Migration Administrative Appeals
If your visa has been refused or cancelled by the Department of Home Affairs (DHA) there are very strict eligibility requirements and time limits to appeal to the Administrative Appeals Tribunal (AAT).
However, not all visa decisions can be appealed to the AAT.
When receiving a negative outcome from the DHA the first step is to establish whether you have a right of appeal right to the AAT, and next is the time limit. The AAT does not have the power to extend the time limit for migration appeals and if the application is lodged too late, the AAT cannot conduct the review.
The AAT is a merits review body, not a court. It is separate from the DHA and will assess the application again with ‘fresh eyes’ although it must still apply the same law and requirements. Fresh evidence may be introduced. Often the Tribunal Member will ask you questions directly, rather than the lawyers.
A Tribunal member will reconsider the facts, law and policy and make a new decision. You may be asked to attend a hearing with the Tribunal Member. During the hearing, you will be asked questions relevant to your case which allows the Tribunal Member to gain a more detailed understanding of the issues, which may involve interviews with other people involved in your case, such as a witness or sponsor.
Most of what we do to assist is done well before the hearing takes place – through identifying the relevant law and issues, analysing and determining what materials should be provided and providing comprehensive submissions addressing how these materials relate to the relevant criteria. We aim to make the hearing as straightforward and stress free as possible for all parties involved.
At the end of the process, the AAT has the power to do the following:
- Affirm the original decision. This means that the original decision by the DHA still stands and the outcome has not changed;
- Vary the decision by the DHA;
- Set aside the decision and replace/substitute with a new decision
- Remit the matter back to the DHA for reconsideration with specific directions. This means that the matter will return to the DHA for a new decision to be made.
The Tribunal will review the DHA decision, but cannot grant a visa. This is solely the role of the DHA and the Minister for Immigration.
Obvia Legal has experience in and successfully conducted migration administrative appeals. We can assist you from the outset, or you can appoint us at any point in time during the case. Contact us now, before it becomes too late!