Seeking A Review With The AAT
What to do if your visa application gets refused?
First up, we’re sorry, it isn’t nice news to receive. Don’t mourn the death of your dreams of living in Australia just yet though, there’s still hope yet. Step one, don’t stop reading that notice at the word “refusal”, keep at it, however painful it may be and see if you find this:
“Review rights: No further assessment of this application can be taken at this office. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision within 21 days after the day on which you are taken to have received this letter.”
If you find text to the same effect in your letter, then you have a chance to turn this around. A merits review is basically an appeal.
In case you associate appeals with a different name, the Migration Review Tribunal (MRT), Refugee Review Tribunal (RRT) and Social Security Appeals Tribunal (SSAT) merged with the Administrative Appeals Tribunal (AAT) on 1 July 2015. Quite unfortunately, this merger has resulted in processing delays across the board and some applicants will suffer an extended wait from the already slow initial 12 to 18 months. The AAT is operates in accordance with the Migration Act 1958 and the Migration Regulations 1994 .
Applying for a review
You will need to apply for a merits review within the specified time as given on your refusal letter at www.tribunalonline.mrt-rrt.gov.au . Alternatively, review application forms can be lodged by email, fax, post or by hand at any registry of the AAT. If you choose to post your application, please allow sufficient buffer time for your application to be received by the AAT within the stipulated time limit. We must encourage you to stick with the online submission however, as the benefit of not submitting a paper application is that you may submit additional documents at anytime. There is an application fee of $1673.
On application, you will receive an acknowledgement letter and the AAT will request files and documents relating to the decision under review from the Department of Immigration and Border Protection (DIBP).
Every case varies but here are some necessary essential materials that you should be providing in your application:
- Refusal of visa notification letter
- Statement on why the refusal is not justified
- Supporting evidence
Toward the end of that long refusal notice, you will find an explanation on why your visa was refused. In other words, which visa criterion the DIBP believes you have failed to fulfill. Materials that show you to meet these requirements will be helpful to your review submission. For example, if you were applying for a partner visa and it was refused based on lack of evidence of a genuine relationship, you would want to provide a 360 ° view into your relationship, with evidence from digital conversations and social media, joint accounts, photos, statements from friends or anyone appropriate, at different points over the years you have been together.
As this is your last chance at this visa, you will need to put forth your best efforts. If you are not confident in how to prepare for your review or hearing you should engage a trustworthy migration agent who is experienced in handling reviews.
What happens next
Over the course of your review, the AAT will likely seek further information from you and invite you to comment on any information that may be important to the visa refusal decision.
In all cases you will be invited to a hearing. It will usually be held in a small room and although not entirely informal it is not like being in a court. Hearings are open to the public but it would be rare if anyone you don’t know walks in.
You are allowed to bring witnesses if it helps your case such as in Partner visa applications. If you don’t turn up to the hearing then they will make a decison based upon the paper documents they have and without further communication with you will make their decision. If were not able to attend the hearing for some reason (like falling sick) you must give those reasons to the tribunal as soon as possible afterwards, like the next day.
The AAT will finalise your case with,
- An affirmation of the DIBP decision (meaning they agree with the DIBP), or
- A new decision (making up their own minds, but not often used), or
- Require the DIBP to reconsider (telling the DIBP they are nongs and do it again), or
- Decide that the AAT has no jurisdiction to review the decision (meaning you should not have lodged the review with them)
Be patient, it will probably take over a year for a decision at the AAT to be made. Don’t sit by your clock waiting and worrying, use the time to explore beautiful Australia!
Staying in Australia
You would have been given a bridging visa to stay in Australia until a decision on your visa application is decided. When you apply for a review it is as if your case is still undecided so any Bridging Visa issued to you should continue until the AAT makes the final decision. If you are on a Bridging Visa E (BVE) you may need to attend the DIBP office and show them you have applied for review and they should give you another BVE until that review is finished.
If the AAT decided to send the file back to the DIBP for re-consideration then your bridging visa will continue on. Remember if it does get sent back it doesn’t mean for certain that the DIBP will grant the visa for you but usually in about 99% of cases, it would be. However we have seen files that have refused again for a second time and poor visa applicants having to return to the AAT to appeal.
Further information about the merits review process is available from the AAT on the Tribunal website at www.aat.gov.au . The website also provides guides to applying for a review.
We wish you only the very best with your merits review.