If a visa has been refused or cancelled by the Department of Immigration and Border Protection (DIBP) there are very strict eligibility requirements and time limits to appeal to the Administrative Appeals Tribunal (AAT). Not all visa decisions can be appealed to the AAT, however.
When receiving a negative outcome from the DIBP the first step is to establish whether there is an appeal right to the AAT, and next the time limit. The AAT does not have the power to extend the time limit for migration appeals and if the application is lodged too late, the AAT cannot conduct the review.
The AAT is a merits review body. It is separate from the DIBP and will assess the application again with ‘fresh eyes’. Although the DIBP is separate from the DIBP, it must still apply the same law and requirements.
We often find that people think of the AAT as being like a court, not unlike the legal shows on television. The AAT is not a court and the processes and procedures are very different. This means that the Tribunal Member will be asking you questions directly rather than in a typical court environment in which the lawyers undertake the questioning.
A Tribunal member will reconsider the facts, law and policy and make a new decision. You may be asked to attend a hearing with the Tribunal Member. During the hearing, you will be asked a serious of questions relevant to your case which allows the Tribunal Member to gain a more detailed understanding of the issues. Sometimes, the Tribunal Member may wish to speak with other people involved in your case, such as a sponsor, or supporters.
The majority of what we do to assist is done well before the hearing takes place – through identifying the relevant law and issues, analysing and determining what materials should be provided and providing comprehensive submissions addressing how these materials relate to the relevant criteria. We aim to make the hearing as straightforward and stress free as possible for all parties involved.
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 DIBP 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 DIBP for reconsideration, with specific directions. This means that the matter will return to the DIBP for a new decision to be made.
Most importantly, the Tribunal cannot grant a visa. This is the role of the DIBP and the Minister.
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. 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!