Receiving a negative outcome for any visa application or finding out that your visa has been cancelled can be a really upsetting and distressing time. Many decisions can however be appealed to the Administrative Appeals Tribunal (AAT), formally the Migration Review Tribunal (MRT).

An AAT review.

The AAT conducts independent merits reviews. Appealing to the AAT gives you another chance to present your application. The Tribunal Member will take a fresh look at all of the relevant facts and evidence of your application and arrive at their own decision.

Possible outcomes.

The AAT has the power to do one of the following:

• affirm the decision - ie where they agree with the decision made by the Department

• remit the decision back to the Department for reconsideration

• in some cases, vary or set aside and substitute a decision.

The process.

The process is as follows:

1. Lodge your application with the AAT within the strict time limits (generally 21 days).

   For an onshore application, you will usually be granted an extension of your Bridging Visa which will allow you to remain in Australia until your matter is listed for hearing.

   Your matter will eventually be allocated to a Member who will decide how to proceed by either asking you for further information or inviting you to comment on a particular issue or simply listing the matter for a hearing.

2. Receive an invitation to attend a hearing at the AAT.

   This is the time you should provide all of your up to date and supporting evidence.

   If you have engaged the services of an experienced Migration Agent or Immigration Lawyer this is also the time that they will finalise their detailed legal submission. This legal submission is one of the most important documents in the case, as it is your representative’s opportunity to detail your particular circumstances, explain why the decision of the Department was incorrect and outline their legal arguments as to how you meet each of the criteria applicable to the grant of your visa.

3. Attend at your hearing. Even though you will have provided a lot of supporting evidence already, this is your opportunity to present your information in person. The Member will guide the proceedings and will ask questions of you and any other witnesses. The Member can make a decision on the day, but usually they will reserve their decision for some time after the hearing.

How long does the process take?

The time it takes for the AAT to list your matter for a hearing and finalise an application will depend on a range of factors, including when you lodged the application, the type of application it was for, the complexity of your matters and of course how busy the Tribunal is with other matters. Average processing times can be found on the AAT website.

What to expect at the hearing.

If you choose to engage our services, we will meet with you prior to the hearing to explain the process in detail and to answer any questions you may have. A few things to note:

• The hearing will usually take place in person at the AAT or in some circumstances you might attend by telephone or by videoconference.

• Yourself, the Member and an AAT staff member will be in attendance. You must also advise the AAT if you would like a representative, a support person or any witnesses to attend.

• You can request an interpreter for the hearing.

• The hearings are open to the public, which means anyone can sit in the back of the room if they wish.

• The hearing will usually last for between 1 to 4 hours depending on the complexity, the number of issues and the number of witnesses.

The appeal process can be stressful. Often, it is the last opportunity to obtain a positive migration outcome. It is essential that as much relevant evidence is provided, that arguments are made in your favour as to how you meet the criteria of the visa and why the department’s decision was incorrect, and to ensure that the hearing is conducted appropriately and according to the law.

Why we are the best choice.

Our principal Migration Agent Jessi Galbraith has a legal background. Her acquired legal skills provide specific advantages when it comes to appeal and review work.

Expert legal representation

Immigration law in Australia is complex and constantly changing. It involves the interpretation of complex legislation and policy as well as being familiar with any legal changes or industry trends.

Initially, we will conduct a detailed analysis of your case and undertake a comprehensive evaluation as to your prospects of success. We will also raise with you any areas of perceived risk, and provide advice on alternative options in the case of a negative outcome.

Jessi is adept at undertaking advanced legal research on relevant case law, legislation, policy and other research specific to your particular circumstances (eg research relating to a particular country/region/event/industry or relating to particular social issues such as domestic violence/mental health etc).

We will usually lodge at least one Freedom of Information (FOI) request to ensure we have a copy of all records held by the Department in relation to your matter as well as any statistical data that may be of assistance.

We will advise on other ways your case might be strengthened such as supporting statements from members of your local community, medical professionals, family members, religious leaders etc. We will advise on the specific information and detail that these statements must include to assist your case.

Prior to the hearing we will also explain to you the process and what to expect, how you should conduct yourself during the proceedings and ways in which you can prepare for the hearing.

ADVANCED advocacy skills

It is not uncommon to feel nervous when attending a hearing. Nonetheless, it is really important that you take full advantage of this unique opportunity to argue your case. For this reason it can be a real advantage to be accompanied by somebody who is comfortable and familiar with the review process.

Jessi has years of experience in advocacy work in various areas of law and in various venues such as the AAT as well as more formal court settings such as the Magistrates Court, the District Court and the Supreme Court.

Whilst the advocacy role of a representative is more limited in the AAT that in a court (the majority of the legal arguments having been made previously in the detailed submission), it is important that your representative is present so that they can interject where necessary to clarify particular issues with the Member, provide advice to you and request adjournments were appropriate.

If the AAT do not decide in your favour, you may be able to appeal further to the Federal Circuit Court.

Jurisdictional error.

Please note that you cannot simply appeal a decision of the AAT because you don’t like, or don’t agree with the decision.

Appeals are heard in the Federal Circuit Court where an application is being made for a review to determine whether ‘jurisdictional error’ occurred in the AAT. This means that the Court determines whether the decision was made according to law or not. Examples of jurisdictional error can include a failure to provide procedural fairness to a visa applicant or incorrectly interpreting the relevant law. Such appeals involve complex legal arguments which requires close analysis of the decision record from the AAT against comparative case law.

The court does not consider the merits of your application and whether you should or should not be granted a visa. They will not:

• reconsider the facts and reasons for your visa application;

• consider any new factual information or evidence;

• grant you a visa.

We can assess whether or not an argument of jurisdictional error can be argued in your case and if so, advise you as to your options in proceeding with an appeal to the Federal Circuit Court.