The Administrative Appeals Tribunal (AAT)
When your visa application is refused or cancelled, you may be able to appeal the decision to the Administrative Appeals Tribunal (AAT).
The AAT is the merits review body for most of the administrative decisions made by the Federal Government. Recently (2015), the operations of the Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT) were absorbed into the Migration Division of the AAT.
The Migration Division of the AAT operates as a non-adversarial tribunal to review decision made by the Department of Immigration. In short, you can be represented by a migration agent, but there will not be a representing counsel from the Department of IMmigration. A tribunal member will review the Department of Immigration's decision along with the facts of your situation, and make an independent decision.
Appeals Lodgement Timeframe
Most of the time, you must lodge an application to the AAT within the net 21 days. However, the timeframe may vary depending on the decision in question, and the method by which you were notified.
If an appeal is not lodged within the timeframe, you might lose your right to lodge an appeal.
Decisions by the AAT
During the course of your appeal, the AAT may make a new decision while also considering the facts and situations of your case. The AAT will basically reconsider your case following the same procedures of the Department of Immigration, but with more detail and may consider relevant information, evidence and your situation that you may provide during your hearing.
If the need arises, it is possible to appeal again after a negative AAT decision to the Federal Court. However, the Federal Court appeal will only be successful if they have found an error in the way the law is applied in your case e.g. a legal error.
AAT Hearings
When you lodge an appeal to the AAT, you have the right to have a hearing. Hearings are normally conducted face t face with the AAT member who will be making a decision on your appeal.
You may give evidence verbally and can call witnesses to give evidence to support your case at the hearin. The member will then take the opportunity to clarify the facts in your situation with you.
The hearing can make all the difference between success and failure in your appeal. It is of upmost importance to be thoroughly prepared for it, and in particular to anticipate possible questions which may be asked.
Appeal Outcomes
The AAT can decide to either remit or affirm the decision by the Department of Immigration.
When a decision is affirmed, the AAT agrees with the Department of Immigration on their decision. You will then have the right to further appeal this decision.
When a decision is remitted, the AAT disagrees with the basis on which your application was refused or visa cancelled by the Department of Immigration. If your visa was refused and the AAT has remitted the decision, your case will be sent back to the Department of Immigration. The Department of Immigration will then look at any remaining requirements that need to be fulfilled to grant the visa.
Affirmed Appeals
If the AAT has decided to affirm the decision by the Department of Immigration, you will be able to lodge a further appeal to the Federal Court, or an application for Ministerial Intervention.
Consider appealing to the Federal Court if you think and you have a strong case that there is a legal error in the decision by the AAT. Examples of a legal error would be for the AAT to apply the wrong test in determining your eligibility for the visa or did not provide you appropriate procedural fairness in making a decision (e.g. did not consider all relevant information). The Federal Court cannot go back into the facts of your case, and you must establish that a legal error has been made by the AAT. It is generally quite difficult to establish an argument, so it is critical for you to make the most of your merits review at the AAT.
You can also apply for Ministerial Intervention after a mertis review, if you think that there are compelling grounds for a visa grant, especially if you do not meet the normal visa requirements. The minister could intervene to grant you a temporary or permanent visa but you would have to make an extremely strong case.
SCVI Migration
It is critical to make the most out of your opportunity for mertis review, as you may not have another chance to have the facts of your case considered. This adds tremendous pressure and can be very daunting and stressful.
It is imperative to have comprehensive knowledge of visa requirements, thorough research on relevant case law and high proficiency in the processes and procedures of AAT appeals.
We are more than happy to have a chat with you and see what we can do to help. We will absolutely give you a frank assessment of the prospects of success and likely issues in your case, as well as alternative visa pathways before engaging you as a client.
If you decide to have SCVI Migration act on your behalf, we will do our best to guide you through the appeals process to achieve a successful outcome.