If your visa application has been refused, you may be able to have your decision reviewed by the Administrative Appeals Tribunal (AAT). This will be completed in the AAT’s Migration and Refugee Division (MRD). This gives you the opportunity to have an independent, third-party body review and reconsider your case afresh. This article will set out the key steps you should take if you intend to apply to the AAT.

What Is the AAT?

The AAT is a body that conducts independent reviews of government decisions, including visa decisions. The AAT will step into the shoes of the original decision-maker and take a fresh look at the case. They will then arrive at their own decision. The AAT has the power to:

  • affirm a decision;
  • vary a decision;
  • set aside a decision and substitute a new decision; 
  • send a decision back to the original decision-maker for reconsideration; or
  • dismiss the application if you fail to appear at the hearing.

In comparison to court proceedings, the AAT offers a review process that is often more:

  • accessible;
  • economical; 
  • informal; and 
  • quick

If you intend to apply to the AAT, you should take the following six steps.

1. Ensure You Are Eligible to Apply

Not everyone is eligible to apply to the AAT to have their visa decision reviewed. The decision letter that you received from the Department of Home Affairs (DOHA) will specify whether you have this right. Typically, those who applied for their visa application within Australia will have the right to appeal the decision.

Typically, the AAT will be able to review your decision if

  • you are outside of Australia, but have a sponsor or nominator;
  • you are outside of Australia, but was formerly a permanent resident and have close Australian family;
  • the refusal or cancellation occurred while you are in Australia;
  • you are outside Australia but, for a partner visa, were initially granted a prospective marriage visa; and 
  • you are outside of Australia but are intending to visit close Australian family.

Some decisions cannot be reviewed by the AAT. 

For example, the AAT MRD cannot review your decision if your visa has been refused or cancelled because you did not satisfy the character test. However, it could be examined in the AAT’s General Division. 

Decisions on character grounds that have been made by the Minister personally are not reviewable by the AAT. If your application has been refused on these grounds, your only legal option is to appeal in the Federal Court of Australia. Your decision letter will explain whether your decision can be reviewed.

The decision letter will also set out who can apply for review. This person could be:

  • yourself;
  • the formal visa holder; 
  • a sponsor or nominator; or 
  • a close relative of an applicant.

2. Ensure You Are Within the Time Limit

The decision letter that DOHA has sent you will specify how long you have to lodge an application for review with the AAT. The time limit is usually 21 days from the date of the letter.

This time frame cannot be extended, and applications made outside the time limit are rarely accepted. Therefore, if you intend to apply to the AAT, it is essential to act as soon as you receive the decision letter.

3. Complete and Lodge an Application

To apply to the AAT for review, you must complete an ‘Application for Review’ form, which you can download from the AAT website. If you are in immigration detention, there is a separate application form that you will have to fill out. 

The best way to lodge your application is online through the AAT website. You can also submit your application: 

  • by post; 
  • through fax;
  • in person; or 
  • by email. 

In most cases, you will also need to pay an application fee when lodging your application. This fee may be partially refunded if your application review is successful.

4. Prepare for the Hearing

Once you have filed your application, you will receive a letter from the AAT confirming that they have received your application. The AAT will then inform the DOHA of your application for review and request a copy of any relevant documents for your case.

After your case has been allocated to an AAT member and they have reviewed your documents, they may then:

  • invite you to attend a hearing;
  • ask you to provide further information; or 
  • ask you to comment or respond to information.

If the AAT has invited you to a hearing, you should start preparing by:

  • reading and collating all the relevant documents for your case;
  • providing any new information that you would like the AAT to consider; and
  • preparing any arguments that you want to present.

It is very helpful to seek advice and representation from a migration agent or lawyer during this process. A migration agent and lawyer will manage your application for review and work closely with you to present the most persuasive case possible.

5. Attend the Hearing

The letter sent by the AAT will confirm the date, time, and location of your hearing. In most cases, you will need to attend the hearing at one of the AAT offices. 

The parties present at the hearing will usually be: 

  • yourself;
  • your legal representative (if any); and 
  • the AAT member. 

You may also request to have an interpreter or support person if required.

At the hearing, you will have the opportunity to present your case in front of an AAT member. The process of the hearing will vary depending on the decision under review. However, it will usually involve the following stages:

  1. the AAT member will briefly discuss the issues that they must decide on;
  2. you will be asked to give evidence and answer questions;
  3. you will be asked to provide a summary of your arguments.

Most AAT hearings take between one and three hours, but it can take longer than this depending on the complexity of your matter. If you do not attend the hearing, the AAT may dismiss your application or make a decision without contacting you.

6. Review the AAT’s Decision

The AAT member may announce their decision at the end of the hearing. However, in most cases, they will send you a written statement of their verdict once they have made their decision after the hearing. The time it takes for the AAT to make a decision varies between each case.

The AAT has a range of powers when reviewing government decisions. In migration reviews, they will usually either:

  • agree with the DOHA and uphold the original decision; or
  • disagree with the DOHA and send your matter back to reconsider your application again in accordance with their recommendations.

It is essential to read the AAT’s written statement of their decision and reasons for the decision carefully. The AAT will notify the DOHA of their decision, who will then be responsible for implementing it. 

If you think the AAT’s decision is wrong, you may be able to appeal the decision to the Federal Court of Australia. However, the Federal Court will only consider your case if there has been a legal error in the decision.

Key Takeaways

Appealing your visa refusal or cancellation to the AAT gives you the opportunity to have an independent body review your case and make their own decision. If you intend to apply to the AAT, you should ensure that you:

  1. are eligible to apply;
  2. are within the time limit;
  3. complete and lodge the relevant application;
  4. prepare for the hearing;
  5. attend the hearing; and
  6. review the AAT’s decision.

If you need assistance with a visa refusal or cancellation and applying to the AAT, contact LegalVision’s immigration lawyers on 1300 544 755 or fill out the form on this page.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
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