After a decision is made by the Department and you lodge an immigration refusal appeal at the Administrative Appeals Tribunal (AAT), the AAT will take approximately 15 months to set your matter down for a hearing, give or take 5 months. If you meet the criteria for priority consideration, you can ask for your hearing to be set down as a priority. I have been successful in having hearings set down sooner, but it depends on the circumstances of each particular case.
You can appeal most immigration refusal decisions and immigration cancellation decisions if you are in Australia at the time of decision. Whilst letters from the Department can be incorrect, this decision notification will often explain quite clearly whether you have an appeal right to the AAT or not.
Take care to note whether or not you have appeal rights, and take particular care to note the period in which you must lodge your application for review. In some cases, you may have appeal rights to the Federal Circuit Court or the Federal Court of Australia, though you may not have appeal rights at the AAT. In the case of protection visa applications, your application might be reconsidered by the immigration assessing authority which stands in a similar position to the AAT but conducts a review on the papers rather than with their hearing.
In order to file an appeal against an immigration decision, you will need to pay a filing fee at did measure appeals tribunal if indeed you have an appeal right to the tribunal. In most cases that filing fee is about $1,800. Additional fees for which you should budget are your ration lawyers fees and disbursements that may be incurred while your immigration lawyer is in the process of preparing for the AAT hearing.
The costs for running an appeal after a refusal at the measure of the appeals tribunal vary significantly and should be discussed with a qualified immigration law practitioner. A migration agent is not in a position to advise you in relation to costs in the Federal Circuit Court or the Federal Court of Australia. You should seek advice from a suitably qualified practitioner and one who is an Australian legal practitioner and holds a practising certificate.
If you have an appeal right to the AAT then how you lodge an appeal is by filling in an online form with information about the individuals who are seeking review by the AAT, together with relevant information about the decision which is the reason for their review request. An appeal can be lodged quickly at the aat.gov.au website. Take note that different time periods apply in respect of when you are able to make an appeal to the AAT, and importantly if you have a visa cancellation. The time for making an application after a visa cancellation is far shorter than the time for making an application after a visa refusal.
There is a provision in the migration rules that significantly limit what you can do if you are in Australia and you are the holder of a bridging visa rather than a substantive visa and you receive a refusal. The general rule is that if you are the holder of a substantive visa whilst in Australia, you can lodge a further visa application in Australia, subject to the requirements of that particular visa type.
It is very different if you were the holder of a bridging visa, in which case you might only be able to lodge one of a very limited class of these, including perhaps a protection visa or a medical treatment visa or a partner visa in particular circumstances. Take care to seek immediate immigration law advice in relation to what your options are if you receive a refusal, whether or not you hold a substantive visa or whether or not you are the holder of a bridging visa, because refusals can result in significant adverse consequences for you. And not just in Australia but also in respect of applications you might choose to make for a visa for another country.
If you receive a visitor visa refusal and you are in Australia then you can make an application for an appeal against the decision in most circumstances. The position is different if you are overseas at the time of lodging your visitor visa and at the time of receiving your visitor visa refusal in appeal rights. This will depend on whether or not your application is one which is a sponsored application.
Once again, you should take care to get specific immigration advice in relation to any visa refusal.
If your visa gets rejected then you will normally have a period in which to exit Australia. This assumes that you have lodged a valid visa application whilst you are in Australia and for which you have been granted a bridging visa, allowing you to stay until shortly after the application that you have made is finally determined. Of course, you might not need to exit Australia if you are able to lodge an appeal after your visa rejection and you do in fact lodge an appeal and are granted a bridging visa in association with that visa appeal application.
You will need to consider whether or not you have appeal rights and decide whether or not there is any point in appealing the visa application or possibly lodging a fresh visa application, whether or not it is lodged onshore or offshore.
It is highly unlikely that you will receive a refund if your visa application for Australia is refused.
In most cases, you should be able to make an application to have the ability to work whilst you are waiting for your outcome at the AAT, but there are certain circumstances in which you will not be technically able to apply for work rights.
You are able to appeal decisions of the AAT if the decision is infected with legal error. This is also known as jurisdictional error. Finding errors in the decisions of an appeals tribunal is something that we do on a regular basis, but it is by no means an easy task. You should get specific legal advice from an immigration lawyer in respect of the possibility that the tribunal has erred in the process of making a decision about your case. Migration agents are not able to provide this advice.
In general, an online application can be lodged in relation to any refusal or cancellation.
There are a few important tips that you need to be aware of:
Once the review application has been lodged with the correct division, within the timeframe, with the correct review application form, then there is time to prepare the submissions, as described under visa refusals and visa cancellations.
To discuss in detail, contact MyVisa Immigration offices in Sydney, Melbourne, Brisbane, and Perth.
View Comments
I have missed the time frame to appeal my notice of cancellation, am I still able to appeal the decision?
Thank you very much for your post. Here are the first three (3) things that come to my mind. There may also be other important issues that arise from your particular circumstances. Please seek specific immigration law advice before taking any further steps. It could be that I have misunderstood you :).
1. The short answer is no.
2. In very limited circumstances, you might be able to go to a court to argue that the CANCELLATION was infected with a legal error, such that the cancellation decision itself is quashed.
3. Before wasting any money in relation to paragraph 2 above, you should be very very clear as to the argument that you are making. It must point to a basis for judicial review rather than merits review. This means in very simple terms, if the delegate making the decision made a lawful decision then, even though you don't like the outcome, you do not have any viable basis to challenge the decision in the courts. Rather you must find some legal error, perhaps in the process of the delegate wielding power, such that the decision made is outside of the power conferred on that delegate.
Regards Nilesh Nandan Immigration Lawyer & Special Counsel MyVisa® Immigration Law Advisory https://myvisa.com.au/
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Who can help me to appeal my visa . My visa has been refused after hearing in the court .