Reviews to the Administrative Appeals Tribunal (AAT)
If your Visa is refused or cancelled, you might be able to have the decision reviewed by a merits review tribunal under the Administrative Appeals Tribunal (AAT).
The Administrative Appeals Tribunal (AAT) is an independent body and has the authority to:
- Affirm the decision
- Vary the decision
- Set aside and substitute a decision or
- Remit the decision for reconsideration with such recommendations or directions as it considers appropriate
A Merits review is an administrative reconsideration of a case upon refusal or cancellation of the applicant’s visa and is reviewed under the merits review tribunal. The merits review tribunal reviews the administrative decisions made by the immigration authorities that include:
- A range of visa refusal and visa cancellation decisions (known as migration decisions)
- Most onshore protection refusal decisions (known as refugee decisions); and
- Character-related refusal decisions, certain cancellation decisions and citizenship refusal decisions.
Before 1 July 2015, a decision of a merits review tribunal included decisions from the AAT, the Migration Review Tribunal (MRT) or the Refugee Review Tribunal (RRT).
Eligibility for a Merits Review is stated under The Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) that clearly specify which decisions can be reviewed, who may seek a review of a decision and the time limit when a review can be lodged.
As a registered migration agent, VisaTEC Legal can help you with the review process, represent you and act on your behalf in relation to your application. We can also communicate with AAT on your behalf; forward written submissions and written evidence to them; request access to documents in relation to your application; and accompany you to a hearing.
Federal Court Cases
Under the Migration Act, the Federal Court has the Original Jurisdiction on a Migration Decision only if:
- The Federal Circuit Court transfers a proceeding to the Federal Court under s 39 of the Federal Circuit Court of Australia Act 1999 (Cth);
- The decision is a "privative clause decision" or "purported privative clause decision" of the Administrative Appeals Tribunal (AAT) on review under s 500 of the Migration Act
The Federal Court cannot decide whether the Visa should or not be granted. However, Federal Court can consider that a legal mistake was made based on a decision under the "Questions of Law" (under ss 43(3) or 45(2) of the AAT Act) or "Jurisdictional Errors" incurred by the decision:
- The process was deemed unfair in making the decision
- Identifying a wrong issue in the decision making
- Ignoring materials as a reference by the decision maker should have look at prior to making the decision
- Relying on materials as a reference by the decision-maker should not have looked at prior to making the decision
- Incorrect interpretation and application of the law
- Reaching a decision that is deemed unreasonable in the legal sense
- Making a decision for which there was no evidence or that was not reasonably open on the materials
Under the Migration Act, a Migration Decision includes all privative clause decisions, non-privative clause decisions and purported privative clause decisions that are all defined in the Migration Act. A decision can result to the granting, giving, suspending, cancelling, revoking, failure to make a decision and refusal to make a decision of a Visa.
VisaTEC Legal, however, will be ready to stand up for you when you need to submit an appeal to the Federal Court level. We’ll advise you on how to submit an appeal, guide you through each step of the application process and ensure that all the necessary paperwork is up-to-date and submitted. We’ll also provide on your behalf all relevant procedural assistance, legal submissions and hearing representation.
Visa Cancellation for Character Cases
All Visa applicants in Australia must satisfy the character requirement under Section 501 of the Migration Act 1958 (the Act). This applies to all non-citizens, sponsors of visa applicants and non-migrating family members seeking to enter or stay in Australia.
The Department of Immigration and Border Protection has the power (under section 501 of the Migration Act 1958 (Cth) to refuse a person's application for a Visa, or cancel a person's Visa, if that person fails to satisfy the Minister that he or she passes the character test.
If the Department has refused or cancelled a Visa on 'character' grounds, following a Notice of Intention to Consider Cancellation, VisaTEC Legal can assist you to appeal this decision to the tribunal.
Other Visa Cancellation Cases
If the Department of Immigration and Border Protection (the Department) refuses an application for a Visa, other than a protection Visa, VisaTEC Legal can help you to ask the Tribunal to review the decision. This includes decisions about visitor, student, partner, family, business or skilled Visas.
There are strict time limits for requesting an appeal. Time limits depend on the type of decision and whether you are in immigration detention. The time limit cannot be extended.
VisaTEC Legal can also give legal advice after receiving the decision.
Migration and Refugee Division
We can help you on most decisions made by the Department of Immigration and Border Protection:
- To refuse or cancel a Visa
- Relating to approval and cancellation of sponsorship and nomination
We can help you on decisions of the following kind made by the Department of Immigration and Border Protection:
- To cancel a business Visa under section 134
- To refuse or cancel a Visa based on character grounds (including under sections 5H(2), 36(1C), 36(2C) and 501)
- To not revoke a mandatory Visa cancellation under section 501CA
Requests to the
Ministerial Intervention Unit
If your Visa review is unsuccessful at the AAT, one option you may have is to allow us to request the Minister to intervene in your case.
The Minister has powers under the Migration Act 1958 to replace a decision of a merits review tribunal on a person’s case with a decision that is more favorable to that person if the Minister thinks it is in the public interest to do so.
Submissions to DIBP for Notices to Consider
If you received a NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC) from the Department of Immigration and Border Protection, our team of qualified migration lawyers and agents may be able to help with submissions to the Department in relation to the NOICC.
Under the Migration Act 1958, there are several situations in which the Minister may cancel the Visa of a current Visa holder because of his noncompliance with the conditions of his Australian Visa. Therefore, failure to comply with Visa conditions can result in the cancellation of your Visa, either with notice or automatically, depending on the type of Visa held and the reasons for cancellation.
Some circumstances where your Visa may be cancelled includes:
Where the Minister believes that incorrect information or false documents were provided to the Department as part of your Visa application, where the conditions of the Visa have not been complied with, or where the Visa holder no longer meets the character grounds required to hold an Australian Visa.
Appeals and Federal Court Law Representation
Interested individuals or parties can contact VisaTEC Legal today in starting their
Visa application process in Australia.