Has your visa application been refused or was your visa cancelled? Or are you an employer that lodged a business sponsorship or nomination application which was refused? You may be able to appeal this decision to the Administrative Appeals Tribunal (‘AAT’).
Visa refusal appeal – AAT
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:
- You are in Australia, applied for a visa and this application was refused by the Department
- You are in Australia and your visa was cancelled by the Department
- You are in Australia and your visa was cancelled and your application to have the cancellation revoked was refused by the Department
- You are sponsored or nominated by an employer or another person for a visa, and you lodged this visa application outside of Australia. Approval of the sponsorship or nomination must be a requirement for visa approval. Your sponsor or nominator may apply to the AAT for review of the decision to refuse your visa application. Individuals who may be able to apply for AAT review on this basis include applicants who are sponsored by their employer (457, 482 TSS, 186 or 187 visas), sponsor or partner (309/100 and 300 visas), family members (carer or remaining relative visas) etc. Note: For Resident Return visas and Visitor visas, only a parent, spouse, child, brother or sister of the visa applicant may apply for review if the visa applicant was outside of Australia at the time of visa application
- You are an employer that applied for Standard Business Sponsorship and this application was refused
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:
- All evidence, documents forms and interview records held by the Department (you can obtain a copy of these records by completing a Freedom of Information request with the Department)
- Any submissions or evidence which you submit to the AAT for their consideration, and
- Any evidence provided at the hearing
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:
- You will lodge your AAT application within the allowed time limit. You can lodge your AAT appeal online (you are allowed to lodge multiple appeals using the same AAT online account. You don’t need to create separate accounts if you need to lodge multiple appeals, such as appealing both business nomination and visa application refusals)
- When you are completing the online appeal form, you will get to a web page that will ask you to upload relevant supporting documents. You should upload a copy of the Department’s PDF Refusal Decision Record, which would be attached to the email from the Department notifying you of your application refusal. Generally speaking, this is the only document that the AAT will need immediately after the lodgement of your appeal. If you do not upload this document now (or after lodgement of your appeal via your online AAT account), then the AAT will likely send you an email asking you to upload this document. After lodging your appeal, you can log back into your online AAT account and upload further relevant documents for your appeal
- After you pay and lodge your online appeal, you should receive an auto-mated email from the Tribunal confirming that they have received your appeal. The AAT’s standard letters state that the validity of your appeal has not been assessed yet – extract from current standard AAT letter: Please note that the validity of your application has not yet been assessed. We can only review a decision if a valid application for review has been made. You will be advised if it appears that your application may not be valid. If you lodged a valid appeal, then the AAT will not send you any further correspondence to confirm that your appeal is valid. You can assume that your appeal is valid and in the queue if you do not receive any further correspondence from the AAT. The AAT will however send you further email correspondence if there are any issues or questions in relation to the validity of your appeal
- Generally speaking, you will not receive any further correspondence or instructions from the AAT after lodging your valid appeal, while you wait the AAT’s processing time. The AAT will generally only contact you once the relevant Tribunal Member has been allocated to your appeal, and he or she has set a hearing date for your appeal. The AAT’s correspondence would also ask you to submit any further documents and information that you would like the Tribunal Member to consider in his or her assessment, and this correspondence may also provide a list of particular information and documents that the Tribunal Member requires (this would generally mean that the Tribunal Member has reviewed the information and documents from the Department’s files and your earlier application, and any further information and documents that you uploaded via your online AAT account)
- The Tribunal Member may be able to make a favourable decision just based on considering the documents and evidence that the AAT has on file, without the need for a hearing. However, such decisions are rare and this will generally only occur if the appeal is straight forward, and you have provided information and documents which demonstrate that you satisfy the relevant legal requirements without the further need for hearing evidence. If a decision cannot be made based on considering only the documents and information held by the AAT, then you will be invited to provide comments or provide further information to the AAT – it is important that you do respond to this invitation which includes a form that you need to complete and send back to the AAT to confirm your attendance. If you are unable to attend the appointed hearing date, then you need to email and correspond with the AAT as soon as possible to request for a re-scheduling of the hearing. In your request email, you need to attach supporting evidence to demonstrate why you cannot attend the appointed hearing date. Your request for an extension is at the discretion of the Tribunal Member deciding your appeal, and he or she is allowed to reject your request
- Your representing migration agent and/or solicitor can attend the hearing with you. However, generally speaking, your representative cannot speak on your behalf and answer the Tribunal Member’s hearing questions. You can speak with your migration agent and/or solicitor, and get advice and clarification from him or her during the hearing. You can request an interpreter if required
- The Tribunal Member may ask you to provide additional information and documents after the hearing, if this is required before the Tribunal Member can decide if your application satisfies the relevant legal requirements. The Tribunal Member may also schedule further hearings if required
- After your appeal hearing is finalised, the AAT will generally send you a written statement advising of the Tribunal Member’s decision
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 4-8 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:
- You can make a written request to the Minister to exercise her/his personal discretion to grant you a visa, or substitute a more favourable decision. This is an application for Ministerial Intervention
- You may be able to appeal to the Federal Court or the Federal Magistrates Court – there are strict time limits for any such appeal
Can I apply for another visa while I am waiting for my AAT hearing?
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.
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.
Bridging visa and remaining in Australia
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.
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 on applying for AAT review?
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:
- being in detention
- suffering from a serious medical condition
- experiencing serious financial hardship
- separation of a child from a parent or care giver
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