Will you appeal your partner visa denial?
This is the last article in a three-part series. Today I look at the Migration Review Tribunal appeal process. Just a reminder: I am NOT a migration agent. Anything I say here is said as a person, just like yourself, going through the system, sharing observations and experiences: it does not constitute formal professional advice.
The day I received the visa denial was horrific. While my lawyer had always, as lawyers are, been cautious, particularly due to the unusual nature of our case, I had really never doubted the visa would be granted. Only you know how confident you are, but I believe most of us never dream the visa will be denied.
You have 28 days to lodge an appeal from the date you are considered to have received the notification of the denial. This is NOT as much time as it may sound. The first week I was in a complete state of shock and despair. I did not go to work the next day, I was a write-off. You may be too. It was probably not until the 5th day I could actually think with any clarity. In the 28 days you have to:
- Recover from the shock enough to function
- Find a lawyer to handle the appeal – refer Do you need representation?
- Finalise a costs agreement
- Brief that lawyer
- Lawyer has to have time to prepare and lodge appeal documentation
There is a lot to do in the 28 days and the first week goes in recovery. If you happen to hit a time like Christmas/New Year or Easter, several days are lost to public holidays.
Assuming all goes smoothly and the appeal is lodged, then you wait. You work out how on earth you are going to fund the appeal. Perhaps the money you had for airfares goes on legal costs instead. You may visit your partner, as I did. Your partner can’t, after all, visit you! This is unforeseen expenditure too. The filing fee for the appeal was $1,400: I believe it has increased effective July 1, 2011. This is refunded if you win the appeal, but you have to find it to pay it in the first place! I do not know what fees are applicable in other countries, or how the systems in other countries operate. UPDATE – according to the current fee schedule, only half the fee is refunded now if the appeal is successful.
While an appeal can be decided without a hearing, in this article we are looking at an appeal involving a hearing, which is reasonably typical. As discussed in May 15′s article, Migration review timelines under pressure and by Immigration Pty Ltd in The MRT Option & realistic processing times?, the wait can be considerable. I know of one case at the moment where the appellant has been given a timeline of 18 months. How do you cope for this length of time? Refer to yesterday’s article for links to the MRT Annual Report and other pertinent information about the MRT.
A complete submission is prepared and presented prior to the hearing. This is between the time of the lodgement and the actual hearing. In this submission you are essentially providing a rebuttal of the visa denial decision. It can take a considerable amount of work to collect the evidence and draft the requisite statements and other documents.
The waiting is stressful. There are health considerations. Depending on the situation of your partner, there may be worry and anxiety for their safety. Each case is different.
Finally you have the hearing. In our case we won. It was clear the MRT Member was very conversant with the circumstances of our case and the evidence we had submitted. After the win, my lawyer congratulated us. I think he was a little disappointed I wasn’t more excited. Why wasn’t I excited? As I said at the time, “It is terrific that we have won, Michael, but realistically for us nothing changes on a day-to-day basis yet and that is hard to deal with.” He understood.
We were very grateful our decision was handed down and remitted to DIAC quickly. I understand this is not always the case but I am confident the Tribunal does strive to issue decisions as quickly as possible.
Is it over? No, DIAC then have 28 days to appeal the MRT decision. So you wait. I understand it is very rare that DIAC appeal, but by this stage of the process you may be so demoralised it is hard to be positive. I spent that 28 days in constant fear. It is not a nice way to live.
The other surprise I got during this was I discovered that depending on the grounds for denial, it may well be that once DIAC reach a point in the original application assessment where they decide to deny the application, then anything else is not actually assessed. So while I was of the impression that everything had been assessed prior to the denial, that is not the case. After the appeal the rest of the application has to be assessed. This may result in a request for more or updated documents. In our case our eldest had a birthday significant enough to require more documents. There were also other documents requested. While this didn’t happen in our case, if you submitted a front loaded application your medicals and police clearances may expire while you are waiting.
Any documents requested are submitted. Regular readers will recall in our case some of those travelled the globe for 14 long and torturous days. It starts to seem never-ending. There is no clearly documented process and several aspects are confusing. I found correspondence not to be clear, resulting in my crash into the figurative wall just last week. At the time of writing, it is May 19. Our appeal hearing was February 17. We still do not have a visa, although we believe we are within days of that happy event. My point is, it can be several months after the appeal before your partner comes home. I do not know if processes and procedures vary between overseas posts/regions, but I suspect they might. For example, we were led to believe the passports would be returned to us: this was of course after I discovered VEVO would not be used. We then find out we have to collect the passports, so we now have a situation where I am in one country, my husband is in a second country and we have to arrange collection of the passports from a third country. Trust me this is not the easiest thing to do. I have called DHL in South Africa three times so far today and each time the phone has rung out. Also we need to provide an authority for them to collect the passports, yet there is no template provided. The last thing I wanted was to draft an authority only to find it did not meet the requirements when presented. None of this was known until late last week, yet I believe this is information I should have been able to find on the department web site, or an information leaflet should be provided, so people can plan accordingly.
As I illustrated in yesterday’s article, the costs of the appeal are most likely going to be higher than the costs of the application. I have no doubt many couples simply cannot afford it or cannot wait out the additional time. I do not know what happens to those couples. My daughter has said if she were in our situation, she would not have been able to continue, she would have been forced to leave Australia to be with her husband. There is no chance of that, they were both born here: she was simply looking at the “if”. I believe in some cases the Australian simply relocates to the location of the spouse (providing, of course, they can get a partner visa in that country). That was not an option for us, so we would have been looking for a third country and yes, we did talk about where we would go.
We were both aware that one system does not a country make. Although we’ve had a rough time, we do want to make our home here. So we battled.
In conclusion I ask - do you see anything remotely convenient about our journey? Is it any wonder that “marriages of convenience” are a tiny minority? Really, if you can afford all this (financially or emotionally), you can probably afford a much easier visa! My husband rang me at 4am his time today – he misses me and can’t sleep. I’m not sleeping well either. Nothing unusual for either of us. The only decent nights’ sleep we have had in 13 months were the nights we had together in Qatar.
I hope these articles may give others an insight into what they may face. We will now return to “normal programming”!