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Receiving a Notice of Refusal can be an extremely frightening and daunting situation for applicants, with the ability to reside in Australia being put in jeopardy. Nevertheless, the road does not end here and there are often avenues available to recently refused applicants whereby the decision to refuse can be appealed. Whether it is a refusal for a Visitor Visa, Partner Visa, Protection Visa, Work Visa, Study Visa, or any other type of visa application, you may be eligible to appeal the decision to Australia’s administration review tribunal..
Here at Australian Migration Lawyers, we have assisted many of clients with appealing their visa application refusal to the tribunal. In saying this, it is important to note that not everyone who has had their visa application refused can appeal the decision.
Unsure as to whether you can appeal your refused visa application? Have a look at some of the factors below that lay out whether an applicant can appeal the refusal with the tribunal.
A visa refusal can be appealed by way of ‘Merits Review’ or ‘Judicial Review’.
When an application is appealed under Merits Review, the tribunal will reconsider the facts provided in the initial application, with reference to the original decision and the original decision maker’s reasons for refusing the initial application. When an application is appealed under Judicial Review, the tribunal will consider whether the decision to refuse the visa application was a decision made in accordance with the law.
While most visa applications that are refused can be appealed under Merits Review by the tribunal, some do not come with the ability to appeal the decision under merits review. In this situation an applicant cannot appeal to the tribunal to have the facts of their matter reheard and decided on. If a decision cannot be appealed under Merits Review, this will be stated in your Decision Letter.
All visa refusals can be appealed under Judicial Review if the decision maker has made an error in implementing the law when refusing a visa application. If you are unsure as to whether you think you may have grounds for Judicial Review, you can speak with one of our experienced lawyers here at Australian Migration Lawyers who can provide you with sound and experienced legal advice in relation to your options.
For applicants who have had their visa application refused, an appeal must be lodged to the tribunal within a specified timeframe in order for the refusal to be reviewed.
Usually an appeal must be lodged within 28 days following a Notice of Refusal, however this timeframe can be longer or shorter. The exact time frame that you have before you must lodge your appeal will be stated within your Decision Letter.
The tribunal will consider the documents, evidence, and material facts provided with the initial visa application, as well as giving the opportunity for additional supporting documents to be submitted in support of your appeal.
The AAT will usually conduct a hearing with the refused applicant, whereby the tribunal member will ask a number of questions in relation to the visa matter that will assist them in making a decision on the appeal. The tribunal can make a decision without a hearing if the Member feels that a positive decision can be made based on the information available to them prior to any hearing.
Here at Australian Migration Lawyers, we work diligently alongside our clients who have appealed their visa refusal to allow for the best chance of a successful outcome at the tribunal. We start by doing an in depth examination of the client’s Decision Record to ascertain why the application was refused, as well as the examination of the initial application and what was provided. Then, we work with our clients to provide supporting evidence and written submissions to the tribunal that strengthen our client’s appeal, preemptively addressing the reasons for the initial refusal as well as strengthening any other areas of the client’s appeal to further assist with a positive finding by the AAT Member. We also attend as a representative at the hearing to give oral submissions to the Member on the day.
If you are interested in getting more information about a visa, get in touch with Australian Migration Lawyers for a consultation.
When the tribunal can make the following decisions after hearing an appeal for a visa refusal; they can affirm, vary, set aside, or remit the decision to refuse.
Affirm: If a decision is affirmed, then the tribunal has not changed the original decision and the original decision stands.
Vary: If a decision is varied, then the tribunal has decided to change the decision in a particular way than what was originally decided by the Department of Home Affairs.
Set aside: If a decision is set aside, then the tribunal has decided to substitute a new decision for the original decision made by the Department of Home Affairs.
While the tribunal has the power to vary or set aside a decision, the vast majority of appeals heard by the AAT are either affirmed or remitted.
Remit: If a decision is remitted, then the tribunal has decided to send the matter back to the Department to make a new decision.
If a decision is remitted, the Department will not reconsider the entire application as they will be bound to the findings of the tribunal. This means that if the tribunal is satisfied that the reasons for originally refusing the application do not apply, or make different findings, then the Department will ordinarily be compelled to grant the visa if all other criteria for the visa are met.
If an appeal has resulted in a visa application remaining refused, the tribunal’s decision can be appealed to the Federal Circuit and Family Court or the Federal Court. It is important to note that there is a very narrow scope in which tribunal decisions can be challenged through one of these courts, in that the appeal at this stage can only be related to a question of law.
In terms of re-examining the facts of your matter, or asserting that your set of circumstances should have resulted in a visa grant, there are no other avenues beyond the tribunal to have your refused application granted. This is why it is very important to obtain legal representation for matters in front of the tribunal, as this is almost always the last opportunity to have a refused visa application reheard.
Thankfully, our team at Australian Migration Lawyers have vast experience in a range of tribunal matters. Here, we will be able to assess your matter and the nature of your refusal before providing the tribunal with documentation and submissions with the aim of compelling the tribunal to make a favourable decision on your appeal. We ensure that our clients are put in the best position for success, while also seeking to relieve the stress that inevitably comes along with appealing visa refusals.
When a visa is refused, waiting periods vary before you can reapply depending on the specific visa applied for.
The first step to approaching this situation is to understand the reasons why your student visa may be cancelled, the potential consequences of such a cancellation and the options that may be available to you if you wish to remain in Australia following your visa cancellation.