Visa Appeal & Refusal

What is the AAT Appeal?

If your visa is refused or cancelled, you might be able to appeal this decision to the Administrative Appeals Tribunal (AAT).

Note: Not all decisions are reviewable by the AAT. For example, if the Minister for Immigration personally decides to refuse or cancel your visa under section 501 of the Migration Act 1958, you cannot apply to have a decision reviewed by the AAT.

Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) conducts independent merits review of administrative decisions made under Commonwealth laws.

Within the AAT, specialist offices review specific types government decisions, including Australian Government ministers, departments and agencies and, in limited circumstances, decisions made by state government and non-government bodies.

Appeal to the AAT ON TIME

When you receive a refusal or cancellation letter it will state how many days you have to make an appeal for that decision.

In general, you must lodge your appeal within 21 days after refusal, or 7 days after cancellation. However, the timeframe can vary depending on types of decision and methods by which you were notified of the decision.

If you missed the timeframe, you would in general lose your right to review.

Merits Review of a Decision by the AAT

After appealing to the AAT, a new decision will be made on the facts of your case. 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 – i.e. to have the facts of your situation reconsidered for a more favourable outcome. It is possible to appeal to the Federal Court after a negative AAT decision, 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).

AAT Hearings

When you appeal to the AAT, you have the right to be present in the hearing. Hearings are generally conducted face-to-face with AAT Member who makes a decision on your appeal.

At the hearing, you have opportunities 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 matters.

The hearing can make all the difference between success and failure to 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.

Possible Outcomes of AAT Review

The review tribunal will make one of the following decisions:

• Affirm a decision: This is when the AAT agrees with the department’s decision to cancel or refuse your visa and so the decision that the department has made will stand.
• Set aside a decision: meaning the AAT has the view that the decision should be changed, and the AAT will replace (substitute) the decision with a new decision.
• Remit a decision to the decision maker for reconsideration: meaning the AAT has the view that the decision must be reconsidered. The department is required to reconsider the application having regard to the directions made by the AAT.

Appeals Post Failing at the AAT

If the outcome of AAT review is ‘Affirm’, then you have 2 options further:

• Application to Federal Court: This is when you believe there has been a Legal Error in the decision by the department and AAT.
• Application for Ministerial intervention: You can write a request to the Minister for the Minister’s personal discretion in granting you a visa.

The Federal Circuit Court of Australia (the Court) can review some decisions made under the Migration Act 1958. These include decisions made by the Minister for Immigration and Border Protection (the Minister), the Administrative Appeals Tribunal (AAT) and the Immigration Assessment Authority (IAA).

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 (e.g. 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.

The Minister has powers under the Migration Act 1958 to intervene in your case when the Minister thinks it is in the public interest to do so.

What is and what is not in the public interest is for the Minister to decide. The Minister is not legally bound to intervene or to consider intervening.

When the Minister intervenes to make a more favourable decision, this usually means that the Minister grants a visa. However, only a small number of all requests for ministerial intervention are successful.