An Invalid Visa Application may Cost You a Disaster
In 2000, the Migration Regulations 1994 (the Regulations) were amended to change the requirements for most visa applications, placing an onus on applicants to include a majority of the information required for a visa application to be valid. A visa applicant is responsible for lodging a valid visa application.
What is an invalid visa application?
Under the Migration Act 1958 (the Act), section 47 of the Act requires the Minister to consider a valid application for a visa until the application is withdrawn or the visa is granted or refused. Under s 47(3) the Minister is specifically prohibited from considering an invalid application.
A valid visa application is an application:
for a specified class of visa.
on the approved application form (if any) for the specified class of visa.
that has been completed in accordance with all instructions on the form that complies with all of the requirements of Schedule 11 of the Regulations, including lodging the form in the right location and the applicant being in the place specified by the Regulations.
that includes the applicant’s residential address.
that includes the relevant visa application charge (VAC) (if any) as prescribed by Schedule 1 of the Regulations for each specified class of visa.
A visa application that does not comply with the requirements of this scheme is an invalid visa application.
What are the consequences of making an invalid visa application?
A visa applicant is entitled to a refund of the relevant visa application charge paid.
An assessment that a visa application is invalid is not a decision to refuse a visa. The visa applicant, therefore, cannot appeal the decision to the Administrative Appeals Tribunal (AAT).
If a visa application is assessed as invalid, any bridging visa that the visa applicant may have been granted in connection with that application will cease 35 days after the date invalidity is notified.
The visa applicant may lodge another visa application.
However, the visa applicant may also lose the opportunity to lodge another visa application because he or she no longer meets the criteria, i.e., missing the deadline.
Being unable to lodge a valid application again may cost a disaster, i.e., being no longer eligible for certain types of visas (see below Case Study).
Case study: Being No longer able to apply for a student visa
Ms A was in Australia and held a visitor (subclass 600) visa which expired on 01 July 2022.
On 01 July 2022, Ms A lodged a student (subclass 500) visa application by lodging a prescribed application form and paying a prescribed visa application charge (VAC). She has been granted a bridging A visa (BVA) associated with the application.
On 03 July 2022, a delegate of the Minister of Home Affairs determined that this application was an invalid visa application as Ms A failed to provide her residential address.
Ms A is entitled to a refund of the paid VAC. Ms A’s BVA remains valid till 07 August 2022. (35 days after the notification of invalid application) Ms A should arrange for another visa application or departure before that day, otherwise, she will become unlawful and be subject to deportation.
A more serious adverse consequence is that Ms A may be no longer able to lodge a student visa in Australia.
To make a valid application for a student visa in Australia, the applicant must, at the time of application, hold a substantive visa2, or not held a substantive visa but the last substantive visa was a qualified substantive visa.
Because Ms A is now holding a BVA (not a substantive visa) and the last visitor (subclass 600) visa is not a qualified substantive visa, Ms A is not able to lodge a valid student visa application again in Australia, unless he obtains another substantive visa, or depart Australia.
The Australian visa system is complex, which especially makes it difficult in understanding how to make a valid application for some complex types of visas. Always avoid making an invalid visa application. Should you be unsure about it, call AHC Lawyers on 02 8310 5230 to have a professional consultation.
How can Agape Henry Crux Help You?
In addition to what the law does and doesn’t allow you to do, there are also practical considerations that may mean that travelling overseas jeopardises your visa application. If you want to find out more about the risks of travelling overseas, do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02 8310 5230 or email us to book a time at info@ahclawyers.com.
We speak fluent English, Korean, Japanese, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.
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