What happens at the AAT Appeal hearing?
If your Australian visa was refused or cancelled (‘Visa Refusal Australia’), in most cases, your next option is to appeal Immigration’s decision at the Administrative Appeals Tribunal (‘AAT’).
In this article, I’ll explain what happens at the AAT Appeal Hearing, so what happens right before, during and after the hearing at the AAT Appeal.
If you have matters at the AAT Appeal and you are wondering about the AAT Appeal process including what happens inside the hearing room, read on.
AAT Hearing in 4 stages
Jay Son – Australian Immigration Lawyer
Jay Son is our Principal Immigration Lawyer and Director of Hummingbird Legal, admitted to the Supreme Court of Queensland and the High Court of Australia. Jay is based in Australia and practises exclusively in Australian immigration law.
Jay is a strong migration advocate (‘Visa Refusal Lawyer – AAT Appeal Lawyer’) and is highly experienced in challenging government decisions in relation to Australian immigration law. Jay solves difficult migration matters and visa problems including the AAT appeals, visa refusals, visa cancellations, Schedule 3 submissions, health waiver and character concerns, and so on.
If you want to learn more about Jay, click here.
Migration and Refugee Division (‘MR Division’) – AAT Hearing
When it comes to Australian Immigration Law such as the visa refusals or visa cancellations there are two types of divisions within the AAT Review. (a) General Division and (b) Migration and Refugee Division’ (‘MR Division’).
In the General Division, the AAT specifically deals with people whose visas have been refused or cancelled based on character grounds or people who had their business visa cancelled.
In the Migration and Refugee Division, the AAT deals with everything else except for those matters that the AAT deals with in the General Division. A few examples of the matters that the AAT deals within the MR Division includes (but not limited to), partner visa refusals, student visa refusals or student visa cancellations, employer sponsored visa refusals and so on.
Just to clarify, this article is written specifically for AAT appeal process for those who have their matters in the Migration and Refugee Division.
The process with the General Division is different and I’ll cover that in a separate article soon.
#1 What happens before the hearing?
The process will look something like this.
You had your visa refused or cancelled and you disagreed with that decision so you filed an AAT review application to appeal that decision to the AAT (‘Visa Appeal Australia’).
And after many months of waiting, the AAT contacts you by email and invites you to attend a hearing. If you have a representative, the invitation for a hearing will be sent to your representative.
The invitation is sent generally around 4 to 6 weeks prior to the date of your hearing, and in the invitation, the AAT will confirm the time, date and location of your hearing as well as the name of the AAT member who will be your decision maker on your AAT appeal application.
Commonly, the AAT will meet with you in person, but it depends on the type of your matter and the member as well as the current climate, especially with the current COVID situation. In this case, the AAT may decide to conduct the hearing virtually via video conference or even over the phone. The AAT will confirm the exact manner of your hearing with their invitation for a hearing correspondence.
At that point in time, the AAT will require you to confirm who will be attending the hearing. They will ask if you, as the applicant, are attending and if your matter involves an Australian sponsor, for example, if you applied for a partner visa or work visa, then the AAT is also interested to know if your Australian sponsor is attending the hearing with you.
Finally, if you have a representative to assist you and any witnesses to give oral evidence during the hearing, the AAT will also want to know at this stage whether they will be attending the hearing with you.
Generally speaking, the AAT will ask you to confirm those details at least one (1) week before the scheduled hearing date.
The last important thing to remember is that, at this stage, the AAT will ask you to provide any relevant evidence as well as written submissions to support your case.
If you haven’t provided any of this to the AAT already, now is the time to do it and it’s important that you do this as quickly as possible.
Even if you had already provided this previously, but you realise later that more evidence has come to light before the hearing, now is the time to update the AAT of that as well.
#2 On the day of the hearing
(a) When you get there
On the day of the hearing, you are expected to arrive there at least 20 to 30 minutes early. When you arrive, a Tribunal officer will meet with you in the lounge and run through some administrative procedures with you.
They will confirm everyone that is attending the hearing by checking everyone’s photo ID and they will then take you and everyone else into the hearing room.
In the room, you, as the review applicant, and also any sponsor or the representative that is attending with you, will be asked to sit at the front bench. Any witnesses will be asked to sit towards the back.
Everyone who is making an oral submission during the hearing, in other words, the people who wish to speak to the member during the hearing, will be asked to take an oath or affirmation based on their religious orientation.
(b) When the hearing begins
After the administrative procedures are complete and everything is set up, the member will enter the hearing room and this is when the hearing will formally begin.
When it comes to MR Division, there is usually only one member sitting on the opposite side of the bench. The member will usually start by introducing themself and by confirming the details of the matter being heard. They will confirm the type, date and circumstances of the initial visa application that was made with the Department, as well as a summary of the Department’s reasons for refusal. The member will also outline, at this stage, the evidence and submissions that you and your representative put forward to the Tribunal before the hearing.
The hearing will usually last around 1 to 3 hours and there is also usually only one hearing, but the actual time and the number of the hearing will depend on your matter and the Member.
#3 During the hearing
The AAT hearing process for the MR Division is a semi-formal setting. This means that the Member is likely interested in having a direct discussion with the Applicant individually. Generally, after the Member has talked a bit about your individual case, the Member will raise a few issues or concerns that they think may stop your case from being successful. The member will also ask you questions directly, such as asking you to explain the specific details for your circumstances.
Sometimes, your matter might involve some facts that need to be established or assessed. For example, in a partner visa, they may want to establish whether there is a genuine relationship; or in a work visa they may want to establish whether there is a genuine need for a nominated position. If this is the case for your matter, sometimes the member might ask the sponsor to wait outside, whilst the Member discusses the matter with you, the Applicant. Your sponsor would then later be invited in, and asked similar questions to the ones that you were asked, to make sure that the answers both you and the sponsor give are consistent.
Other times as the Member discusses the case with you, the member might put you on the spot and ask you to clarify some facts about your matter straight from you. If this happens, the member will generally give you some time to think about your answer and they’ll offer a break of around 5 to 15 minutes outside the hearing room or you can ask the Member for the break yourself so you can think about your answer, and of course, if you have a representative with you as well, you will be able to discuss your answer with them, too.
So after all the questions and issues are discussed and addressed, the member will conclude the hearing and indicate that they will make a decision shortly.
#4 After the AAT hearing
It is quite rare for the member to make a decision on the spot, but it is not uncommon. Sometimes the member might make an oral decision at the end of the hearing which means the member will tell the Applicant the outcome of your case on the spot. In most cases, however, the member will usually make a written decision which generally takes around a couple of weeks to a few months to get the decision after the hearing.
At the end of the hearing, if there are still some outstanding issues that were unresolved during the hearing, the Member will generally tell you about those issues and may ask you to make further written submissions, or you might be able to directly ask the Member that you wish to address those issues and make further written submissions to clarify before the Member makes a decision on your case. If this occurs, the Tribunal will confirm the timeframe for your response during the hearing. If you have a representative, you can discuss how to tackle this with your representative and prepare the further written submissions after the hearing has finished.
Please be mindful that the hearing is possibly the last time the Tribunal’s decision maker (the Member) will meet you in person so it may be the only opportunity you have to put forward your case personally. Therefore, it is important that you let the member know why you believe the Department made the wrong decision.
We have helped many clients win their AAT Appeal cases and achieve positive AAT Review outcomes.
We assist our clients by identifying their most compelling arguments, compiling all relevant evidence, and drafting persuasive submissions on their behalf. We will talk to you and other relevant people around you to understand your case and gather evidence.
Need more Immigration tips and information?
If you would like more tips about Australian immigration, visas and updates, sign up for our free immigration newsletter by clicking here.
We also have an educational YouTube channel about Australian immigration, ‘Hummingbird Legal – A Fresh Take on Migration Law by Jay Son’. This is where we provide practical tips, visa information and step by step guide on Australian immigration and updates.
You can visit our YouTube channel by simply clicking here. Subscribe to our channel and get the latest Australian immigration updates and news.