Visa Appeal Specialists
If you are unhappy with the outcome of your visa application or your existing visa has been cancelled by the Department, it is important to know that this decision is not necessarily final. As part of the justice system, the Australian Government operates an independent and statutory body called the Administrative Appeals Tribunal (or abbreviated as ‘AAT’), whose job it is to review the merits of administrative decisions made by the Department of Home Affairs. This includes decisions concerning Australian visas.
At Visa Plan, our team will sit down with you to understand your situation intimately, run a preliminary assessment and lodge an official appeal with the AAT on your behalf to win and give you a second chance to live your Australian dream!
Scope of Our Appeal Services
Merits Review Hearing at the AAT
When you receive an official notice regarding your visa refusal or cancellation from the Department, the notice usually stipulates whether or not their decision is reviewable and who has the right to review, along with detailed reasons for the decision. In certain cases, the only eligible person who can apply for review is the visa applicant or former visa holder, whereas in other cases it can only be the sponsor or a close relative. It may also be the case that the review applicant must be within Australia at the time of decision, or at the time when the application is lodged, or both.
The notice also places a time limit by which you have to lodge your visa appeal application with the AAT. Section 29(7) of the AAT Act imposes a strict threshold in allowing extensions for appeal applications to be lodged if 'reasonable in all circumstances to do so.' The deadlines must be strictly complied with as the AAT is not conferred jurisdiction to hear matters lodged beyond the permitted time-frames: Beni v Minister for Immigration and Border Protection (2018) FCAFC 228.
Judicial Review - Jurisdictional Error
A decision by the AAT can be appealed, but your case would be dismissed unless you establish a jurisdictional error in the decision. Jurisdictional error is made when the AAT exercises the power beyond their statutory limit, and the examples include:
Identifying a wrong issue;
Asking a wrong question;
Ignoring relevant material;
Relying on irrelevant material; or
Incorrect interpretation and/or application to the facts of the applicable law.
This is called ‘judicial review’ and can only relate to a question of law, distinct from questions of fact. Hence, if your application for judicial review is related to facts, as found by the AAT, your application will most likely be dismissed. Drawing the distinction is often difficult in practice. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, Justices McHugh, Gummow and Hayne commented in the following terms [at paragraph 82]:
“It is necessary, however, to understand what is meant by ‘jurisdictional error’ under the general law and the consequences that follow from a decision maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163, if an administrative tribunal (like the Tribunal) ‘falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers’. Such an error of law is a jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. ‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited is not exhaustive”.
Time Limit for Judicial Review
An application to the Federal Circuit or Federal Courts for review of migration decisions by the AAT must be lodged within 35 days of the date of the decision being handed down. You may apply to to extend the due date, and such application must be accompanied by:
A draft originating application; and
An affidavit stating the facts on which the application relies and why the application was not filed within time.