3 Mistakes you should avoid with your Visa AAT Appeal
Tips and guides from an Australian AAT Appeal Lawyer. Whether your Australian visa was either cancelled or refused, if you didn’t agree with the Department’s decision, your next option is to go to the AAT and appeal that decision in most cases.
Recently, I shared a video explaining what happens at the AAT. That video is specifically about what happens when you receive an invitation to the hearing, including what happens on the day of, as well as what happens inside the hearing room. You can watch that video on YouTube by clicking this link.
So what comes before receiving the invitation to attend an AAT hearing?
In this article, I’ll cover that as well as the three (3) critical mistakes you should always avoid with your AAT Appeal.
If you currently have an active case with the AAT Review, read on.
3 Mistakes with AAT APPEAL
Jay Son – Australian Immigration Lawyer
Jay Son is our Principal Immigration Lawyer, 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 the AAT appeals, visa refusals, visa cancellations, Schedule 3 submissions, health waiver and character concerns.
If you want to learn more about Jay, click here.
Mistake #1 – Not obtaining the AAT file
The Department of Home Affairs keeps a file for each visa application that has been lodged with them. When you appeal the Department’s decision to refuse or cancel your visa at the AAT, what the AAT does is ask the Department to hand over that file to them, as well as any documents that relate to the decision you want reviewed by the AAT. This is so that the AAT is aware of the reasons why your visa was refused or cancelled, and so they can start preparing your AAT review case on their end.
And because the Department’s file may contain crucial information about your case at the AAT, it is a mistake if you don’t obtain a copy of that file as soon as possible with your AAT case. It’s important that you understand your Australian visa refusal reasons and are aware of what you are up against, and you want to know more about your own case than the other party does.
The other thing is, you might have a different lawyer this time with your AAT Appeal. If you either lodged your visa application yourself or had a lawyer who helped with your initial visa application (which is now refused), if you now have a new lawyer (‘Visa Refusal Lawyer or Visa Cancellation Lawyer’) for your AAT hearing, it is important to understand that this new AAT lawyer wasn’t the one who helped you with your original visa application.
So, in this case, the new lawyer didn’t get to see any of the information that was initially provided in your initial visa application. This includes the application form information itself, as well as any correspondence from the Department, and any evidence that was provided to support your application. Remember, for your new lawyer to be able to assist you effectively, the AAT file should be obtained as soon as possible to prepare for your case.
Alternatively, even if you haven’t changed your representative, so you’ve gone with the same lawyer for your AAT matter that also assisted you with your original visa application, you have every right to obtain your own AAT file yourself. This way you will be able to understand the ins and outs of your own case and better prepare for your AAT hearing.
Mistake #2 – Delaying your AAT case preparation until the last minute
You’ve probably heard that it takes ages before the AAT actually starts assessing your case after you have lodged an appeal. The AAT’s website also indicates that some of the visa subclasses can take up to or slightly more than 2 years. So this puts a lot of people at ease in terms of the amount of time they have to prepare their case and makes people delay their AAT case preparation until the last minute.
However, this is a mistake.
As each case is different, just how long your case will actually take for the AAT to make a decision on your case will vary. Everyone’s got different reasons why their visa was refused or cancelled, and everyone had a different situation to put forward in their case. So, as you can appreciate, the AAT appeal process isn’t a one size fits all, and therefore the processing time will vary depending on the circumstances of each case. This means that your case may actually be processed a lot quicker than you thought in the first place.
Importantly, after filing an appeal to the AAT, the AAT, at any stage of your case, so this is anytime during the process, can either (1) ask for further information; (2) invite you to comment on any information; (3) ask you to attend a hearing to give oral evidence and provide your arguments at a hearing; or (4) invite you to ask other people who could provide evidence for you.
Generally speaking, the timeframe for you to respond to the AAT for any one of the above reasons, is very tight. In some cases, you may be asked to provide certain information or attend a hearing on short notice and if you are not prepared to give the information or attend the hearing, you may be losing your case altogether.
The other important thing is that the AAT might sometimes actually speed up the process for you depending on the circumstances of your case, including any compelling reasons. In this case they will make a decision on your case early, even if the type of your case being reviewed is usually supposed to take a lot longer. And really, if you want the AAT to speed up the process, you will need to start preparing your case early so this includes providing your relevant evidence, as well as the written submissions for your case, to the AAT upfront.
Mistake #3 – Not fully understanding your case/arguments when you go to the AAT hearing
With your AAT case, it is very important that you understand exactly why your visa was refused or cancelled in the first place as well as what evidence is being provided to the AAT to argue your case.
The reason is this.
The AAT hearing is a semi formal setting, so this is unlike what you might have seen on TV with court representation. What this means is that when you attend your hearing, the AAT member, the person that is going to decide on your case, will want to discuss the case with you directly, and this is even if you have a representative with you at the hearing.
The Member will ask specific questions to you and expect you to answer them directly, not your representative. For example, in a partner visa case, the Member might ask you about your relationship by referring to a specific paragraph in the written submissions that had been provided prior to the hearing, but if you haven’t read the submissions yourself or you don’t understand the submissions or your case fully, and you mistakenly give the Member an incorrect response, this will have a very bad effect on your case and may well become part of a reason for an unsuccessful AAT case.
This is the reason why it is a mistake if you don’t understand your own case and are not prepared to answer the questions that the member is going to ask you.
So before you attend the hearing, make sure that you understand exactly what evidence is being provided to the AAT, including any written submissions. You should take the relevant documents into the hearing with you, and bring any notes you have made as well.
Accordingly, the role of your lawyer is very important with your AAT hearing.
From the beginning of the matter, your lawyer will communicate with the AAT on your behalf and assist you with following the correct AAT procedures to make sure that you are afforded procedural fairness. Also, your lawyer will make submissions on your behalf, dealing with the requirements to get your case at the AAT overturned and prepare written submissions and evidence in advance of the hearing.
Effectively, during the AAT hearing, your lawyer will be there to assist you throughout the hearing and may help you answer the questions that the AAT Member may ask you during the hearing. While the Member might be more interested in discussing the case directly with you as generally is the case with AAT hearing, your lawyer will be able to assist you outside of the hearing room, between breaks as well as guiding you before the hearing as to what questions you can be expected to be asked during the hearing.
If you have a case at the AAT either because your visa was refused or cancelled, we can help you.
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.
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