In event when your Visa application is refused or Visa is cancelled onshore by the Department of Immigration and Border Protection, you may have Right to apply for a review of the decision of the delegate of the Minister for Immigration & Border Protection. In some cases merits review can also be lodged before the AAT relating to approval and cancellation of sponsorship and nomination. The merits review of the decision is heard and decided by the MR division of the Administrative Appeals Tribunal. The AAT has power to affirm, set aside or
Below is some information on how the appeals process works.
What is the AAT?
The Administrative Appeals Tribunal (AAT) is the merits review body for most administrative decisions by the Federal Government. In 2015, the operations of the Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT) were absorbed into the Migration and Refugee Division of the AAT.
In the Migration Division, the AAT operates as a non-adversarial tribunal to review decisions by the Department of Immigration. This means that you can be represented by a Migration Agent, but that there is no representing counsel on the Department of Immigration side. Decisions are made by a tribunal Member who will review the Department of Immigration’s decision and the facts of your situation.
Strict limited time frame for Appeal to the AAT
Limitation period applies to all Merits review applications. Importantly, you must lodge your appeal to the AAT within 21 days of the day of the decision of the Department of Immigration & Border Protection. However, the time frame can vary depending on the type of decision and the method by which you were notified of the decision. In some cases the limitation period to apply for the review/revocation may be 7 days.
If the appeal is not lodged within this time frame, you would in general lose your right to review.
Merits Review of a Decision by the AAT
When applying for a merits review before the AAT, a new decision is made on the facts of your case. The legal maxim de novo applies in strict legal sense. This means that the matter is heard starting from the beginning, a fresh. The review applicant gets an oppurtunity to submit/present any new evidence or supporting documents/witness before the AAT learned member. The AAT has powers to set aside the original decision of the DIBP. However, all merits reviews are decided on the basis of applicable Migration legislation.
The decision of the AAT is final (Privative clauses decision) and cannot be further reviewed unless effected by jurisdictional error or say ‘error of law’. In such situations where there is legal error in the decision of the AAT, the aggrieved party may have option to apply for Judicial review before the appropriate court of Australia, in most cases Federal Circuit of Australia. The Court of law mostly only hear the highlighted legal error(s) into the matter and rarely undergo facts of the case but may undergo any fact(s) if it deems fit to do so for proper dispensation of justice.
Hearings before the MR Division of the AAT
Once you have applied for merits review of your visa refusal or revocation of your visa cancellation before the AAT, the AAT may call you for hearing or number of hearings if it deems fit to the AAT member. Hearings are generally conducted face-to-face with the AAT Member who will make a decision on your review application.
As a review applicant you may request the AAT member to call witnesses in support of your matter. The AAT has powers to summon a witness. In most cases, you have the opportunity to adduce/submit evidence either ocular or documentary or both to support your case, and you may also produce witnesses before the AAT. The Member will generally take the opportunity to ask questions to clarify the facts in your situation and may accept your request for witnesses.
The hearing is core to the merits review, therefore as an applicant you must be prepared and aware of the procedures of the hearing. Your preparation before the day of hearing is key to success apart from the merits of the case.
Decision-Outcomes of Merits Review
Keeping in view the facts and circumstances of each case, the AAT may decide the matter just after the hearing is concluded or as soon as possible. The AAT may decide either affirm the decision of the delegate of the Minister or may set aside the original decision and/or remit the matter to DIBP for reconsideration.
In the case of visa refusals, if the AAT remits the decision, your case will be forwarded back to the Department of Immigration for further assessment. The Department of Immigration will then look at any remaining requirements for grant of the visa (eg health and character).
Options after failed AAT Review
If the AAT affirms the decision, you may be able to lodge a further appeal. The two most likely options would be to the Federal Circuit Court or an application for Ministerial Intervention.
You may consider appealing to the Federal Circuit Court if you think that there is a legal error in the decision by the AAT. This would be the case if the AAT applied the wrong test in determining your eligibility for the visa or did not provide you appropriate procedural fairness in making a decision (eg not considering all relevant information)or if you think Principles of Natural justice have not been adopted whilst deciding your merits review application. The Federal Circuit Court mostly do not revisit into the facts of your case unless the court deems fit or just- you must establish that the reviewing body (AAT) has committed a legal error while disposing the merits review application.
Another option available to you is MI, you may apply for Ministerial Intervention only after merits review if you think that there are compelling grounds for grant of a visa, even though you do not meet the usual visa requirements. The Minister for Immigration and Border Protection may personally intervene into the matter to grant you a temporary or permanent visa or substitute subclass 600 visa, only in rare matters which fall into the category of Public interest and having compelling or compassionate grounds.
Fateh Visa Experts (FVE) are expert in AAT Appeals
The appeal process can be very daunting and stressful. It is very important to make the most of your opportunity for merits review, as you may not have another chance to have the facts of your case assessed.
Representing clients at the AAT requires a comprehensive knowledge of visa requirements, the ability to research relevant case law and expertise in the processes and procedures of AAT appeals.
Fateh Visa Experts (FVE) has represented clients successfully at the AAT on many occasions. If you would like advice and assistance in making an appeal for your refusal or cancellation, please book a consultation with one of our Registered Migration Agents. In the consultation we can give you an indication of the overall prospects of success and likely issues in your case, as well as any alternative visa pathways.
If you decide to have FVE act on your behalf, we can guide you through the appeals process to achieve a successful outcome.