If you have received a refusal to a visa or citizenship application, you may be able to have the decision reviewed.
The avenues for review include the following:
Timing is Important
If you have received a refusal or negative finding, it is important that you seek legal advice in a timely manner. Many appeal options have strict deadlines to lodge an appeal, after which it is difficult or impossible to lodge an appeal.
Tribunals
The Administrative Appeals Tribunal (AAT) is the organisation responsible for reviewing decisions made by the Australian government. The Migration and Refugee Division (MRD) is a division under the AAT which reviews Australia visa decisions. Typically applicants and visa holders will submit an application for review when their visa application is refused, or when their Australian visa is cancelled. Additionally the MRD also reviews decisions regarding sponsorship and nomination under employer sponsored visas. Citizenship application decisions are also reviewed by the MRD.
When a decision is being reviewed by the Tribunal one of the following results occur:
- the decision is affirmed (i.e. there are no changes)
- the decision is set aside (i.e. the decision is substituted with a new and different decision)
- the original application (visa/citizenship/sponsorship/nomination) is remitted (i.e. returned) to the Department of Immigration and Border Protection (DIBP) for reconsideration with recommendations by the Tribunal on additional factors to be considered
- the decision is varied
The AAT conducts a merits review which is explained as follows on the AAT website:
“Merits review is an administrative reconsideration of a case. A merits review body makes decisions within the same legislative framework as the primary decision maker, and may exercise all the powers and discretions conferred on the primary decision maker.”
The Tribunal reviews the application afresh and may also consider new evidence or information submitted with the review application.
The AAT is independent of the DIBP and has the powers to review and reverse (set aside) the decisions made by DIBP.
Should I submit a review to the AAT for my visa/sponsorship application that was refused?
You can submit a review application only if you are entitled for review rights. The decision to lodge a review application to the AAT depends on the circumstances of the visa/sponsorship refusal. Some of the common grounds for refusals include:
- Partner visas – Schedule 3 issues, failure to demonstrate genuine relationship
- Student visas – Meeting the Genuine Temporary Entrant (GTE) requirement, lack of financial capacity
- 457, RSMS and ENS visas – Demonstrating genuine position
- Visitor visas – Meeting the Genuine Temporary Entrant (GTE) requirement
At Work Visa Lawyers we will assess the original application and supporting documents submitted and advise if the prospects for review are favourable. The Decision Record received by the applicant will also be studied in detail to identify weak areas of the original application and how we can address them in the review application.
What are my chances of success with the AAT-MRD review?
The chances of obtaining a positive outcome from the Tribunal to set aside a DIBP decision require the following:
- a thorough analysis of the refusal Decision Record
- in-depth knowledge about the visa applied and the requirements
- assessing the applicant’s circumstances and ability to address the issues highlighted by the DIBP delegate when deciding on the refusal
In summary it should be considered whether the applicant can provide better evidence or information that will meet the visa application requirements. If the original application can be improved then the chances for success with the review will be increased.
Applicants with complicated circumstances should also note that submitting an AAT review application is a pathway towards ministerial intervention. You can only request for a ministerial intervention if you have received a decision from the AAT. You should be aware that the Minister only intervenes in a small amount of cases and you should have unique or exceptional circumstances before applying for a ministerial intervention.
Ministerial Intervention
The Minister of Immigration and Citizenship has powers to grant visas and change decisions made by review bodies such as the AAT.
These powers are discretionary and are only exercised in limited circumstances. The power will only be exercised if it is in the public interest to do so. The Minister’s powers can often only be exercised after the AAT has made a decision.
Courts – Judicial Review
If you have received a refusal in a migration matter it may be possible to have the case reviewed by the Federal Magistrates Court, the Federal Court of Australia or the High Court. Judicial review is only available in limited circumstances where there has been an error of law.
Strict time limitations apply when applying for judicial review.
We can advise you on your review rights.
Based in Adelaide South Australia, Immigration Lawyer and Migration Agent Chris Johnston provides migration advice to people and businesses from all over the world.
Do you need help?
Our team of experienced Immigration Lawyers and Migration Agents look forward to assisting you with your Australian visa or appeal.
Based in Adelaide South Australia, we provide Australian Immigration advice to people and businesses from all over the world.
