AAT Appeal - Visa Refusal Appeal Australia
What happens if your visa application gets refused in Australia?
If you just received a visa refusal notification letter from the Department of Home Affairs, you are probably worried about your prospects of stay in Australia.
In this article, we will go over your next steps if your visa application is refused, as well as the steps involved in an AAT appeal if you decide to take the matter to the AAT.
If you’re serious about staying in Australia and saving your visa, take a look at the following step-by-step-guide on what happens when your visa application gets refused in Australia and how you can rescue your visa through a visa refusal appeal in Australia (‘AAT appeal’).
Tell us your story and what stage you are in and let’s see how we can help you.
Step by step guide
Jay Son – Australian Immigration Lawyer
Jay Son, our Principal Migration Lawyer, is an experienced Visa Refusal Lawyer (AAT Appeal Lawyer) based in Australia and highly experienced in AAT appeal submissions and legal representation. Jay is 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 and is highly experienced in challenging government decisions in relation to Australian immigration law. He solves difficult migration matters and visa problems including complex partner visas, AAT appeals, visa refusals, visa cancellations, Schedule 3 submissions, health waiver and character concerns.
If you want to learn more about Jay, click here.
Step 1 – Is it possible for me to reapply for a new visa?
If your visa application has been refused or you had your visa cancelled, you should immediately check and see if you can re-apply for a new visa.
If you are still holding a valid visa at the time your visa application was refused, depending on the basis of your visa refusal, you may be able to simply just re-apply for a new visa again. In saying this, you should obviously check to see that you’re able to satisfy the visa requirements before you re-apply for a second time.
However, you can’t always re-apply or that it is always better to re-apply. In fact, the Immigration law is very restrictive and facing Australian visa refusal is very harsh in terms of your ability to re-apply, and in reality, this often isn’t a viable option for a lot of people.
So if you’re not able to re-apply for a new visa, your other option is to apply for an appeal to the Administrative Appeals Tribunal (‘the AAT’), in order to seek a merits review of your visa refusal.
Step 2 – What does an appeal to the Administrative Appeals Tribunal (‘AAT’) involve?
The AAT is an independent body. They are not part of the Immigration Department.
(a) Types of AAT decisions
They have the power to overturn a decision. The AAT can change the visa refusal and replace it with a new decision to grant the visa. This is the best outcome that you can achieve with an AAT appeal as this typically means that the AAT will give you the visa right away. This is called a ‘set aside’ decision.
The AAT’s next power in your case could be to ‘remit’ the original decision. That means the AAT will not make a decision on your case right away, but will instead send it back to the Department with the AAT’s instructions so that a new decision has to be made, and the Department won’t be able to bring up the same refusal reason this time.
Alternatively, the AAT might ‘affirm’ the decision. If they affirm, it means they agree with the Department and therefore the AAT won’t change your visa refusal. So in an AAT appeal, what you want to achieve is for the AAT to either ‘set aside’ or ‘remit’.
(b) Communicating with the AAT
The Department probably communicated with you mostly by email and online through ImmiAccount.
On the other hand, communication with the AAT is more interactive. You can expect to talk to someone about your case. A tribunal Member will be assigned to your specific case, and will invite you to attend a hearing. The tribunal member will then listen to what you have to say about your case.
The AAT hearing will last for about 2 to 3 hours, but it can sometimes be shorter or longer depending on your case.
The Tribunal can start an appeal from the beginning. You can provide new evidence that was not available when your visa application was refused by the Department, or explain something significant in your life happened after lodging an AAT appeal that could be relevant in your appeal case.
Step 3 – Is there a time limit, a fee, and can I file an appeal?
You only have a limited time to file an appeal with the AAT. It is generally 21 days from the date of the decision for most migration decisions, but your time limit will depend on the type of matter you have.
The quickest way to find the time limit is to check your refusal letter or speak with a lawyer.
In terms of the AAT filing fee, at the time of writing this, it is $3,000 for migration decisions, but the good news is the AAT will refund half of that back to you if you win your case.
Generally speaking, you can apply for a visa refusal appeal in Australia if your application was for an onshore visa. If are currently outside of Australia and your application was for an offshore visa, it’s tricker. You may still be able to appeal to the AAT, if your application involved an Australian sponsor. In this case, your Australian sponsor will usually file an appeal on your behalf.
You should always double-check your refusal letter and consult with a lawyer to determine whether you have grounds to appeal.
Step 4 – What is the best way for me to present my case to the AAT?
I mentioned earlier that the AAT is more interactive when communicating with you and that someone from the AAT will talk to you either in person, over the phone or virtually.
But this doesn’t mean that you can just show up to the tribunal on the day of the hearing and then expect the AAT to give you a good outcome. In fact, it’s almost impossible for the AAT member to understand your whole situation within the space of just 2 or 3 hours.
One of the keys to a successful AAT appeal is preparation, so you will need to prepare your case in advance. You will need to make strong written submissions and provide relevant evidence relating to your case before the hearing. This is going to ensure that your AAT member is well aware of your case and can ask you questions specific to your case during the hearing.
This is especially important because the hearing may be the last time the Tribunal member sees you in person, and it may be your only chance to present your case to the AAT in person, so you’ll want to make sure you make the best case you can.
We have helped many clients win their AAT cases and bring them with ‘set aside’ or ‘remit’ decisions from the AAT. 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 for your case.
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