ADMINISTRATIVE APPEALS TRIBUNAL (AAT)
If you have recently been refused an Australian visa, and disagree with the decision, there are some steps you can take. Information below may help you to generally better understand your options.
- Merits Review Overview
- Notification of Decisions
- The Administrative Appeals Tribunal (AAT)
- Reform of the Merits Review System
What is the AAT?
The Administrative Appeals Tribunal is an independent body that reviews decisions made by Australian government agencies and departments, and provides a forum for individuals and organizations to have their disputes resolved in a fair and efficient manner.
Why was the AAT established?
- The Administrative Appeals Tribunal (AAT) was established in Australia in 1975, as part of a wider reform to the administrative justice system. The establishment of the AAT was in response to concerns about the fairness and transparency of government decision-making, and the need for a more accessible and efficient system of administrative review.
- The AAT provides a ‘fair, just, economical, informal and quick mechanism’, of de novo merits review of government decisions.
- The AAT is part of the Executive arm of Government but it is also meant to provide independent review. It holds hearings; parties can be legally represented; it hears evidence; and it provides reasoned decisions that are publicly available.
- The AAT conducts independent merits review of administrative decisions made by the Commonwealth Government , which means that it has the authority to reconsider the facts surrounding the decision under review and decide whether to substitute its decision. Therefore, the Tribunal performs the unique role of making “the correct or preferable decision” based on the merits of the case (Drake).
- The AAT review process has underlying objectives of ‘impartiality and fairness’, accessibility and making decisions that promote faith in the decision-making of the tribunal.
What sort of visa appeals go to the AAT?
The Administrative Appeals Tribunal (AAT) has two main divisions that affect migration matters:
- The Migration and Refugee Division – This division is responsible for reviewing most visa refusal decisions made by the Department of Home Affairs
- The General Division – This division is responsible for reviewing most character-related visa decisions or citizenship refusals
The AAT has the power to review matters that relate to decisions about bridging visas, family visas, nomination/sponsor applications, partner visas, permanent business visas, skilled visas, student visas, temporary work visas, some visitor visas, some humanitarian visa categories and citizenship.
The AAT does not review decisions relating to fast-track humanitarian visas.
What decisions can the AAT make?
If an individual’s visa application has been refused or cancelled by the Department of Home Affairs (DOHA), they may be eligible to apply to the AAT for a review of that decision.
The Administrative Appeals Tribunal member will decide to affirm, vary, set aside, or remit the decision made by the Department of Home Affairs by virtue of section 43 of the AAT Act.
- If the AAT affirms the decision, it means the decision made by the Department of Home Affairs is not changed. If this happens you will need to immediately consider your next best steps such as appealing the decision to court, applying for another visa or leaving Australia
- If the AAT varies a decision, it means the decision made by the Department of Home Affairs is changed or altered in some way
- If the AAT sets aside a decision, it means the AAT agrees or partially agrees the original decision made by the Department of Home Affairs was wrong
- If the AAT remits a decision, it means it sends the matter back to the Department of Home Affairs to make a new decision in accordance with the AAT’s instructions or recommendations. In essence, This means you won your appeal case! Generally if your matter is remitted, you will need to wait to hear from the Department of Home Affairs before your visa is granted.
Time Limits for the AAT
If you are in the community, you must apply within 28 days from the date you were notified of the refusal.
The date considered notified depends on how you received the document.
- If you received the refusal Notification by email, it is on the day you received the email.
- If you received the Notification by registered post, it is 7 working days from the date of the letter
- If you are in immigration detention –the time limit is 7 working days.
Advantages of AAT
Disdvantages of AAT
|1. Access to Review: The AAT provides an avenue for review of decisions made by the Department of Home Affairs (DOHA) in relation to visa and citizenship applications. Section 338 of the Migration Act 1958 (Cth) sets out the power of the AAT to review migration decisions.
2. Independent and Impartial Review: The AAT provides an independent and impartial review of migration decisions, which can help ensure that decisions are made in accordance with the law and are fair and reasonable. Section 360 of the Migration Act 1958 (Cth) sets out the principles that the AAT must apply in reviewing migration decisions.
3. Expertise: AAT members have expertise in migration matters, which can help ensure that decisions are made with a good understanding of the issues at hand. Section 374 of the Migration Act 1958 (Cth) sets out the qualifications and experience required for AAT members.
4. Cost-Effective: The AAT process is generally less costly than going to court, which can make it more accessible for those who cannot afford legal representation. Section 411 of the Migration Act 1958 (Cth) provides for the recovery of costs incurred in relation to AAT proceedings.
5. Timely Review: The AAT is required to deal with migration matters as quickly as possible, which can help ensure timely resolution of disputes. Section 368 of the Migration Act 1958 (Cth) requires the AAT to deal with migration matters as soon as practicable.
|1. Limited Power: The AAT has limited power to enforce its decisions, and cannot enforce decisions against the government or government agencies. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) sets out the limitations on the power of the AAT.
2. Decision is Still Final: Although the AAT can review decisions, its decisions are still final and there is no further avenue of appeal beyond the AAT. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) sets out the finality of decisions made by the AAT.
3. Delayed Decision-making: The AAT process can sometimes be lengthy, which can cause delays in the resolution of disputes. Section 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) requires the AAT to deal with matters as quickly as possible, but delays can still occur.
4. Limited Jurisdiction: The AAT has limited jurisdiction, and there may be some decisions that cannot be reviewed by the AAT. Section 338 of the Migration Act 1958 (Cth) sets out the matters that can be reviewed by the AAT.
5. May not be an Appropriate Forum: The AAT process may not be appropriate for all disputes, and there may be cases where going to court is a better option. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) sets out the limitations on the power of the AAT.