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. We have dedicated this page to summarising the most important things you need to know about the 2 types of reviews available: merits review and judicial review.

watch the video and read on for more details

Most decisions in relation to visa refusals and cancellations can be reviewed. However, not everyone can apply for a review. There are strict time limits to apply. The process can be complex. And if you are serious about your review (i.e. you don’t just want to buy time) then you need to invest in legal representation. We say “invest” because there is usually a lot at stake in a visa review, and the long term benefits of a positive outcome far outweigh the short term costs.

AAT: Merits review

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.  If you contact us, we will be able to quickly advise you if your matter falls within the range of those cases where an appeal is possible.

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.)

It’s important that time starts running when you are notified about the decision. It may be that the notification is for some reason invalid. (For example, because it hasn’t been sent to you properly.) Admittedly, this is a very technical issue, but it’s worthwhile to check if the notification you received is valid because it significantly impacts your ability to appeal the decision.

What are the grounds to appeal the 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. (This is not the case when you appeal to the Court, as explained below.)

And of course, you can also appeal if the original decision is simply illegal for whatever reason.

Who determines 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 review.

How long before a decision is made by the AAT?

The AAT regularly updates the likely timeframe.  Currently, for a partner visa, the appeal takes about a year. For a bridging visa, it’s 34 days on average. So the answer depends on the type of visa you are dealing with.

What are the chances of success?

We can only tell you when we know the facts of your case. As a general observation, we would say this: Department of Home Affairs officials make lots of decisions, and mistakes can be made. So don’t assume that just because a government department makes a decision, it’s necessarily right (even if they use very official language in their letters). At the same time, most original decisions get affirmed by the AAT.

Is legal representation necessary?

It’s not compulsory. However, let us make the case for legal representation:

Firstly, 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).

Secondly, 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.

Thirdly, 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.

The costs of the AAT appeal

The filing fee is about $1,700. If you can prove that this poses financial hardship to you, you can get a 50% discount.If you win, you get back 50% of the application.

There may be other costs. These include, for example, translation expenses or travel costs.

What if I lose the appeal?

Firstly, it may be possible to appeal to the Federal Circuit Court or the Federal Court. Further on this below.

Your other options are to leave the country, or, if you can, apply for a new visa.

Appeal to the Federal (Circuit) Court

If you file an appeal in the Court, the process is called “judicial review”. Judicial review is fundamentally different from “merits review” – the process which is described above. Judicial review is available in limited circumstances only: you must prove that the original decision contains “jurisdictional error”. If this is confusing, bear with us.

What exactly is jurisdictional error?

The difficulty is that the meaning of this term is not really defined anywhere.  It has been accepted by judges that being able to tell the difference between jurisdictional and non-jurisdictional error is often extremely difficult. Different judges can come to different conclusions about the same set of facts.

That said, we can provide some examples to illustrate what is jurisdictional error. When a decision maker relies on an irrelevant issue, or fails to identify a relevant issue, they commit jurisdictional error. If the decision maker commits fraud, that’s jurisdictional error. If a decision is made but it’s not based on evidence, that’s also jurisdictional error. If a case officer were to act in bad faith, that would amount to jurisdictional error. Bias, and more importantly, reasonable apprehension of bias would amount to jurisdictional error. What is reasonable apprehension of bias? There have been cases where a decision maker was aggressive, expressed opinions about the merits of the case, so that it was clear to the court that a lay observer would think the case had been prejudged.

The point is this: if you came to us and asked if we can appeal your case to the Federal Court, we would have to have a very good look at your case to determine if grounds for a review exist.

What can the court do?

If you win, the court will refer the case back to the original decision maker, and will prevent the decision maker from acting on their original (i.e. incorrect) decision. The Court will not give you a visa. In other words: if your visa application was refused, and you win in court, the refusal would no longer be effective, and the Department of Home Affairs would have to decide your visa application again. So this is different from the AAT merits review. In the AAT, if you win, you might be able to get a visa from the AAT straight away.

This brings us to the next point, which many people forget: futility. In short: even if you have grounds to appeal to the court, if the error in the original decision was not material, your case will not succeed. Put simply, if the Department of Home Affairs would have to make the same decision anyway, regardless of the error, then the judicial review will fail. Why? Because the most you can get from the court is for your case to be referred back to the Department, so they can make a new decision, in accordance with law. If that new new decision would necessarily be the same as the original decision, there is no point in the review.

AAT merits review vs judicial review: which one do you choose?

In almost all cases, judicial review (i.e. an appeal to the Federal courts) is not available until you have exhausted your merits review rights. In other words, you first have to appeal to the AAT. If you fail in the AAT, you might be able to apply for judicial review.

Federal Court vs Federal Circuit Court

Most applications for judicial review are heard in the Federal Circuit Court. Some, however, get decided in the Federal Court.

Time limits

Currently, the time limit in making the application to the court is 35 days.  One practical difficulty is that when the application is due, often not all the facts of the case will be available to your lawyer. 

Your prospects of success

Before you file an appeal, you should seek legal advice as to your prospects of success. You should also find out how much the appeal will cost. In addition to filing fees, you also have to pay for the hearing day. Your lawyers will have to do more work, and this comes at a cost too.

A competent lawyer will not file an appeal for you unless your case has reasonable prospects. Why? Because when they file the appeal, they have to certify to the court that your case has reasonable prospects. If they simply ignore this issue, they will have to pay the costs of the proceeding. 

 

How we help you

Your case will be handled by Oszkar Denes, our principal solicitor and immigration lawyer. Oszkar is a migration agent and an experienced advocate and litigator. He is based in Brisbane, Queensland.

When you first contact us, we will discuss your matter with you during a 30 minute free phone consultation. This is a general discussion about your situation. It enables us to gain a basic understanding of your case, and for us to give you an idea about your options and your likely costs.

It is important that you understand that this area of law is very complex, and so we can’t provide detailed legal advice until you retain us. When you retain us, our first step is to advise you in more detail on where you stand from a legal point of view. That way, you can make an informed decision about your appeal.

We know that people are often concerned about expensive lawyers and legal costs getting out of control. As much as possible, we take the stress out of this process by giving you fixed price quotes wherever we can. In other words, we try and avoid hourly charging.

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areas we service

We are based in Brookwater, Queensland and work in Ipswich, the Greater Springfield suburbs (for example Augustine Heights, Bellbird Park, Springfield Lakes) as well as Brisbane. Please keep in mind we service all areas of Queensland. If it’s inconvenient to come to our office, we are happy to meet you closer to your location. Also, we have the best technology currently available for video conferencing, so we can get our work done and keep you continuously updated even if you can’t make it to our office. 

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