6 things you should know about the AAT
Updated: Jul 21, 2020
Appeals. Merits review. Tribunal hearing. These are a few terms migrants hear frequently in Australia but don't fully understand. What do they have in common? They relate to the process of appealing visa and citizenship decisions at the Administrative Appeals Tribunal (AAT).
Visa refusals and cancellations can cause a great deal of stress to migrants. We regularly assist clients who come to us for help after their visa application has been refused. What can be done about it? Depending on the case, disputing the adverse decision may be the appropriate response.
The appeal process is called Merits Review. To access it, one must lodge a merits review application which is also known as review application or appeal. The organisation responsible for processing review applications is the Administrative Appeals Tribunal.
Some migrants have never heard of the AAT. Those who have are often not sure what it is and what it does. Since knowledge is power, we decided to shed some light on this important subject. So what should you know about the AAT?
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1. The basics
The AAT is a part of the Australian Attorney-General's Department. Its main function is to review and reconsider certain administrative decisions of the Government.
The Administrative Appeals Tribunal is not the Court. While it mimics the Court in some ways, it is a Tribunal and therefore a part of the Government. The decision makers at the AAT are called Members.
The AAT is a large organisation consisting of several divisions. The largest one is the Migration and Refugee division (MRD) which reviews refused visa applications, cancellations and other decisions of the Department of Home Affairs. There are over 200 AAT Members in the Migration and Refugee division alone.
Offices of the AAT can be found in every State capital city and it has more than 700 administrative employees.
2. What the AAT can do for you
The Tribunal examines whether a decision (for example, to refuse a visa application) was correct and appropriate. It does that by reviewing documents, making further inquiries and holding hearings with the applicant, their sponsor and other relevant parties. If the AAT comes to a conclusion that the original decision was wrong or partially incorrect, it has the power to change it or make a new decision. There are 4 types of decisions the AAT can make:
Affirm - agree with the Department that the original decision is correct (usually bad news for the appellant).
Vary - change the original decision.
Set aside and remit - override the original decision and send the matter back to the Department to reconsider it with specific directions.
Set aside and substitute - replace the Department's decision with a new decision.
If your merits review application is not successful at the AAT, you may be able to pursue your case further by applying for judicial review of your case at the Court.
3. The fine print
Not all refusals and cancellations can be appealed. You can only appeal a decision if the legislation specifies that it can be reviewed.
Some decisions can only be reviewed if certain conditions are met. The devil is in the detail. Some of the factors which determine whether a decision can be reviewed are:
Whether the visa is temporary or permanent
Applicant's location when they applied for the visa
Whether the visa could be granted while the applicant is in Australia
If a nomination application was lodged, whether it is approved, refused or under review.
Whether the visa was cancelled while the holder was onshore.
The Department's decision letter states if the decision can be reviewed. However, these letters can sometimes contain incorrect information. An experienced Migration Agent or lawyer should be able to check the legislation and advise you on your eligibility to appeal.
If you apply incorrectly or without being eligible, the appeal will be deemed invalid and the application fee will be refunded .
4. You have limited time
There are deadlines for lodging review applications. The period during which an appeal can be lodged depends on the decision in question. Visa refusals often come with a 21 day deadline. The deadline to appeal a visa cancellation is usually 7 days.
If you miss the deadline, things get more complicated. You will need to ask the AAT to give you an extension of time to appeal and explain why you missed the deadline.
5. Hearings are not always necessary
Sometimes the AAT can decide a case 'on the papers' without scheduling a hearing. For most applicants, convincing the Tribunal that you are right without having to attend a hearing is a good thing.
AAT Members examine cases in much greater detail than the average Case Officer. Winning a case on the papers requires detailed submissions with legal references and plenty of supporting evidence.
6. You will need patience
The AAT is extremely busy. At the end of May 2020 it had over 63,000 pending review applications in the Migration and Refugee division alone. Only about a quarter of applications are finalised within 1 year.
On average, the processing of a review application in the MRD takes 562 days.
If you have lodged a Review application at the AAT, be prepared to wait a while. Some appeals take longer than others. Applications to review Protection visa decisions take the longest to process. Bridging visa decisions are reviewed within 3 months on average.
Onshore applicants are normally eligible for Bridging visas while they wait for their review application to be processed. It is the applicant's responsibility to ensure they maintain a valid visa at all times.
Is a review application right for you?
Many visa application refusals and cancellations are avoidable. Applying correctly, addressing the eligibility criteria and adhering to visa conditions is the best course of action. However, applicants and holders can sometimes fall victim to unexpected circumstances or incorrect decisions. In such cases an appeal to the Tribunal can right the wrong.
To be successful at the AAT you will need to convince the Tribunal that the Decision to refuse or cancel your visa was wrong. That is a heavy task for those who are not familiar with the legislation and the stakes are high. We recommend using a registered Migration Agent or lawyer to guide and help you win your appeal.
Have any questions? Post them in the comments below! (or email Elan at email@example.com)
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