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A migration decision being made against you can be daunting. Whether your visa application has been refused or a visa cancelled, it can be difficult to know whether you have any options available. Luckily, there are some options of recourse where a visa decision results in a visa being refused or cancelled.
Below, we explore the process of appealing a visa refusal or visa cancellation decision made under the Australian Migration Act 1958, and answer some of your frequent questions about the process.
How do I appeal a visa decision?
It is important to seek legal advice that is relevant to your circumstances as soon as possible, as strict time limits apply to any visa and migration appeals (often, 28 days) and this may affect your ability to remain in Australia.
Administrative Appeals Tribunal (AAT)
In Australia, visa appeals arising from visa refusals and visa cancellations (as well as other migration decisions, but not including protection visas) are heard in the Administrative Appeals Tribunal. An example of an appealable decision might be where the Department of Home Affairs has refused your visa on character grounds.
In this case, you will want to show any relevant material related to your character, which would show that your character was not such as to warrant the Minister deciding to refuse or cancel your visa on that basis.
A hearing before the AAT will review a decision by the Minister of the Department of Home Affairs, and determine whether the visa refusal or cancellation was the correct decision under immigration law (in Australia, under the Migration Act 1958 (Cth)).
What will the AAT Do?
The AAT, after considering your matter and the decision to cancel or refuse your visa, will either confirm the decision of the Department, or determine that the decision was incorrect, and refer the matter back to the Department so that the decision can be remade.
If the AAT decides that the decision was incorrect, the Department will generally either remake the decision by granting the visa, or revoking the visa cancellation.
What if my appeal is not successful?
If an appeal to the AAT is unsuccessful, there are generally two options available:
- Lodge an application to the Minister for immigration for ministerial intervention (i.e. ask the Minister to exercise discretion and grant the visa or revoke the visa cancellation); or
- Lodge a further appeal application with the Federal Court of Australia. Again, time limits apply for migration and refugee appeals in the Federal Court.
Note that these avenues are only available in limited circumstances and it is vital to speak to a migration lawyer as soon as possible.
For example, appealing a decision of the AAT to the Federal Court requires you to show that the AAT made a legal mistake in the way that they reviewed the decision of the Minister. This is often difficult to establish and in these circumstances, it is vital to have sound legal advice from an expert migration lawyer. Often, these proceedings will involve experienced barristers.
How long does a visa appeal take in Australia?
Appealing a visa refusal or cancellation with the AAT can take time. Often, wait times for a hearing and the process of reviewing a visa refusal in the AAT can exceed twelve months. If you wish to further appeal such a decision to the Federal Court, this can add even further significant periods of time.
If your circumstances warrant however, the AAT is able to treat your matter with priority – such as if you are in immigration detention, can demonstrate serious financial difficulty or medical condition, or if the decision has resulted in the separation of a parent and child.
The above is general legal information and should not be considered legal advice. You should contact our law firm for legal advice tailored to your specific legal matter. The courts of New South Wales deal with matters on a case-by-case basis. It should also be noted that there may currently be court delays due to COVID-19 and alternative arrangements made for legal process and proceedings.
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Frequently Asked Questions.
Most appeals under the Migration Act in the AAT attract a fee of $3,000*, which can be reduced by half in the event your appeal is successful, or if you can show serious financial hardship. Refer to the Administrative Appeal Tribunal website for latest pricing.
There are significant wait times in the AAT, with decisions often taking twelve to eighteen months to be reviewed.
An appeal to review in the AAT must generally be made within 28 days of visa decisions.
Most kinds of Australian migration or visa decisions can be appealed (such as where an unfavourable visa decision was made on character grounds), but not in relation to protection visa, or if your visa was mandatorily cancelled.