Home     News & Events

My visa application is refused, so now what? Guide to appeal

Posted Date: 14 Jun, 2017

Historically speaking, changes to Australian immigration requirements often results in increased number of refusals of applications.  There are reasons for increased refusals.  These reasons include stricter enforcement of regulations, increased scrutiny by case officers or unfair and harsh interpretation of the policy.

Where your application is refused, it is important to consider the next step in your immigration strategy.  It is also important to remember that time is something which is critical and each subsequent step needs will have consequences for your chances to remain in Australia. For example, it may be appropriate to re-submit the application and address areas of concerns raised at the original application.  However, there are instances where it is appropriate to appeal a decision.

Administrative Appeals Tribunal (AAT) – what you need to know: 

If your application is refused, you may be eligible to lodge an appeal with Administrative Appeals Tribunal.  The main advantage of lodging an appeal is that review will be conducted on merits.

Merits review is an administrative reconsideration of a case. A merits review body makes decisions within the same legislative framework as the primary decision maker, and may exercise all the powers and discretions conferred on the primary decision maker.

AAT has the power to:

  • affirm (not change) the primary decision
  • vary the primary decision
  • set aside the primary decision and substitute a new decision
  • remit (return) a matter to Department of Immigration and Border Protection for reconsideration with specific directions.

In addition, you may be entitled to a Bridging Visa and remain in Australia during process of your case which is another advantage. In most circumstances, there is a 21-day time limit to apply for a review, accordingly, you should ensure that a refusal is addressed as quickly as possible.

Federal Circuit Court (FCC) – appeal process

The Federal Circuit Court of Australia was established by the Federal Circuit Court of Australia Act 1999 formerly the Federal Magistrates Act) and its jurisdiction at inception was conferred by the Federal Magistrates (Consequential Amendments) Act 1999. These Acts received royal assent on 23 December 1999.

The Court is an independent federal court under the Australian Constitution. It is a federal court of record and a court of law and equity. The first applications made in the Federal Circuit Court of Australia were filed on 23 June 2000 and the Court’s first sittings were conducted on 3 July 2000 in Adelaide, Brisbane, Canberra, Melbourne, Newcastle, Parramatta and Townsville.

The Federal Circuit Court of Australia (the Court) can review some decisions made under the Migration Act 1958. These include decisions made by the Minister for Immigration and Border Protection (the Minister), the Administrative Appeals Tribunal (AAT) and the Immigration Assessment Authority (IAA).

The people responsible for making decisions under the Migration Act include the Minister and the Members of the AAT and IAA (the decision makers). These decision makers look at the merits of your application and whether you should or should not be granted a visa.

The Court may only review a decision in order to determine if a ‘jurisdictional error’ has been made. This means the Court determines if the decision has been made according to law. The Court is independent of the decision makers. The Court does not consider the merits of your application and whether you should or should not be granted a visa.

If the Court finds a jurisdictional error, it can:

  • refer your case back to the decision maker, and.
  • prevent the Minister from acting on the decision.

The Court cannot:

  • reconsider the facts and reasons for your visa application
  • take new factual information into account (unless it is relevant to a question of whether the decision maker made a jurisdictional error), or
  • grant you a visa.

An application for review needs to be filed within 35 days of the date of the migration decision. The Court may extend the time limit.

Summary

Having your application refused is stressful and traumatic experience.  Applicants are filled with emotions mainly due to uncertainty of their future in Australia.  An Immigration lawyer will have experience in understanding the administrative process associated with each step and will assist you to put the best case forward.