You may be able to appeal your visa refusal, visa cancellation, business sponsorship or nomination application refusal to the AAT (Administrative Appeals Tribunal).
The role of the Tribunal is to review the Department’s decision for refusing your application (or cancelling your visa), and re-decide if the Department’s decision was correct. The relevant Tribunal Member will assess and decide if your application satisfies the relevant legal requirements for approval. The AAT can make a decision in your favour and decide that the Department’s decision is incorrect and send the matter back to the Department for reconsideration. If the matter is sent back to the Department for reconsideration, generally speaking, the Department will grant the visa or revoke the visa cancellation.
The AAT can also decide that the Department’s decision was correct and confirm this in its decision. If this occurs, then your appeal is not successful (the consequences of this are explained below).
Who can apply for AAT review?
You may be able to apply for AAT review in the following situations:
The AAT cannot review a decision to cancel a visa if the cancellation occurred when the visa holder was outside of Australia.
If the visa applicant or holder is in Australia, then they are the person who should apply for review. If the visa applicant is overseas, then in most cases the Australian sponsor, nominator or family member makes the application for review.
The business sponsor or employer must apply for review in relation to a refusal of a Standard Business Sponsorship and/or nomination application.
How does the AAT process work?
The AAT will complete its own independent assessment of your application to determine if the relevant legal requirements are satisfied. The AAT will review:
The AAT also has independent power to conduct its own investigations. For example it may contact your employer, friends or family if you have provided evidence from, or about, them, or if the Tribunal Member believes that such information and documents are relevant in deciding your application.
If the AAT has any adverse information about you (i.e. information which may cause the review application to fail) then the Tribunal should notify you and ask you to comment on that adverse information held by the AAT. If you receive such a notification it is very important that you do respond to the request for comments within the time limit specified, otherwise your review application may fail.
Generally speaking, the following events will occur when you appeal to the AAT:
What if the AAT appeal is successful?
If your AAT application is successful, then your application will generally be remitted back to the Department for final determination and decision.
The Department’s processing time for such applications is generally relatively short – say 4 to 8 weeks. However, processing times do vary significantly, and it may be months before you receive a decision from the Department.
Approval of your AAT appeal does not guarantee that your application will be approved. The Department will still check to ensure that all the relevant eligibility requirements are satisfied. I have seen cases where the applicant has been successful with their AAT appeal, but then the visa application is later refused for a different reason, such as not satisfying the relevant health and character requirements.
What if my review is not successful?
If your application for review at the AAT is not successful then you will be notified that your current bridging visa will cease in a certain period of time (generally speaking this is 21 days). If you do not want to leave Australia then you have two potential further avenues for review:
If you were granted a Bridging Visa A as a result of the visa application which the Department refused, then if you apply for AAT, this bridging visa will continue to be valid and will allow you to remain in Australia until the AAT has made a decision. If you do not appeal to the AAT then your Bridging Visa will expire and you will need to depart Australia or you will become unlawful.
Can I work while I wait for my AAT hearing?
That depends on the visa that you are currently holding. If you are holding a substantive visa, which are basically all visas except for bridging visas, then you need to comply with the conditions of your substantive visa. For example, if you are holding a student visa, then there may be restrictions on the number of hours that you can work. If you are a primary 457 visa holder, then you can only work for your sponsoring employer.
If you are holding a bridging visa, then you need to check the conditions of your bridging visa. If you are holding a bridging visa and there are restrictions on your work rights, you may be able to apply for unrestricted work rights.
This generally means that you need to demonstrate a ‘compelling need to work’. You need to provide evidence to show that you will suffer ‘financial hardship’ (or your household will suffer such hardship) unless you are allowed to work and earn an income.
The Department’s policy guidelines indicates that ‘financial hardship’ is established if you can show that your living expenses are greater than your ability to pay for these costs.
If you are still holding a substantive visa, then you should be able to lodge another visa application – assuming that you meet the relevant eligibility requirements. A ‘substantive’ visa is basically any visa which is not a bridging visa.
If you do not hold a substantive visa (i.e. your last substantive visa has expired and you now hold a bridging visa that is associated with the AAT appeal), then Section 48 will bar you from making a further ‘substantive visa’ application because you have had a visa refusal, which is any visa except a Bridging visa, a Criminal Justice Visa or an Enforcement Visa.
Despite Section 48, you can still lodge a valid application for the following types of visas: partner visas, bridging visas, Subclass 444 for New Zealand citizens and child visas.
One possible way to lodge another visa application while you a waiting for an AAT hearing is to apply while you are outside of Australia. If you are currently holding a Bridging visa A or B, then you may able to apply for a Bridging visa B which allows you to temporarily leave Australia. This may allow you to lodge another visa application with the Department, and then return to Australia on your Bridging visa B and remain in Australia while you wait for your AAT hearing.
In terms of whether the Department can approve your new offshore visa application while you are in Australia, this will depend on the requirements of the visa that you applied for. For example, with General skilled migration visas (189, 190 and 489 visas) or employer sponsored permanent residency visas (186 and 187 visas), your offshore visa application can be decided when you are in Australia and hence, you won’t need to leave Australia for the Department to decide your new visa application. If you lodged an offshore partner visa (309/100 visa), then you do need to be outside of Australia at the time that the Department decides your visa application.
What is the AAT application fee?
The AAT application fee is currently $1,731.00, and 50% of this fee will be refunded if you are successful with your AAT appeal.
There is no refund if your application is not successful, or if you later withdraw your AAT application.
What is the time limit with appealing?
It is important to note that there is a strict time limit by which you need to submit your AAT appeal application. The time limit will depend on the decision which is being challenged. However, the time limit within which you need to apply for AAT review is generally short.
It is important that you carefully read the refusal or cancellation notice from the Department – this will tell you whether your refusal or cancellation is AAT reviewable, and the time by which you need to submit your application for review.
The AAT cannot accept an application for review that is submitted outside of the allowed time frame. This is very strictly enforced.
What is the AAT’s processing times?
Generally speaking, waiting times are very lengthy and is around 12 to 18 months. Check the AAT website for average processing time.
If you have circumstances that may warrant the AAT treating your case with priority, you should bring this to the attention of the AAT (preferably when you lodge the application for review), together with appropriate evidence of why you require priority processing. Relevant circumstances could include:
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