How do I respond to my AAT hearing invitation?
If you received a refusal decision from the department of immigration/home affairs, you may have decided to take the decision on review with the Administrative Appeals Tribunal. You have been waiting many months- maybe even two years for the Tribunal to contact you with the next step. They finally sent a letter titled- ‘Invitation to attend a hearing’. This article will show you all the steps you need to take to respond to this letter. We will discuss more about AAT preparation in future articles.
What is the AAT?
The Administrative Appeals Tribunal is an independent merits review body that can review decisions made by the Australian government including in relation to visas. The AAT has many divisions including a Migration and Refugee Division (MRD).
The aim of the AAT is to be fair, just and quick and to look at your case with fresh eyes. This means that you can provide more supporting documents and explanation as to why your visa should be granted and why the department made a mistake refusing it in the first place.
If you lodged a valid application with the AAT, then they will eventually allocate a “Tribunal Member” who will be the judge in your case. Generally, the AAT schedules a hearing and invite you and any witnesses to discuss your case. In some circumstances, the tribunal can be satisfied with all the evidence it has and they can make a positive decision on the paper without a hearing.
After the hearing, the AAT can
- Affirm the department’s decision (i.e. you lose your AAT review), or
- Remit the application to the department (i.e. you win your AAT case), or
- Finds it has no jurisdiction to hear your case.
Hearing invitations and how to respond to them
The Tribunal will send you a hearing invitation for a certain date and time and ask you to respond within 7 days. Make sure that your email address is up to date with the AAT as well as your postal address. If you had a previous representative that changed, you must update the AAT so that correspondence goes to you instead. Also keep an eye on your junk inbox daily.
Once you receive the invitation letter, you should:
- Read the letter in full to check for details such as the hearing date, time, address, the member and how long the hearing is expected to go for;
- Check if the Tribunal is requesting any documents and when you need to provide them (generally this is required one week before the hearing at the latest);
- Fill out the ‘response to hearing invitation MR Division’ form and sign it;
- Send back the response form within the 7 days period of receiving the letter and confirm that you can attend. The form will explain your options to return the form which can be online, by email, post or fax or by hand.
If you cannot attend the scheduled hearing, you will have to ask the Tribunal to postpone the hearing, but it will be up to them whether they grant it or not. You must have good reasons as to why you cannot attend the scheduled time.
Never waive your right to a hearing or miss responding to the invitation to attend the hearing as this can lead to a negative outcome on your case.
Should I ask for an interpreter?
You can state whether you require an interpreter on the day or not. We usually recommend clients to have an interpreter present at the hearing. This situation can be stressful and if English is not your first language then hearing the question in English as well as your mother tongue can be very beneficial. Additionally, the right words/terminology may not come to your mind during the hearing when you are answering an important question.
So, an interpreter is very useful to have but each case is different. For instance, if your case is to prove that your English is good enough to perform a job in Australia then relying on an interpreter during the whole hearing can suggest otherwise.
Also, you won’t have to pay any extra to use an interpreter.
Should witnesses attend the hearing?
The Tribunal will give you the chance to specify if you want to have any witnesses at the hearing. This will depend on a case by case basis and the nature of your case. For example, if you applied for a partner visa application that was refused, you may then decide to have family or friends attesting to your relationship to give evidence at the hearing.
Witnesses are different from any support person you wish to have during the hearing. A witness will generally be asked to remain outside the room until called by a Member, but a support person can be allowed in the room as an observer during the whole hearing.
Should I get representation at the AAT or go by myself?
It is not a requirement for you to be represented by a lawyer or a migration agent during the hearing especially if your case is at the Migration and Refugee division. If your case is at the General division then it is very important to have an experienced solicitor with you and sometimes a barrister as well.
If you do decide to be represented at the time, you must then understand the role of your representative before, during and after the hearing.
Firstly, you should appoint a competent and professional representative who has experience in AAT cases. You may also opt for an immigration lawyer (rather than a migration agent only) given the complexity of those cases.
Your representative should
- help you prepare for the hearing by explaining the process,
- request your previous file from the tribunal as well as the department to prepare your case,
- help you to respond to the hearing invitation,
- Explain what documents you need to provide (your representative cannot make up the documents or falsify any documents on your behalf to strengthen your case),
- prepare a legal submission that explains the case and how you meet the criteria,
- do research in relation to similar cases previously decided by the tribunal or other courts,
- provide all the documents on time before the hearing,
- explain to you the hearing process in detail,
- go with you to the hearing,
- provide oral submissions at the hearing- they cannot give answers on your behalf but they can explain how you meet the criteria for the visa based on your evidence,
- provide further post-hearing submissions to the member if there are any concerns raised by the Tribunal.
- The AAT does not grant you a visa, this is only done by the department.
- You should disclose the correct information to the AAT and provide helpful documents to assist your case.
About the author
This article was written by Marial Lewis. Marial is an admitted lawyer in Australia and holds a double degree in Commerce and Law as well as a Master degree in Legal Practice. She was awarded John Gibson Young Migration Lawyer of the year award in 2020 and was a finalist in multiple awards in 2019 such as 30 under 30, the Rising Star of the year and the Suburban Lawyer of the year.
IMPORTANT NOTICE: ImmiAdvisor recommends you obtain your own independent immigration, legal, accounting, financial or taxation advice as appropriate. It is solely your responsibility to evaluate the accuracy, completeness and usefulness of all information provided through this blog/website. In no event will ImmiAdvisor Pty Ltd or the author of this article be liable to you or anyone else for any decision made or action taken by you or anyone else in reliance upon any information contained on or omitted from this blog/website. Immigration law is complex and is subject to constant regulatory and policy change. The information provided here may therefore be outdated and no longer accurate. The information provided above is a general guide only – it is not tailored for your specific circumstances or immigration purposes and you must under no circumstances rely on this information for immigration planning or the lodgement of an application with the Australian government or related bodies. In order to ensure your eligibility is accurately assessed and to allow for tactical decision making that would best suit your desired immigration outcome, it is essential that you consult with a capable immigration advisor registered with the relevant body.
If you would like ImmiAdvisor to blog about a specific topic please email email@example.com