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.
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:
The simple fact is that if you lodge an appeal and you are unable to articulate your position, most likely you will lose.
Find out more about the AAT Appeal Process
We have posted a number of videos on our YouTube channel about AAT reviews. Here is an example in which Oszkar Denes, Immigration Lawyer explains the review process in the AAT’s Migration and Refugee Division. (Most cases are currently dealt with in this division, with the exception of character related issues and citizenship matters which are dealt with in the General Division.)
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:
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: