Australia Visa Appeal – How Can I Appeal If My Visa Is Refused?

If you have recently received a negative decision on your Australian visa application, you will likely feel extremely disappointed and worried that your plans for the future have been derailed. Visa refusals can be made for a number of reasons; it may be that you are not eligible for the visa you have applied for, or in some cases, it may be that the case officer who made the decision has made a mistake or has not taken into account information which you have provided. Thankfully, there is a robust appeal system in Australia, which may allow the decision on your case to be formally reviewed.

The Role Of The Australian Administrative Appeals Tribunal

The Australian Administrative Appeals Tribunal (AAT) undertakes independent reviews of visa decisions made by the Department of Internal Affairs (DIA). The AAT website explains that they review certain decisions (i.e. not for all case types) made under the Australian Migration Act 1958, including decisions:

• to refuse or cancel different types of visas
• to refuse to approve a nomination of an occupation, activity or position
• to bar, refuse to approve or cancel the approval of a sponsor

The AAT will not, however, review a decision if it was made personally by the Minister for Home Affairs or Minister for Immigration or if the case is not eligible for review.

In terms of the approach of the AAT, they endeavour to review each eligible case on its merits, including looking at the relevant facts, law and policy, to arrive at their own decision. In doing so, they can:

• uphold the decision of the DIA
• change a decision made by the DIA
• set aside a decision and substitute a new decision, or
• remit a decision to the decision-maker for reconsideration.

The AAT will review your case differently depending on whether you have been refused as a refugee, you have been refused on character grounds, or your visa has been refused but neither of these applies.

How Can I Apply For A Review Of My Australian Visa Decision?

It is first advisable to check your visa decision letter as this will outline whether you are eligible to appeal and, if so, the time limits which apply. The time limits for bringing an appeal vary depending on the type of decision and whether the individual is detained in an immigration centre or not. For those in immigration detention, the time limit to bring an appeal is typically seven days, and if not detained, 28 days. This time period is calculated based on the date on which you received your decision from the DIA. If the time limit has already passed, then it will not be possible to bring an appeal.

The appeal application can be made online or on a paper form. With the online appeal system, you can provide the AAT with documents or information at any time during the review process, receive an automated confirmation of all documents lodged, and view and copy documents previously submitted.

The fee to bring an immigration appeal is AUD$1,826, however, if a case can be made for severe financial hardship, this can be reduced by 50%. To make a case for a fee reduction, you will need to complete the M11 Request for fee reduction form. The application fee has to be paid before the deadline for the submission of your appeal. If a decision is made to reduce your fee once you have paid the full amount, you will subsequently receive a 50% refund.

Appeals can be requested with or without a formal hearing, as such, you should inform the AAT if you consent to them completing a review without your attendance.

What Happens Once I Have Applied For An Appeal Of My Visa Refusal In Australia?

Once you have submitted your application and paid your application fee, the AAT will write to you with a confirmation of your appeal request and details of the next steps. If it is decided that the AAT do not have the jurisdiction to review your case, you will be advised of this in writing. You will also receive a hearing invitation, to which you must send a completed ‘Response to hearing invitation’ form as early as is possible prior to your hearing date, and no later than seven days after receiving the hearing invitation. As such, it is important to act quickly once you receive your invitation. If you cannot make the date for a genuine reason, then you can request an adjournment.

If you are unable to attend the hearing in person, the guidance of the AAT explains the following, “In general, if you are representing or assisting an applicant in an AAT review, you should attend the hearing in person at the AAT or at the location of the applicant. Where this is not possible, you may request permission to attend the hearing by telephone from a third location. The request must be made in writing as early as possible and at least two business days before the hearing, and you must inform us in writing of the direct telephone number on which we can contact you at the scheduled hearing time”.

At the AAT hearing, you can expect the following to happen:

• the Member or AAT staff member will explain what will happen during the hearing
• you will be asked to take an oath or make an affirmation to tell the truth at the hearing
• if you have an interpreter or witness, they will be asked to take an oath or make an affirmation
• you will have an opportunity to explain why you disagree with the decision under review and the Member will ask you questions.

At the end of the AAT hearing, you may receive an oral decision, or if this is not possible, you will receive a decision in writing.

Final Words

Above all else, if you are considering bringing an appeal, it is essential that you engage the services of an immigration lawyer who can advise and represent you throughout the process. This will give you the best chance of securing a positive outcome and will remove much of the stress and worry from your shoulders.