Appealing a Visa Decision

If you have received a refusal or cancellation notice from the Department, you may be able to appeal the decision at the Administrative Appeals Tribunal – most often in the Migration and Refugee Division – depending on the visa subclass and the reasons for refusal or cancellation. The AAT acts independently of the Department of Home Affairs, and will assess cases on their own merits.

What the AAT can do

After your hearing, the AAT will either:

• Affirm the decision made by the Department to refuse or cancel your visa;
• Set aside the decision made by the Department and substitute it with a new decision; or
• Remit the matter to the Department for reconsideration.

If the decision is overturned or remitted, you will be refunded 50% of the AAT application fee.

Timeframe for Appeal

If you are entitled to review rights, the most important thing to note is that you must submit your application for review within the applicable time limit, which is typically 21 days. Time limits are strictly enforced and cannot be extended, so you will need to act quickly.

Remaining in Australia lawfully

After lodging an appeal, you can continue to stay in Australia on your Bridging Visa, which will remain in effect until your appeal is heard and a decision is made. If the decision of the Department is upheld by the AAT, you will have 35 days to leave Australia (assuming your visa was applied for after November 2016), apply for a new visa (if you are eligible), or to appeal the decision to the Federal Circuit Court on the basis of jurisdictional error.

Waiting for a Hearing

Even though applicants must lodge their appeals within a short timeframe, once the application has been submitted, some cases can take up to 2 years – and sometimes longer – to be allocated for a hearing due the high number of cases being appealed to the tribunal.

In exceptional circumstances, you can apply for priority processing of your review – however, you will need to provide supporting evidence and detailed reasons why your case deserves to be moved forward in the queue.

Refusal on Character Grounds

Hearings for decisions made on character grounds occur in the General Division of the AAT as opposed to the Migration and Refugee Division.

These include refusals or cancellations of visas, including protection visas, based on failure to meet section 501 of the Migration Act 1958. Character-related decisions are often extremely complicated and notoriously difficult to appeal successfully.

Options after AAT

It is also important to note that in order to be able to eventually apply for Ministerial Intervention, an appeal must be submitted to the AAT with the original decision being upheld. Ministerial Intervention is only a pathway if your case involves unique or exceptional circumstances.

If you or we are of the opinion that the tribunal made jurisdictional error when making a decision on your matter, there are also options to have your matter escalated to a judicial review, and heard in the Federal Circuit Court or the Federal Court of Australia.

Next Steps

If you find yourself having to decide what steps to take after having had a visa refused or cancelled, it is strongly recommended that you seek appropriate legal advice to help you determine the best avenue to pursue and advise whether you have good prospects for success on appeal.

Should you choose to engage Ethos Migration Lawyers to represent you during your appeal, we will:

• Undertake a thorough assessment of the original application and supporting documents, along with the Decision Record itself, to determine the weaknesses in your case;
• Research and write a comprehensive submission, addressing the regulations applicable to each element of the Decision Record, and analysing relevant law in support of your case;
• Look into ways to strengthen your evidence and fill in any information gaps to ensure that the concerns raised in the Decision Record are refuted;
• Provide representation on the day of your hearing;
• Remain available to you throughout the process for any queries you may have; and
• Explain what the next steps are once your hearing has been completed.