If you have had a visa application refused or if you have had your visa cancelled, you may be able to appeal this decision to the AAT (Administrative Appeals Tribunal). Below is some information on how the appeals process works.
The Administrative Appeals Tribunal (AAT) is the merits review body for most administrative decisions by the Federal Government. In 2015, the operations of the Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT) were absorbed into the Migration Division of the AAT.
In the Migration Division, the AAT operates as a non-adversarial tribunal to review decisions by the Department of Immigration. This means that you can be represented by a Migration Agent, but that there is no representing counsel on the Department of Immigration side. Decisions are made by a tribunal Member who will review the Department of Immigration's decision and the facts of your situation.
In general, you must lodge your appeal to the AAT within 21 days. However, the timeframe can vary depending on the type of decision and the method by which you were notified of the decision.
If the appeal is not lodged within this timeframe, you would in general lose your right to review.
When appealing to the AAT, a new decision is made on the facts of your case. This means that the AAT "stands in the shoes" of the Department of Immigration, and makes a new decision.
Any relevant facts can be taken into consideration - and you do have the opportunity to present new evidence to the Tribunal.
Importantly, this may be your only opportunity for merits review - ie to have the facts of your situation reconsidered. It is possible to appeal after a negative AAT decision to the Federal Court, but a Federal Court appeal would only be successful if there was an error in the way the law was applied in your case (legal error).
When you appeal to the AAT, you have the right to have a hearing. Hearings are generally conducted face-to-face with the AAT Member who will make a decision on your appeal.
At the hearing, you have the opportunity to give evidence verbally to support your case, and you can also call witnesses to give evidence. The Member will generally take the opportunity to ask questions to clarify the facts in your situation.
The hearing can make all the difference between success and failure in your appeal. It is very important to be thoroughly prepared for the hearing and in particular to anticipate possible questions which may be asked by the Member.
The AAT can decide to either remit or affirm the decision by the Department of Immigration.
If the decision is affirmed it means that the AAT agrees that your visa application should have been refused or your visa cancelled. You may then have a right to further appeal the decision.
If the decision is remitted this means that the AAT does not agree with the basis on which your application was refused or visa cancelled by the Department of Immigration. In the case of visa refusals, if the AAT remits the decision, your case will be forwarded back to the Department of Immigration for further assessment. The Department of Immigration will then look at any remaining requirements for grant of the visa (eg health and character).
If the AAT affirms the decision, you may be able to lodge a further appeal. The two most likely options would be to the Federal Court or an application for Ministerial Intervention.
You may consider appealing to the Federal Court if you think that there is a legal error in the decision by the AAT. This would be the case if the AAT applied the wrong test in determining your eligibility for the visa or did not provide you appropriate procedural fairness in making a decision (eg not considering all relevant information). The Federal Court cannot go back into the facts of your case - you must establish that a legal error has been made by the AAT. This is generally quite a difficult argument to make, so making the most of your opportunity for merits review at the AAT is critical.
You could apply for Ministerial Intervention after merits review if you think that there are compelling grounds for grant of a visa, even though you do not meet the usual visa requirements. The Minister could intervene to grant you a temporary or permanent visa, but you would generally need to make an extremely compelling case.
The appeal process can be very daunting and stressful. It is very important to make the most of your opportunity for merits review, as you may not have another chance to have the facts of your case assessed.
Representing clients at the AAT requires a comprehensive knowledge of visa requirements, the ability to research relevant case law and expertise in the processes and procedures of AAT appeals.
Stepsmith Immigration Services has represented clients successfully at the AAT on many occasions. If you would like advice and assistance in making an appeal for your refusal or cancellation, please book a consultation with one of our migration advisors. In the consultation we can give you an indication of the overall prospects of success and likely issues in your case, as well as any alternative visa pathways.
If you decide to have Acacia act on your behalf, we can guide you through the appeals process to achieve a successful outcome.