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At times, the reasons for refusal of a visa by the Department of Home Affairs (DoHA) may not be correct or may have failed to consider some relevant evidence concerning your visa application.
Where a visa has been refused the decision may be open to appeal with the Migration division of the AAT. An application for decision review can be lodged with the AAT within a specific time-frame.
Similarly, DoHA may have cancelled a visa in situations where you may not consider it justified.
Not all visa refusals or cancellations are valid or sustainable and these decisions, with the right knowledge and expertise, may be reversed.
If you have received a Visa Refusal or Notice of Intent to Consider Cancellation (NOICC) of your Visa, contact ANVS immediately to discuss your options.
Timing is important in these matters.
AAT Visa Appeals
About AAT Migration Appeals
The Administrative Appeals Tribunal (AAT) is an independent authority responsible for hearing visa appeals and reviewing visa cancellations.
The AAT cannot extend the time for making a valid visa appeal review application so an application for review must be lodged within the time period identified in the visa decision notification letter.
In conducting a review of migrations decisions, the AAT will consider the case afresh and have the power to change the decision under review.
The Migration Act and the Migration Regulations specify the migration decisions that can be reviewed, who may seek a review of a migration decision, how an application for migration review must be made, the time limits within which applications for review must be lodged, and the AAT application fee payable. The AAT has no power to make exceptions.
Time limits for an AAT Appeal
The decision letter sent by DoHA should state the time limit that applies to making an application to the AAT. Time limits are otherwise specified by the Migration Act - please contact ANVS if you are not sure.
The AAT Appeal Process
By lodging an appeal, you are asking the AAT to consider whether the Immigration department has made an incorrect decision. Without getting too technical, a Case Officer may have made a procedural error or an error of law. You need to provide the AAT with detailed evidence of why you believe this to be the case.
The Impact on your Visa
By lodging an appeal with the AAT, the decision on your visa has not been finally determined. This means that if you are on a bridging visa, even though this visa has been refused, you remain on your bridging visa (with the same rights) until the AAT makes its decision.
Providing Further Information to the AAT
You can attach supporting evidence to your AAT Migration Appeal whilst it is in the processing queue. The AAT will consider this information when it reviews your case. Information may either be lodged through the electronic portal or in its physical form.
Three possible AAT Migration Review Outcomes
Once the AAT reviews your application, they will do one of three things:
1. Uphold: The AAT agrees with the Immigration Case Officer and your visa is refused.
2. Remit: The AAT sends your case file back to Immigration to look at it again. In almost all cases, Immigration will reverse the decision and grant the visa. You will be refunded 50% of the AAT fee.
3. Overturn: The AAT overturns Immigration’s decision and grants the visa. You will be refunded 50% of the AAT fee.
Why Choose ANVS to represent you at your AAT Migration Appeal
ANVS will assess your prospects of success with reference to the DoHA Policy Advisory Manual, Immigration Case law, Migration Law and Regulations. We also look at other ways your case can be supported, such as support from community, social, political or religious organisations.
In most cases the Department of Immigration and Border Protection will issue a Notice of Intention to Consider Cancellation (NOICC) of your visa. This NOICC will give you a period of time to respond to provide evidence and submissions as to why your visa should not be cancelled. If you do not respond in the timeframe provided, the DIBP will proceed to cancel your visa.
If your visa is cancelled in Australia,
all bridging visas attaching to further applications are also cancelled.
you become unlawful
you will also lose work rights attaching to any visa or bridging visa cancelled
you become Section 48 Barred from lodging (most) further applications within Australia
If you leave Australia or are out of Australia, then you will face a 3 year ban from grant of further temporary visas to which PIC 4013 applies unless you can show compelling or compassionate reasons for grant of the visa within the 3 year ban period.
Visa Cancellation can be stressful and its effects far ranging. If you are facing this unfortunate situation, act immediately to consult with ANVS to assess your options to regularise your status in Australia
Federal Circuit Court (FCC)
FCC appeals of AAT decisions are available if the AAT has incorrectly applied the law in making its decision.
Due to the increased number of migration and refugee decisions being made by the AAT, and an increasing number being appealed to the FCC, time to the first hearing (known as a Directions Hearing) at the FCC can be over 2 years. Following on from the Directions Hearing, there is currently a further significant period to a final hearing.
Administrative Appeals Tribunal and Federal Circuit Court appeals involve complex analysis of facts and law to determine your prospects of success and the best strategy for your case. It is important to consult before making a decision to lodge an appeal with either review Tribunal/Court.