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  • Writer's pictureAisen Zhao / Sianne Way

IMMIGRATION LAW: AAT REVIEWS AND APPEALS

Updated: Nov 3, 2022


Authored by: Aisen Zhao SOLICITOR | +61 420 989 341| aisen.z@juliuslawyers.com.au Sianne Way SENIOR ASSOCIATE | +61 0431 276 197 | sianne.w@juluislawyers.com.au




IMMIGRATION LAW: AAT REVIEWS

(Migration & Refugee Division)


INTRODUCTION

The Administrative Appeals Tribunal (AAT) was established by the Administrative Appeals Tribunal Act 1975.


The AAT conducts independent merits reviews of administrative procedures under Commonwealth laws. The AAT reviews decisions made by Australian government ministers, departments, agencies and, in limited circumstances, decisions made by state government and non-government bodies. The AAT also reviews decisions made under Norfolk Island laws.


Administrative law is the body of law that regulates government decision making.

The Migration Review Tribunal, Refugee Review Tribunal and Social Security Appeals Tribunal were amalgamated into the AAT on 1 July 2015. The Migration & Refugee Division of the AAT has jurisdiction to review visa decisions (where appropriate) made by Department of Home Affairs under the Migration Act 1958.


AAT REVIEW

The AAT reviews decisions ‘‘on the merits.” The AAT will take a fresh look at the relevant facts, law, and policy and make at its own decision. It has the power to:

  • affirm a decision;

  • vary a decision;

  • set aside a decision and substitute a new decision; or

  • remit a decision to the decision-maker for reconsideration


For immigration matters, the Migration Act 1958 and the Migration Regulations 1994 specify which decisions can be reviewed, who may seek review of a decision, how an application for review must be made, the time limits within which applications for review must be lodged, and the application fee payable.


Who can apply for a review?

The decision letter sent by the Department of Home Affairs should explain whether the decision can be reviewed by the AAT and who can apply for review.


The AAT can only accept an application for review made by a person who has the right to apply for review.


Why apply for a review?

Applying to the AAT for a review is the only way to seek to change the decision made by the Department of Home Affairs. If an applicant decides not to seek a review, they are often faced with leaving Australia within a strict time-period, with the applicant’s subsequent visa applications possibly being affected.


Time limits

There are strict time limits in which you need to comply with should you wish to seek an AAT review. Failure to adhere to these time limits may mean you lose the opportunity to seek a review.


Application Fee for AAT

The AAT’s application fee is currently $3,000.00 with 50% of this fee normally being refunded should an applicant be successful with their review.


An applicant can only apply to reduce the application fee if the fee itself would cause an applicant “severe financial hardship.”


If an application for review is withdrawn, the application fee will only be refunded in limited circumstances.


Who can help?

Under the Migration Act 1958, only certain people can provide ‘immigration assistance’ to an applicant. They include:

  • a registered migration agent;

  • an Australian lawyer with a practising certificate;

  • a close family member (for example, your spouse, child, parent, brother or sister); or

  • a nominator or sponsor if you are a visa applicant.


LGee & Julius Lawyers have lawyers specialised in immigration law, who can assist in preparing and lodging written submissions ahead of an AAT appeal, as well as aiding with the overall process.


Appeals

If, once an applicant receives notification of the AAT’s decision, an applicant suspects that the AAT made an error, they should seek immediate legal advice. This is because an applicant may have further avenues of appeal available to them. Depending on the type of decision being appealed, the Federal Circuit and Family Court or the Federal Court have jurisdiction to hear these types of appeals.


An appeal to a higher court can only be about a question of law. This means that an applicant must consider that the AAT made a mistake in law when deciding their case.


Why an Immigration Lawyer?

Immigration Lawyers are specialists in immigration law whilst also being trained in administrative law.


For this reason, should your application be refused, an Immigration Lawyer is trained in how to challenge this refusal in the AAT or Court.Whilst both a Lawyer and/or Migration Agent may assist in your application, and an application to the AAT, only a Lawyer can represent an applicant in any further appeal to a higher Court.


An Immigration Lawyer has the skills and expertise to be able to tailor your application to minimise any risks of refusal, from the very start. Engaging a Lawyer also means that you may retain the same representative throughout your matter, should it need to be appealed in the higher Courts.


Furthermore, an applicant’s information and documents are protected by legal professional privilege which means a Lawyer is not obliged to disclose any information about the applicant to the Court even if the Court requests it. The same privilege does not apply for a Migration Agent and they could be required to disclose information to a Court if the Court makes a request of them.


CONCLUSION

Overall, if you to instruct an Immigration Lawyer the benefits may outweigh the cost. At LGee & Julius Lawyers, our Immigrations Lawyers can assist an applicant with:

  • the type of visa needed and their suitability;

  • ensuring all necessary documentation is included in an application;

  • refusal of a visa application by the Department of Home Affairs;

  • cancelled or an expired visa;

  • where an applicant is deemed to be an unlawful and illegal citizen;

  • seeking an AAT review where allowed;

  • appealing to a Court (the Federal Circuit and Family Court, the Federal Court or High Court); and

  • requesting a ministerial intervention.


Our Immigration Lawyers take the time to understand your immigration needs, and seek to create, with you, a plan to suit your individual circumstances, in an effort to achieve the best outcome for you.


If you have any questions, or need any assistance with an immigration related matter, please do not hesitate to contact us to discuss how LGee & Julius Lawyers may meet your needs.

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