Should you hire an immigration lawyer if your visa application been refused, or has Immigration cancelled your visa?

If you are considering applying to the Administrative Appeals Tribunal (AAT) to have the decision reviewed (commonly known as an appeal), it is important to be aware that you can get help with your application. Immigration specialist lawyers and Registered Migration Agents (RMA) are trained professionals in migration law in Australia and can offer to assist you with your case by utilising their knowledge, skills and experience to represent and guide you through what can be a very stressful time, with the goal being to help you to achieve a successful outcome in your case. These trained professionals know the ‘ins and outs’ of the process and how to present your case in the best possible way, which may be very beneficial to your appeal. Lodging a review application is, in most cases, your last best chance to present your arguments, accompanied by appropriate supporting evidence, as to why you should be granted a visa, or in the case of a visa cancellation, why the Department made the incorrect decision in cancelling your visa (note that there may be avenues to further appeal the decision should the AAT review result in a negative result, but this would only be the case where there are exceptional circumstances). It is therefore vital that you use this opportunity as effectively as you can and consider the potential benefits and/or implications of appointing a representative versus preparing your own application and representing yourself in the review.

One critical point to note is that if you find yourself in this position, you must act quickly. The migration provisions impose strict time limits for applying for a review and the Tribunal has no discretion to make any exceptions to these rules. Time periods range from between 7 working days to 70 calendar days. If you miss the deadline for submitting your application, you will lose your opportunity to appeal your case. With this deadline in mind, you should also ensure that you leave yourself plenty of time to allow for any issues and/or mistakes in your application should they arise, such that you will have enough time to rectify the issue (if possible) and still stay within the review lodgement deadline. Consider the scenario where you decide to prepare your own application and make a mistake in the form, resulting in the application being deemed invalid. You would then need to re-apply for the review, provided you have not passed the deadline for applying, in which case you will lose your chance to appeal. If you do miss the deadline, you will need to revisit your options for obtaining residence in Australia going forward (which may also include leaving Australia if no further options are available at that time). Therefore, you should act promptly and proceed as quickly as possible, whether that be seeking advice or lodging the review application yourself.

In this article, we discuss the ways in which a migration agent or immigration lawyer can assist you with your appeal, and the potential benefits that this may bring to your case. The decision as to whether to appoint a representative to act on your behalf for the review is ultimately a decision that you will need to make based on your personal circumstances and preferences, but knowing that there are skilled professionals out there who are available to help you, and being informed about what a migration agent or immigration lawyer can do to strengthen your case, will place you in the best position to decide how to proceed in this regard. Our aim in this article is to provide you with this information so that you can make the decision that is right for you.

Appointing a representative for your appeal

You can appoint any individual to act as your representative for your appeal (for example, a family member or your sponsor), however, immigration assistance can only be provided by a registered migration agent. Under the Migration Act 1958, a person provides ‘immigration assistance’ if they use their knowledge or experience in migration procedure to assist an applicant to prepare for a review and/or to represent the applicant in their case.

All migration agents must be registered with the Office of the Migration Agents Registration Authority (OMARA). They must also abide by a Code of Conduct as they carry out their role as a migration agent. All immigration lawyers representing clients at the AAT and Department of Immigration are migration agents.

If you do decide to appoint a migration agent to represent you at the AAT, you will be required to complete and lodge a specified form with the AAT, signed by both yourself and your representative, to notify the Tribunal of the appointment. This form will also include the contact details for your representative which are to be used for communications regarding your review application. Note that you must also notify the AAT in writing should you change your representative, cancel their authority to act on your behalf, or if their contact details change.

How can an immigration lawyer or migration agent help you in your appeal?

A migration agent is a trained professional in the migration laws of Australia and will use their skills, knowledge and experience to ensure that your appeal is thoroughly researched, prepared and accompanied by supporting evidence so that you present to the AAT a strong and compelling case. A good migration agent will investigate a range of sources as they gather documents and prepare your application, some of which are not publicly available (one example being Departmental policy, which sets out how Immigration interprets and applies the migration law in deciding visa applications).

A migration agent and immigration lawyer can assist you with your appeal in the following ways:

  • Conduct a review of your case and provide advice about your prospects should you proceed with an appeal
  • Advise about matters relating to your visa status and other potential visa options should these be available to you. Important questions about issues that arise in relation to the review will be explored such as:
  • Your visa status in Australia if you apply for the review
  • Your rights and obligations whilst you await an outcome on your application (for example, work and travel rights)
  • Further avenues of appeal (if any) should your application be unsuccessful
  • Advise about the review process and procedures that will apply, including such matters as the deadline for submitting your review application, who the applicant must be, and the fees and charges that will apply. Note that the migration provisions set strict conditions regarding all matters relating to the appeals process and which the AAT is bound to follow as it conducts its review of your case. The Tribunal has no discretion to make exceptions should you fail to comply with these requirements. It is therefore critical that you are fully informed about, and abide by, these conditions, as they apply to your case
  • Prepare strong written submissions to be lodged as part of your review application, which can result in the Tribunal Member deciding your case without the need for a Tribunal hearing. Submitting written submissions presenting arguments for your case are a key aspect of the appeal as they are your opportunity to outline why you think the Department erred in making its decision. Given its importance, we expand further on this point below.
  • Obtain referrals for expert reports in your favour to add to the supporting evidence to be submitted with your review application
  • Communicate with the AAT, request access to documents in relation to your application and accompany you to a Tribunal hearing, should it be required for your case. 

Written submissions

As noted above, a key aspect of your review application is the preparation of written submissions to present arguments in support of your case. This is a valuable opportunity to explain to the Tribunal Member why the Department was incorrect in making the decision that it ultimately came to in your case. An RMA will prepare written submissions such that they:

  • Address the reasons for the refusal or cancellation clearly
  • Include case law authorities to support your submissions – developing and presenting legal arguments with reference to previous cases of relevance are a key aspect of the written submission and requires conducting in-depth legal research. Your RMA will consult widely into a range of decisions made by the Tribunal as well relevant decisions made in the judicial system (i.e. courts) on migration-related matters (for example, the Federal Court of Australia). RMA’s have a wealth of experience that they can draw upon to develop legal arguments in support of your case, for example, having an understanding of why a particular law was introduced and how it relates to your circumstances.
  • Provide strong documentary evidence to support your submissions, including providing expert reports
  • Refer to Departmental policy – these materials are not publicly available but are accessible to your RMA. Policy is an important reference tool for all matters relating to the migration programme as they set out how the Department interprets and applies migration law. Although the AAT is not bound by policy, it is nevertheless a helpful tool when formulating legal arguments as they relate to your application
  • Present your arguments clearly and persuasively, based on all of the above sources (i.e. legislation, case law and Departmental policy) to build a strong case on your behalf and present comprehensive and well researched submissions for your case.

Tribunal hearing

The AAT may determine that a hearing is required as part of its review into your application. If this occurs, you will have the opportunity to present your case to the Tribunal, acting in its capacity as an independent third party, and provide oral evidence in support of your claims. It is designed to be an informal process (so as not to present like a court room) and no representatives from the Department are present.

You can have your representative attend your hearing to provide advice and support. However, they cannot in general formally address the hearing and present oral arguments; but only comment if requested to do so by the Tribunal Member (for example, they may be asked a question about a specific matter by the Member).

If you have appointed a migration agent to assist you with your case, they will be able to accompany you to your hearing and provide support. Although they will be unable to address the Member (unless specifically requested to do so), you may find that having them there with you will help you to feel more confident and assured during the course of the hearing.

Where a hearing is required for your case, you will receive an invitation to attend, which will include a response form where you should include details for other persons who will be attending the hearing with you, as well as any witnesses who you would like to speak at the hearing to provide evidence.

If friends or relatives accompany you to your hearing, an AAT officer will ask you whether they will be giving evidence, or if they will be assisting or representing you.

For persons assisting or representing you, the officer will ask for identifying information (if not previously provided) as well as information about the type of evidence they might provide and their relationship to you.

Your migration agent can help you to prepare for the Tribunal hearing by conducting mock interviews and can also help your witnesses to prepare their testimony to be presented at the hearing. Being well prepared for your hearing is an important element of the process as it will help you and your witnesses to present confidently before the Tribunal Member, and answer questions that are posed. This will also allow you to anticipate questions that may be asked and be in a better position to answer them confidently and correctly.

Your migration agent will also ensure that you receive a fair hearing. They will advocate for your rights and make sure that all procedures are followed in the course of the review, including the hearing. RMA’s have the knowledge and insight into how the hearing must be conducted and will carefully observe proceedings to ensure that all procedures are followed correctly. For example, the Tribunal Member is not permitted to ask an individual to leave the hearing unless there is a valid reason. If this occurs in your hearing, your RMA will make a judgement about whether a valid reason is provided and will raise this with the Tribunal Member where required.  You also have the right to request more time at the hearing, which the Tribunal must grant in a number of specified circumstances. Having access to this information through your RMA is invaluable for your appeal proceedings – being fully informed will provide you with the best chance of a successful outcome.

Conclusion

In conclusion, the above discussion outlines how an immigration lawyer and migration agent can assist you with your appeal and the benefits it may bring to your application. We recommend that you carefully consider the points raised in this article as you decide how to proceed with your own application. Being fully informed will place you in the best position to make the decision that is right for you, which is the aim of this article and we hope that it helps guide you in your decision making. We have many years of experience representing clients at the AAT and we offer complete appeal services for clients who have had a visa refused or cancelled. You may be wondering about how much it will all cost. Well, each case is different so a personalised quote can only be provided after an initial consultation, but rest assured, we are passionate and committed to fair pricing policy – that is we aren’t the cheapest (because below a certain price you can’t do quality advocacy work) and we certainly are nowhere near the expensive end of the spectrum. Our aim is to ensure that all of our clients get superior service for an average price. And we will offer a fixed fee and project manage your case, so you know exactly how much you are up for from the outset.

For up to date advice on the appeals process and how to best prepare for your appeal, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration service with specialist appeal representatives, and we aren’t expensive! Just ask us!