VISA REFUSAL | VISA CANCELLATION
Has your visa application been refused?
Has your existing visa been cancelled?
Are you an employer; has your business sponsorship or nomination application been refused?
At Visa Crew we understand visa cancellations and refusals are quite stressful situations for some people. Do remember, you may be eligible to appeal a visa refusal or cancellation to the Administrative Appeals Tribunal in the Migration & Refugee Division. Do not delay, get professional advice to understand the best strategy; you have limited time to act; read on for more information...
Good To Know:
AAT - ADMINISTRATIVE APPEALS TRIBUNAL
MRD - MIGRATION REVIEW DIVISION
Appeals Process - MERITS REVIEW
AAT | Migration & Review Division
The AAT - Administrative Appeals Tribunal (Migration & Refugee Division) is a statutory body which provides a final, independent, merits review of visa related decisions made by the Department of Immigration and Border Protection (DIBP).
When lodging an appeal, TIME is of the essence, You will need to deal with the matter as soon as possible as there are time-sensitive requirements with a relatively short window of opportunity to lodge a successful appeal application.
AAT | Stressful Times
We find, many clients feel very vulnerable facing the merits review process; which is understandable. After lodging an appeal there may be lengthy delays in an appeal being heard by the AAT. Sometimes delays can be attributed to the evidence supplied to the tribunal. We are here to provide you with sympathetic and professional advice so that you are aware of the requirements. We assist you from day one up until the AAT’s decision. We Work For You
Our Registered Migration Agents are available to provide advice about migration law and personal representation should you require assistance with an appeal to the Administrative Appeals Tribunal.
AAT | Decision
The Administrative Appeals Tribunal (AAT) (Migration & Refugee Division) has the authority to make a decision in your favour and decide that the Department’s decision is incorrect. If this happens the matter is then referred back to the Department for reconsideration.
If the matter is sent back to the Department for reconsideration, generally speaking, the Department will grant the visa or revoke the visa cancellation.
The AAT can also decide that the Department’s decision was correct and confirm this in its decision. If this occurs, then your appeal has not been successful. There may however be other pathways, following an unfavourable AAT decision; Ministerial Intervention or Judicial review options may be appropriate.
COMMON QUESTIONS | AAT
Q Who May Apply To AAT For Merits Review?
You may be able to apply for MRD Merits Review in the following situations:
• Visa application is refused.
• Substantive Visa was cancelled
• You received a notice of intention to cancel your Visa (NOICC)
• Employer: Standard Business Sponsorship application refused
Q What Is AAT Application Fee?
Migration Review application fee is currently $1,731.00.
50% of the application fee will be refunded if the MRD appeal is successful.
There is no refund if your application is not successful, or if you withdraw your appeal application.
Hardship cases may receive partial refund of the application fee.
Q Is There A Time Limit To Apply For Merits Review?
It is important to note that there are strict time limits by which you need to submit an appeal application. The time limit will depend on the decision which is being challenged. You may have only 7 days in which to prepare and lodge a successful merits review application.
The is a very short time frame; act IMMEDIATELY you receive notice from the department. The AAT will not accept late applications for merits review.
Q How Long Do I Have To Wait Before My Case Is Herad?
Generally speaking, waiting times are quite lengthy, allow 12 to 18 months.
Cases can be dealt with sooner if your circumstances warrant this; we can apply for an expedited review.
Q What Happens If My Appeal Is Successful?
If your receive a favourable decision, then the visa application will be remitted back to the Department for a final determination and decision.
The Department’s processing time for such applications is relatively quick. Be mindful however, times do vary.
Q What Happens If My AAT Appeal Is Not Successful?
If your application for Merits review the AAT is not successful you will receive notification that you have 28 days in which make arrangements to leave Australia. However you may wish to pursue two potential further avenues:
Written request to the Minister to exercise her/his personal discretion to grant you a visa, or substitute a more favourable decision. This is an application for Ministerial Intervention (MI).
If we can substantiate an error of law, it may be feasible to lodge an appeal to the Federal Circuit Court or under Original Jurisdiction to the High Court. There are strict time limits for any such appeal.
Q May I Apply For Another Visa During Merits Review?
This depends on several factors!
If you are still holding a substantive visa, then you should be able to lodge another visa application – assuming that you meet the relevant eligibility requirements. A ‘substantive’ visa is basically any visa which is not a bridging visa.
If you do not hold a substantive visa (i.e. your last substantive visa has expired and you now hold a bridging visa that is associated with the merits review), then Section 48 bar will not allow you make a further ‘substantive visa’ application. Simply because you have because you have had a visa refusal.
Despite s48, you can still lodge a valid application for the following types of visas: Partner Visas, Bridging Visas, Subclass 444 for New Zealand citizens and Child Visas.
Q What About Bridging Visa?
If you were granted a Bridging Visa A as a result of the visa application which the Department refused, this bridging visa will continue to be valid during Merits review process. You will remain lawful in Australia until a final decision is made (assuming that you have applied for the AAT within the allowed time period). If you do not appeal to the AAT then your Bridging Visa will expire and you will need to depart Australia or become unlawful (make a new visa application).
You may not make a review application without a valid bridging visa.
Q Can I Work During The Appeals Process?
That depends on the visa that you are currently holding.
If you are holding a substantive visa, which are basically all visas except for bridging visas, then you need to comply with the conditions of your substantive visa. For example, if you are holding a student visa, then there may be restrictions on the number of hours that you can work. If you are a primary 457 visa holder, then you can only work for your sponsoring employer.
If you are holding a bridging visa, then you need to check the conditions of your bridging visa. If you are holding a bridging visa and there are restrictions on your work rights, you may be able to apply for unrestricted work rights.
This generally means that you need to demonstrate a ‘compelling need to work’. You need to provide evidence to show that you will suffer ‘financial hardship’ (or your household will suffer such hardship) unless you are permitted to work and earn an income.
The Department’s policy guidelines indicates if ‘financial hardship’ is established i.e. you can show that your living expenses are greater than your ability to pay for these costs.
A seperate bridging visa application is required to apply for work rights.
Q I Have More Questiions About The Appeals Process?
Call Us Immediately - Appeals must be acted on quickly to ensure correct action is taken within the allowed time frames.
“Merits review is an administrative reconsideration of a case. A merits review body makes decisions within the same legislative framework as the primary decision maker, and may exercise all the powers and discretions conferred on the primary decision maker.”
AAT Decisions 2016/2017
Summary of latest decisions available from The Administrative Appeals Tribunal for period - 2016/2017
In the 10 months from 1 July 2016 to 30 April 2017 the AAT-MRD received 15,178 applications for review. The reviewed decisions include those for all Australian visas (including bridging visas) but excludes refugee and humanitarian visas.
Top 5 categories of visas submitted for review are:
• Partner 24%
• Student Refusal 22%
• Nomination/Sponsor (SBS) 11%
• Visitor 11%
• Temporary Work 10%
In the same period decisions were handed out to review applicants:
• Set Aside 39%
• Affirmed 40%
• Withdrawn 15%
• Other (not reviewed) 7%
AAT Decisions Set Aside 2016/17
• Partner Visas 54%
• Visitor Visas 49%
• Temporary Work 30%
• Student 22%
• Nom/Sponsor 15%
Migration Decisions By Outcome
Migration Lodgements By Location
AAT | SHOULD I MAKE AN APPLICATION?
The chances of obtaining a positive outcome from the Tribunal to set aside a DIBP decision require the following:
• A thorough analysis of the refusal Decision Record
• In-depth knowledge of visa application process & requirements
• Assessing applicant’s circumstances and ability to address the issues
• Ability to understand refusal decision & apply current migration law
In summary it should be considered whether the applicant can provide evidence or information that will meet the visa application requirements. If the original application can be improved then the chances for success with the review will be increased.
Applicants with complicated circumstances should also note that submitting an AAT review application is a pathway towards ministerial intervention. You can only request ministerial intervention after you have received a decision from the AAT.
Registered Migration Agents | Confidentiality Assured
Client confidentiality is important, we guarantee all communications with you are kept private; without exception. At all times we do not disclose or allow to be disclosed information about our clients or our clients business. Our clients can be happy in the knowledge their confidentiality is of upmost importance to Visa Crew.
Migration Legislation | Complex Issues
Migration agents specialise in immigration law; they are trained to analyse, interpret and apply Australian legislation and case law in relation to all migration matters. Our continuous training enables us to deal with this legislative complexity and apply it to specific circumstances to ensure we can provide the best solution and options for our clients.
Call Us Today - We make the Law easy to navigate and easy to understand!