If your visa application has been refused, or your visa has been cancelled, you may be able to apply to the Administrative Appeals Tribunal (AAT) to have the decision reviewed (commonly known as an appeal). This type of review is called a merits review and is a process whereby the AAT, which is an independent organisation established to review Government decisions, essentially steps into the shoes of the Department and determines, based on the information presented before it, whether Immigration made the correct decision in accordance with the legislative provisions.
Things you want to consider before a Tribunal Appeal
If you do have the option to apply for a review, you should carefully consider whether it is a beneficial avenue for you to take based on your individual circumstances. This can be a valuable right to have as it effectively provides you with a ‘second chance’ to have your case considered from a fresh perspective. Note however that not all decisions can be reviewed, but in instances where a case is eligible, the migrations provisions set out how the process is to be conducted, including imposing strict time limits for applying. Importantly, the Tribunal has no discretion to make any exceptions to the rules it is bound to follow in conducting the review process, meaning if you miss the deadline for submitting your application, you will lose this opportunity. Consequently, you would then need to reassess your options going forward (including the possibility of departing Australia should you have no further avenues to remain onshore based on your visa status at that time).
Note that as part of the review process, the Tribunal may conduct a hearing into your case and if it does so, you will be invited to attend. The hearing is your opportunity to provide evidence and present your arguments in support of your case. It is not, however, compulsory for you to attend. If a Tribunal hearing is scheduled for your review application, it is important to ensure that you are fully informed about the process involved (including for example, how to register your attendance) and what you can expect on the day of the hearing. This will help to ensure that you not only follow the correct procedure (and thereby reduce the risk of a negative outcome occurring), but that you also feel more comfortable in what could otherwise be a stressful situation.
In this article, we provide a general overview of the AAT review process and, further detail about the Tribunal hearing including the procedure you need to follow in regard to attendance/non-attendance, how the hearing is conducted and what you can expect should you attend. Note that this is an introduction only designed to help guide you in this process. Therefore, we recommend that if you find yourself in this situation, that you make the proper further enquires to ensure that you are fully informed about the appeals process, what it may mean for you based on your individual circumstances and how best to proceed, and your rights and obligations in this regard. This will give your application the best chance of a successful outcome.
Note also that the following information applies to non-refugee/humanitarian visa related matters only. We recommend that you seek further advice about these matters should they apply to you.
Applying for a Tribunal Appeal
If your visa application has been refused, or if the Department has cancelled your visa, you will be formally notified in writing. The notification letter will set out the following:
- Immigration’s reasons for its decision (referred to as a Decision Record), including references to legislative provisions in support of its decision
- Whether the decision is reviewable, in which case the notification letter will include information about how to apply for a review, with contact details for the AAT registry in your State or Territory. The time limit for applying will also be specified.
The migration provisions prescribe the types of decisions that can be reviewed, who may seek a review (for example, the applicant, sponsor, previous visa holder, etc.), the process for applying for a review and the time limits and fees that apply. The AAT works within this legislative framework and has no discretion to make exceptions in this regard. If you make a mistake with your AAT application, which could happen where, for example, the wrong person applies for the review (note that for certain applications, the sponsor is the person who must apply, rather than the applicant), your application will be invalid, and require that you re-apply for the review (provided you have not passed the deadline for applying, in which case you will lose your chance to appeal). Being aware of the strict time limit that applies to your case (see further information below) is crucial, and you must ensure that you work within this timeframe as you prepare and submit your review application
Method of applying
You can lodge your review application online, in person, by email, fax or post to any registry of the AAT (note registries are located in each State and Territory).
You will need to complete an application form and include with it a copy of the Department’s Notification of Refusal/Cancellation letter as well as the accompanying Decision Record-setting out the reasons for its decision.
Time limits for applying
As noted above, strict time limits apply for lodging an appeal. The time limit for applying will depend on the type of application that is the subject of the review. Time periods range from between 7 working days to 70 calendar days. If you apply for a review of your case past the time limit, there are no options for extending this deadline and you will lose your right to an appeal.
The notification letter from the Department will specify only the time period in which you can apply for the review (i.e. the number of days); it will not state the actual end date by which you must apply. As an example, see the below extract from an Immigration notification letter in such a case:
‘An application for merits review of this decision must be given to the AAT within 70 calendar days after the day on which you are taken to have received this letter.’
You will need to carefully calculate the deadline for submitting your review application based on the information provided in the letter that you receive. If the letter was sent to you by email, you are taken to have received it at the end of the day on which it was transmitted.
Fees for applying
The cost of lodging an application for review is $1,764 in all cases, except where the decision concerns a bridging visa that results in the applicant being detained. There are also options available for requesting a fee reduction if financial hardship has, or may result from, payment being made (the maximum allowable reduction is 50%).
Refunds of all or part of the application fee can also be made if you receive a favourable decision on your review application, if your application is invalid, or if you withdraw your application (in certain circumstances).
What happens after you lodge your application?
You will receive an Acknowledgement letter with a request to provide files and documents relating to your case. Your review application will then be allocated to a Tribunal Member. From this point on, the process will depend on your individual circumstances however generally, the following steps will occur:
- The AAT will contact you requesting further information
- The AAT will invite you to comment on information which it considers to be the reason, or part thereof, for affirming the Department’s original decision (that is, to make no change to the decision)
- If a hearing into your case is to be held, the AAT will invite you to attend, either in person, by telephone or video link to provide you with the opportunity to present oral evidence and your argument/s in support of your case. You may also nominate others to provide evidence at your hearing
- Once the AAT has made a decision on your application, it will provide you with a statement outlining its reasons
What documents do I need to provide to the AAT?
In addition to submitting a copy of the Department’s Notification of Refusal/Cancellation letter and the accompanying decision record-setting out its reasons when you lodge your application form for review, you should also supply to the AAT any material which you believe supports your application, including a statement explaining why you disagree with the Department’s decision.
You can also provide written submissions for consideration by the Member. Note this should be provided in advance of the hearing to ensure the Member has sufficient time to review the material as they consider your case.
Can you receive assistance with your review application?
You have the option of either dealing directly with the AAT or alternatively, you can appoint a representative to act on your behalf. You can also have your representative attend the hearing to provide advice and support (although they cannot in general formally address the hearing, but only comment when requested to do so by the Tribunal Member).
The Tribunal hearing
As noted in the introduction, the hearing is your opportunity to present your case to an independent third party and provide oral evidence in support of your claims. Although a hearing will not always be required, if it is held for your case, we would recommend that you carefully consider the implications of attending versus not attending and seek further advice in this regard. Choosing not to attend can result in serious consequences for your case and therefore it is very important that you are aware of all the facts before you decide. It is also important to make the proper notifications to the AAT should you decide not to attend.
Note also that you can request for an interpreter to be present at the hearing, which will be arranged by the Tribunal.
A Tribunal hearing is designed to be an informal process (so as not to present like a courtroom) and no representatives from the Department are present. You will need to respond to the invitation to attend the hearing and 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 a hearing is held and you do not attend, the AAT can make a decision, or dismiss your review application, without any further action. If you cannot attend, you should notify the AAT as soon as possible as the time can be rescheduled in certain circumstances.
In some cases, the AAT will make a decision on your case without holding a hearing. This can occur in the following instances:
- If an application for review is decided in your favour based on the information available to the AAT
- If you fail to respond to a request from AAT regarding adverse information
- If you provide consent to the AAT to make a decision without appearing before the Tribunal Member.
How can you increase your chances of achieving a favourable decision without a Tribunal hearing?
There are things you can do to maximise your chances of achieving a positive outcome from the review without the need for a hearing. In such a case, the Tribunal Member will make a decision based on written submission/s and supporting evidence that you provide with your review application. This is commonly known as an “on the papers” favourable decision.
You can improve the likelihood of achieving such a result by:
- Providing strongly written submissions as to why your case should be remitted
- Addressing the reasons for the refusal carefully
- Including case law authorities to support your submissions
- Providing strong documentary evidence to support your submissions
- Referring to other AAT case decisions where appropriate
- Referring to Departmental policy (where appropriate and in your favour – note that the AAT is not bound by policy but may use it as a helpful tool)
- Presenting your arguments clearly and persuasively
How long will the review process take?
The time that it can take for your review application to be decided will depend on a number of factors, including the application type, when it is allocated to a Tribunal Member and the individual circumstances of a case (this could occur, for example, if further investigations are required before the Tribunal Member is able to decide your case). Review applications are generally processed in lodgement date order, but in some instances, they can be re-allocated as the Tribunal plans how to most efficiently progress the volume of cases before it.
Although exact processing times cannot be determined, as a guide, the average time from lodgement to decision for a migration review application in the period from 01/12/2017 to 31/05/2018 was 361 days (note this is an average figure for all migration review cases submitted to the AAT). You should, therefore, be prepared for a significant wait time until your case is decided should you lodge an appeal (note that these times change periodically, based on AAT caseloads).
The AAT also publishes specific statistics for average wait times for all application types (e.g. student visa, partner visas, etc.). This information is publicly available, and we recommend that you seek further information about this based on your individual circumstances as these wait times can be significantly longer in some instances (for example, the average time to decision for student and partner visa applications was approximately 440 days over this period).
Note that certain review applications are assigned a higher priority, including in the following scenarios:
- The case involves an applicant being held in immigration detention
- There is uncertainty as to whether the AAT has the jurisdiction to review an application
- The AAT determines that there are compelling reasons for prioritising a case (note that you can apply for priority processing. You should provide detailed reasons for your request and include supporting evidence)
- All cases where a visa has been cancelled
The decision of the Member can be announced at the conclusion of the hearing, or at a later date.
What decision can the Tribunal make on my case?
As part of its review, the ATT can make one of the following decisions on your case:
- affirm the original decision (that is, make no change), in which case the original decision still stands
- vary the original decision (this means the AAT has decided the original decision should be changed)
- set aside the original decision and substitute a new decision (this means the AAT has decided the original decision should be changed)
- return the matter to the Department to reconsider its decision with specific directions provided by the AAT
What happens once the Tribunal has decided my case?
Once a decision has been made on your review application, you will receive a written statement outlining the decision of the AAT and its reasons. This notification letter will also be provided to the Department. As noted above, in some cases, the Tribunal Member will announce his or her decision at the end of your hearing.
Note also that AAT decisions can be published and made available to the public. You may request in writing for your case not to be published, providing reasons for your request and the parts you wish to have removed (if not all of the decision record). The AAT will consider your request and will make an assessment based on the public interest on whether to release the information.
What are your options should your review application be unsuccessful?
If you believe that the decision made by the AAT is incorrect based on a matter of law, you may have the option to seek judicial review of the decision by applying to the Federal Circuit Court of Australia. We recommend that you seek legal advice about your options should this apply to your case.
In certain limited circumstances, if you receive a negative outcome from the Tribunal, you may have the option to apply to the Minister for Immigration to intervene in your case to consider granting a visa if they determine it to be in the public interest to do so. Note however that this option is only for cases with ‘unique or exceptional circumstances.’
In conclusion, we note that the above provides an overview only of the migration review process including the Tribunal hearing. Given the highly complex nature of the migration laws and the fact that every individual case is different, we recommend that you engage an RMA who will be able to provide you with detailed advice about the review process, what it may mean for you based on your individual circumstances and how best to proceed, and your rights and obligations in this regard. Your agent can also help by drafting written submissions to the Tribunal and obtain referrals for expert reports in your favour. The currently lengthy processing times being experienced can also be used to your advantage as there are things you can do to improve your case. You should use this time wisely. Ensuring you are fully informed about your options and the process involved is especially important for an appeal, given the strict time limits that apply for lodging an application. No exceptions can be made in this regard and it is therefore critical to act quickly if you find yourself in this situation.
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. PAX Migration Australia is a leading immigration advice service based in Adelaide, and we aren’t expensive! Just ask us!