AAT & Federal Court Review Applications
Have you had a visa refused or cancelled by the Department? You may be able to have the decision reviewed at the Administrative Appeals Tribunal (AAT) or the Federal Circuit Court. Contact our immigration lawyers today.
My Visa is Refused, What do I do?
Individuals may be able to lodge a new visa application or may exercise their right to appeal the decision.
Lodge Another Visa Application
If your visa application was refused whilst you were offshore (outside Australia), you may be able to lodge a new visa application with additional supporting evidence and/or legal submissions addressing the refusal.
In the event of a visa refusal or cancellation while you are onshore (in Australia), there are only a limited number of visa options that allow you to apply directly after a refusal or cancellation.
Appeal The Decision To The Administrative Appeals Tribunal
You can apply for a merits review application to the Administrative Appeals Tribunal against decisions made by the Department of Home Affairs in relation to your visa application. The review application can be made in response to a visa refusal, cancellation, business sponsorship, or nomination.
Do you qualify?
Please answer the below section to check your eligibility for a review with the Administrative Appeals Tribunal.
Apply for Another Visa
You might not be eligible to apply for most visas while in Australia if you have had a visa refused or cancelled since your last entry to Australia.
Onshore Via Appplication Refusal
If you currently hold a substantive (i.e., a valid visa), then it is likely that you can lodge another visa application before it expires. This application will enable you to be granted a bridging visa in association with that new application.
If you are on a bridging visa (i.e., a temporary visa that lets you stay in Australia lawfully while your visa application is being processed), you may be section 48 barred.
What is a s48 bar?
S48 bar applies when the applicant has received a visa refusal or cancellation while on a bridging visa.
What are the implications of a s48 bar?
If you are s 48 barred, your ability to apply for most visa applications is significantly impaired. The bar excludes you from:
- Lodging a skilled migration visa, employer sponsored visa, and most other visa subclasses.
The following visas are generally exempt from the application of Section 48, subject to legal submissions addressing relevant waiver criteria which should be assessed, prepared, and lodged by your immigration lawyer.
Hence, you may be able to lodge a valid visa application for the following visa categories:
- Partner visas
- Bridging visas
- Medical treatment visa
- Resolution of Status visa (temporary and permanent)
- Territorial Asylum visa (Residence)
- Protection visa
- Subclass 444 for New Zealand citizens
- Child visa (Residence)
- Border visa (Temporary)
Merits Review Application To The AAT
If you have had a visa application refused or your visa cancelled, you may be able to appeal this decision to the Administrative Appeals Tribunal (AAT).
What is the AAT?
AAT is an independent merits review tribunal that reviews decisions made by the Department of Home Affairs. The AAT, in its merits review process, will reconsider the facts, law, and policy aspects of the original decision. In most cases, the AAT can look at new information that was not available to the original decision-maker.
What Cases can the AAT Review?
Visa applications applied for and refused while the visa applicant was in Australia;
Visas that were cancelled while the visa holder was in Australia;
Visa applications sponsored by an individual or organization for an applicant that was outside Australia and which was subsequently refused.
A refused sponsorship or nomination application lodged by an employer.
AAT Application Process
If your visa application has been refused or cancelled, and you are eligible to appeal the decision, Augustine & Co. can assist with the merits review process, from lodging the application right through to providing legal representation at the AAT hearing.
Step 1: Contact us to create an AAT action plan
To begin the AAT process, we need to identify why your visa was refused/cancelled. For this, we require:
- A copy of the visa application and the decision record;
- Copies of any supporting documents submitted to the Department.
Once we have the above, we will review the policy surrounding the refusal and create a custom AAT Action Plan for you.
Step 2: Lodge an AAT appeal
Once we create an AAT Action Plan, we will then lodge the AAT Appeal within the prescribed time outlined in the decision record.
Step 3: AAT will confirm the appeal lodgement
AAT will send a confirmation letter explaining what will happen next.
Step 4: Prepare the application
Once the AAT appeal is lodged and confirmed, we will begin working on your case by preparing detailed legal submissions based on the relevant migration regulations, policies, and case law.
Step 5: Attend the hearing
The AAT will provide correspondence outlining a hearing date for your case. We will submit your legal submissions and relevant supporting evidence seven business days before the scheduled hearing.
Step 6: Prepare any supporting documents requested
During the hearing, the Member may request for additional documents or information in support of your case.
Step 7: Wait for a decision
Once the above is completed, the AAT will decide your review application based on the merits of the case.
Timeline to Lodge AAT
The average processing times for finalising reviews by the AAT between 01/03/2021 and 31/08/2021 are as follows:
| Case Category | Avg days from lodgement to finalisation |
| Bridging Visa | 109 Days |
| Family Visa | 770 Days |
| Nomination/Sponsor Approval | 1019 Days |
| Partner Visa | 872 Days |
| Permanent Business Visa | 996 Days |
| Skill Linked Visa | 746 Days |
| Student Cancellation | 473 Days |
| Student Refusal | 603 Days |
| Temporary Work | 986 Days |
| Visitor Visa | 705 Days |
| Other | 641 Days |
| Total for Migration Case Categories | 787 Days |
The presiding Member can affirm, vary, set aside or remit the decision made by the delegate of the Minister.
If the Tribunal believes you meet all of the criteria for approval, they will make a finding to that effect and remit the matter back to the Department. However, if they find that the delegate made the correct and preferable decision, the AAT will affirm the delegate’s decision.
If you wish to appeal your visa refusal, an associated fee of $3,000 is involved in applying for review with AAT. The application fee can be reduced by 50% if the AAT decides that paying the fee would cause you severe financial hardship. The good news is that if you are successful in your application for merits review, 50% of this fee is refunded to you.
If you are unhappy with the AAT’s decision and there are grounds in law for a judicial review as established by your immigration lawyer, you may be able to appeal to the Federal Circuit Court. If any party has made a jurisdictional error, the court will remit the matter to the original decision-maker. This may be the Administrative Appeals Tribunal, and if remitted by the AAT member, back to the Department of Home Affairs, where the delegate will reconsider the decision
What if my AAT application is not successful?
Ministerial Intervention
This involves creating a specific legal submission with regards to your specific and unique circumstances;
Appealing the decision to the Federal Circuit Court
Individuals can apply for a judicial review to the Federal Circuit Court if their lawyer determines that there exists an error in law with the AAT outcome.
Grounds for Judicial Review
The Federal Circuit Court (FCC) can only look at whether there was an error of law in the way the AAT decided your case. An “error of law” could be a mistake in the way the law has been applied to your case or the process they followed.
The FCC will only consider whether the AAT made a mistake in the way they understood the law or did something they weren’t allowed to do when assessing your case. This means that the FCC cannot consider the facts of your case – they cannot consider any new evidence and cannot decide on the grant of your visa.
What constitutes an error?
The decision was irrational or illogical
The applicant was not afforded procedural fairness
The Tribunal had failed to apply the correct legal principles or criteria when making its decision
Do I need a Lawyer to apply to the FCC?
It is wise to have an immigration lawyer review your AAT decision and help you prepare your FCC application and other court documents and represent you at your FCC hearing.
The Court will only look at the way the AAT used the law when they made their decision. The Court will not reconsider the facts of your case. This process can involve technical legal arguments, which can be very difficult to understand if you are not a lawyer. Most people fail at the FCC if they do not have a lawyer and/or barrister representing them. You should obtain legal advice and assistance as soon as possible after you receive your AAT decision.
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Disclaimer: The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. Further, this info is subject to constant change based on any changes in the law, and therefore, is not intended to create, and receipt or viewing does not constitute a solicitor-client relationship. The reader should consult with an immigration lawyer prior to lodging any application as each lawful case may be different.
