You are not legally required to use a lawyer when applying for an Australian visa. Some applicants successfully prepare and lodge straightforward applications themselves.
However, Australia’s migration legislation is complex and visa requirements change frequently. An application that appears straightforward may involve questions about eligibility, evidence, visa conditions, previous applications, health, character or immigration history.
Obtaining legal advice before lodging can help you understand the available pathways, identify potential problems and make an informed decision about how to proceed.
Who Can Provide Immigration Assistance?
Under Australian law, a person providing immigration assistance must generally be:
- A registered migration agent
- An Australian legal practitioner
- An exempt person permitted to provide limited assistance without charging a fee
Immigration assistance includes advising about a visa matter, preparing or helping to prepare an application and representing a person in proceedings before a court or review authority.
Applicants should verify the qualifications and authority of anyone offering migration assistance.
Can I Prepare My Own Visa Application?
Yes. Whether self-lodgement is appropriate depends on the visa and your circumstances.
A straightforward application may be manageable where:
- The eligibility criteria are clear
- Your immigration history is uncomplicated
- You have no previous refusals or cancellations
- There are no health or character concerns
- The required evidence is readily available
- You understand the questions and documentary requirements
Professional advice may be more valuable where the application involves legal uncertainty, competing visa pathways or potentially serious consequences if an error is made.
Choosing the Appropriate Visa Pathway
Selecting a visa involves more than completing an online form.
Before applying, it is important to consider:
- Whether you satisfy the criteria for the visa
- Whether another visa may be more appropriate
- Where you must be when the application is lodged and decided
- Whether your present visa permits a further application
- Whether Schedule 3 or another legal restriction may apply
- The consequences of any previous refusal or cancellation
- The conditions that may attach to the proposed visa
- Whether family members can be included
- The effect of the application on your current immigration status
Paying an application charge does not mean the visa will be granted. Visa application charges are generally substantial and may not be refunded merely because an application is refused.
Preparing the Supporting Evidence
The evidence required depends on the particular visa.
It may include:
- Identity and civil-status documents
- Relationship evidence
- Employment and qualification records
- Skills assessments
- Sponsorship or nomination documents
- Financial records
- Health examinations
- Police clearances
- Character information
- Statements and submissions addressing legal criteria
Uploading a large number of documents does not necessarily strengthen an application. The evidence should be relevant, consistent and directed to the applicable criteria.
A lawyer can identify the issues requiring proof, advise what evidence is relevant and prepare legal submissions where necessary.
Avoiding Invalid Applications and Unnecessary Errors
An application may be invalid if mandatory requirements are not satisfied when it is lodged. An invalid application is not determined on its merits.
Other errors may result in:
- Requests for further information
- Delay
- Inconsistent evidence
- Adverse credibility findings
- Refusal
- Loss of review rights
- Difficulties with later visa applications
A lawyer cannot guarantee that an application will be valid or successful. Legal assistance can, however, help identify risks and ensure that the application addresses the requirements known at the time of lodgement.
Previous Refusals or Visa Cancellations
Legal advice is particularly important if you have:
- Previously been refused a visa
- Had a visa cancelled
- Breached a visa condition
- Overstayed a visa
- Provided incorrect information in an earlier application
- Received a notice from the Department of Home Affairs
- Been affected by a criminal charge or conviction
- Been asked to comment on adverse information
- Been told that a bar or exclusion period may apply
These circumstances may affect eligibility, the validity of a further application and available review rights.
Health and Character Issues
Visa applicants may need to satisfy health and character requirements.
Potential issues can include:
- A medical condition requiring significant treatment
- A criminal record
- Pending criminal charges
- Domestic or family violence information
- An adverse security assessment
- Allegations that false or misleading information was provided
- Association with individuals or organisations of concern
The existence of an issue does not always mean that a visa must be refused. The applicable test, available evidence and any discretion depend on the relevant legislation and visa pathway.
Visa Refusals, Cancellations and Reviews
Some visa refusal and cancellation decisions can be reviewed by the Administrative Review Tribunal. Other decisions may be challenged through judicial review where a jurisdictional legal error is alleged.
Not every decision is reviewable, and strict time limits apply. Some statutory time limits cannot be extended.
If you receive a refusal, cancellation or notice of intention to consider cancellation:
- Read the notice immediately.
- Record when and how it was received.
- Keep the email, envelope and attachments.
- Do not assume the time limit runs from when you later obtain advice.
- Obtain advice promptly about available response or review rights.
A lawyer can advise whether merits review, judicial review, another visa application or another course is legally available.
Does Using a Lawyer Make Processing Faster?
Not necessarily.
Visa processing times are controlled by the Department of Home Affairs and depend on factors including the visa category, government priorities, application volumes, verification requirements and the circumstances of the individual application.
A carefully prepared application may reduce the risk of avoidable omissions or inconsistencies, but no lawyer or migration agent can guarantee priority processing, a particular timeframe or approval.
Be cautious of anyone promising a guaranteed visa or guaranteed processing period.
Immigration Lawyer or Registered Migration Agent?
Both Australian legal practitioners and registered migration agents may provide immigration assistance.
A legal practitioner may be particularly appropriate where a matter involves:
- Statutory interpretation or complex legal questions
- Visa refusal or cancellation
- Administrative Review Tribunal proceedings
- Judicial review
- Character issues
- Interaction with criminal or family law proceedings
- Urgent court applications
- Other legal disputes affecting immigration status
The appropriate representative depends on the complexity of the matter, the services required and the person’s qualifications and experience.
When Should You Obtain Advice?
Consider obtaining advice before lodging if:
- You are uncertain which visa is appropriate.
- Your current visa is close to expiry.
- You have had a previous refusal or cancellation.
- You have a criminal or adverse immigration history.
- Your relationship or employment evidence is complicated.
- You are relying on an exception, waiver or discretion.
- Your matter involves sponsorship or nomination obligations.
- You have received correspondence requiring a response.
- A review or response deadline may apply.
Obtaining advice before an application is lodged is often more effective than attempting to correct a problem after a decision has been made.
Speak to an Immigration Lawyer
Aspire Legal advises and represents individuals, families and businesses in visa applications, sponsorships, refusals, cancellations and migration review matters.
Call 02 8806 2299 or email info@aspirelegal.com.au to arrange a consultation.
This article contains general information only and is not legal advice. Visa eligibility and available options depend on the legislation, policy and individual circumstances at the relevant time.