A visa refusal can be devastating for many people, especially where it involves a permanent residence application. Relocating to a new country permanently is a significant decision for many people to make, often a life-changing event with far-reaching implications for those involved. Having that rejected by the Australian Government can be difficult to deal with, as you may feel that this ends the plans you had made for your future.
It is important to be aware, however, that if you find yourself in this situation, this may not be the end of the road to you achieving your goals in Australia. It may delay things and cost more, but with careful consideration and planning, you may still be able to get to where you want to go in the end. Depending on your circumstances, there may be other potential options available to you. These may include seeking a merits review of the decision (also commonly referred to as an appeal), applying for a new visa, or a judicial review.
In this article, we take a detailed look at what is a merits review, what the AAT can decide, time limits that apply, what happens after AAT decision including after AAT remit decision, AAT statistics and what factors to consider in deciding whether to apply for a review of a visa decision. We also examine potential options after AAT refusal or if there is no right of merits review for this decision.
What Is A Merits Review?
In prescribed circumstances, you may be eligible to have your case reviewed by the Administrative Appeals Tribunal (AAT). This process is called a merits review and means that the Tribunal considers your original application to determine whether the Department of Home Affairs (the Department) made the right decision to refuse your application. It makes this assessment by applying the same legislative provisions as those that were applied by the Department in arriving at its original decision with ‘fresh eyes.’ One of the benefits of a review is that the AAT can also consider new information which you supply as part of the review in making its decision.
The AAT may also consider:
- changes in the Migration Regulations or policy since the original decision was made;
- Federal Court rulings after the original decision was made which affect how the relevant legislation is to be interpreted in your case;
- whether the Department failed to consider evidence presented to it; and
- whether there has been a misunderstanding or misapplication of the Migration regulations, or if it forms a different view to the Department regarding the meaning of the Regulations.
Let us now turn our attention to what happens after AAT decision.
What Can The AAT Decide?
In conducting a review, the AAT can:
- Affirm the decision (this means confirming that the original decision was the correct one to make);
- Vary the decision (which is to change the original decision);
- Remit the matter back to the Department to reconsider according to specified directions or recommendations (the effect of this is to replace the original decision with a new one); or
- Set aside the original decision and substitute a new one in its place (this involves sending the case back to the Department to make a new decision).
Therefore, in determining what happens after AAT decision, this will depend on the outcome of your review application. For example, after AAT remit decision, the AAT will send the matter back to the department to make a new decision in accordance with the AAT’s instructions or recommendations.
Not all decisions are reviewable, however, and therefore other potential options may need to be considered (if they available, which is not always the case). This might include applying for another visa (although the options may be restricted, especially if you are seeking to apply onshore, or if you are subject to an exclusion period), applying for a judicial review, or if no further options are available, you may be required to depart Australia.
Even if your case is eligible for review, you may conclude that the potential downsides of taking this course of action outweigh the benefits, and that another way forward is best in your circumstances.
Whether or not you decide to proceed with a review, it is important to be aware that having this option can be a valuable opportunity, as it offers the chance to ‘have another go’ with a new and independent body considering whether the right decision was made in the first instance. Importantly, being armed with all relevant information pertaining to a review as it applies to your case, and any other options that are open for you to take, allows you can make an informed choice that is the right one for you.
Another important point to make is that if you do decide to proceed with a review, you need to act quickly, as strict time-limits apply. Missing an important deadline in this regard means you may lose this right, with no scope for the AAT to make concessions in certain cases.
Tighter deadlines apply to applications for review of character-related decisions (which are based on failing to satisfy the character test under section 501 of the Migration Act) where the applicant is in Australia, in which case the application must be made within 9 days after being notified of the decision. The AAT has no power to extend this time limit.
Review applications for all other character-related decisions must be lodged within 28 days after the notification of the decision (although you can request an extension in writing, providing reasons for your request).
The AAT has no power to extend the time limit to lodge an application for review of all non-character-related decisions. Time periods range from between 7 working days to 70 calendar days. The time limit to lodge an application for review varies depending on the type of decision and will be stated in the Department’s decision letter notifying you of the refusal.
Time limits are not only critical in cases where you appeal the decision; they are also important if you do not have this option, or if you do and you decide not to take it. You will have a set timeframe in which to pursue another course of action, which may mean leaving Australia by a certain date if all other options are exhausted.
What Decisions Can The AAT Review?
As noted in the introduction, not all migration matters can be considered by the Tribunal. This includes cases where the Minister for Immigration (the Minister) personally decides to refuse a visa based on character grounds.
The Migration Act (the Act) sets out the prescribed circumstances for when a decision is reviewable by the AAT. It also specifies who may apply for the review.
Decisions based on character grounds are conducted by the AAT’s General Division (which also conducts reviews into citizenship and the Office of the Migrations Agents Registration Authority (OMARA) decisions). The Migration & Refugee Division reviews all other migration, and most protection visa decisions, made by the department.
Visas refused by the Department on character grounds are otherwise reviewable if the applicant is in Australia. If the applicant is outside Australia, the decision is reviewable only in the following circumstances:
- If a requirement for visa grant is that the applicant be sponsored or nominated by an Australian citizen or permanent resident, a company or partnership that operates in Australia, or a New Zealand citizen who holds a special category visa, only the visa applicant’s sponsor or nominator are entitled to apply to the AAT for a review;
- if the application is for a visitor visa, a parent, partner, child or sibling (including step and adopted relatives) of the applicant may apply to the AAT for review of the decision, provided they are an Australian citizen or permanent resident, and their name and details were included in the visa application form; or
- if the application was for a resident return visa, a parent, partner, child or sibling (including step and adopted relatives) of the applicant may apply to the AAT for review of the decision, provided they are an Australian citizen or permanent resident.
Review Of All Other Decisions (i.e. Non-character Related)
In cases where the visa application was made whilst the applicant was in Australia, normally only the visa applicant can apply to the AAT for review of the decision and they must be in Australia when the application for review is made.
Where an application has been granted for approval as a business sponsor, only the applicant for approval may apply for a review.
If a visa is refused in circumstances where the application was made whilst the applicant was outside Australia, and the decision is reviewable according to the Act, the visa applicant cannot apply to the AAT for a review; only the Australian sponsor, nominator or close relative who has been identified in the visa application may apply to the AAT for merits review of the decision.
Decisions which may be reviewed by the AAT include the following:
Visa applicant in Australia
If the application was lodged by the applicant in Australia, and:
- the visa can be granted whilst the visa applicant is in Australia;
- the refusal decision was not made when the applicant was in immigration clearance; and
- if the application is for a temporary visa which requires the applicant to be sponsored by an approved sponsor, the applicant is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made.
Visa applicant outside Australia and has a sponsor/nominator
If the visa cannot be granted whilst the visa applicant is in Australia, and:
- the visa applicant is required to be sponsored or nominated by an Australian citizen, a company or partnership operating in Australia, the holder of a permanent visa, or a New Zealand citizen who holds a special category visa (SCV).
Visa applicant is a former permanent resident, is outside Australia and has close Australian family
If the visa cannot be granted whilst the visa applicant is in Australia, and:
- a requirement for visa grant is that the visa applicant has been an Australian permanent resident; and
- a parent, partner, child or sibling of the visa applicant is an Australian citizen or Australian permanent resident.
Only the following applications (made outside Australia) are reviewable:
- Subclass 155 Resident Return Visa
- Subclass 157 Resident Return Visa
- Subclass 159 Provisional Resident Return Visa
- Subclass 151 Former Resident Visa
Visa applicant is outside Australia and intending to visit identified close Australian family
If the visa cannot be granted whilst the visa applicant is in Australia, and:
- It is a requirement for visa grant that the visa applicant intends to visit an Australian citizen or permanent Australian resident who is a parent, partner, child or sibling of the visa applicant; and
- details of that relative are included in the visa application.
Partner visa applicants
If the visa applicant applied for the visa when they were outside Australia, and the visa could be granted whilst the visa applicant is either in or outside Australia.
This is intended to cover applicants who applied outside Australia for, and were granted (whilst outside Australia), a Subclass 309 Partner (Provisional) visa but whose permanent Subclass 100 Partner (Migrant) visa has subsequently been refused.
Review applications in this case are limited to situations where the visa applicant:
- was in Australia at the time the original decision was made; and
- is in Australia when the application for review is made.
Therefore, if a Subclass 309 visa holder is outside Australia when their Subclass 100 visa is refused, there is no merits review right in respect of that application.
Migration Points Test assessment
If the visa cannot be granted whilst the applicant is in Australia, and:
- the applicant was sponsored or nominated by an Australian citizen, the holder of a permanent visa or a New Zealand citizen who holds an SCV; and
- a decision has not been made to refuse to grant the visa.
This relates to the points score, and where no decision has yet been made on whether to grant the visa. Note that an assessed score is a visa grant requirement for certain skilled visas.
Decisions on assessed scores for points-tested visas that can be granted in Australia are not reviewable under this section (but be aware that if an applicant for a points-tested visa that can be granted in Australia is refused that visa after the specified period in the pool, the decision may be reviewable under another section; see the ‘visa applicant in Australia’ section discussed above). Decisions on points-tested visa applications that do not have a sponsorship or nomination requirement for visa grant are also not eligible for review under this provision.
AAT Statistics Including Processing Times
The AAT publishes a range of statistics periodically, with detailed breakdowns of lodgements, decision outcomes, processing times, and applications on hand. This can be very useful information to be aware of as it will allow you to make a more informed choice about whether to proceed with a review. You can access this information on the AAT’s website.
Some of the key points contained in the latest data, titled “Migration and Refugee Division Caseload Report Financial year to 31 May 2022” are:
- migration outcomes – 36% of decisions were affirmed, 40% were set aside, 18% were withdrawn (the remaining 5% are categorised as ‘other’) (page 6);
- timeliness of decisions –9,484 applications were lodged, 13,658 were finalised, and 19,809 remain on hand at 31 May 2022. 24% of applications were finalised within 12 months and the median number of weeks for cases to be finalised was 106 (page 6);
- average decision processing times – these ranged from between 118 to 1,047 calendar days, with the average being 720 calendar days for migration decisions (page 7); and
- Age of active cases on hand – as at 31 May 2022, 12,265 migration cases (62%) were over 365 days old (page 9).
As reflected in the above data, proceeding with an AAT review can result in lengthy wait times to reach a decision, with some cases taking more than two years to finalise. Although each case is different, it is important to be aware of this information so that you are fully prepared if you decide to proceed with a review into your case.
How Do You Decide Whether To Apply For An AAT Review?
Having the right to a review does not always mean this is the best course of action to take in all cases. For example, there is little, if any, benefit in proceeding with a review if there is a low relative chance of a successful outcome in your case. In this situation, you will be incurring added costs and lengthy time delays to ultimately arrive at an undesired result and further delay achieving your migration goals in Australia. Instead, it is recommended that you carefully consider all the options available to you, the likely outcome of each, how these options will impact you personally and on your family, financially, etc., (including, for example, your visa status and visa conditions such as work and travel rights as you await the outcome of the review) and what this means in regard to your long-term goals in Australia.
It may be that there is another, better way for you to get to where you want to go. Given the complexity that is usually involved, and the multiple factors that need to be taken into account in this regard, we strongly recommend that you seek professional advice from a migration expert to help you in this process. Registered Migrations Agents and Immigration lawyers have training and experience in complex migration laws and will be able to guide you through what is often a complex process. Taking a wrong turn can have significant and far-reaching implications and it is therefore important to be cautious, thorough and prudent as you make your way through this process.
What Can You Do If Your AAT Review Is Unsuccessful?
Let us now examine your potential options after AAT refusal.
Options After AAT Refusal
If you apply to the AAT for a review of your case and the decision is ultimately not a favourable one (i.e. if it ‘affirms’ the decision of the Department, meaning that it does not vary the original refusal decision), you may be able to seek Ministerial Intervention, which is an appeal to the Minister requesting that they personally intervene in your case. This is only relevant to cases where unique or exceptional circumstances exist and requires the Minister to be satisfied that it is in the public interest to grant the visa. This avenue is only available once a decision has already been made by the AAT (i.e. you cannot directly apply to the Minister without first seeking a review of your case).
You may have the option to seek a judicial review. Migration matters may be heard by the Federal Court or the Federal Circuit and Family Court. In many such matters, the original jurisdiction of the Federal Court is limited by the Act, and most applications must be heard in the Federal Circuit Court in the first instance.
In cases where the migration matter is being appealed from the Federal Circuit Court, or it is an appeal-related application, the Federal Court will generally have jurisdiction to hear it within the Court’s appellate jurisdiction.
What Can A Court Decide?
A judicial court can review a decision to determine whether a jurisdictional error has been made, i.e. whether the decision has been made according to the law. It does not consider the merits of the application and whether the applicant should be granted a visa.
If the Court determines that a jurisdictional error has been made, it can refer the case back to the decision maker and prevent the Minister from acting on the decision.
Examples of a jurisdictional error include cases where the decision maker has:
- not adopted a fair process in making the decision;
- identified a wrong issue;
- ignored materials they were required to consider;
- relied on materials that should not have been considered;
- incorrectly interpreted or applied the law;
- reached a decision that is unreasonable legally; or
- made a decision for which there was no evidence, or that was not reasonably open on the materials.
The Court does not have the power to:
- reconsider the facts and reasons for your visa application;
- consider new factual information (unless this is relevant to a question of whether the decision maker made a jurisdictional error); or
- grant you a visa.
It is recommended that you seek legal advice and representation if you are considering and/or if you decide to proceed with this option.
A deadline applies if you decide to seek a judicial review. You must lodge your review application within 35 days of the date of the migration decision (this may be extended by the court).
What Other Options May Be Available?
In the event that your review application at the AAT is unsucessful, or where there is no right of merits review for this decision, what options may be available to you?
Apply For Another Visa
You might be able to apply for another visa whilst you remain in Australia, but be aware that your options are likely to be limited due to:
- Section 48 of the Act – This provision applies if you do not hold a substantive visa (which is any visa excluding a bridging visa, criminal justice or enforcement visa) and since last entering Australia, your visa has been refused (except on character grounds). You can only apply for a visa from a prescribed list whilst you remain onshore (including a Partner Visa or a Bridging Visa);
- Section 501E of the Act – this provision prohibits a further visa application being made whilst you remain in Australia if you have been subject to a visa refusal on character-grounds and the decision has not been set aside or revoked;
- Schedule 3 of the Migration Regulations – additional requirements apply for grant of a partner visa onshore if you do not hold a substantive visa at time of lodgement. This can be waived in certain limited circumstances; and
- Exclusion periods – If your visa is refused based on failing to satisfy Public Interest Criteria (PIC) 4020, you will be subject to an exclusion period of either 3 or 10 years. This means you will be unable to be granted a further visa to Australia for the duration of the exclusion period. You can apply to have this waived in certain limited circumstances.
It may be the case that there are no further options for you to remain in Australia, which means you will need to depart the country and consider your next steps from offshore. To prevent any further exclusion periods being imposed (which will restrict when you can be granted a new visa to Australia), it is vital to ensure that you leave Australia by the required date.
Get More Information
We have prepared a series of detailed guides which provide further information about applying for an AAT review, other potential options after AAT refusal as well as your options if there is no right of merits review for this decision. You can access them by clicking on the links below:
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Contact us to book a no-obligation consultation to find out more about applying to the AAT for a review of a visa decision, advice on what happens after AAT decision including after AAT remit decision, and what you can do if there is no right of merits review for this decision.
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In conclusion, the above discussion outlines what is a merits review, the types of decisions that the AAT can review, time limits that apply to AAT reviews, what happens after AAT decision including after AAT remit decision, potential options after AAT refusal and where there is no right of merits review for this decision. 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, as well as an assessment of potential options after AAT refusal and what you can do if there is no right of merits review for this decision as well as further advice on what happens after AAT decision including after AAT remit decision, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration service with specialist appeal representatives. Contact us for a no obligation discussion on how we may be able to assist you to achieve your migration goals in Australia.
Administrative Appeals Tribunal – Resources – Legislation and jurisdiction – List of reviewable decisions – Commonwealth laws – “AAT Reviewable Decisions List – Decisions Subject To Review (Jurisdiction as at 31 May 2019)