My Visa Was Refused, What’s Next? Consider AAT Merits Review
Thousands of visas are lodged every year in Australia and not all of them are successful. The Department of Immigration and Border Protection (DIBP) has the power to refuse your visa application. If your visa has been refused, do not panic, there could be ways to review the decision. In this blog we will discuss your merits review option with the Administrative Appeals Tribunal who has the authority to reconsider and overturn refusal.
Before your visa is refused
The DIBP will not typically make a decision on your visa application without first putting their concerns in writing. That can be done through a request for more information or in a natural justice letter explaining that your visa will be refused unless certain concerns are addressed. It is important to give attention to these letters and respond within the given timeframe provided. If you received such a letter and do not know how to respond, you might want to seek legal advice and obtain assistance in responding to the DIBP.
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 on temporary visa applications. This will be the case if you overstay your visa or if you leave Australia on certain bridging visas and are affected by a ‘risk factor’.
It is important that you seek legal advice/guidance immediately from a professional if your visa was refused.
Legal options to review a visa refusal- AAT
If your visa application was refused, you might be eligible to seek a merits review of the decision in the Administrative Appeals Tribunal (AAT) typically within 21 days of the visa outcome. This timeframe cannot be extended. Your refusal notification letter should indicate whether the decision is reviewable or not. If you are in immigration detention, your review timeframe is shortened.
What is the AAT?
The Administrative Appeals Tribunal (AAT) is a separate governmental body that has no formal association with the DIBP and conducts 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 DIBP to reach another decision on your application.
The Administrative Appeals Tribunal has several divisions. Most negative decisions made by the DIBP will be heard in the Migration and Refugee Division of the AAT. Cases related to character grounds and mandatory cancellations are heard in the General Division.
How much does it cost to apply for a review at the AAT?
The current filing fees for the AAT- Migration and Refugee Division is currently $1673 payable at the time of lodgement. The only exception is a review of a bridging visa decision that resulted in a person being placed in immigration detention, in which case there is no filing fee. 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.
If you suffer financial hardship and cannot afford the full AAT filing fee, you can apply for a 50% fee reduction by filling out Form M11 at the time of lodgement. You will have to provide supporting documents proving your financial hardship.
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 lodgement 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.
If you lodged your review application while you are in Australia, you will most likely be eligible for a bridging visa that will allow you to stay in Australia lawfully until a decision is made on your application.
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 Circuit 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.
These options will be discussed in our next blog.
- You can represent yourself in the AAT but given the complexity of the procedure and the importance of your review case, you might want to a lawyer/migration agent to represent you at the tribunal.
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.
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