Appeals against immigration decisions form an essential part of the immigration system in Australia. The appeal process is designed to ensure fairness by making provisions for certain individuals whose visa applications have been refused or cancelled by the Department of Home Affairs to have the decision reviewed by an independent body. If you or someone you know has had a visa refused or cancelled and would like to appeal that decision, we can explain your rights and provide options for the best path forward.
Administrative Appeals Tribunal
The primary body responsible for hearing immigration appeals is the Administrative Review Tribunal (ART). The ART is an independent tribunal that reviews decisions made by the Department of Home Affairs regarding visa applications and certain visa cancellations. The ART operates under the principle of merit review, which means it considers all relevant facts and circumstances of the case and makes a decision as if it were the original decision-maker.
The process of lodging an appeal with the ART varies depending on the type of decision being appealed. For visa refusals, the applicant typically has a specified period, usually 28 days from the date of the decision, to lodge an appeal. For visa cancellations, the period often shorter.
When an appeal is lodged with the ART, the applicant is provided with an opportunity to present their case and provide additional evidence to support their claim. The ART may hold hearings where the applicant, their representative (if applicable), the Department of Home Affairs and any relevant witnesses can give evidence and answer questions. The ART member presiding over the hearing will assess the credibility and relevance of the evidence presented.
After considering all the evidence and conducting a comprehensive review, the ART will make a decision on the appeal. The decision can vary from affirming the original decision to setting the decision aside and substituting it with a new decision. If the ART sets aside the original decision, it may grant the visa, remit the matter back to the Department for reconsideration, or refuse the application again.
It is important to remember that the ART’s decision is final in most cases. However, in limited circumstances, such as a jurisdictional error, a decision made by the ART may be subject to judicial review in the Federal Circuit and Family Court.
Not all immigration decisions are subject to merits review by the AAT. Some visa decisions, such as character-related visa cancellations on certain grounds, are subject to mandatory cancellation and do not have a right of appeal to the AAT. However, applicants may have other avenues to seek judicial review in the Federal Circuit Court or the Federal Court in certain circumstances.
Visa Cancellations
The cancellation of a visa is a serious matter. If a visa is cancelled, a person becomes an ‘unlawful non-citizen’ and may be placed into immigration detention. He or she may be forced to leave Australia and be prevented from re-entering for a specified period, or indefinitely.
The Department of Home Affairs has the authority to cancel visas under various circumstances, primarily when a visa holder no longer meets the criteria for the visa they hold or if they have breached the conditions of their visa.
A visa can also be cancelled if the holder provides false or misleading information during the visa application process, engages in criminal activities, fails to comply with visa conditions, or is deemed a risk to the community. In certain cases, visa holders may be subject to mandatory cancellation, where the Department is obligated to cancel their visa under specific circumstances, such as serious criminal convictions.
When a visa cancellation is initiated, the affected individual is usually notified in writing and given an opportunity to respond to the grounds provided for cancellation. Individuals facing visa cancellation have the right to appeal the decision to the AAT in most cases. The AAT will conduct an independent review and make a decision on whether to uphold or revoke the visa cancellation.
We can assist if you need help understanding and complying with the conditions placed on your Australian visa. If you are facing the possibility of having your visa cancelled, we recommend you contact us as soon as possible so we can explain your options and, if possible, prepare a strong case for retaining your visa.
For quality legal services and advice, contact [email protected] or call 02 88660188.