeting.
At Green Wings Migration, a migration agency in Perth, we’ve seen firsthand how a Departmental review can turn things around. In fact, we’ve had a couple of cases where we were able to get the Department to admit a mistake and reverse a decision on a refused visa Australia without going to tribunal.
One case goes back to 2020, when one of our clients was refused visa due to “missing” Labour Market Testing (LMT) evidence. The Department claimed we hadn’t provided enough proof, but we knew we’d submitted everything correctly. After reviewing the situation, we gathered up our records, showed the Department they had everything they needed, and explained the oversight. It took some patience, but eventually, the Department agreed, overturned the refusal, and approved our client’s nomination.
More recently, we faced a case that felt particularly unfair. A case officer refused a sponsorship nomination, claiming that our client’s need for the role wasn’t genuine. The decision ignored substantial evidence we had submitted to support our client’s business needs. We could see this was a rushed or biased judgment, so we reached out to the Department, carefully outlined the error, and waited. After a long wait, the Department came back, admitted they had made a mistake, and approved the application.
In both of these situations, pushing for a Departmental review was worth it, saving our clients the stress and cost of a tribunal appeal. But these cases show that when a genuine error is made, it’s possible to get it corrected—especially when you know where to look for solutions when a visa is cancelled in Australia
The information provided is a general guide and does not constitute legal or immigration advice; there are many regulations that may apply depending on each individual’s circumstances alongside changes in the industry. It is the user’s responsibility to verify the currency of information. Those seeking advice should engage a MARA registered migration agent. The information shared in this video is accurate as of the upload date. Legislation changes frequently, so please consult a REGISTERED MIGRATION AGENT for any questions.
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