Has your visa for Australia been refused or cancelled?

If so, you may be able to review this decision with the Administrative Appeals Tribunal (AAT).

In effect, for many visa applicants it is the next step in the application process if the Department of Home Affairs has refused or cancelled a temporary visa or permanent residency.

What are the timeframes for visa review?

Timeframes for lodging a review application with the Tribunal are set by law and cannot be extended. If you do not lodge an application within the statutory timeframes you will lose your review rights and the application will be finally determined.

If you are the applicant for a Protection Visa, Subclass 866 you need to make an application for review with the AAT within 28 days of being served the Department’s refusal decision. If you are in immigration detention you have 7 days to apply for review.

For most other visa application refusal types, you would need to make an application with the Tribunal within 21 days of being served the Department’s refusal decision.

How much does a visa review cost?

Apart from lodging the review application within the statutory time limits, the AAT charges a review application fee payable at time of lodgement of the review or post decision if you are reviewing the refusal of a Protection Visa.

Upon lodgement of a valid review application, your Bridging Visa will remain in effect to ensure you remain a lawful, non-citizen of Australia whilst the review process continues.

If you do not hold a Bridging Visa (which can occur if your substantive visa was cancelled), you may be eligible for a Bridging Visa E.

Contact Us today to discuss your needs: 02 9635 5333

How does the Tribunal work?

Unlike a court of law setting, the Tribunal is “inquisitorial” in nature – in other words, the Tribunal asks you a series of questions to ascertain the information it needs to then make an informed, unbiased decision. You may be represented by a migration agent or lawyer during the review process and you may also have an interpreter present at the hearing if required.

Despite the above, it is important to remember that the Tribunal is still bound by the same law as that applied by the Department of Home Affairs, however the Tribunal is not bound by the Department’s decision. At the same time, any “policy” the Department used in making its decision is not considered “law” and, as such, does not need to be applied in the review process by the Tribunal.

In all cases, the Tribunal must act in a timely, fair and reasonable manner. All information and evidence it has on file that may be the basis for affirming the Department’s refusal decision must be made apparent to you for comment.

Failure to do so may result in Jurisdictional Error. Further, the Tribunal must act in accordance with s353 of the Migration Act 1958 (‘the Act’) in that all aspects of a matter must be assessed and commented upon, and the Tribunal “…shall act according to substantial justice and the merits of the case…”.

For example, where a Partner Visa, Subclass 820/801 application is refused on the basis the applicant does not satisfy Schedule 3 of the Migration Regulations 1994 (‘the Regulations’), the Tribunal must not only consider Schedule 3 (are there compelling grounds for granting the visa) but also the nature of the relationship, the duration of the relationship and all other components enshrined in the relevant legislation.

In some cases, the Tribunal will affirm the Department of Home Affairs’ refusal decision. This can be done for any number of reasons, all of which must be laid out in a decision record.

What is Jurisdictional Error and why does it impact my visa refusal or cancellation?

We believe that it is always necessary to thoroughly review the Tribunal’s written decision record as well as request a copy of the audio recording from the actual hearing you attended. Although the hearing itself is important to remember, Jurisdictional Error can also occur when the Member fails to fully explain their reasoning in the written decision.

Where Jurisdictional Error can occur is numerous and not often first apparent. As noted above, where the Member has failed to provide an unbiased hearing at the Tribunal, taken into consideration irrelevant information, relied upon incorrect or unsubstantiated evidence, may all be grounds that constitute Jurisdictional Error. In effect, where the Member has not administered the law in the appropriate manner.

The definition of what constitutes “Jurisdictional Error” has been debated in the courts for many years however a defining case, Minister for Immigration and Citizenship v. Li

[2013] HCA 18 (8 May 2013), established that s353 of the Act – in that the Tribunal must assess all aspects of the application and act in a fair manner – can be grounds for judicial review if the Member fails to adhere to the legislation and the implications associated with it.

How can Alan Rigas Solicitors help you with your refused or cancelled visa?

Given that Jurisdictional Error is a complex and specialised area of immigration law, you should seek specialist legal advice before you pursue any further review applications. 

If you receive legal advice that Jurisdictional Error has occurred, you would need to file an application for Judicial Review with the Federal Circuit Court of Australia. An application for Judicial Review must be filed within 35 days after the day on which you receive the Tribunal’s written decision.

We at Alan Rigas Solicitors have successfully assisted clients to prepare and attend hearings before the Administrative Appeals Tribunal, as well as represent clients before the Federal Circuit Court of Australia.

If you are waiting for a Tribunal hearing or have recently received a decision from the Tribunal and need further guidance, contact our team today to arrange an initial conference.

Contact Us today for help with a refused or cancelled visa: 02 9635 5333

 

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