Administrative Appeals Tribunal Review

For those who have their visa refused or cancelled and wish to appeal the decision of the department at Administrative Appeals Tribunal - Migration and Refugee Division.

Is Decision Reviewable at Administrative Appeals Tribunal

When is a Decision Reviewable?

The AAT's Migration and Refugee Division (MRD) can review some decisions about visas made under the Migration Act 1958 by the Department of Home Affairs or the Minister/s of the Department such as; refuse or cancel different types of visas, refuse to approve a nomination of an occupation, activity or position, to bar, refuse to approve or cancel the approval of a sponsor, or relating to requiring a security.

AAT Review at General Division

However if a visa is refused or cancelled on character test grounds s501, mandatory cancellation of visa on character test grounds s501CA or refusal of a protection visa on character grounds under s5H(2), 36(1C), 36(2C); then the review will be in General Division of AAT.

Visa Cancellation By Minister Personally

Decision to cancel a visa made personally by the Minister for Home Affairs or Minister for Immigration is not a reviewable decision.

Applying For the Review

A review application must be lodged within 21 days of receiving decision from the department. A review for Protection Visa decision must be lodged within 28 days. However the letter sent by the department will in most cases stipulate the deadline to lodge the review with the AAT.

AAT Review Application Fees

The application fee is A$3,496. You do not have to pay an application fee at the time you lodge your application for review of a protection (refugee) decision. If the review is not successful a fee of $1,748 will be payable within 7 days of receiving an invoice from AAT.
The fee may be reduced by 50% if AAT is satisfied that the full payment has caused, or is likely to cause, severe financial hardship to the review applicant.

Estimated Processing Time

Approximate Days: Family (646), Nomination/Sponsor approval (876), Partner (746), Permanent business (837), Protection (734), Skill linked (578), Student cancellation (440), Student refusal (551), Temporary work (769) and Visitor (596).

Migration and Refugee Division of AAT

Migration and Refugee Division (MRD) Review

The AAT (Administrative and Appeals Tribunal)'s 'Migration and Refugee Division (Previously called MRT) can review some but not all decisions made under Migration Act 1958.

What Migration Decisions can be Reviewed

AAT's MRD can review the following migration decisions:
- To refuse or cancel different types of visas.
- To refuse to approve a nomination of an occupation, activity or position.
- To bar, refuse to approve or cancel the approval of a sponsor.
The decision letter from the 'Department of Home Affairs' will tell you if the decision can be reviewed, and if you are the person who can apply for such a review.

What Refugee Decisions can be Reviewed

AAT's MRD can review the following refugee decisions:
- To refuse or cancel protection visa.
- To review decisions made under Section 197D of the Migration Act 1958 that a protection finding would no longer be made about a person.
The decision letter from the 'Department of Home Affairs' will tell you if the decision can be reviewed, and if you are the person who can apply for such a review.

Strict Time Limits apply to Apply for Review

There are very strict time limits that apply to make an application for the review of a migration decision. The time limit to lodge an application for a review varies depending on the type of decision, and whether you are in Immigration detention or not. The AAT has no power to extend the time limit to lodge an application for a review.

The time period for lodging an application ends on the prescribed number of days after the day on which you are taken to have received notice of the decision, which in case of an email is the same day that email has been received from the 'Department of Home Affairs'.

General Division of AAT

General Division of AAT Review

The AAT (Administrative and Appeals Tribunal)'s 'General Division can review the decision to refuse or cancel a visa under section 501, section 501CA, section 5H(2), section 36(1C) or section 36(2C) or a business visa under section 134.

To Refuse or Cancel any type of visa, including a protection visa, on character grounds under Section 501

Section 501 of the Migration Act 1958 lists a variety of reasons why someone may not pass the character test and examples include: the person has a substantial criminal record; or the person may represent a danger to the Australian community; or the Minister is satisfied the person is not of good character due to their past and present criminal or general conduct.
However the visa cancellation is mandatory when the visa holder has been sentenced to 12 months or more imprisonment, or has been found guilty of a sexually based crime involving a child. The visa holder must also be serving a full-time custodial sentence. A mandatory cancellation may be revoked by a delegate of the Minister or the Administrative Appeals Tribunal if they are satisfied the person does in fact pass the character test or where there is another reason for revocation. If a mandatory cancellation is revoked by a delegate or the Tribunal, the person whose visa was cancelled will get their visa back. The Minister has the power to overturn this decision.
The Administrative Appeals Tribunal (AAT) cannot review decisions made by the Minister personally, only decisions made by delegates.

To not Revoke the Mandatory Cancellation of your Visa on character grounds under Section 501CA

Section 501(3A) of the Migration Act provides that the Minister must cancel a visa if satisfied that the person does not pass the character test because they have a substantial criminal record and the person is serving a sentence of imprisonment on a full-time basis. However, Section 501CA(4) provides that the Minister may revoke the decision to cancel a visa if; the person makes representations in accordance with the invitation from the Minister; and the Minister is satisfied that either the person passes the character test or there is another reason why the decision should be revoked.

To Refuse a Protection Visa on Character Grounds Relying on Sections 5H(2), 36(1C) or 36(2C)

Visa cancellation under these provisions means; the person has committed a crime against peace, a war crime or a crime against humanity; or a serious non-political crime before entering Australia; or has been guilty of acts contrary to the purposes and principles of the United Nations; not a person whom the Minister considers, on reasonable grounds "having been convicted by a final judgement of a particularly serious crime".

To Cancel a Business visa under section 134

A visa can be cancelled under Section 134 if the Minister is satisfied that the visa holder has not obtained a substantial interest in a business in Australia, or is not using their skills to actively manage such a business at senior level.

Issuing Summons by AAT

Issuing Summons

A summon is a legal notice issued by the AAT which will require a person to attend and give evidence; or produce documents. AAT can issue summons if it feels that certain information or documents are required. However, you can also make a request in writing that AAT issues summons to a person.

Fees and Allowances associated with a Summon

If AAT decides to issue a summons without a request from you, they will pay the expenses. If you ask AAT to issue a summon, you are required to pay certain expenses for the person to comply with the summon.

Summons requiring a person to give Evidence: A person summonsed to give evidence must be paid the amount of wages, salary or fees not paid to them because they appeared before AAT to give evidence, or a reasonable amount for each day the person appears before AAT to give evidence. This amount must be paid as soon as practicable after the person has given evidence. The person must also be paid a reasonable amount for expenses to appear before AAT, including transport costs, and if the person is required to be absent overnight from their usual place of residence, meals and accommodation. These amounts must be paid no later than a reasonable time before the day the person is required to give evidence.

Summons requiring a person to produce documents: No expenses must be paid to a person if they have only been summonsed to produce documents.

What happens if someone does not comply with summons

Failure to comply with a summons without a reasonable excuse is a criminal offence.
If a person is summoned to produce documents but they do not have any documents, they must write to the AAT and tell this.
If a person receive a summons and believe they have a reasonable excuse for not giving evidence or producing documents, they must contact AAT immediately.
If a person who is summoned think the amount of expenses paid to them is not sufficient, they must still comply with the summons.
If they cannot reach agreement about the amount of the expenses with the party who asked AAT to issue the summons, they can ask the AAT to decide the amount.

AAT Review Document Checklist

1. The decision letter received from the department.
2. Depending on the application that was refused, the relevant checklist for the visa or application available on this site.

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