Administrative Appeals Tribunal Review
For those who have their visa refused or cancelled and wish to appeal the decision of the department at Administrative Appeals Tribunal – Migration and Refugee Division
Reviewability of Decisions at the Administrative Appeals Tribunal
When is a Decision Reviewable?
The Administrative Appeals Tribunal’s Migration and Refugee Division (MRD) is authorized to review specific visa decisions made under the Migration Act 1958 by the Department of Home Affairs or its Ministers. This includes decisions related to the refusal or cancellation of various types of visas, refusal to approve nominations for occupations, activities, or positions, and decisions regarding sponsor approvals or security requirements.
AAT Review at General Division
If a visa is refused or canceled on character test grounds under section 501, mandatory cancellation under section 501CA, or refusal of a protection visa on character grounds under sections 5H(2), 36(1C), or 36(2C), the review will be conducted in the General Division of the AAT.
Visa Cancellation by Minister Personally
Decisions made personally by the Minister for Home Affairs or the Minister for Immigration to cancel a visa are not subject to review.
Applying for a Review
A review application must be submitted within 21 days of receiving the decision from the Department of Home Affairs. For protection visa decisions, the application must be lodged within 28 days. Typically, the notification letter from the Department will specify the deadline for lodging a review with the AAT.
AAT Review Application Fees
The application fee for a review is A$3,496. There is no application fee required at the time of lodging a review for a protection (refugee) decision. Should the review be unsuccessful, a fee of A$1,748 is payable within seven days of receiving an invoice from the AAT. If the AAT is satisfied that full payment would cause significant financial hardship to the applicant, the fee may be reduced by 50%.
Estimated Processing Time
The approximate processing times for various types of applications are as follows:
- Family Visa: 646 days
- Nomination/Sponsor Approval: 876 days
- Partner Visa: 746 days
- Permanent Business Visa: 837 days
- Protection Visa: 734 days
- Skill-Linked Visa: 578 days
- Student Cancellation: 440 days
- Student Refusal: 551 days
- Temporary Work Visa: 769 days
- Visitor Visa: 596 days
Migration and Refugee Division of AAT
The AAT’s Migration and Refugee Division (previously known as MRT) reviews a subset of decisions made under the Migration Act 1958.
Migration Decisions Eligible for Review
The MRD can review the following migration decisions:
- Refusal or cancellation of various types of visas.
- Refusal to approve a nomination for an occupation, activity, or position.
- Bar or refusal to approve or cancellation of a sponsor’s approval.
The decision letter from the Department of Home Affairs will indicate whether the decision can be reviewed and if you are eligible to apply for such a review.
Refugee Decisions Eligible for Review
The MRD can also review certain refugee decisions, including:
- Refusal or cancellation of a protection visa.
- Decisions made under section 197D of the Migration Act 1958 stating that a protection finding will no longer be applicable to an individual.
The decision letter from the Department of Home Affairs will outline if the decision is reviewable and whether you qualify to apply for such a review.
Strict Time Limits for Review Applications
There are strict time limits for submitting a review application for migration decisions. The deadline varies depending on the type of decision and whether the individual is in immigration detention. The AAT does not have the authority to extend these time limits. The application must be lodged within a specified number of days following the date on which the individual is deemed to have received notice of the decision. For notifications via email, the date of receipt is the same as the date the email is received from the Department of Home Affairs.
General Division of AAT
General Division Review
The AAT’s General Division can review decisions to refuse or cancel visas under sections 501, 501CA, 5H(2), 36(1C), or 36(2C), as well as business visas under section 134.
Reasons for Refusal or Cancellation of Visas
Under section 501 of the Migration Act 1958, various reasons for failing the character test are outlined, such as having a substantial criminal record or posing a danger to the Australian community. Visa cancellation becomes mandatory if the visa holder has been sentenced to 12 months or more in prison or has been convicted of a sexually based crime involving a child. A mandatory cancellation can be revoked by a delegate of the Minister or the AAT if it is determined that the individual passes the character test or if there is another valid reason for revocation. If the revocation occurs, the individual’s visa will be reinstated, although the Minister retains the authority to overturn this decision.
Not Revoking Mandatory Cancellation on Character Grounds under Section 501CA
Section 501(3A) requires the Minister to cancel a visa if it is established that the individual does not pass the character test due to a substantial criminal record while serving a full-time custodial sentence. However, under section 501CA(4), the Minister may revoke the cancellation decision if the individual makes representations and the Minister is satisfied that the individual either passes the character test or there is another reason for revocation.
Refusal of Protection Visa on Character Grounds
Cancellation of a visa under sections 5H(2), 36(1C), or 36(2C) indicates that the individual has committed serious offenses, such as crimes against peace, war crimes, or crimes against humanity.
Cancellation of Business Visa under Section 134
A business visa may be canceled under section 134 if the Minister determines that the visa holder has not obtained a substantial interest in an Australian business or is not actively managing such a business at a senior level.
Issuing Summons by AAT
Issuing Summons
A summons is a legal notice issued by the AAT requiring an individual to attend and provide evidence or produce documents. The AAT may issue summonses when certain information or documents are deemed necessary. Additionally, parties can submit a written request for the AAT to issue a summons.
Fees and Allowances Associated with a Summons
If the AAT issues a summons without a request, the Tribunal will cover the associated expenses. However, if a party requests the issuance of a summons, they are responsible for certain expenses incurred by the summoned individual.
- Summons Requiring Evidence: Individuals summoned to provide evidence are entitled to compensation for lost wages, salary, or fees for the duration of their attendance at the AAT, as well as reimbursement for reasonable expenses such as transportation. If overnight absence from their usual residence is required, expenses for meals and accommodation will also be covered. These amounts should be paid promptly after the individual has provided evidence.
- Summons Requiring Document Production: No expenses are payable to an individual who is summoned solely for document production.
Non-Compliance with Summons
Failure to comply with a summons without a valid excuse constitutes a criminal offense. If an individual is summoned to produce documents but has none, they must notify the AAT in writing. Those summoned who believe they have a reasonable excuse for non-compliance should contact the AAT immediately. Even if an individual feels the compensation provided for expenses is inadequate, they must still comply with the summons. If there is a dispute regarding expense amounts with the party that requested the summons, the individual may request the AAT to determine the appropriate compensation.
AAT Review Document Checklist
- The decision letter received from the Department of Home Affairs.
- The relevant checklist for the visa or application that was refused, available on this site.
Disclaimer: Aussie Migration Services Pty Ltd and its associates are independent consulting entities and are not affiliated in any manner with the Australian Department of Home Affairs (DOHA). The information provided on this website does not constitute personal migration advice. For tailored migration advice based on your specific circumstances, please contact one of our Immigration Consultants or express your interest through our associates.