ADMINISTRATIVE APPEALS TRIBUNAL (AAT)

TRIBUNAL REVIEWS

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.

Has your visa been refused or cancelled?

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.

About

Administrative Appeals Tribunal

The role of the Migration and Refugee Division of the AAT is to review decisions made by the Department of Immigration and Border Protection (DIBP). The AAT have the power to affirm, vary or set aside DIBP’s decision, or to return the matter to DIBP for reconsideration with specific directions. The AAT is able to consider a wide range of visa-related decisions, including refusals and cancellations. Decisions are based on the merits of each particular case.

Your application for review MUST be lodged with the AAT within the required time frame. The letter that you receive from DIBP regarding the decision to refuse or cancel your visa will refer to the exact time frame within which you must lodge your review application, should you take this step. In most cases the relevant time frame for application is 21 days from the date of a decision to refuse a visa application, and 7 days from the date of a decision to cancel your visa.

The AAT can decide to:

affirm DIBP’s decision, meaning that is agrees with DIBP’s decision and it will not be changed;

set aside DIBP’s decision, meaning that the decision will be changed. In this situation, the AAT has the option of substituting DIBP’s decision with a new decision, or returning the matter to DIBP for reconsideration (see below).

remit DIBP’s decision, meaning that the matter will be returned to DIBP for reconsideration. The AAT may then give DIBP directions that it must take into account when reconsidering its decision.

You MAY qualify for a bridging visa upon lodgement of your review application. The type of bridging visa that you qualify for (if any), along with the conditions of that visa, will depend upon your circumstances at the time that you lodged the visa application that is under review (if the review relates to a refusal decision).

Please note that it may take up to several months for the AAT to complete its assessment of your application and make a decision, depending upon the amount of material that it must consider, and the complexity of your case.

Merits Review Overview

Merits review of immigration decisions has been available since 1982 through the Immigration Review Panel. That panel was created by executive action and was replaced by the legislatively established Immigration Review Tribunal (the IRT) in 1989, later renamed the Migration Review Tribunal (the MRT) on 1 July 1999, to become part of the Administrative Appeals Tribunal (AAT) on 1 July 2015. The former Refugee Review Tribunal (RRT) established in 1993 also merged with the AAT on 1 July 2015 in its Migration and Refugee Division, and reviews decisions in relation to applications for refugee status and refugee protection visas. In addition, the Immigration Assessment Authority (IAA) was created in April 2015, as a separate office within the Refugee Review Tribunal (RRT), which from 1 July 2015 also became an independent authority within the AAT. Limited appeals lie from both the AAT to the Federal Court.

The former Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT), now form part of the AAT, which has primary jurisdiction to provide merits review of specified decisions made under the Migration Act and Regulations. The Administrative Appeals Tribunal (AAT) reviews migration decisions on their merits. The tribunals’ task is to make the “correct and preferable” decision in the particular case before it. This is a much wider task than that of a judicial review court, which is concerned only with whether a legal error occurred in the making of the decision under review.

In contrast, merits review is concerned with remaking the decision under review (‘standing in the same shoes’), not with correcting errors made by the original decision maker.

Merits review tribunals decide all questions of fact and discretion for themselves. They can consider any evidence that will help them come to the correct and preferable decision, including evidence that the applicant failed to put before the original decision maker. In light of that new evidence, they can substitute their own findings of fact-even if the original decision maker’s findings were “correct” on the basis of the evidence available at the time.

Further, even if the tribunal does not identify any errors of fact (or law) in the original decision, they may substitute their own judgment of how any discretion should be exercised in order to come to the preferable decision. The tribunals can also form their own views as to the desirability of applying departmental policy in a particular case.

These tribunals’ factual and discretionary decisions are subject to judicial review in the Federal and High Courts. However, the general principle that a judicial review court cannot substitute its decision for that under review applies. If a factual or discretionary decision is found to be infected by legal error, the court will remit the decision back to the relevant tribunal to be redecided. Therefore, in practice the merits review tribunals have the final say in the migration decision-making process on questions of fact and discretion, including how any relevant policy should be applied in the exercise of a discretion.

In order to determine the correct and preferable decision in a particular case, the tribunals will often be required to also decide questions of law (especially to interpret provisions of the Act and Regulations). However, constitutional (separation of powers) principles limit the extent to which the tribunals can be given the power to make binding determinations of legal principles without Parliament having invalidly conferred the judicial power of the Commonwealth on them. However, these precise limits remain unclear.

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Notification of decisions

A primary decision maker of the Department of Immigration and a review officer must notify a decision by:

Sending a notice of the decision to, or leaving a notice of the decision at, the last residential address given to the Minister by the applicant, or
Handing a notice of the decision to the applicant or a person specified by the applicant as a person who may be given notifications about an application

A notification sent within Australia is taken to be received seven days after the date of the document, while notification sent to or from an address outside Australia is taken to be received 21 days after the date of the document. As the Migration Act refers to ‘the address at which the applicant intends to live while the application is being processed,’ the sending of a notice to a post box address will not bring the deeming provisions of the Migration Act into force.

Reviewable decisions

Reviewable decisions:

The following decisions are reviewable by the AAT:

Decisions refusing a substantive visa to a person who is subject to restrictions under section 48 because of an earlier visa refusal or cancellation
Decisions refusing applications for December 1989 entry permits
Decisions refusing a substantive visa where the applicant is in immigration detention when the decision is notified to him or her, and decisions refusing a visa made by the Secretary or by an officer holding or acting in a Senior Executive Service position
Decisions refusing protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012 as fast track reviewable decisions by the Immigration Assessment Authority (IAA) within the AAT.
Decisions in relation to refugee status made before 1 September 1994, and decisions refusing or cancelling protection visas made after 1 September 1994
Decisions to deport a person, decisions refusing or cancelling visas on character grounds under s 501, and decisions cancelling business visas under s 135 are reviewable by the AAT

Non-reviewable decisions

Non-reviewable decisions:

Offshore decisions refusing to grant visas where there is no criterion requiring nomination or sponsorship in that subclass are not reviewable. A decision that an application is not valid is not a decision to refuse to grant a visa and so is not reviewable. Decisions rejecting nominations or sponsorships are not reviewable.

In addition, the Minister has the power to issue a conclusive certificate preventing review of a decision if the Minister believes that it would be contrary to the public interest:

To change the decision, because any change in the decision would prejudice the security, defence or international relations of Australia, or
For the decision to be reviewed because such review would require consideration by a review officer or the Tribunal of deliberations or decisions of the Cabinet or of a committee of the Cabinet

Right to review:

Right to review

The Migration Act strictly defines the persons who can seek merits review of a migration decision. An applicant for review must be physically present in Australia when the application for review is made.

For off-shore decisions, rights of review are confined to sponsors or nominators in Australia or Australian relatives of the visa applicant rather than being conferred on the applicant himself or herself. The applicant for review must also be a relative as the term is defined in the Regulations.

Time limits for review

Time limits for review:

If you have recently been refused a visa you should received a letter from the Department of Immigration stating the number of days you have to exercise your right for review.

The time limits for applications to the AAT are:

(i) if the reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)- 28 days after the notification of the decision; or
(ii) if the reviewable decision is covered by subsection 338(5), (6), (7) or (8) – 70 days after the notification of the decision; or
(iii) if the MRT-reviewable decision is covered by subsection 338(9) – the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision.

Time does not run for the purposes of review until a person is notified of a decision, although a failure to give notification of a decision does not affect the validity of the decision. The Tribunal has no jurisdiction to extend the time for application.

In addition:

For decisions refusing a bridging visa to a non-citizen who is in immigration detention because of that refusal or cancelling a bridging visa held by a non-citizen who is in immigration detention because of that cancellation – two working days after notification.

For decisions refusing a substantive visa where the applicant is in immigration detention or decisions cancelling a visa (other than a decision cancelling a bridging visa held by a non-citizen who is in immigration detention because of that cancellation) -two working days after notification; or if the applicant gives notice within those two working days that s/he intends to apply for review-five working days after that notice is given.

Powers on review

Powers on review:

The AATmay affirm, vary or set aside a decision under review or remit an application with directions that the applicant must be taken to have satisfied a specified criterion for the visa.

The AAT has all the powers and discretions conferred on the person who made the decision under review. The MRT must not purport to make a decision not authorised by the Act or the Regulations.

The AAT can review all these including other matters mentioned above:

Decisions cancelling business visas
Criminal deportation decisions
Decisions refusing or cancelling visas on character grounds, and
Decisions refusing or cancelling protection visas on the grounds referred to in articles 1F, 32 or 33(2) of the Convention Relating to the Status of Refugees (s 500)

Prior to 1992, the AAT’s jurisdiction in relation to criminal deportation decisions was limited to affirming the decision or remitting it for reconsideration in accordance with recommendations.

The AAT now has determinative powers in respect of all matters, which it may review under the migration Act, including criminal deportations. However, if the seriousness of the circumstances indicate that “it is in the national interest” to do so, the Minister for Immigration acting personally may:

Exclude review by the AAT of criminal deportation decision,
Refusing or cancel a visa on character grounds, and
Refuse or cancel a protection visa

The AAT operates in a more adversarial fashion than the other specialist immigration Tribunals.

Ministerial discretion

Fees

Review of migration decisions

Application fee

An application fee of A$1,673 is payable in all cases, except when applying for review of a bridging visa decision (including any related decision to require a security bond) that resulted in a person being placed in immigration detention.

How to make a payment

Payment can be made by:

EFTPOS
credit card (Visa or MasterCard only)
cheque (should be crossed and made payable to ‘Administrative Appeals Tribunal’)
money order.

Please note: Payment is not considered to have been made if a cheque is dishonored or a credit card payment is not approved.

Fee reduction

The fee may be reduced by 50% if we are satisfied that payment of the fee has caused, or is likely to cause, severe financial hardship to the review applicant.

To request a fee reduction, you should lodge form Request for fee reduction with supporting evidence attached.

The application fee (either the full or reduced amount) must be paid and a fee reduction application lodged before the deadline for lodging the application for review.

Refunds for a favorable decision, invalid application, or withdrawal of the application

We will refund 50% of the full application fee if you receive a favorable decision on any case. If we decide that an application is invalid, the entire fee paid will be refunded.

For withdrawn applications, the application fee can only be refunded in the following circumstances:

The death of the review or visa applicant or a member of the visa applicant’s family unit.
In relation to the review of a visa refusal decision, the visa applicant has been granted a visa of the same class (other than because of a reconsideration of the points score).
In relation to a parent visa, the visa applicant has applied for another parent visa and wants a decision on the other parent visa.

If a refund is to be made payable to a third party, the review applicant must provide written authorisation to us.

Review of refugee decisions

No fee is payable at the time of lodging the application, however, if the application for review is not successful then the full fee of A$1,673 will be payable.

If you are liable to pay the fee, an invoice will be sent by the Department of Immigration and Border Protection. You will be required to pay the fee within seven days of receiving this invoice.

If you have any questions about the fee, you should contact the Department of Immigration and Border Protection after receiving the invoice. Contact details will be provided with the invoice.

Appeals
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.
- Visa refusal appeal assessment form
  
  AAT Review
  
  AAT Fees
  
  Federal Circuit Court
Visa Cancellations
Not all decisions are reviewable by the AAT. For example,

you cannot apply to have a decision reviewed by the AAT if the Minister for Immigration and Border Protection personally decides to refuse or cancel your visa under section 501 of the Migration Act 1958.
- Visa cancellations
- Notice of Intention to Consider Cancellation (NOICC)
Ban
- Ban
  
  Public Interest Criterion 4020
  
  Re-entry ban or exclusion period
Other
Other
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