Appeals and Reviews
You must be aware of the strict time limit imposed on your right to appeal or apply for review.
If your visa is being cancelled or your application is being refused, you need to act immediately to avoid losing your right to appeal as a result of time limitation expiring. You also need to allow adequate time for your lawyers to assess your appeal. In considering an appeal, there are several issues that must be considered:
- Do you have a right to appeal?
- If so, what type of reviews are you entitled to – merits review or judicial review?
- What are your grounds of appeal?
- Does your evidence support the grounds that may be available to you?
For the past 10 years, Tang Law has helped applicants with appeals and reviews in many contexts of visa cancellation including:
- Breach of visa conditions
- Criminal Deportation
- Character ground – Failed to demonstrate good character
- Discovery of incorrect, false or misleading information given to Immigration
- Genuineness of marital or spousal relationship
- Termination of marital or spousal relationshipand domestic violence
- Genuineness of legal child
- Refusal of protection visa
- Revocation relating to Student Visa
- Genuineness of company sponsorship and nomination
- Termination of employment
With our experience in Migration Law, we can provide you effective legal guidance and improve your chance. Contact us today and schedule an appointment so we can discuss your next steps in filing for an appeal/review.
What Are My Visa Appeal/Review Options?
If the Department of Home Affairs (formerly DIBP) cancelled your visa or refused your application for a visa, it is usually possible to appeal or apply for review of the decision. There are three (3) types of appeals and/or reviews:
- Merits review through the Administrative Appeals Tribunal
- Judicial review through the Federal Court
- Intervention by the Minister for Immigration.
Merits Review – Administrative Appeals Tribunal (AAT)
The Refugee Review Tribunal, the Migration Review Tribunal and the AAT deal with merits review. Since 1 July 2015, the former two tribunals have merged into AAT, which is now the only merits review body.
In a merit review, the tribunal puts itself in the shoes of the original decision maker and review the merits of the decision by reconsidering the facts, law and policy aspects relevant to the original decision, and come to a decision as to whether the original decision is correct and therefore be affirmed, or whether a correct and preferable decision should be made. The Tribunal will consider the evidence from a fresh perspective.
Merits review is more or less your “second attempt” at the application.
Judicial Review – Federal Court of Australia
Decisions of the immigration department in relation to refusal or cancellation of visa is a type of administrative decision. In coming to an administrative decision, the decision-maker must follow the correct legal process. If the decision-maker failed to follow correct legal process in making a decision, it can be challenged via judicial review by appealing to the Federal Court of Australia.
If the Court finds that a decision is unlawful, the Court has the power to:
- Order that the decision be quashed and or set aside.
- Order that the decision-maker follow the correct legal process and re-make the decision.
- Declare a legal position, for instance, that the decision is legally incorrect.
- Order injunctive reliefs.
There are many grounds of judicial review, some examples include:
- An error of law, where the decision maker wrongly applied the law.
- The decision-maker wrongly took into account of irrelevant considerations or failed to take into account relevant considerations.
- The decision-maker acted beyond its responsibilities or acted with improper purpose.
- The decision-maker, when coming to a decision, acted very unreasonably that no reasonable decision-maker could reach that decision.
In many circumstances (but not always), it is possible to seek ministerial intervention after receiving a negative decision from the Tribunal. Under the Migration Act 1958, the Minister for Immigration has the power to interview and grant a visa on public interest ground.
There are certain circumstances where the minister cannot intervene even after a decision by a tribunal. These include:
- The decision by DIBP not to grant a visa is not a decision that can be reviewed by the relevant review tribunal;
- the review tribunal has sent your case back to the department for further consideration and one of the decision-makers has made a subsequent decision on the visa;
- your review tribunal decision was made before 1 September 1994
- a finding by the tribunal that the application made to the tribunal was invalid as it was not made within the required timeframe;
- a decision of the AAT that is not in respect of an MRT reviewable decision or a protection visa decision.
In determining whether to exercise the power and intervene, the minister looks at the submissions from a “humanitarian” perspective. This generally requires consideration of the “Bigger-picture” issues such as the public interests, the interests of the nation, and other interests such as economic, trade, or cultural interests.