How to review a migration decision in the Administrative Appeals Tribunal (AAT)
One of the questions we are asked regularly when a client has a visa refused is – What are my chances of success if I appeal?
Statistics would seem to indicate that the Department of Home Affairs (DoHA) often takes an unreasonable approach to their decision making.
In the AAT Migration and Refugee Division caseload report for the financial year to 29 February 2024, there were 8,781 lodgements, 7,982 decisions and 15,240 active files (excluding refugee matters).
The breakup of the types of visas are:
- Student 40%
- Partner 16%
- Visitor 16%
- Temporary work 7%
- Skill linked 5%
- Student cancellation 4%
- Nomination/Sponsor approval 4%
- Family 3%
- Permanent business 2%
- Bridging 2%
About 40% of the decisions reviewed end up being set aside or remitted back to DoHA.
Therefore, the chances of a successful appeal to review a decision appear to be good.
However, the success of any review decision will depend on ensuring the case is prepared and presented professionally and with all the right information.
What is the AAT’s role?
The AAT is an independent tribunal which reviews Commonwealth administrative decisions. It is an informal jurisdiction and has no common law jurisdiction. It receives its powers from the Commonwealth Parliament.
If you receive an unfavourable outcome from DoHA in relation to your visa, then you have a specific time period to lodge an appeal to review the decision and apply to have it set aside.
If the decision is not set aside the AAT can affirm DOHA’s decision or it may remit it back for further consideration by the decision maker at DoHA.
It is very important to act promptly and ensure any appeal is lodged within the relevant time period, which is generally 28 days.
It is important to always check the appeal period that DoHA outlines in the decision record that you receive refusing your visa.
If you fail to lodge on time your ability to review the decision will be lost.
Importantly you must make sure that you lodge the application correctly.
Preparing your appeal
After the application is lodged, you are then required to prepare your supporting documents and submissions.
This is a very important process, and you will have to gather your evidence which will include evidentiary and supporting material.
You may also be required to have witnesses available for any hearing.
It is at this time it is important to have competent legal representation to ensure your case is prepared correctly and with the relevant evidence to give you the best chance of success.
A good legal representative will set out a strategic plan to ensure all your bases are covered to achieve the best outcome.
The hearing
In some circumstances the AAT may decide your matter without a hearing based on the documents that have been filed including the submissions.
If you are required to attend for a hearing in person, it will be presided over by a Member of the AAT.
Where an applicant’s character or credibility is being assessed the Member will generally require them to appear in person.
You are entitled to an interpreter if required.
The Member will generally ask questions and your witnesses will be allowed to give evidence.
The Member can request further information which can be provided after the hearing, generally within a specific time period.
The decision
The decision of the AAT will be conveyed to your legal representative or yourself in writing.
The three possible outcomes are:
- Affirm the decision – the AAT agrees with DoHA’s original decision
- Set aside the decision – in this case the AAT may substitute a new decision to replace DoHA’s previous decision
- Remit the decision – the AAT makes a positive decision and sends it back to the DoHA to finalise the application
If the AAT sets aside the decision DoHA is not required to further assess the application.
If your application is remitted, DoHA is then required to further process the application and may assess other aspects of the application which were not considered in the original decision. Once satisfied that the remaining matters have been met, a final decision is made by the D0HA.
How can FC Lawyers help with the migration decision?
Appealing a decision to the AAT after a visa refusal can be complex and personally challenging.
The right advice is imperative for a successful appeal.
Our experienced team of legal and migration professionals, including accredited specialists have assisted hundreds of applicants to achieve successful appeals in the AAT and the Federal court system.
Contact our team today to discuss your options if you have received an unfavourable migration decision.
