Migration and Refugee Division of the AAT
The Administrative Appeals Tribunal (AAT) is an independent Commonwealth review body which can reconsider government decisions and make new findings. The Migration and Refugee Division of the AAT reviews decisions by the Immigration Minister. In doing so, it must follow the commonwealth immigration law and does not have the power to grant a visa if the applicant does not meet the requirements.
The requirements for visas are set out in the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). The Migration and Refugee Division of the Tribunal cannot review a decision to cancel a visa if the visa was cancelled when the holder was outside Australia, or if it was cancelled because they were not of good character.
When a person seeks review of an immigration decision, the Tribunal has the power to:
- overturn the decision;
- substitute another decision;
- return the case to the Department of Home Affairs for reconsideration; or
- affirm the original decision
Lodging an appeal to the Migration and Refugee Division
If a person who is in immigration detention wants to apply for a review they must file a form M1 or a form M2 which must be accompanied by the application fee. A person can apply for a fee waiver at the time they lodge their application. If that fee waiver application is refused, their application will be considered invalid unless they pay the fee within the time determined by the tribunal.
If the visa applicant is in Australia they should apply for review themself. If the person is overseas, then their Australian sponsor, nominator or a family member should apply. If the person has a business sponsor or employer nomination then the employer or sponsor should apply. If two or more family members made a combined visa application a single appeal on behalf of all members can be filed and only one fee is payable.
There are strict time limits for lodging appeals to the AAT in respect of migration or refugee decisions and applications cannot be accepted outside of time. The time limits vary depending on the type of visa and can be as short as two days. It is possible to file the application form and fee within the time period and provide further evidence later. After an application for review has been lodged, the applicant should apply to receive a copy of their file held by the Department of Home Affairs under the Freedom of Information Act. This can be done by completing a form 424.
The material obtained through freedom of information will help an applicant to work out why the Department made the decision it made. The person seeking review of the decision will need to address all of the Department’s concerns in order to have their appeal granted. They will receive a letter from the tribunal confirming they received the application and asking the applicant to lodge any additional documents.
How long an appeal takes varies. A person may receive priority for their hearing if they:
- are in detention;
- have a serious medical condition;
- are experiencing serious financial hardship; or
- are a child separated from a parent or caregiver.
After all the documents are received by the Tribunal, the case will be allocated to a member who will review the documents. If the Tribunal reaches a favourable decision on the documents alone the case will be finalised. If the tribunal member requires further information, this will be requested from the applicant – it is important to respond to this invitation. If the Tribunal has any information about the applicant which may be used against them then it will inform them and give them the opportunity to respond to the information within a stipulated timeframe.
At the Tribunal hearing you will have the opportunity to give evidence and/or have other people give evidence. The hearing is generally informal and open to the public. A hearing may be closed to the public if the tribunal decides it would be in the public interest for it to be closed.
Unsuccessful appeals to the Migration and Refugee Division
If an application for review is unsuccessful then the applicant will be given 28 days to make arrangements to leave Australia. In most cases, the Bridging Visa which they were granted while the application was being processed will expire 28 days after the Tribunal’s decision. If the person is seeking review of a decision to cancel their visa then they must apply for a Bridging Visa E as soon as they are notified of the decision to cancel their visa.
If you do not want to leave Australia, you may be able to write to the Minister requesting him or her to exercise their discretion to grant you a visa. You may also be eligible to appeal to the Federal Court or the Federal Magistrates Court. However, this avenue is only available in limited circumstances and you should seek legal advice immediately if considering doing so as strict time limits apply.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
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