Visa appeals and reviews

What happens if a visa application is refused? Or if a visa is cancelled? Generally, you can appeal and ask for a review of the decision.

When you receive a visa refusal or cancellation, you can first seek review in the Administrative Appeals Tribunal and then, in limited cases, in the Federal Circuit Court.

Appeal to the Administrative Appeals Tribunal

In most cases, if your visa application is refused, or if your visa is cancelled, you can appeal the decision and apply to the Administrative Appeals Tribunal for merits review. Decisions which can be reviewed include visa refusals, cancellations, refusals to grant a bridging visa, decisions to not approve a sponsorship or nomination, to name a few. 

Who can lodge the appeal?

In most cases, the visa applicant has the right to lodge the appeal. However, there are exceptions. For example, let’s assume that you have applied for a visa which can only be granted if you are outside Australia – and you are overseas, waiting for the decision. Your application gets refused. In this case, review rights are very limited. If you were sponsored or nominated for a visa by an Australian citizen or permanent resident, then they can apply the decision, but you can’t. 

Time limits

There are very strict time limits to file an appeal. The time limits depend on what type of decision you are seeking to review.  In many cases, you have 21 days after being notified of the decision. In some instances, this can be more (say 70 days) and in other cases, it can be as little as 2 working days! (For example, when a bridging visa is refused and the applicant is in immigration detention.)

What are the grounds to appeal a decision?

When you appeal to the AAT, the review is called a “merits review”. This is because the AAT can consider all the facts and circumstances of the case, including new facts. This means you can appeal if the original decision maker exercised their discretion on a particular issue and the outcome is unfavourable to you. For example, let’s say you applied for a partner visa and the decision maker looked at your relationship and concluded that you have not been in a de-facto relationship long enough. You can appeal and argue that the decision maker should have placed more weight on other evidence. You can also collect more evidence and argue that the new evidence shows that your position is correct.

So the point is that you are able to appeal even if the original decision is not illegal, and the AAT will take a fresh look at your matter. 

Who decides the Appeal?

A member of the AAT will decide the appeal. This person is not employed by the Department of Home Affairs. In other words, this is an external, independent review.

Do I need a lawyer?

It’s not compulsory but if you are serious about your matter then there are plenty of reasons why you should consider engaging a lawyer to represent you:

• Before you appeal you should seek legal advice about your prospects of success. Although the legal advice will cost money, if the advice is that you have no real prospects, then you shouldn’t appeal, and you have saved yourself in excess of $1,700 (that being the application fee).

• Australian migration law and practice is complex. Your may think you have valid grounds for an appeal. But your lawyer may identify other points which make your case even stronger. If you have good submissions, your prospects are better. Also, your lawyer can tell you if you need more evidence to support your appeal. If that evidence is properly presented to the AAT, again, you increase your chances of success.

• The AAT review is not as formal as an appeal before the court. This also means that your legal costs are much lower compared to a Federal Court review. In other words, competent legal representation before the AAT need not cost an arm and a leg.

The simple fact is that if you lodge an appeal and you are unable to articulate your position, most likely you will lose.

Federal Circuit Court

If your appeal in the AAT has been unsuccessful, you may be able to lodge an appeal in the Federal Circuit Court.  This is called “judicial review”. This form of appeal is only available when the AAT made a jurisdictional error. 

What exactly is jurisdictional error?

You won’t find a definition anywhere, but we can give you examples:

• Decision maker does not take into account relevant evidence. Let’s say you wish to prove a point by way of documentary evidence, but the AAT simply disregards your document, without explanation or good case. This is jurisdictional error.

• Bias on the part of the decision maker. If the AAT finds against you simply because they don’t like you, that would be jurisdictional error. This is highly unlikely to happen.

• Decision maker wholly unreasonable. Generally, the AAT can decide how much weight they give to the evidence available in your case. So if there is evidence favouring you and also evidence against you, the AAT can decide that they put more weight on the evidence which is against you. This is the AAT’s discretion. But if the facts show that no reasonable person would have exercised the discretion the way the AAT did in your matter, this might be jurisdictional error. In short, the decision must be so unreasonable that no reasonable person would have made the same decision.

Risks involved in a Federal Circuit Court Appeal

You need to appreciate that appealing to the Court is very different than appealing to the AAT:

• The Immigration Department will be represented by lawyers. In the AAT,  you don’t have to worry about the Immigration Department, because they do not attend the hearing. The Court is different! The Immigration Department appoints lawyers to oppose your appeal.

• The Court may order you to pay costs. If you lose in the Court, you will be ordered to pay the legal costs incurred by the Immigration Department. This can be a substantial amount, so this is why it is important to find out early if you have a good chance of success. Remember, if you are ordered to pay costs and you don’t comply, you may not be able to get another visa.

• Court process is very technical. The Court will implement a timetable in your matter. You will have a certain time period to file documents such as “Application” or “Affidavit”. You need to understand this process well in order to maximise your chance of success.