Visa Refusals and Visa Cancellations
If you’ve had a visa application refused or a visa cancelled, you may be able to appeal the refusal or cancellation to the AAT (Administrative Appeals Tribunal).
What is the AAT?
The Administrative Appeals Tribunal, which is often called the AAT, is a statutory body with the power to review decisions made by the Department of Home Affairs case officers. The Department of Home Affairs used to be called the Department of Immigration and Border Protection.
These are some of the types of decisions that can be reviewed by the AAT:
- Decision to refuse a visa application
- Decision to refuse a nomination application
- Decision to refuse a sponsorship application
- Decision to cancel a visa
- Decision to bar a company from sponsoring
A Tribunal Member, who is essentially a judge, will take a fresh look at your case. They will assess the facts and listen to your side of the story, as well as considering any new evidence that is relevant to your case. The Tribunal Member must make a decision that is both fair and correct in law and has the power to overturn a decision, substitute another decision, or return a case to the Department of Home Affairs for reconsideration and with directions.
Although you can be represented by a migration agent or a migration lawyer at the AAT hearing, the Department of Home Affairs will not be represented. This means that an AAT hearing is not like a court hearing where you have opposing sides. Establishing the true facts and making a fair decision is at the very heart of an AAT appeal.
How long do you have to submit an Application for Review to the AAT?
Protection visa applicants – the time period for lodging an application for review of a protection (refugee) visa decision is 28 days (or 7 working days for applicants in immigration detention). The 28 days usually includes the day on which you received notice of the decision. If you are in immigration detention and you received notice of the decision on a Saturday, Sunday or public holiday, the time period for lodging an application for review is slightly different.
Other visa applicants – the time period for lodging an application for review of a decision, for example a decision to refuse a visa or a visa cancellation, is generally 21 days after the day on which notice of the decision was received. However, the timeframe can vary according to the type of decision and the method by which you were notified of the decision
The AAT does not have the power to extend the time period for applying for a review of a decision. This means that if an appeal to the AAT is not lodged within the specified timeframe, you will usually lose your rights to a review.
What happens after I’ve lodged an application to the AAT?
After you’ve submitted an application for review, the AAT will send you an acknowledgement letter and will ask the Department of Home Affairs to send the files and documents for your case.
The AAT can only review a decision if you have made a valid application for review.
If you have made a valid application for review, your case will eventually be allocated to a Tribunal Member. The review process can vary from case to case, and could include:
- asking you to provide further information
- inviting you to comment upon the facts that the Tribunal Member feels may justify not changing the decision made by the Department of Home Affairs
- inviting you to appear at the hearing in person, or by telephone/video, to give evidence and argue your case
- provide you with a statement of our decision and reasons.
The way in which your case is presented and the additional evidence provided (which can include witnesses) can have a significant impact on the outcome of your application. This is why so many people engage an experienced migration professional to prepare their application for review and represent them at the hearing.
Is an AAT hearing always required?
The short answer is NO – attending a hearing isn’t always necessary. If you are able to provide the AAT with solid documentary evidence to show that your visa application should have been approved (or that your visa shouldn’t have been cancelled) the Tribunal Member can review the additional evidence and your written submissions without ever having to speak to you. If your evidence and your written submissions are compelling, the Tribunal Member can replace your visa refusal or visa cancellation with a new decision or send your case back to the Department of Home Affairs and ask them to reconsider your application in the light of directions made by the AAT Tribunal Member.
An AAT Tribunal Member cannot grant you a visa. The Department of Home Affairs is the government body that will give effect to the decision of the Tribunal Member.
What happens if my application for review isn’t successful?
If the Tribunal Member affirms the decision made by the Department of Home Affairs, you may be eligible to lodge a further appeal. Your options might include an appeal to the Federal Court or an application for Ministerial Intervention. These are complex applications and many people will appoint a specialist migration lawyer to represent them. EasiVisa works closely with two excellent migration law firms, both of which are based in Perth, and we will be happy to introduce you.
How long does the process take?
The AAT website provides a guide to the AAT processing times. The AAT’s current average processing times can be viewed here.
Can I deal with the AAT appeal process myself?
The short answer is yes. However, it’s important to understand that the appeal process can be complex and very stressful, especially if you are not used to dealing with complex legal issues or appearing in courts and tribunals. The AAT hearing could be your last opportunity to have the facts of your case reviewed by an independent third party – the Tribunal Member. It’s important to make the most of this opportunity if you hope to have your visa refusal or visa cancellation overturned.
If you do decide to deal with the AAT application process yourself, we recommend that you visit the AAT website and carefully read the information provided.
Obtaining expert professional advice and assistance
Representing a client at the AAT requires an in depth understanding of migration law and policy. Easivisa’s Australian registered migration agents have a degree in law as well as specialist postgraduate qualifications and training in migration law. Three of our team worked as solicitors in their countries of birth and are very experienced when it comes to interpreting migration law and policy, researching relevant case law and advising our clients on the issues that affect their particular case.
If you would like professional advice and/or assistance about appealing a sponsorship, nomination or visa refusal or a visa cancellation, please arrange a consultation with one of our experienced migration advisors. We can discuss the issues involved with your case and advise on the prospects of your appeal succeeding. In addition, we can explore alternative visa options and visa pathways. Getting sound advice and assistance can make a world of difference to your future in Australia.
How much will it cost to apply to the AAT?
The fee paid to the AAT when you submit an application for review is AUD $1764.
Easivisa charges AUD $1000 plus GST to:
- discuss your case with you, and
- review relevant documentation, and
- advise on the prospects of your appeal succeeding, and
- advise you on other visa options, visa pathways or potential visa strategies, and
- submit your application for review with the AAT, and
- liaise with the AAT and the Department of Home Affairs regarding the grant of your new bridging visa (if you hold a BVA or a BVB).
If you want one of our team to represent you at the AAT hearing and/or provide additional documentary evidence and make a written submission to the AAT, we will be able to provide you with a detailed written quote for our services once we fully understand why your visa was refused or cancelled and what additional work needs to be done.