There are drastic ongoing changes to the Australian migration law on a large scale in the last 12 months particularly in skilled migration. Further legislative changes are expected to occur from March 2018 to both temporary and permanent visa programs.
As a result of the legislative changes, it is generally observed that there is an increased number of visa refusals resulting from stringent regulations, compliance monitoring and related integrity checking conducted during visa processing by the Department of Home Affairs (DOHA). Other reasons of visa refusal may also include lack of understanding of the law and/or policy by an applicant, often seen in situations where a professional advice is not sought. Being a life-changing decision, it may cause a high level of frustration and stress for the individual applicant and the family concerned.
Having your visa application refused may not necessary be fatal to your chances to remain in Australia. It is however imperative to understand what you can do if your visa is refused. There are different avenues available by which the visa decision may be reviewed under various situations.
The Administrative Appeals Tribunal (AAT) is the organisation responsible for reviewing decisions made by the Australian government. The Migration and Refugee Division (MRD) division under the AAT reviews visa decisions made by DOHA including visa refusal, cancellations as well as those related to sponsorship and nomination under employer sponsored visas.
When an application is submitted for review and a subsequent appeal is lodged following a visa refusal or cancellation, AAT conducts an administrative review of the case based on the merits of the 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 has the power to:
affirm (not change) the primary decision
vary the primary decision
set aside the primary decision and substitute a new decision
remit (return) a matter to DOHA for reconsideration with specific directions.
Regulations specify the decisions that AAT can review, who may seek review of a decision or review rights, how an application for review must be made and the time limits within which applications for review must be lodged. These rules may vary depending on the type of decision being reviewed as well as individual circumstances of the applicant.
Timing is a critical factor as appeal options often have strict deadlines, after which it may be impossible to lodge an appeal. Additionally, an applicant may also be eligible for a Bridging Visa to remain lawfully in Australia whilst the case is reviewed by AAT.
Some of the common grounds for refusal that may be reviewed by AAT include:
Evidencing “genuine position” for Subclass 457 visa
Demonstrating genuine relationship for partner visa
Meeting Genuine Temporary Entrant (GTE) criteria for student and visitor visas
A positive outcome from AAT depends upon various parameters including a careful analysis of the original visa application, supporting documents, decision record from DOHA and extensive legal research in order to submit stronger evidence than before to address the issues highlighted in the decision.
Other avenues of appeal include Ministerial Intervention and Judicial Review in courts, which are usually available under limited circumstances for certain type of migration decisions.
To summarise, it is essential to seek professional advice in a timely manner to increase your chances of success at the AAT. Our experienced team at SCA Connect can assist you in lodging a strong appeal application for merits review to AAT to accomplish your migration goal.
Disclaimer: The information provided herein is of a general nature only and does not constitute immigration advice. For more detailed and case specific information or advice, please contact SCA Connect.