If you have received a ‘Refusal Notification’ or your substantive visa has been cancelled by the Department of Immigration and Border Protection you may have the ability to apply to the Administrative Appeals Tribunal (AAT) to have your application ‘freshly’ reviewed on it’s individual merit.
All refusal notifications from the Department must specify whether your application has rights for review. In most cases, the rights for review is for 21 days, meaning that an application for review with the Administrative Appeals Tribunal (AAT) must be lodged within 21 days. If the review application is not lodged within 21 days, the tribunal will not, under any circumstances accept your application.
Once your application has been lodged, you will be contacted with a date of your hearing in line with the tribunals current processing times.
What is the Administrative Appeals Tribunal (AAT)?
The Administrative Appeals Tribunal is to reconsider adverse decisions made by the Department of Immigration & Border Protection for visa and sponsorship applications and nominations. The Tribunal has the ability to reconsider all the available evidence presented before it, consider new evidence and make a new decision on the outcome of the visa application.
What power does the tribunal have?
In most cases the Administrative Appeals Tribunal makes the following decisions after considering all the evidence:
- Affirm a decision – that is, they Tribunal agrees with the original decision and makes no further recommendation.
- Set aside a decision and substitute a new decision – in this case, the Tribunal can substitute your decision from the Department with a new decision.
- Remit the decision back to the Department for reconsideration – this is when the Tribunal sends the application back to the Department which clear instructions to the Department advising their findings.
In some cases, a favourable decision can be made without a hearing.
In some cases, based on the information presented to the Administrative Appeals Tribunal (AAT) prior to the hearing, the tribunal, or presiding Member who will be assessing your case has the power to make a favourable decision on your case prior to a hearing taking place.
In these cases, the Member has reviewed the case, and clearly identifies the error made by the Department, this is usually done by a strong legal submission to the tribunal by the client’s representative. The Member will then review the case, and provide a favourable decision to the applicant without the requirement of a formal hearing.
How to prepare for an review hearing at the Administrative Appeals Tribunal
The first step in preparing for your hearing, is fully understanding on what legal basis the Department has refused or cancelled your visa. In some cases, if it is clear a certain regulation has not been met such as failing to provide a ‘Time of Application’ document when lodging your application it may not be viable to review your decision as the tribunal has no power to ‘change the law’. However, if you beleive that the Department has made an error when assessing your application, or on the grounds of their refusal or cancellation it is critical to fully understand why, and assess what evidence can be provided to present to the tribunal.
The main aim of a review, is to satisfy the tribunal that the Department of Immigration has made an error when assessing your matter and as such, should be remitted to the Department for re-consideration.
To properly present your case, research is required to look at why the Department has made that particular decision, what evidence has been used, what information the Department relied on and what evidence you can provide to to support your case.
Prior to the hearing, it is also equally important to provide the tribunal with further evidence and documentation that you will be relying on in at your hearing as well as a comprehensive legal submission outlining your position on the matter.
Do you need professional legal representation at your hearing?
It is not a requirement to be represented by a lawyer or registered migration agent at an Administrative Appeals Tribunal hearing. However, in most immigration related cases clients seek representation from a Registered Migration Agent to assist in reviewing their matter, and putting forward the strongest possible case for a successfull outcome.
How can Ethos Migration assist?
If you are considering appealing a decision from the Department of Immigration & Border Protection (DIBP) at the Administrative Appeals Tribunal, Ethos Migration is well placed to ensure you are prepared and provide the Tribunal with all the facts to support your case.
Our team of Registered Migration Agents will work tirelessly to ensure your case has the best possible chances of success and will work with you each step of the way to develop and implement a strategy that works.