How do I appeal a visa refusal?

Having a visa refusal is a deeply upsetting, and often traumatic, experience particularly given the amount of effort, money and time spent on visa applications.

Fortunately, some visa decisions have a right of appeal to the Migration and Refugee Division of the Administrative Appeals Tribunal (Tribunal) also known as the AAT.

To appeal a visa refusal, it’s important to ensure that:

• the decision is “reviewable” (i.e. you have the right to appeal);
• you apply to the Tribunal within the permitted time frame; and
• you apply to the correct Tribunal and pay the appropriate lodgement fee.

The decision letter from the Department of Home often will state whether the decision is reviewable, the time frame to appeal, and where you can appeal the refusal in their decision notice. It is worth noting that the Department sometimes make mistakes in this, which is why it is usually recommended that you seek legal advice.

The below discusses this in further details.

Can my visa refusal be appealed to the Tribunal?

Unfortunately, this is not a straightforward answer. Most visa refusal decisions do have the right to be appealed to the Tribunal, particularly if your visa was refused in Australia.

Some visa decisions are not reviewable if they were lodged offshore (usually where there is no sponsor in Australia).

How do I apply to the Tribunal for review of my visa refusal?

Ordinarily the best way to apply for this is online via the Tribunal’s website here. There are also paper forms that you can complete.

If you engage a migration agent/lawyer, they can also lodge the Tribunal application for you.

How long do I have to apply for the visa appeal?

There are very strict time limits to applying to the Tribunal. The time limit varies depending on the type of visa decision (and whether you are in immigration detention).

If you do not apply within the permitted time frame, the Tribunal do not have the power to extend the time limit and your right to appeal to them is gone.

What will the Tribunal do?

After your appeal has been lodged with the Tribunal, it will normally take some time before your case is allocated to a Tribunal Member who will assess the matter (see “How long does it take to process?” below).

Normally, the Tribunal Member will hold a hearing (like an interview) to discuss the circumstances of your case. In certain circumstances, a decision can be made “on the papers” without a hearing.

You can, and often should, provide additional documents or submissions prior to this hearing. You can also give documents or submissions after the hearing for the Members consideration.

After considering the circumstances of your case, the Tribunal may:

• affirm the decision (i.e. the Tribunal agrees with the Department);
• vary the decision;
• remit the matter for reconsideration in accordance with directions or recommendations permitted;
• set the decision aside and substitute a new decision.

They will provide a written statement about its decision, including the reasons for the decision.

How long does it take to process?

The Tribunal publish the average time it takes them to process different types of decisions in the most recent 6 months. You can see this here.

These timeframes vary significantly from the different types of decisions, and the statistics are only a general guide.

There are certain circumstances where you can request that your application for review is processed as a matter of priority, though you will usually need “compelling reasons”.

How much does it cost?

The application fee to apply to the Tribunal is $3,000.

In circumstances where you can demonstrate that paying this fee would cause you severe financial hardship, this fee can be reduced by 50% ($1,500).

If you are successful at the Tribunal, they will refund you 50% of the fee that was paid.

Conclusion

The process of going through a visa refusal is very stressful, and you may be feeling unsure about what the next steps are, what to do, or are afraid of getting something wrong. Getting legal advice and/or assistance about whether the decision was legally correct or had some errors, may help put some of your concerns at ease. We also have some tips to help individuals going through the refusal process on our website here.

Hannan Tew Lawyers have assisted a significant number of individuals at the Tribunal with their visa refusals and appeals. Our lawyers have significant experience from working at the Litigation and Review department at the largest immigration firms, and working for Government panel law firms that represent the Minister in appealing visa refusals. We’re deeply familiar with the Tribunal process and have significant experience in guiding individuals from visa refusal all the way through Tribunal decision.

Please feel free to contact us by email at [email protected] or phone +61 3 9016 0484 if you’d like some guidance or assistance with the next steps.