Migration Visas Migratio Law Kean Legal Barristers and Solicitors

Migration Law Blogs Series (MLBS) 3 – Migration Visas- The Importance of Lodging the Forms Within the Time Limit

By Mr Anthony J Aristei

This is the third in a series of blogs that will focus on Migration Law.

If you have a migration issue and you are not sure if it you should file or what documents to file, do not delay, please seek legal advice straight away. Do not wait until it is too late.

Nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office if you have any questions on 08 63238613. Unsure of what stage your matter is at, or what to do next? A solicitor form Kean Legal Barristers & Solicitors is ready to help.

In previous blogs, we have emphasized the importance of acting promptly if your Visa Application has been refused by a migration review tribunal.

Section 477(1) of the Migration Act 1958 (Cth) sets the time for compliance as 35 days.

That is over a month in order for a Visa applicant to take the steps needed to lodge an application for judicial review with the Federal Circuit Court in their State or Territory. That might seem like a long period of time, but when you factor in the time it takes to review a decision, research and prepare the application form there is a relatively small window of time to get all that done. 

It is not an unusual occurrence to see applications which have been refused because of non-compliance with the expressed time-limit. 

To take one example –

A migration review tribunal affirmed an earlier Department decision to refuse a student visa to an applicant on 20 October.

The judicial review application was not filed with the registry of the Federal Circuit Court until 26 November of that year.

Although the applicant may have believed that the application was only lodged a day ‘late’, the Court ruled that the delay was actually 2 days as the document had not been filed “within” the 35-day time-limit.

Although the applicant sought an extension of time under section 477 (2) of the Migration Act, his application was dismissed- see Scaddan v MIMA [2015] FCCA 1166.

All it took to bring the student Visa application process to an untimely end was for the filing to be 1 or 2 days late.  What a tragedy for the applicant concerned!

Surely this example (among many others that are recorded in the cases) brings home to Visa applicants that they need the professional assistance of a skilled migration adviser, preferably one with legal experience.

What happens if I near or past the time limit?

In some cases, we have been able to comply with the 35-day time-limit even when we were contacted by the Visa applicant with less than a day to file the necessary documents.

However, by leaving this vital task until ‘the last moment’, the risk of missing the important time- limit is heightened.  The quality of the application and documents themselves is also diluted.

Nevertheless, a last-minute compliance is infinitely better than a failure to comply with the all- important time-limit. If lodged in time, the application and supporting documents can often be amended during the course of the proceedings.

However, if you are past the time limit it is not the end of the world. An application for an extension of time can still be made, however this is another application you have to make. Those applications apply specific criteria (which is discussed in a separate blog).

But the additional work, expense and stress of an extension application will not be necessary if timely action is taken. As they often say, ‘a stitch in time, saves 9’.

The takeaway

Unfortunately, the type of assistance is needed before the problems arise (i.e. not afterwards when is often too late to give the help that is needed). Rather than wait till it’s too late, contact us before it becomes a problem. 

Feel free to contact our office line if you need any legal advice or help in preparing an application for judicial review. Call our office on: +61 8 6323 8613

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