Having an unexpected visa refusal is always upsetting and stressful. Fortunately, for some visa refusals, there is an appeal mechanism for a “merits review” of the visa refusal. This means that an independent entity will review your application from fresh, while still having access to all the documents/information you previously submitted.
Generally, visa refusals are appealed to the Migration and Refugee (MR) Division of the Administrative Appeals Tribunal (Tribunal). A Member of the Tribunal will consider any further documents/information provided and make a decision to:
Affirm
Vary
Set aside / Substitute
Remit
With many years of advising on and assisting various complex Tribunal applications, below we outline some of our tips, things you should know and some pitfalls that individuals have fallen into, during this process.
1. Be aware of time limits
There are very strict time limits for lodging an application for review of a visa refusal to the Tribunal.
Case law has confirmed that the Tribunal has no power to extend the time limit to lodge an application for review. This means that if you miss the deadline, you lose the right to seek merits review of the visa decision at the Tribunal.
Read the decision letter carefully, and if you can – consult with an immigration lawyer, to ensure that you are across this time frame and submit your application in time.
2. Know the procedure
After an application has been lodged, what happens next depends on the circumstances of your case. The Tribunal would either:
- seek further information from you (if necessary)
- invite you to comment on any information that would form part of the reason for affirming the decision and/or
- invite you to a hearing to provide arguments as to why a decision should be made in your favour
Generally, unless it is a relatively straight forward matter, the Tribunal will invite you to a hearing with which you will be able to engage in a discussion with respect of the visa refusal. Submissions (including supporting documents) can be made before and after the hearing. The Member will typically make a written decision sometime after the hearing has concluded (but can make an oral decision at hearing).
The Tribunal provide a very useful fact sheet which summarises this process here.
3. Submit a Freedom of Information (FOI) request to obtain a copy of your file
The Member assessing your Tribunal matter will have access to the Departmental file for your visa application. This includes a copy of your visa application form, the documents uploaded, and other documents such as case officer correspondence, audio recordings, file notes, health costings etc.
To prepare the best case possible, it is helpful to have a copy of your file including everything that has previously been submitted. To obtain this, you can make a Freedom of Information (FOI) request to the Department to obtain a copy of your file. Information on how to do this (including the form) can be found here.
It is also possible to obtain a copy of all documents held by the Tribunal through a written request to them. Information on how to do this (including the relevant forms) can be found here.
A migration lawyer can be helpful in ensuring that the scope of your FOI request covers all the relevant documents for your review application. It is sometimes also worth having an experienced eye review the FOI documents – for example, in one such recent case, it became apparent through the document review that a case officer for a previous visa application had made a subtle mistake which affected the outcome of the visa refusal that was being reviewed.
4. Make pre-hearing and post-hearing submissions
You can provide further information/documents in support of your refused visa application. Normally, it is worth providing a pre-hearing submission to ensure that your hearing is productive in that you have already provided relevant documents and addressed the concerns raised in the visa refusal.
After the hearing, the Member will normally have outlined any further concerns or issues they had which can be addressed through a post-hearing submission by again providing further documents/information before they make a decision.
If you make a pre-hearing submission, it would be worth obtaining a copy of your file (as outlined in Point 3 above) and ensuring that it succinctly and relevantly addresses the issue at hand (see Point 5 below). Similarly, ensure that you have understood the issues raised during the hearing in making post-hearing submissions.
5. Address the reasons your visa was refused in accordance with the legislation
The Tribunal has a significant pipeline of work, so they often greatly appreciate you only providing succinct and relevant information. It is also worth noting that the Tribunal must apply the legislative criteria and do not have the ability to depart from this.
Have a look at:
- the refusal decision – to see WHY your visa was refused. The decision should have a reference to the relevant part of the legislation which you did not satisfy, and why the Delegate did not think that you satisfied the legislative criteria;
- the relevant legislative provision – to see WHAT the criteria is and what you need to do to satisfy it (a copy of the relevant legislation should be provided to you in the decision).
Some criteria are black or white – for example, some visas require the applicant to have held an English test result with a certain score or included a copy of a certain police clearance at the time of visa application. In these cases – you either held that English score (or included that police clearance) when you made the visa application, or you did not. Unfortunately if you did not, this means that there is no discretion for the Tribunal to grant you the visa even if you make submissions explaining that you misunderstood the criteria, or that you’re an otherwise exceptional candidate, or that you’ve lived in Australia for many years. You either satisfy the criteria or you do not.
Some criteria are subjective, meaning an assessment is required – for example, a Temporary Skill Shortage (TSS) Subclass 482 nomination requires the Minister to be satisfied that the position associated with the occupation is “genuine” or a Distinguished Talent (Subclass 858) visa requires the applicant to have “an internationally recognised record of exceptional and outstanding achievement”. In these cases, you can put forward information and documents to make your case as to why the Member should find that you satisfy these criteria.
Be aware however, that the Tribunal will assess your application from fresh and are not bound by the decision made by the Delegate of the Department. This means that although your visa may have been refused due to you failing to satisfy one particular criteria, the Tribunal could find that you satisfy that criteria but do not satisfy another separate criterion.
6. Be aware of the processing times
Unfortunately, due to a significant increase in review applications being made to the Tribunal, and the Tribunal generally being under resourced, processing times for Tribunal applications have significant blown out. It has become normal for applications to take between 1-2 years from lodgement to finalisation of a Tribunal application.
You can see the average times for finalising review applications for specific matters here.
Conclusion
The Tribunals have been inundated with review applications. Often having a well-prepared case can be the difference between a Tribunal Member finding in your favour or deciding to “affirm” the visa refusal. For many individuals, the Tribunal application is their “last chance” to be granted an Australian visa – it is important to be prepared and present your best case.
Hannan Tew Lawyers have significant experience advising on and assisting with hundreds of Tribunal applications. Both name partners previously held senior leadership positions in a “Litigation and Review” team for a global immigration firm, where they held carriage of numerous Tribunal applications and managed teams of junior lawyers.
We typically offer a full service assistance in reviewing the visa refusal decision, submitting the FOI request, reviewing the FOI materials, preparing submissions in support of your case, attending the hearing with you, providing post-hearing submissions (where relevant), and advising you of the outcome (and next steps).
Our professional fees for assistance with Tribunal matters start from AUD 5,000 + 10% GST. We also offer consultations for AUD 350-400 + 10% GST to discuss your circumstances, provide advice and options.
Please feel free to contact us by email at [email protected] or phone +61 3 9016 0484 if you have further comments or queries.
