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Monday, February 26, 2024

Appeals / Tribunals

Visa Refusal Appeal

In certain cases, there may be instances where your visa application is denied, or your existing visa is revoked. However, you may have the option to appeal the decision to the governing body, previously known as the Administrative Appeals Tribunal (AAT). The AAT is a merits review tribunal that can reconsider visa decisions.

It’s important to note that the governing body cannot review every decision. For example, if the Minister for Immigration personally decides to deny or cancel your visa under section 501 of the Migration Act 1958, you cannot request a review by the governing body.

If your case is eligible for review, the review tribunal may provide the following decisions:

Affirm: This decision is made when the tribunal agrees with the Department’s decision to deny or revoke your visa. In this case, the Department’s decision will be upheld.

Set aside: This decision is given when the governing body believes that the Department’s decision should be changed. The Department has the discretion to amend the decision based on the governing body’s recommendation. The governing body may substitute a fresh judgment for the original decision.

Remit: This decision indicates that the governing body believes the Department’s decision needs to be reassessed. Based on the recommendations of the AAT, the department must reevaluate the application.

No jurisdiction: This means that the governing body does not have the power or authority to review the Department’s decision because it falls outside its limits.

It’s crucial to be aware that the rejection or cancellation letter will specify the deadline for filing an appeal. It is essential to submit the appeal within the specified timeframe; otherwise, you risk losing the opportunity to have your application reviewed.

During the review process, you may typically be granted a Bridging Visa with the same restrictions as your previous visa, including the ability to work or attend school.

If the review application is being processed, you are allowed to remain in Australia.

For more information on Visa Refusal Appeals, we recommend getting in touch with our experts who can provide detailed guidance and assistance tailored to your specific situation.

Federal Circuit Court

Under the Migration Act of 1958, certain decisions made in accordance with the Act can be reviewed by the Federal Circuit Court of Australia (the Court). This includes decisions made by the governing body, the Immigration Assessment Authority (IAA), and the Minister for Immigration and Border Protection.

The decision makers, including the Minister, members of the tribunal body, and IAA, are responsible for assessing the merits of your application and determining whether to grant you a visa. Please note that our services are specifically focused on cases where your visa has been denied and you wish to appeal to the tribunal. We do not provide services for matters related to the Federal Court.

The Court can only review a decision to determine if there was a “legal error.” This means that the Court assesses whether the decision was made in accordance with the law. The Court acts independently of the decision maker and does not consider the merits of your application or whether you should be granted a visa.

If the Court identifies a legal error, it can take the following actions:

  • Refer your case back to the decision maker for reconsideration.
  • Prevent the Minister from taking any action based on the decision.

However, the Court cannot:

  • Review the facts and reasons related to your visa application.
  • Consider new factual information that is unrelated to whether the decision maker committed a legal error.
  • Grant a visa directly.
  • The legal issues involved in reviewing migration decisions can be complex. It is advisable to seek legal advice on your specific case as soon as possible.

You can obtain free advice from a legal aid office or community legal center. Alternatively, you may choose to hire your own lawyer and pay for their services. FBP International has in-house immigration lawyers who can provide expert advice and assistance in handling such cases.

For further information about the Federal Circuit Court and how it relates to your situation, Please contact our experts.

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