Information on appealing an Australian migration matter
If your Australian visa application has been refused or your visa cancelled you may be eligible to have that decision reviewed by the Administrative Appeals Tribunal.
The majority of decisions made in Australia can be reviewed, including a certain of decisions made overseas however strict time limits do apply.
In this article we will explain what is involved in an appeals process and what options you have available.
The Administrative Appeals Tribunal (AAT)
All migration matters are heard at the Administrative Appeals Tribunal (AAT).
What can a review of your visa decision do?
The Administrative Appeals Tribunal can make the following decisions on your case:
- Affirm the primary decision – this means that the AAT does not change the initial decision
- Vary the primary decision – this means that the decision made may be varied according to the findings of the AAT
- Set aside the primary decision and substitute a new decision – The AAT can over-ride the decision and make a new decision
- Remit the matter back to the Department – this means the AAT will order the application to be sent back to the Department with specific instructions when re assessing the application.
Can all decisions be reviewed?
As mentioned above, the majority of decisions of applications made in Australia can be reviewed as well as a range of decisions that have been made while the applicant is overseas. The Migration Act 1958 (Cth) and the Migration Regulations 1994 specify exactly which applications can be reviewed according to each unique circumstance.
The easiest way to establish whether your decision can be reviewed is to check your refusal notification that the Department issues you with. The notification will have information on whether your application can be reviewed or not.
However, in some cases the case officer may make an error and not properly notify you of your review rights. It is always best to seek advise to see what options may be available if you believe your visa refusal/cancellation does have review rights.
How do I apply for a review?
An application for review of a migration decision is to be made directly to the Administrative Appeals Tribunal also known as the AAT. The AAT is an independent body of the Department of Home Affairs and has the ability to review the decision however is still bound by the same legislative framework applicable to Australian Migration Law.
How long do I have to make an application for review?
It is very important to acknowledge that applications for a review at the Administrative Appeals Tribunal have extremely strict time limits.
In most cases, if you do not make the application within the time specified you will not be able to have your matter reviewed.
The time limit that you have is subject to the decision that is being challenged however your refusal or cancellation notice will outline how long you have to apply for a review of the decision.
What happens at the Administrative Appeals Tribunal?
The AAT will consider your application from the start, it will take into consideration all the documentation, evidence, forms, and any information you have provided to the department, and will also take into consideration any further evidence you are able to provide.
It is important to also be aware that the AAT has the authority to conduct its own investigations into your matter by contacting your relatives, employers, friends and/or associates.
What is the process of a review?
Firstly, you will need to lodge your application for review within the specified time limit.
Secondly, you or your nominated representative will be contacted with acknowledgement that your application has been received and ask you to provide any documents that may be of relevance to your review.
Thirdly, you or your nominated representative will be contacted with a hearing date if a favourable decision is unable to be made based on the information you have provided.
Fourthly, you will be invited to attend a hearing that is conducted by the AAT to conduct your review.
Finally, upon the completion of your hearing you will be advised by the AAT that a decision will be made on your review and you will receive a written notification of this decision.
How long does a hearing take at the AAT?
The processing times of reviews vary depending on the work-load of the tribunal however waiting times are generally between 9 – 13 months before your hearing is heard.
If compassionate circumstances exist you may be able to apply for a priority hearing, however this must be applied for as soon as possible. There a range of compassionate circumstances that may warrant the grant of priority processing such as:
- suffering from a serious medical condition
- experiencing financial hardship
- separation from a parent, child, or carer.
When making an application for priority processing, you must provide evidence to the AAT to support your claims of compassionate circumstances to justify the grant of priority processing.
Can I get assistance for my review?
Ethos Migration has a vast array of experience in achieving positive outcomes for reviews. The review is based off the information and further evidence you can provide to support your appeal and this takes experience, preparation, and industry knowledge.
At Ethos Migration Lawyers, we take the time to fully understand our client’s needs and formulate a strategy that can provide the best possible outcomes.