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Administrative Appeals Tribunal (AAT) Appeals, Judicial Review and Ministerial Intervention
Administrative Appeals Tribunal (AAT) Appeals
If you have had a visa application refused, depending on what type of visa application you lodged and your location at the time of application and decision, you may be able to appeal that decision to the Administrative Appeals Tribunal. The appeal is in a sense a merits review of the original decision in that the AAT is an independent body ‘stepping into the shoes’ of the Department of Home Affairs (DHA) to make a totally fresh decision.
The AAT is able to consider new evidence not previously before the DHA and to consider both the law and the facts of the case afresh.
When you are refused a visa application you will be sent a Refusal Letter which should set out any review rights you may have and the Decision Record which sets out the reasons for the refusal. We can establish whether you do indeed have Review Rights and whether you still have time to exercise them. By reviewing the Decision Record we can also determine which legislative criterion/criteria were considered as not being satisfied and whether or not there are grounds to successfully pursue an appeal.
Typically we will offer our services to appeal to the AAT in the following circumstances:
- · Decisions to refuse a visa application, where the applicant is inside Australia at both the time of visa application and the time of decision
- · Decisions to refuse a visa application, where the applicant is overseas and they are sponsored by an Australian relative or an Australian business
- · Decisions to cancel a visa, provided the Visa holder was inside Australia at the time of cancellation
- · Decisions to refuse a business application for Standard Business Sponsorship (SBS) for Subclass 457 visas and Position Nominations for Employer Nomination Scheme (ENS) Subclass 186 or Regional Sponsored Migration Scheme (RSMS) Subclass 187 visas
- · Decisions relating to sanctions and cancellation of Standard Business Sponsorship (SBS)
Merits review is amounts to getting another shot to get it right as it allows a new opportunity to provide fresh evidence and legal arguments. In this sense the AAT "stands in the shoes of the decision-maker".
In addition the AAT can also take into account evidence and circumstances that did not exist at the time of visa application.
The Review Applicant can remain in Australia holding a bridging visa throughout the appeal process. As per http://www.aat.gov.au/migration-and-refugee-division/steps-in-a-review/how-long-will-the-process-take this can take some time. This time in Australia can be important as it means you may be able to work, obtain an alternate Bridging Visa Subclass to travel overseas and to either address the circumstances which led to the refusal in the first place to give the appeal the best chance of success or to undertake further qualifications, gain additional work experience, achieve a higher English language test score or other factor so as to meet the criteria for another class of visa.
The powers of the AAT are set out in section 349 of the Migration Act 1958:
 (1) The Tribunal may, for the purposes of the review of a Part 5-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
 (2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter — remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision; or
(e) if the applicant fails to appear — exercise a power under section 362B in relation to the dismissal or reinstatement of an application.
If you have had your Visa application refused or if the visa you were holding has been cancelled then it is important to contact us ASAP. There are legislated notification provisions which set out the strict time limits for appeal.
Please note that sometimes a review may not be the only option and that you may also be able to lodge a fresh application instead. Your individual circumstances will determine the most suitable course of action.
Even if your appeal at AAT has been unsuccessful (the decision under review has been affirmed) then this does not mean that there are no other options. It may be possible to request the Minister to intervene (Ministerial Intervention) or to appeal to a higher court such as the Federal Court or Federal Circuit Court for judicial review.
To pursue a court appeal there must be an error of law, known as a jurisdictional error, which has the effect of invalidating the Tribunal process or decision.
Examples of Jurisdictional Errors include:
- · Identifying a wrong issue;
- · Asking a wrong question;
- · Ignoring relevant material;
- · Relying on irrelevant material; or
- · An incorrect interpretation and/or application to the facts of the applicable law,
in a way that affects the exercise of power.
Judicial review is not merits review and the court cannot consider new evidence.
Registered Migration Agents who are not also Solicitors with a current Practising Certificate do not have the entitlement to file and manage applications for judicial review. Applicants can apply directly to the court themselves or appoint an appropriately experienced solicitor or barrister willing to sign off the following certification:
Lawyer’s Certification (see section 486I of the Migration Act 1958) I, [name], the lawyer filing this document commencing migration litigation, certify that there are reasonable grounds for believing that this migration litigation has a reasonable prospect of success.
A successful appeal to the Court will not generally result in you being granted the original visa you applied for. Instead, the Court will generally set aside the Tribunal’s decision and then remit the case back to the same Tribunal to be decided again this time with a different Member sitting.
If there has been an unfavourable decision from the AAT the other option may be to apply for the Minister of Immigration and Border Patrol to personally intervene in your case.
Ministerial Intervention is a non-compellable power that has been conferred on the Minister by Parliament. It is discretionary allows the Minister to substitute a decision or to allow you to make a further application.
These powers are exercised by the Minister personally: that is, they are non-delegable. The Minister’s decision cannot be reviewed.
A person’s first request for Ministerial Intervention results in eligibility for a Bridging visa.
Each request is assessed on an individual basis and therefore no precedents are relied upon. There are Ministerial guidelines which outline what the Minister would consider as unique or exceptional circumstances that define that case.
The Minister is therefore prevented from intervening in a case where a valid review application has not been made. The AAT may refer a matter to the Minister. This does not mean that the Minister is obliged to follow the AAT’s recommendation.
Statistics show that they current Minister for Immigration and Border Patrol very rarely intervenes.
We can handle AAT reviews, court appeals and Ministerial Intervention submissions.
Please contact us so that a Solicitor and Registered Migration Agent can analyse the circumstances of your Visa Refusal or Visa Cancellation and determine your eligibility to apply for a review and if eligible your prospects of success. If you have already been unsuccessful at the AAT and would like to request Ministerial Intervention we can put together a submission to explain why the Minister should exercise his discretion.