Have you had a visa refused or cancelled and do you have a right of appeal to the AAT?
What does the AAT do?
The AAT provides an independent and thorough review of decisions made by the delegates of the Minister for Immigration and Border Protection, otherwise known as ‘primary decision makers’ where a decision in relation to a reviewable visa is unfavourable to the applicant.
The AAT is not a policy or law-making body and it does not engage in political debate on refugee or legislative policy issues.
The AAT has the power to:
- affirm a decision
- vary a decision
- set aside a decision and substitute a new decision, or
- remit a decision to the decision-maker for reconsideration.
Applying for Review by the AAT
To apply for review:
Applications can be made online or application forms can be printed out from the tribunal’s website.
Applications must be lodged within the prescribed time period.
The AAT does not have the power to override the time limits prescribed by legislation, and applications lodged outside the timeframes cannot be accepted.
What do you need to do to succeed at the AAT?
Many of the matters that come before the tribunal are a result of visa applications that are refused due to a lack of information and lack of credible supporting evidence being provided to the primary decision maker.
When applying for a review you have to look carefully at the material that was provided to the primary decision maker and ascertain what additional information or documentation would assist the applicant to demonstrate that they satisfy the criteria in dispute for the particular visa that is being sought
The delegate’s decision will generally indicate the material that was lacking for a favourable decision in the initial assessment process.
If this material is available, providing it to the tribunal may facilitate a favourable decision on the papers to be made.
How do you adduce additional evidence before the Tribunal?
Oral evidence given under oath or affirmation in Tribunal hearings
Any evidence given by applicants and other witnesses ought be in the form of a statutory declaration or sworn evidence at the hearing. This enables the tribunal to place more weight on it.
Any hearing invitation will ask you to provide any up to date submissions prior to the hearing (usually 7 days prior).
Hearings may be held in person before a member in Perth, by way of video link to a member sitting in another state, or in some cases may be by phone (e.g. visitor visas).
The order of processing cases
The following cases are given the highest priority:
- Cases involving persons in immigration detention.
- Cases where there is a question as to whether or not we have jurisdiction to conduct a review.
The following cases are to be given the next highest priority:
- Cases where the President or a Member or officer authorised by the President, decides there are compelling reasons for prioritising the case.
- All visa cancellation cases.
- All protection visa cases.
- Cases remitted or returned from a court for the AAT to reconsider.
- Cases remitted to the Department of Immigration and Border Protection and which have again been refused, resulting in the applicant making a further application for review.
- Close family visitor refusal cases in accordance with regulation 4.23 of the Migration Regulations 1994.
Time frame for decisions
As each case is different, it is difficult to say how long it will take for a decision to be made on your case. The length of a review can vary depending on the type of case, the investigations that might be required, the overall workload of the AAT, and the priority given to the case.
In some cases, the Member may announce the decision at the end of the hearing. However, in most cases a decision will be given at a later date.
Video Guides for Applicants
The AAT has created a useful video for applicants as to how the appeal process works - http://www.aat.gov.au/migration-and-refugee-division/video-guides-for-applicants
These videos provide information about applying to the Migration and Refugee Division of the AAT for review of visa refusals and cancellations.
The videos are available in English, Arabic, Farsi, Mandarin, Punjabi and Vietnamese.
Assistance by Putt Legal
If you have had a visa refused or cancelled and have appeal rights, or are unclear whether you have a right to appeal, we suggest that you contact us as soon as practicable to discuss.
Putt Legal’s lawyers are experienced at assessing cases and successfully advising and representing clients at the AAT. Of particularly importance is an honest and accurate assessment of your prospects of success, consideration of what further evidence is required for the appeal, and the preparation of detailed written submissions.
Please contact Alisdair Putt or Jessica Edis at Putt Legal to discuss further.