When the Department of Home Affairs refuses your nomination or visa application, it can come as a major blow.
Although you’re dealing with a very stressful situation, you need to be aware of your visa appeal rights and act in a timely manner.
Almost all onshore refusals have appeal rights.
When it comes to appeals, time really is of the essence.
Special measures are in place for hearings taking place during the Covid-19/Coronavirus pandemic.
The AAT is an independent merits review tribunal. It is independent from the Government and has the power to review various Government decisions.
In 2015, the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) merged with the Administrative Appeals Tribunal (AAT). The AAT is responsible for hearing cases related to visa refusals and cancellations.
This means you can lodge an application to the AAT to review the decision made by the Case Officer.
If your visa is refused and you have review rights, you can ask for the matter to be looked at by the AAT. The tribunal member will review the decision within the same legislative framework as the Case Officer who made the refusal.
If you want to appeal the decision, do not delay. The letter you receive from your Case Officer will show whether or not an appeal can be made and the timeframe within which an appeal must be lodged.
Not every visa decision can be reviewed by the AAT, but the vast majority can.
The way a decision is made depends on your individual case. The AAT may make their decision based on paper submissions or you may be required to attend in person.
Once an appeal is lodged, the AAT will send you, or the Registered Migration Agent representing you, a letter of confirmation. They will also notify the Department of Home Affairs that an appeal has been made.
Once the AAT member reviews your application, he or she will do one of four things:
The AAT has published several informative videos about what happens during the appeals process.
Our team has successfully managed many appeals over the years, including application refusals, sponsorship refusals and citizenship refusals.
AAT processing times depend on the subclass you have applied for.
The AAT has received a record number of applications in recent years which has impacted appeal processing times.
Average wait times for partner visa application reviews, for example, are over two years.
In most cases you will be able to remain in Australia on a bridging visa whilst your appeal is processed. Bridging visas normally come with the same conditions as the previous visa you had.
If your previous visa had full work rights, you’ll be able to work as normal whilst your appeal processes, even if it takes a year or two to be reviewed.
If you plan to travel overseas, it’s advisable to check the status of your review before doing so.
When your case is handed to an AAT Member for review, they may:
The approach taken is determined by your individual case and circumstances.
Sometimes the AAT can even make a decision before a hearing if the Member thinks the case can be decided in your favour based on the supporting documents they have already received.
If your case progresses to a hearing, you – or your representative – will receive a letter notifying you of the time, date and location.
Depending on your location and how the decision is being heard, your Registered Migration Agent may be able to attend your hearing with you or dial in remotely.
Don’t worry, a hearing is not the same as attending court. It is a relatively informal and there will only be one Member there to ask you questions.
You can request to take a support person along with you, such as a close friend or family member. Additionally, you can ask to bring any witnesses you have asked to give evidence on your behalf.
If you need someone to interpret for you, that can be arranged.
The process at most AAT hearings is as follows:
If your application fails, you may be able to apply for another visa. In certain situations, you may be able to make an application for ministerial intervention or take your case to court.
We have successfully managed many AAT appeals. We put together a detailed submission on your behalf by analysing current Case Law, interpreting the Migration Act and Regulations and reviewing the Case Officer Policy Advisory Manual. We also look at other ways your case can be strengthened, such as statements from business, community, social or political organisations.
We take a carefully tailored approach to every visa appeal because no two cases are ever the same.
We can determine your eligibility to appeal your visa refusal. Please complete our online assessment form and we will provide information on the steps, fees and process.
On 25 March 2020, special measures were put in place regarding AAT hearings during the Covid-19 pandemic. The AAT will not be holding face-to-face hearings for the foreseeable future.
Visas are refused for many reasons, but some include: