Migration & Administrative Appeals: Your Questions Answered
1. What should I do if my visa has been refused or cancelled? Can I appeal the decision to the Administrative Appeals Tribunal (AAT)?
Have you been issued with a Notice of Refusal of Application? Or a Notice of Cancellation? Generally, the Minister for Home Affairs will issue a notice of intention to consider refusal or cancellation. At this point, it is possible to provide written submissions to the Minister within a short time limit.
2. Why is my visa being refused or cancelled?
There is a wide range of reasons a visa might be refused or cancelled. If an applicant or visa holder has:
- Breached the requirements or conditions of their visa,
- A criminal conviction,
- Provided incorrect, fraudulent information to the Department, or
- Not met Australia’s health or character requirements.
If your visa application has been refused, or your visa has been cancelled, you must act quickly. There are two important factors to consider here.
a. You need to work out if there is a right of appeal to the AAT.
The AAT is a merits review body. It is separate from the Department of Home Affairs. It will look at the application with ‘fresh eyes’. The AAT is bound by the same laws and requirements that guide the Department.
Not all visa decisions can be appealed to the AAT. It must be a review on the merits of the case, not an issue of law.
Under Australian Migration law, an appeal to the AAT must be based on the merits of the case. Not all decisions are eligible for appeal.
It is important to get legal advice about your eligibility. Talk to immigration lawyers today at MSM Legal about the options available to you.
b. You need to pay close attention to the time limit to appeal to the AAT.
The AAT cannot conduct the review if the application is lodged too late. The AAT does not have the power to extend this time limit either.
You need to take action quickly. Let us help you. Contact MSM Legal today.
3. Is a hearing at the Administrative Appeals Tribunal like a court hearing?
No. The AAT is not like a court at all. It is not like the legal dramas on television.
A Tribunal member will reconsider the facts. They consider the facts based on current migration laws and policies. You may be asked to attend a hearing with the Tribunal Member.
The Tribunal member will ask you questions directly. The questions will not come from the lawyers, but from the decision-maker.
The Tribunal Member will ask you some questions relating to your case. Your answers will help the Tribunal Member understand all of the issues. Sometimes, the Tribunal Member may ask questions from other people involved in your case. They might want to speak to your sponsor, or supporters.
It is important that you understand all of the AAT procedures. We understand that a hearing at the AAT might be very stressful.
MSM Legal aims to make the hearing as simple and stress-free as possible. We take considerable care to make sure everything is in order.
Prior to the hearing, we help to identify the relevant law and issues involved in your case. We analyse all materials, and determine which documents will support your case. We provide comprehensive written submissions to the AAT. These submissions detail how the materials relate to the relevant criteria in question.
4. What happens at the end of the appeal to the AAT?
At the end of the process, the AAT has the power to do the following:
- Affirm the original decision. This means that the original decision by the Department of Home Affairs still stands and the outcome has not changed.
- Vary the decision.
- Set aside the decision and replace/substitute with a new decision.
- Remit the matter back to the Department of Home Affairs for reconsideration, with specific directions. This means that the matter will return to the Department for a new decision to be made.
Most importantly, the Tribunal cannot grant a visa. This is the role of the Department of Home Affairs and the Minister.
If a decision by the AAT is wrong under the law, it is possible to seek a judicial review in the Federal Circuit Court of Australia. Again, there are strict time limits within which you must apply for judicial review.
How can MSM Legal help me?
The team at MSM Legal has significant experience in all aspects of migration administrative appeals. We can assist you from the very outset, or you can ask us to become involved at any point in time.
At MSM Legal, we will explain each step of the AAT process to you. We are experts in Australian migration law, with many years of working with the Department, the AAT, and the judicial review process.
We can advise you on the types of decisions that might be likely in your situation.
We can also provide guidance on other immigration paths that might be available to you.
If you decide to proceed to appeal, we are ready to prepare documentary evidence and written submissions to the AAT. We are ready to advise you and prepare you for the hearing.
MSM Legal is ready to advocate on your behalf. We want to represent you.
Our experienced Registered Migration Agents are well versed to counsel you on these matters and can respond quickly to time-sensitive issues. Contact us now, before it becomes too late!