When it comes to Australian immigration it is essential to know what deadlines you have and that you abide by them. The Department of Home Affairs adheres to strict time limits that apply to all applicants. With that being said, in November 2018 the Federal Court of Australia (FCA) set a new precedent that grants the AAT power to extend time limits for review cases. This meant that the Australian visa appeals and migration review tribunal, on a case by case basis, would be able to allow a refused applicant extra time to appeal the administrative decision. Less than a month later though, the Full Court repealed the decision of the FCA and decided that every applicant in a migration matter must apply to the Administrative Appeals Tribunal (AAT) within the allotted time limit.
Visa Refusal Appeal Update
Recently, a decision in the Federal Court of Australia found that the Administrative Appeal Tribunal had the power to extend the time limits for applying for review see: Brown v Minister for Home Affairs (No. 2)  FCA 1787 (19 November 2018). However, that decision appears to have been wrongly decided and on 14 December 2018, the Full Court decided in Beni v Minister for Immigration and Border Protection  FCAFC 228 that Brown was wrongly decided and that the AAT does not have the power to extend the time limits. This is consistent with the previous position that extensions of time cannot be granted in the AAT for Migration Appeals. (Extensions of time can be granted in the Social Security Appeals Tribunal)
Migration and Refugee Decision applicants should lodge their review applications within the relevant time limits which are usually referred to in the letter from the Department containing the notice of the decision.
Appeal Time Frames
We highly recommend that you consult with an immigration lawyer before you place your application decisions under review as appealing to the courts and the abiding by the time limits is very difficult. This is because the appeal time frames vary to the individual case and court. Below you will see a general list of the appeal time frames but you need to re-check the rules to ensure that time frames have not changed since last updated.
Due to individual circumstance, your appeal times may vary due to individual circumstances, and the reasons the Australian government decided to refuse your application. Meaning that the decision on your visa application can affect which court or tribunal you will need to apply for an appeal to.
Appealing a Department decision to the AAT
21-day limit (if VA is appealing)
70-day limit (if the sponsor is appealing)
7-days for cancellation
AAT Decision To the Federal Court Circut
Federal Circut Court to Federal Court of Australia
Federal Court of Australia to High Court
Why AAT Appeals Have Long Processing Times
The AAT received a record number of applications for review in the first quarter of 2018-19. Applicants lodged more than 15,800 new applications across all of the AAT caseload. Of this caseload, the Migration and Refugee Division represented 84% of all applications for appeal. The current and projected wait time for a hearing can be up to 2 years. For visa applicants, if you apply for an appeal you may be on a Bridging visa for up to 2 years or more depending on the outcome of the AAT appeal, or court appeal. Therefore, appeal application processing times can vary depending on the forum selected.
The backlog does not seem to be slowing down as there are not enough resources to hear the number of visa refusal decisions being appealed. As each application is heard on a case by case basis, actual processing times cannot be determined.
Australian Federal Circut Court Appeal Capacity
Australian courts are also struggling to keep with the pace of the number of appeals from the AAT to the Federal Circuit Court. The Federal Circuit Court is the next step for a visa applicant to appeal a decision of the AAT if there is a jurisdictional error made by the AAT. Due to the number of visa applicants who believe that their case warrants a judicial review on the grounds of jurisdictional error, the Federal Circuit Court is also being inundated with Migration related appeal. The wait time for a hearing can also be up to 12 months or more due to the backlog of about 7600 pending cases and it is continuing to see more migration appeals.
If you have recently had a visa refusal and require assistance to understand the process of appealing the decision Work Visa Lawyers can assist you. It is imperative that you obtain advice about your particular circumstances before lodging an Appeal to the AAT or Judicial Review.
My Visa Was Refused, Should I Submit An AAT Review?
You can submit a review application only if you are entitled to review rights. The decision to lodge a review application to the AAT depends on the individual circumstances of the visa/sponsorship refusal. Some of the common grounds for refusals include:
- Partner visas – Schedule 3 issues, failure to demonstrate a genuine relationship
- Student visas – Meeting the Genuine Temporary Entrant (GTE) requirement, lack of financial capacity
- 482, RSMS and ENS visas – Demonstrating genuine position
- Visitor visas – Meeting the Genuine Temporary Entrant (GTE) requirement
At Work Visa Lawyers we will assess the original application and supporting documents submitted and advise if the prospects for review are favourable. The Decision Record received by the applicant will also be studied in detail to identify weak areas of the original application and how we can address them in the review application.
Chances Of AAT-MRD Review Success
The chances of obtaining a positive outcome from the Tribunal to set aside a DIBP decision require the following:
- A thorough analysis of the refusal Decision Record
- In-depth knowledge about the visa applied and the requirements
- Assessing the applicant’s circumstances and ability to address the issues highlighted by the DIBP
- Delegate when deciding on the refusal
In summary, it should be considered whether the applicant can provide better evidence or information that will meet the visa application requirements. If the original application can be improved then the chances for success with the review will be increased.
Applicants with complicated circumstances should also note that submitting an AAT review application is a pathway towards ministerial intervention. You can only request for a ministerial intervention if you have received a decision from the AAT. You should be aware that the Minister only intervenes in a small number of cases and you should have unique or exceptional circumstances before applying for ministerial intervention.
Do you need help with an Australian visa application?
At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Partner Visas, Skilled Migration visas, Business Skills Migration visas, Employer-Sponsored Work Visas and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.
If you require further information regarding your Australia visa options you can contact us through:
(08) 8351 9956 or +61 8 8351 9956