Anybody who has been through the process of applying for an Australian visa knows that it can be long, arduous and involves a lot of work.
For those who go through the whole process, only to find at the end of it the result is a refusal – well, it can be a real body blow.
However, the refusal decision does not have to be the end of the road for you.
Depending on where you are located, and where you lodged your application, you might have a few options to choose from in turns of getting your decision reviewed and, possibly, overturned.
I want only to briefly touch on this, because while the Department does make mistakes, the vast majority of refusals are made within a delegate’s discretion not to grant the visa.
However, there is a very small number of cases where mistakes of law, or the implementation of policy, are made at the Departmental level – and in these cases it can be possible to get them fixed without going through a lengthy appeals process.
A simple example might be where a delegate makes a decision on the basis of information that you provided, but which they forgot to consider. In an clear, straightforward instance like this, if you contact the Department the delegate may be able to reopen your case, consider the evidence you had provided and remake their decision.
But this will not happen often, so unless there is a clear-cut mistake, it’s definitely not an avenue you can take. Once a decision is made, the Department generally considers it made!
More likely, if you disagree with a decision of the Department, you would seek to appeal the decision.
Since the merger of the Migration and Refugee Tribunals (MRT/RRT) into the Administrative Appeals Tribunal (AAT), all appeals now go to the AAT directly.
Whether you are eligible for an appeal of your decision will depend on the factors mentioned above – where you are located, and where you lodged your application.
Not everybody will have access to the AAT. If you are a non-Australian citizen or resident (and have no sponsor), you will generally only be eligible for an AAT appeal if you were in Australia at the time your application was decided.
If you are not eligible for an appeal, and you still wish to apply for the visa, your only option is to reapply for the visa (hopefully include new evidence) and hope for the best.
How Will I Know if I can Appeal?
Your decision record will outline any appeal rights that you have, including timeframes for the appeal. In most circumstances, AAT appeals must be lodged within 28 days – if you miss this deadline you cannot appeal, so make sure you read your letter carefully!
What Will the Appeal Involve?
The AAT is a ‘de novo’ body, which means that the member will consider not only the decision, but look at your matter again from the beginning, including any new evidence you provide up to your hearing date.
This last part is very important, as in some cases applicants who do not meet eligibility criteria on their primary application (e.g. duration of a de facto relationship) will in fact meet the relevant test by the time their appeal is heard.
AAT hearings are held all over Australia and generally are in-person. The member will question you, consider written submissions and ultimately make a decision whether to affirm (agree with the Department) or remit (return to the Department with a direction that they make a different decision) your case.
If your appeal is not successful, or if you choose not to appeal a refusal decision made while you were in Australia, be careful – there is a strong possibility you will be affected by s48 of the Migration Act and may not be able to make another application without leaving the country.
So if you’re considering whether to appeal, get advice – there may be good tactical reasons why you might do it, beyond just trying to get the visa you applied for.
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