Appeals to AAT

We understand that getting a visa refusal or cancellation for any visa application could be upsetting and stressful. However, if your visa is recently refused and you disagree with the decision, there are some steps you can take. This decision could be reviewable by the AAT (Administrative Appeals Tribunal) and we have experience in acting for our clients who are facing visa refusal and cancellations to the Administrative Appeals Tribunal.

An AAT Review

The AAT reviews decision made by DIBP and an appeal to AAT provides you with another opportunity to present your case. In addition, the Tribunal Members will review the merits of each particular case taking the relevant facts and evidence into consideration to arrive at their own decision.

Possible Outcomes

The AAT can decide to the following:

affirm DIBP’s decision meaning they agree with the decision made by the Department and it will not be changed;

remit DIBP’s decision means that the matter is returned back to the Department for reconsideration

set aside DIBP’s decision in some cases, meaning it will be changed or substituted a new decision.

The Process

The process is as follows:

1. Lodge your application with the AAT within the required timeframe which in most cases is 21 days from the date of a decision to refuse a visa application, and 7 days from the date of a decision to cancel your visa. You may qualify for a bridging visa upon lodgment of your review application onshore that will allow you to lawfully remain in Australia until your matter is under review. Once the matter is allocated to a Member, they can request further information, invite you to comment on a particular issue or simply listing the matter for a hearing.

2. Receive an invitation to attend a hearing at the AAT – This is an opportunity for you to present information and arguments to the AAT about the decision under review. At this hearing you should also provide all of your up to date supporting evidence. If you have appointed a professional representative then they will prepare a legal submission that explains the case and how you meet the criteria. This legal submission is your representative’s opportunity to explain your circumstances and to outline the legal reasons why your case should be successful (referring to visa criteria and case law).

3. Attend at your hearing to present new evidence or information in person. At the hearing the Member, will ask you a series of questions relating to your visa application or cancellation. The RMA is able to direct the Member to ask you specific questions that may help your case.

How long does the AAT hearing take?

This depends on a range of factors, including when you lodged the application, the type of application, the complexity of your matter etc. The length of the hearing might be between 1 to 3 hours, but it can be longer. Average processing times can be found on the AAT website.

What to expect at the AAT hearing?

If you choose to engage our services, we will explain the process in detail to you prior to the hearing. We will also ensure to answer any questions you may as well. A few things to note:

  • The hearing will usually take place in person at the AAT or could be able to attend by telephone or by videoconference with prior permission.
  • You, the Member and an AAT staff member will be in attendance. You must also advise the AAT if you would like a representative, a support person or any witnesses to attend.
  • You can request an interpreter for the hearing.
  • The hearings are open to the public, which means anyone can attend/watch the proceedings.
  • The hearing will usually last for between 1 to 3 hours depending on the complexity, the number of issues etc.
  • You might receive decision at the end of the hearing, or at a later date.

The appeal process in itself can be quite stressful. Often, it is the last opportunity to present yourself to obtain a positive immigration outcome. So, it is essential that as much relevant evidence is provided as to how you meet the visa criteria, that the arguments are made in your favor as to and why the department’s decision was incorrect and to ensure that the hearing is conducted appropriately.

Why choose us for AAT hearing?

Our Principal Migration Consultant acquires specific skills when it comes to appeals and review work. Our RMA is well versed in the interpretation of complex legislation and policy as well as being familiar with any legal changes or industry trends.

At the beginning, a detailed analysis of your case would be undertaken to evaluate your prospects of success. With this approach we also mitigate any risks by providing advice on alternate pathways in the case of a negative outcome. In addition, we can undertake advanced legal research on case law, legislation and policy specific to your circumstances. We would also obtain copy of your records held by department via FOI and will advise you other ways to strengthen your case such as supporting statements from members of your local community, medical professionals, family members, religious leaders etc. We will advise on the specific information and detail that these statements must include to assist your case.

AAT hearing can be quite stressful and it is common to feel nervous when attending a hearing. We will ensure that you well prepared for the hearing by explaining the process and how you should conduct yourself during the proceedings. Also, it can be a real advantage to be accompanied by somebody who is comfortable and familiar with the review process, so our advocacy experience will help strengthen your case.

Although, the advocacy role of a representative is more limited at AAT, it is important that your representative is present so that they can intervene when allowed to clarify particular issues with the Member, provide appropriate advice to you and request adjournments were appropriate.

Appeals to Federal Circuit Court

If the AAT’s decision is not in your favor, you may be able to further appeal to the FCC.

Jurisdictional Error

Kindly take a note that you simply can’t appeal a decision of the AAT because you don’t agree with their decision. Appeals in the Federal Circuit Court are heard only to determine whether ‘jurisdictional error’ occurred in the AAT. This means that the Court determines whether the decision was made according to the law or not. In addition, such appeals involve complex legal arguments and require detailed analysis of the AAT decision record against comparative case law.

The court does not consider the merits of your application and whether you should or should not be granted a visa. They will not:

  • reconsider the facts and reasons for your visa application;
  • consider any new factual information or evidence;
  • grant you a visa

We can assess your decision to determine whether or not a jurisdictional error can be argued in your case and if so, we will advise you of options in proceeding with an appeal to the Federal Circuit Court.

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