The Department of Home Affairs (DOHA) has the power to refuse your visa application. If your visa has been refused, there are alternatives to review the department’s decision.
In this blog, we will discuss the merits review option at the Administrative Appeals Tribunal (AAT) which has the authority to reconsider and overturn refusal. Previously, merits review was completed by the AAT as well as two other tribunals: The Migration Review Tribunal and the Refugee Review Tribunal. This has now been consolidated, so all merits review is now completed by the AAT.
What is the AAT?
The Administrative Appeals Tribunal (AAT) is a separate governmental body that has no formal association with the Department of Home Affairs (DOHA) and conducts an independent merits review of your application. A fresh assessment is made by a tribunal member who re-assesses your application. The AAT cannot grant you a visa, but it can direct the Department to reach another decision on your application.
The impact of a visa refusal
There might be significant legal consequences if your visa were to be refused, which include:
- An impact on your legal status in Australia in the near future. That can include becoming illegal after the expiry of your bridging visa associated with the application that was refused (usually after 28 days from the refusal date);
- Restrictions on which future applications you can lodge while you are in Australia;
- Serious consequences on your future return to Australia with a potential three-year ban subject to Public Interest Criteria 4020.
Have you received a notice of intention to cancel your visa or has your visa been refused?
Common Visa refusal reasons
- you have not met the conditions of a previous visa
- you did not provide enough information to prove the claims you made in your application
- you do not meet Australia’s health or character requirements
- you gave the wrong information or made a false claim in your application (bogus documents or misleading information)
- For student visas, when your preferred course of study is not in line with your previous studies
- Not showing that you are able to support yourself financially
- For employer-sponsored visas, when the business sponsoring you is not viable or there is no genuine need, the pay is not according to market salary rates and many more.
How much does it cost to apply for a review at the AAT?
The current filing fees for the AAT- is currently $1826.00 which is payable at the time of lodgment. The only exception for paying fee is when the applicant seeking a review of a bridging visa decision that resulted in a person being placed in immigration detention. Further, Protection visas review do not require a filing fee to be paid until/unless a negative decision is reached by the tribunal. The filing fee is 50% refundable if your matter is successful at the AAT.
How long does the review process take at the AAT?
A hearing is usually scheduled to discuss your application in details and to allow the member to obtain oral evidence from the relevant parties. The AAT has the power to make a positive decision without a hearing, which happens in very few cases. It can take any period from a few days to 12 months or more to get a hearing date for your application depending on what visa you applied for. Cases are generally allocated to a member based on their priority and date of lodgment order. You can request priority processing if compelling reasons apply.
After conducting a hearing, the AAT can take from a few days to months to reach a final decision. It is therefore hard to estimate exactly when your review will be finalised.
What decision can the AAT reach?
Generally, the AAT will reach one of the following conclusions:
- Affirms the decision: this means that your review was unsuccessful and the decision made by the department remains unchanged;
- Varies the decision: this means the decision has been changed or altered in some way;
- Sets aside the decision and substitutes a new decision: this means it agrees or partially agrees that the decision was wrong and has changed all or part of the decision;
- Sets aside and remits the decision: this means that the matter is sent back to the Department of Immigration to be decided again in accordance with its instructions or recommendations.
The AAT can also decide that it does not have jurisdiction to hear the decision.
What if you don’t agree with the AAT decision?
The AAT decision is not final. Further options that may be available are:
- Judicial Review at the Federal Court in the event that the AAT made a legal error;
- Ministerial Request to the Minister of Immigration and Border Protection following a negative AAT decision.
As you must have understood by now that applying for a review is very delicate and intimidating procedure. You can book a consultation with us so that our immigration lawyers can assess your eligibility and tailor your application in accordance with your circumstances.
