Immigration Lawyers and Migration Agents

Your Australian Visa Our Focus

We understand that having a visa refusal can be disappointing and you can feel quite stressed and unsure of what to do. 

In this blog, we explain the appeal process and what you can do if your visa has been refused by the Department of Home Affairs.

Generally, you have the option to appeal the decision through a merits review or judicial review. The process for appealing a visa refusal can vary depending on the type of visa you applied for, and the specific circumstances of your case.

Merits Review

Basically, merits review is a process that allows a decision maker to ‘step into the shoes’ of the original decision maker for example the delegate at the Department and make a fresh decision based on the evidence before it. In Australia, this is usually undertaken by a body known as the Administrative Appeals Tribunal (or the AAT). 

Appealing the decision at the AAT

The refusal letter will state whether you can appeal the decision at the AAT. If you have this option, you must make sure to lodge your appeal within the time frame that is provided in your refusal letter. The easiest way to lodge your appeal is online through the AAT’s website. 

Once you lodge an appeal at the AAT, your bridging visa will continue until you get a decision on your appeal. 

Attending a Hearing 

The AAT will then review your appeal application. Due to a large number of applications, it usually takes a long time before you are invited for a hearing. At the hearing, you can present your case and any evidence to support your appeal. The AAT will then usually make a decision to affirm the Department’s decision to refuse your visa or remit the decision back to the Department for reconsideration.

We would recommend getting legal assistance from an Australian Migration Lawyer to avoid any issues with your appeal and put your best case forward, especially when preparing for your hearing. 

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Judicial Review

In cases where you don’t have a merits review option, you may be able to appeal the refusal decision in court.

Unlike merits review, judicial review does not involve considering the merits of the case or deciding what the right decision was. Instead, it looks at the process through which a decision was made and determine if it was made in accordance with the law. 

Another thing to keep in mind is that unlike an appeal to the AAT, your bridging visa does not automatically continue when you apply for judicial review. You will need to lodge a bridging visa application before your current visa expires. We’re here to help if you need any assistance with this.

Appealing the decision in court 

To be able to appeal the decision in court, you need to have grounds to seek judicial review for example there was a legal error in the decision-making process, such as a breach of procedural fairness or an incorrect interpretation of the law. You may need to get a Barrister to look at your case and assess if there are any grounds for judicial review. 

Filing an appeal application 

To begin an appeal at court, you will need to file an application with the Federal Circuit and Family Court of Australia and within the specified time, which is generally 35 days from the date of the refusal.

After this you will need to follow the court procedures by serving the documents to the other party within the specified time, and then go through the court proceedings by attending a hearing and waiting for the court’s decision. This process can be very long, and it can take several years before you have a hearing. 

It's important that you comply with all the requirements and deadlines for filing a court application and serving the documents as required by the court. 

It can be helpful to get legal advice from a migration lawyer to help you navigate your appeal process because I understand it can be very confusing and there are strict time frames you have to work with. 

Do you need help with your refused visa application?

Our team of experienced Immigration Lawyers and Migration Agents look forward to assisting you with your appeal application. 

If you have a Student Visa refusal, a Partner Visa refusal, a 482 Employer-sponsor Visa refusal, a 407 Training Visa refusal, a Graduate Visa refusal, a 491 Visa refusal, a 190 Visa refusal or any other visa refusal, we can assist you. 

Based in Adelaide, South Australia, we provide Australian immigration advice to people and businesses from all over the world.

You can book an appointment online or call us at (+61) 8 8351 9956.

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There are many visa applicants who have received a visa refusal and then appealed the decision to the Administrative Appeals Tribunal (AAT) for merits review, only to find that the AAT did not find in the applicants’ favour. If the AAT has affirmed the Department of Home Affairs’ decision to refuse your visa and you believe that an error was made in reaching this decision, you may be able to apply for a judicial review.

There are several important factors employers need to consider when sponsoring an employee for a permanent residency visa or when appealing a decision.

The Employer Nominated Scheme (ENS) subclass 186 visa and the Regional Sponsored Migration Scheme (RSMS) subclass 187 visa have two main streams:

• Direct Entry stream
• Temporary Residence Transition stream

The ENS 186 visa also has a third, less commonly used stream, the labour agreement stream. This stream is very important for Designated Area Migration Agreement applications and other forms of labour agreement, but is not as commonly used as the other two.

There are three possible stages for an ENS 186 visa or RSMS 187 visa:

1. Regional Certifying Body Advice application (RSMS 187 Direct Entry Stream ONLY) to the relevant Regional Certifying Body
2. Employer nomination application to the Department of Home Affairs
3. Visa application to the Department of Home Affairs

Genuine position refusals

One of the most common reasons for refusal of ENS 186 visas and RSMS 187 visas is that the position is not genuine.

“Genuineness” is a complex assessment which does not have a concrete definition.

Case officers examine the entirety of the application, including the business circumstances, and develop an opinion as to whether the position being nominated is a genuine position required by the business which fits within the employer-sponsored migration program, or whether the whole or part of the position has been created solely to achieve a migration outcome.

There are certain occupations which are at a high risk of additional scrutiny for genuineness. These are high-volume occupations which may have attracted low-quality applications in the past. The two main examples are:

• 149212 Customer Service Manager

• 511112 Program or Project Administrator

For the above occupations, it is important that the nominated position fits clearly within the relevant occupation. The case officer will be looking to the position description, organisational chart, employment contract and any other explanatory information and documents you are providing.

If the position does not appear to align with the occupation you have nominated, the case officer may find that the position is not genuine.

Temporary Residence Transition Stream – ENS 186 and RSMS 187 Visas

If using the Temporary Residence Transition, the application must be consistent with everything in the subclass 457 or subclass 482 visa.

One of the key matters which will be checked by the Department of Home Affairs is whether the visa applicant has been paid the nominated earnings for the whole duration of their subclass 457 or subclass 482 visa. A common issue here is where superannuation has been included in the nominated Guaranteed Annual Earnings. Because superannuation is not included in Guaranteed Annual Earnings (it is considered to be a separate employer obligation), this may inflate the earnings which were required to be paid to the visa holder.

Special attention must be given to this when applying for an ENS 186 visa or RSMS 187 visa under the Temporary Transition Stream.

Limited Availability of RSMS TRT Going Forward

With the RSMS subclass 187 visa closure on 16 November 2019, the Temporary Residence Transition stream of this visa will remain only available to a small group of people.
This group comprises two subgroups:

• Transitional 457 workers – those who held or had applied for (which was subsequently granted) a subclass 457 visa on 18 April 2017
• Transitional 482 workers – those who held or had applied for (which was subsequently granted) a TSS 482 visa on 20 March 2019

Currently, this appears to leave a group of people in the middle unaccounted for. These applicants may not be able to access the RSMS temporary transition after 16 November 2019.
For these workers, it may be worth considering whether Direct Entry can be completed prior to the shut-off.

Appeal Tips

If a negative decision is received from the Department of Home Affairs at either the nomination or visa application stage, a merits review at the Administrative Appeals Tribunal (AAT) may be available. The ordinary timeframe for applying for this is 21 days, so it is important that you act quickly.

If such a decision occurs at the nomination stage, it is important that both stages are appealed to the AAT. If the nomination is not appealed, the visa applicant will not be able to be successful on appeal.

It is very important if appealing that all efforts are made to strengthen the circumstances of the application while waiting for a hearing date to be set. It can currently take quite some time for a new employer-sponsored matter to be constituted at the AAT and a hearing date set.

This time presents both a difficulty and an opportunity for the business and the worker. During this time, the employer and employee need to strengthen their relationship to have the best prospects of success. The employee should continue working in the business and the business should maintain detailed records to clearly demonstrate this.

An appeal to the AAT is a merits review process, so the Tribunal Member will stand in the shoes of the decision maker and look at the situation anew. You are able to provide new evidence to seek an improved outcome.

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Partner Visas, Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956 or This email address is being protected from spambots. You need JavaScript enabled to view it.

Overview

When it comes to Australian immigration it is essential to know what deadlines you have and that you abide by them. The Department of Home Affairs adheres to strict time limits that apply to all applicants. With that being said, in November 2018 the Federal Court of Australia (FCA) set a new precedent that grants the AAT power to extend time limits for review cases. This meant that the Australian visa appeals and migration review tribunal, on a case by case basis, would be able to allow a refused applicant extra time to appeal the administrative decision. Less than a month later though, the Full Court repealed the decision of the FCA and decided that every applicant in a migration matter must apply to the Administrative Appeals Tribunal (AAT) within the allotted time limit.

(Article updated 04 November 2021)

In 2018, the Australian Government passed the Migration Amendment (Family Violence and Other Measures) Act 2018. This new legislation changes the way partner visas are processed and may significantly prolong the processing times for Partner Visas in Australia. Although the Department has not yet confirmed a start date, the 13th of November 2021 has been suggested and looks like a likely time for the changes to be implemented.  So what does this all mean for you and what should you do about it?