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Administrative Appeals Tribunal (AAT)

Administrative Appeals Tribunal (AAT)

If you’ve recently been refused an Australian visa and disagree with the decision, there are steps you can take. The following information will help you 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 (AAT) is an independent body that reviews decisions made by Australian government agencies and departments. It offers a forum for individuals and organizations to resolve disputes fairly and efficiently.

Why Was the AAT Established?
The AAT was established in 1975 as part of a broader reform of the administrative justice system in Australia. It was created 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” for reviewing government decisions on their merits.

Although part of the Executive arm of the Government, the AAT is intended to provide an independent review. It holds hearings where parties can be legally represented, hears evidence, and issues reasoned decisions that are publicly available.

The AAT has the authority to reconsider the facts of a case and decide whether to substitute its decision. This means that the Tribunal plays a unique role in making “the correct or preferable decision” based on the merits of each case.

The AAT aims to be impartial, fair, and accessible, and to make decisions that promote confidence in its decision-making process.

Visa Appeals to the AAT

Which Visa Appeals Are Reviewed by the AAT?

The AAT has two main divisions that deal with migration matters:

  • Migration and Refugee Division: Reviews most visa refusal decisions made by the Department of Home Affairs.
  • General Division: Reviews most character-related visa decisions or citizenship refusals.

The AAT can review decisions related to bridging visas, family visas, nomination/sponsor applications, partner visas, permanent business visas, skilled visas, student visas, temporary work visas, some visitor visas, certain humanitarian visa categories, and citizenship. However, it does not review decisions related to fast-track humanitarian visas.

What Decisions Can the AAT Make?

If your visa application has been refused or canceled by the Department of Home Affairs (DOHA), you may be eligible to apply for a review by the AAT.

The AAT member will decide to either affirm, vary, set aside, or remit the decision made by the Department of Home Affairs, according to Section 43 of the AAT Act.

  • Affirm: The AAT agrees with the Department of Home Affairs’ decision, which remains unchanged. You may need to consider your next steps, such as appealing the decision in court, applying for another visa, or leaving Australia.
  • Vary: The AAT changes or alters the original decision in some way.
  • Set Aside: The AAT agrees or partially agrees that the original decision was wrong.
  • Remit: The AAT sends the case back to the Department of Home Affairs with instructions or recommendations to make a new decision. If your case is remitted, you generally need to wait for the Department of Home Affairs to contact you before your visa is granted.

Time Limits for the AAT

  • In the Community: You must apply within 28 days from the date you were notified of the refusal. The notification date depends on how you received the document:
    • By email: The day you received the email.
    • By registered post: Seven working days from the date of the letter.
  • In Immigration Detention: The time limit is seven working days.

 

Advantages of AAT Details
Access to Review The AAT provides an avenue to review decisions made by the Department of Home Affairs (DOHA) regarding visa and citizenship applications. Section 338 of the Migration Act 1958 (Cth) grants the AAT the power to review migration decisions.
Independent and Impartial Review The AAT offers an independent and impartial review, ensuring decisions are lawful, fair, and reasonable. Section 360 of the Migration Act 1958 (Cth) outlines the principles the AAT must apply in reviewing migration decisions.
Expertise AAT members possess expertise in migration matters, ensuring well-informed decisions. Section 374 of the Migration Act 1958 (Cth) details the qualifications and experience required for AAT members.
Cost-Effective The AAT process is generally less expensive than court proceedings, making it more accessible for those unable to afford legal representation. Section 411 of the Migration Act 1958 (Cth) provides for the recovery of costs related to AAT proceedings.
Timely Review The AAT is required to handle migration matters promptly, ensuring timely dispute resolution. Section 368 of the Migration Act 1958 (Cth) mandates the AAT to address migration matters as soon as practicable.

 

Disadvantages of AAT Details
Limited Power The AAT has limited authority and cannot enforce its decisions against the government or government agencies. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) outlines these limitations.
Final Decision Although the AAT reviews decisions, its rulings are final, with no further avenue of appeal. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) establishes the finality of AAT decisions.
Delayed Decision-making The AAT process can be lengthy, leading to delays in resolving disputes. Although Section 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) requires prompt handling, delays may still occur.
Limited Jurisdiction The AAT’s jurisdiction is restricted, and some decisions may not be subject to review. Section 338 of the Migration Act 1958 (Cth) specifies the matters the AAT can review.
May not be an Appropriate Forum The AAT process might not be suitable for all disputes, and in some cases, going to court may be a better option. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) highlights the AAT’s limitations.

 

Administrative Appeals Tribunal (AAT)

The Migration and Refugee Division of the AAT is responsible for reviewing decisions made by the Department of Immigration and Border Protection (DIBP). The AAT has the authority to affirm, vary, or set aside DIBP’s decisions, or send the matter back to DIBP for reconsideration with specific instructions. The AAT can review a broad range of visa-related decisions, including refusals and cancellations. Each decision is made based on the merits of the specific case.

Lodging an Application for Review

If you wish to apply for a review, you must do so within the required timeframe. The decision letter from DIBP, regarding the refusal or cancellation of your visa, will specify the deadline for lodging your review application. Generally, you have 21 days from the date of a visa refusal and 7 days from the date of a visa cancellation to submit your application.

AAT’s Decision-Making Process

The AAT can make one of the following decisions:

  • Affirm DIBP’s Decision: The AAT agrees with the DIBP’s decision, and it remains unchanged.
  • Set Aside DIBP’s Decision: The AAT disagrees with the DIBP’s decision and changes it. This may involve substituting the original decision with a new one or sending the matter back to DIBP for reconsideration.
  • Remit DIBP’s Decision: The AAT sends the matter back to DIBP for reconsideration, often with specific instructions that DIBP must follow.

Bridging Visa Eligibility

You may be eligible for a bridging visa when you lodge your review application. The type and conditions of the bridging visa depend on your circumstances at the time you submitted the visa application under review.

Please note that the AAT’s review process can take several months, depending on the complexity of your case and the amount of material to be reviewed.

Merits Review Overview

Merits review of immigration decisions has been available since 1982, initially through the Immigration Review Panel, which was later replaced by the legislatively established Immigration Review Tribunal (IRT) in 1989. The IRT was renamed the Migration Review Tribunal (MRT) on July 1, 1999, and became part of the AAT on July 1, 2015. The former Refugee Review Tribunal (RRT), established in 1993, also merged with the AAT in its Migration and Refugee Division, reviewing decisions related to refugee status and protection visas. Additionally, the Immigration Assessment Authority (IAA) was created in April 2015 as a separate office within the RRT, and from July 1, 2015, it became an independent authority within the AAT. Appeals from the AAT to the Federal Court are limited.

The AAT, which now includes the former MRT and RRT, has primary jurisdiction to conduct merits review of specific decisions made under the Migration Act and Regulations. The AAT’s task is to make the “correct and preferable” decision for each case, which is broader than the role of a judicial review court that only examines whether a legal error occurred in the decision-making process.

Merits Review vs. Judicial Review

In merits review, the AAT essentially reconsiders the decision under review, addressing all questions of fact and discretion independently. The tribunal can consider any evidence, including new evidence not presented to the original decision-maker, to reach a correct and preferable decision. Even if the original decision was “correct” based on the evidence available at the time, the AAT can substitute its own findings of fact.

Furthermore, the AAT can exercise its discretion differently than the original decision-maker, applying its judgment on how the discretion should be exercised. The tribunal can also assess whether departmental policy should be applied in a particular case.

While the AAT’s factual and discretionary decisions are subject to judicial review by the Federal and High Courts, these courts cannot substitute their decisions for those under review. If a decision is found to be legally flawed, the court will send it back to the AAT for reconsideration. Therefore, in practice, the AAT has the final say on questions of fact, discretion, and the application of relevant policy in migration decision-making.

Legal Considerations

To reach the correct and preferable decision, the AAT often must interpret legal provisions within the Migration Act and Regulations. However, constitutional principles limit the extent to which the AAT can make binding legal determinations, as Parliament cannot delegate judicial power to the tribunal without infringing on the separation of powers. The precise limits of this authority remain unclear.

Notification of Decisions

The Department of Immigration’s primary decision maker or a review officer must notify applicants of decisions in one of the following ways:

  • By Mail or Delivery: Sending or leaving a notice at the applicant’s last provided residential address.
  • In Person: Handing the notice directly to the applicant or to a designated representative authorized by the applicant to receive notifications.

For notifications sent within Australia, they are considered received seven days after the document’s date. For notifications sent to or from an address outside Australia, they are considered received 21 days after the document’s date. Since the Migration Act requires notices to be sent to the applicant’s residential address, sending a notice to a post office box will not activate the Act’s deeming provisions.

Reviewable Decisions

The following decisions can be reviewed by the Administrative Appeals Tribunal (AAT):

  • Refusals of substantive visas for individuals restricted under section 48 due to prior visa refusals or cancellations.
  • Refusals of applications for December 1989 entry permits.
  • Refusals of substantive visas when the applicant is in immigration detention at the time of the decision notification, including those made by the Secretary or a Senior Executive Service officer.
  • Refusals of protection visas to specific applicants, such as unauthorized maritime arrivals post-13 August 2012, reviewed by the Immigration Assessment Authority (IAA) within the AAT.
  • Decisions regarding refugee status made before 1 September 1994, and refusals or cancellations of protection visas after this date.
  • Deportation decisions, character-based visa refusals or cancellations under section 501, and cancellations of business visas under section 135.

Non-Reviewable Decisions

Certain decisions cannot be reviewed, including:

  • Offshore visa refusals where no nomination or sponsorship criteria are required in that visa subclass.
  • Decisions declaring an application invalid (not a visa refusal).
  • Rejections of nominations or sponsorships.

Additionally, the Minister can issue a conclusive certificate to prevent review if it is deemed against the public interest, such as:

  • Decisions that could compromise Australia’s security, defense, or international relations.
  • Reviews requiring consideration of Cabinet deliberations or decisions.

Right to Review

The Migration Act specifies who can seek a merits review of a migration decision. Applicants must be physically in Australia when applying for review. For offshore decisions, review rights are limited to sponsors, nominators in Australia, or Australian relatives of the visa applicant, who must be a defined relative under the Regulations.

Time Limits for Review

If you’ve been refused a visa, the Department of Immigration will notify you of the timeframe within which you can request a review. The time limits for AAT applications are:

  • 28 days after notification for decisions covered under subsections 338(2), (3), (3A), (4), or (7A).
  • 70 days after notification for decisions covered under subsections 338(5), (6), (7), or (8).
  • As prescribed for MRT-reviewable decisions under subsection 338(9).

The review period starts upon notification, but failure to notify does not invalidate the decision. The Tribunal cannot extend the application time.

For decisions refusing or canceling a bridging visa while the applicant is in immigration detention, the review must be sought within two working days after notification. If notice of intent to apply for review is given within this period, the review must be filed within five working days.

Powers on Review

The AAT can affirm, vary, or set aside a decision under review or remand an application with directions, affirming that the applicant meets the criteria for the visa. The AAT possesses all powers and discretions of the original decision maker but must not exceed its authority under the Act or Regulations. The AAT reviews matters like:

  • Business visa cancellations.
  • Criminal deportation decisions.
  • Character-based visa refusals or cancellations.
  • Protection visa refusals or cancellations under specific articles of the Refugee Convention.

Since 1992, the AAT has had determinative powers for all migration-related matters, including criminal deportations. The Minister for Immigration may exclude AAT review for criminal deportation decisions, visa refusals or cancellations on character grounds, or protection visa refusals if national interest concerns arise.

Ministerial Discretion

The Minister for Immigration can substitute a more favorable decision for that of the MRT or RRT. However, the Minister is not obligated to consider exercising this discretion, and such decisions are generally not subject to merits or judicial review, except by the High Court of Australia.

Fees

Review of Migration Decisions

  • Application Fee: A fee of A$1,673 is required, except for bridging visa decisions that result in immigration detention.
  • Payment Methods: Payment can be made via EFTPOS, credit card (Visa or MasterCard), cheque (payable to ‘Administrative Appeals Tribunal’), or money order.

If a cheque is dishonored or a credit card payment fails, payment is considered incomplete.

Fee Reduction

The fee may be reduced by 50% if severe financial hardship can be demonstrated. A request for fee reduction, along with evidence, must be lodged before the review application deadline.

Refunds

A 50% refund of the full application fee is granted for favorable decisions. If the application is invalid, the entire fee will be refunded. Withdrawals may qualify for refunds under specific circumstances, such as the death of the applicant or the granting of a visa of the same class.

Review of Refugee Decisions

No fee is required upfront for refugee decision reviews, but if the review is unsuccessful, the full fee of A$1,673 will be charged. An invoice will be issued by the Department of Immigration and must be paid within seven days.

Appeals

If your Australian visa has been recently refused and you disagree with the decision, you have several options. Not all decisions are reviewable by the AAT, particularly if the Minister personally refuses or cancels your visa under section 501 of the Migration Act 1958. For visa cancellations, you may receive a Notice of Intention to Consider Cancellation (NOICC).