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”!
Edit May, 2013: If you have found this article helpful, please consider buying the book!
Hi Robyn, I stumbled across your blog while searching for info on the appeals process. The emotional, financial and health strains you speak of, I am all too familiar with. Me and my partner (sponsor) also had unusual circumstances (he has spent a large amount of time overseas looking after his family business after his dad fell ill, but we have travelled back and forth to see each other) however this was not good enough for DIAC who recently denied my 801 visa application. I too did not go into work the next day and was a complete mess – struggling to sleep,crying constantly and just emotionally exhausted; if I thought the first application for the 820 was stressfull – I was deeply underprepared for this. I have lived in Aus for nearly 6 years, it’s my home, where does DIAC expect me to go?? Henceforth I am considering an appeal (although I do not like my chances as my part er is still overseas but will hopefully be back before the hearing). I just have a few questions regarding the process which I hoped you could answer: 1. Does the MRT acquire all the evidence which was sent in for the application from DIAC or does it all have to be sent in again? 2. When do you find out when your hearing will be ( I read in another comment that somebody had submitted their appeal early June and had been notified that their hearing would take place end of 2011 – does this mean when they confirm the hearing date when they receive your appeal?) sorry, I know you mentioned you were not a migration agent but I thought you might know the answers. Thank you for the info you’ve got on your blog – it’s very hard sometimes to get a clear answer from DIAC so it’s great to hear from people who have actually been through the ordeal. So glad you finally got your family to Aus, it can be a heart-breaking, soul-destroying, anxiety-filled process, but one you’ve survived
Hi, Jenna. Yes it is horrendous!
To answer your questions:
1) I am honestly not sure. I think they get a digital copy, that is DIAC scan everything and send it, but I am honestly not sure. You could call the MRT and ask. My lawyer handled that part of it.
2) You receive an acknowledgement of your appeal lodgment, then you submit the bulk of the case after that. You don’t have to have everything ready when you lodge the initial appeal. At least I know in our case our lawyer lodged the appeal, then we worked on all the evidence for the hearing. We had to lodge some stuff with the appeal application, but most of it went in later. Unless you have a very good reason for priority processing, you could be waiting two years for a hearing. Check the current wait times on the MRT site. I have heard of other people receiving update notifications from time to time.
Yes, we survived. Yes, it is tough, bloody tough. Keep strong, get whatever health support you need and walk a lot. Walking is a good defence against depression, which is a real concern in cases like this.
Thank you for your kind words, Jenna. It is good to know our writing has helped people.
Have you considered legal representation? It is expensive, but worth every penny. I really do recommend our lawyer, links are on the “Do you need representation” article.
You mentioned your partner is not here: is that why the denial? If he is not seen to be making Australia his home, you may be struggling to win an appeal, as your visa really is dependent on your sponsor making a life in Australia. But this is all stuff you need to check with a professional. I’m just giving you things to think about, really.
Hi Roby,
Thanks for your reply and helpful words, knowledge is definitely power in this process and putting your experiences up on the web definitely help those like me! I have been trying to go to the gym before work which helps a lot. I have considered legal representation – cant say I’ve had many good experiences with migration agents/immigration lawyers, but will have a look at the agents you used
I assume that is why they denied the application, he has been saying for months he’s coming back, but not yet – I can see why they had a case against accepting the application but they were very harsh in their refusal letter – basically saying the relationship has been orchestrated which I don’t think is fair considering they keep partners apart for months/ years on end but when people have to be apart for other reasons, they don’t seem to accept that. Anyhow, hopefully it will all be ok in the end, if I can afford it, I think going through an agent would be he way to go – it would reduce the amount of stress which is needed at the moment! Thanks again 
I can vouch for Michael. Sounds like you might need him!
Hi. Team Oyeniyi
You have great the information what I wanted before.
My de facto visa case refused JUL 2010 becasue My case officer hadn’t got any my further information after she just rejected visa to me. then I knew her she has been to holiday for couple of weeks so she may hurried for decision without any communication with me. I requested & received confirmed delivery letter from AUS post. after so I was very devastate from mad case officer. where is my article?
I lodged MRT since AUS 2010 and finally received hearing letter couple of days ago and I submitted for three years evidence for my case. It was really massive job! I don’t want to that anymore after this horrible case.
I am going to hearing in next month with my partner and his brother without any migrant lawyer. I am so worrying that what they are going to asking me about this history? I really do not know.
since FEB 2010, I lodged first application, I already have been waitting for more than 2 and half year now. I extremely exhausted with this matter…
We are ture couple but If I met other guy, I didn’t want to apply spouse/ de facto visa. I really hate that.
Now I cleared submitted all my evidence without witness letters, I am going to pick all of witness letter and send to MRT on next week.
Do you thinks witness letter going to help for evidence?
I am pretty nervous with MRT hearing because I have never have experience kind of court interview.
Only I belive in god. I trust him but I really need a your advice.
Thanks
With Peace
JM
Hi JM,
I am sorry for your troubles, but I really cannot give specific advice. I am not a migration agent or lawyer.
I do not believe in any gods. You need to trust yourself and your partner. You definitely need witness letters – this is about proving you are a genuine couple.
All I can do, unfortuantely, is refer you to http://teamoyeniyi.com/2011/05/18/do-you-need-representation/.
I do understand you are extrememly exhausted. It is a terrible, terrible process and I agree a massive job.
My thoughts will be with your, JM. Just go to the hearing with an open heart.
Best wishes,
Robyn
Really thank you for your quick relpy
I wish there was more I could do. Unfortunately the best I can do is sympathise and share.
It is fine. but I am little bit worrying for hearing. I have some evidence approx three year with my partner. It is going to be ok! I am just wondering that what the tribunal member asking for uS? .
Thanks for your help. You have warm heart as a mom. Really thank you
JM, in my personal experience, the questions are very specific to your individual case. So the questions I was asked would not be applicable to you.
Ours was a particularly unique case, in some respects, so the questions were equally unique.
Just be open and honest. That is all you can do.
Yap! Thanks for your help. Really happy with your answer.
cheers ^ – ^
Dear All;
Thanks alot for all your information base on my story briefly as following;
Please help me too as your kind attention!
I married my wife, who is Australian citizen, in 2009 and submitted my application at end of 2009 to Australian General Consulate Dubai as well as I had a student refusal in 2008 too with no appeal right at all for my student visa refusal. then married my wife as above mentioned story. I had been waiting for most-stressed time for 19 months for my partner visa, however I submitted all proofs e.g. our engagment fotos and video held in Melbourne by only my wife (I wasn’t there), our wedding fotos and vedio which was held in Afghanistan (my wife and her parents were present too in our wedding), my marriage certificate attested by ministry of foriegn affairs of Afghanistan, our chattings, my wife phone bills, two withness statury while they were present in my wedding too, during that waiting time, my wife had been with me in Afghanistan for over a year too, but for all above proofs our partner visa has been refused in May 2011 that ” your relationship is not genuine and ongoing spousal relationship”. I think the visa officer can’t have eyes to look the documents, proofs and other related things submitted. They are indeed wasting couple times, money and create a big health stress. If they were in our position then they would have known how saperation is difficult, but if they have feelings. Finally, now they have got us (MRT) which we have only 25 days left. I still don’t know that should we submit our case to MRT or reapply to Australian General Consulate, because we both are in stress, depression that why our visa has been refused for noting.
Could you please tell me that should we submit our case to MRT or reapply to to AGC Dubai? If MRT then what else documents (proofs) should we make for as well my wife now in Australia and I am in Afghanistan? and also, please tell me how long it will take our case to MRT (as I have breifly mentioned above), just tell me your openion regarding that you guys might have experience. If so for MRT, then could you please introduce me a stronge feeling immigration agent in Victoria, the one who has the feeling for our stress and work harder to win our case as well as we both are ready to give him/her (agent) what he/she wants from us.
Thanks for reading this,
Haroon
Haroon, I have replied to you by email. I am sorry to hear of your situation. Let us know how you progress.
Thanks for your encouraging words.Your situation was many times more difficult than ours is.Roll back the clock more than half a century , my other half was escaping East Germany for the west .Now we just fight red tape and inflexible Government Officials with little compassion. We all know that it really shouldn`t be this hard.Guess unlike criminal law, there is no presumption of innocence- you have to prove (with documentary evidence ) everything you say is true. Who starts out in a relationship ever thinking you`ll ever have to prove everything at some future date? That smacks of fabricating evidence
Good luck for the future to you and the family.
We made the mistake of thinking the Australian Immigration Department would believe us when we said we were a couple and submitted documents as proof. NOT enough paperwork it seemed
. Application for Visa rejected. 28 days to submit appeal to Migrant Review Tribunal and an additional 1.25 kg of paperwork sent to MRT.
Now looks like we will get a hearing ”towards end of 2011” – 2 years after application , still needs to be sent back to Immigration even if we are successful. Never any face to face meeting with Officals yet.
Lesson learned here, bury “them” with documentation no matter how trivial you may think it is. Saves no end of worry
Still waiting in hope.
I am sorry to hear of your experience. Unfortunately, it is all too frequent and exactly what I want to change. please keep in touch and let me know hwo you progress. Where are each of you now?
As luck would have it we are together in Australia – my spouse on a bridging visa until the matter is determined. So far two years waiting with no end in sight, I feel positive we will have success with the MRT but worry about the Immigration Department. I had no idea a medical or police report could ”expire” while waiting . So far $5000 spent in fees etc. I guess folks without the means just give up. There is no way we could afford to take it to the High Court. We have 6 Nationalities between the two us, so relocation to where we are wanted is an option An option many may not have.
Very true, Heidi. I suggest the fact you are together already with a bridging visa may be why you are not a priority at the MRT. It is terrible when apart. We managed the 13.5 months, but I would not want to do it again. It was so stressful. With the extra time together, that is all more evidence in your favour, so I do believe you can relax a little. John being a removed asylum seeker made our case much, much harder. We also seriously looked at relocating, but the battle cost so much it got to the point where relocating was no longer financially viable. Besides, we really did want to stay here.
Like you, I believe people are forced to give up due to the expense of it all. That is sad and inhumane, in my view!
I wonder if denying out of hand all first time applicants, is a way they use to screen out those who are not serious. But if they do: thats a pretty shoddy protocol.
Now that the internet has blurred all boundary lines between the countries, it does seem that eventualy all countries will have to reform the spouse visas. Many people today, meet and court each other on-line.
You raise an interesting point that for the most part I have not addresssed. The only internet couple I know of are a friend of mine and his wife who live in Florida. They just had their 10th Wedding anniversay. They met on the net, narried here in Australia (Melbourne), drive up to the US Embassy in Sydney for their appointment a week later and had the spouse visa THAT DAY! I mentioned them in a couple of early articles, but only really in passing. Internet couples have problems with having the “normal” evidence (photos, joint bank accounts, etc etc etc). You are right, it is definitely an isssue and a global problem.
Sara, 69% of the appellants win on appeal. I don’t know how many denials are appealed though, I have been unable to find that out. The problem is the TIME (average 311 days currently) and the MONEY needed to appeal would be prohibitive for many couples. The costs have left us in debt, where we had no debt before. That is not a nice way to start a life together and there was no need for it. The health impacts are terrible.
Good Lord, this is incredibly challenging… Thank you for distilling all the facts for others who might need this down the road. Superb job!
E
I think I scared one poor young lady (who may well read this comment, she will know who she is if she does). I did stress to her off-line that we are an unusual case. On the other hand, people do need to know what the process can be like if everything doesn’t go as they expect. I know people go in thinking getting a partner visa, whether it be de-facto, spouse, fiancee or interdependency, is just a matter of course. So many cases I have heard of that had enough evidence but just didn’t submit it, thinking it wasn’t necessary. It is too late after the event!
Oh, it’s good to learn that you’re almost done! Congratulations on winning the appeal!
I hope your husband will have the visa in his hands within the next few days…or tomorrow!
You know, it’s a cliché, but these things really bring out a person’s strength. I won’t go so far as to say we should be grateful for it. But before becoming part of the immigration process, I didn’t think I was capable of this level of patience.
We believe we are almost done! However, I am realistic. I thought we were done in October last year. I thought we were done back in April. I think we are almost done now. The goal posts keep shifting. Until we get the passports with visas in them, we are not done.
Your doing a great job, and very informative information for those who are in the same situation. Pulling for you-stay with your great determination and perseverance. I know this is going to work for you-it has to with all the effort you have out into it.
Hugs !!
Every case is unique – that is something everyone must remember – and ours is particularly unusual. I hope my writing does help some. I found it very difficult to find any comprehensive information from people who had been trhough this.
Thanks for the hugs!
These last three posts have made me tired just reading them. I’m still praying for you guys and I hope this is resolved VERY soon. If it was me, being this close would probably be the most stressful part of the whole ordeal–so close, yet so far away.
It is making me tired trying to get hold of DHL in South Africa – I emailed them last night as none of the phone numbers seem to work. No reply to my email either. So I am now getting stressed about that. Will call DHL here again today to see if they can help.
Yes, it is extremely tiring.
Just to give you a smile. In Germany, where DHL is based, locals say that the letters DHL stand for: Dauert Halt Laenger!
Translated into English: Just takes a little longer!
Have a great day!
Mike and Heidi
What a journey. I couldn’t stop reading your series of posts. I truly had no idea that the process was so intense!! You have my admiration!!
Perhaps this makes it clearer why I’ve been so stressed at times – although perhaps you started sharing our journey after some of the most distressed times I wrote about earlier.
Yes, it has been an incredible journey, not one I ever want to repeat!
Thank you for your kind words.