For international students in Australia, apart from academics, what concerns students most is visa issues. Naturally, study comes first, but living far from home alone isn’t easy, and with many students not fully understanding their visa requirements, recurring problems arise with student visas — compounded by poor guidance and irresponsibility from some unqualified migration agents — all of which led to student visas being cancelled, or when renewing onshore, being refused.
So does a visa refusal mean it’s game over for Australia? Not at all — after a refusal, many people first consider appealing through the AAT (the appeals process) to try to overturn the Department’s refusal decision.
What should you do after a visa refusal?
There are many reasons for a refusal: you may not have understood the policy requirements, your documentation may have been incomplete, or the case officer may not have fully understood your circumstances and made the wrong call.
If you’ve been refused, don’t give up easily — get in touch with our professional migration agents and lawyers straight away. We can help you appeal to the Administrative Appeals Tribunal (AAT) and request a review of your visa application.
What is an AAT appeal?
AAT stands for Administrative Appeals Tribunal, which translates to the Administrative Appeals Tribunal. The Australian AAT doesn’t only handle visa refusal and cancellation cases — it also hears matters relating to citizenship, child support, family assistance, social security, taxation and more.When your visa is refused, you can appeal to the AAT for a review — if successful, you’ll be granted your visa.
Refusal —
If your onshore visa application is refused, you need to lodge an appeal with the AAT within 21 days of receiving the refusal letter (or you must leave the country within 28 days).
Cancellation —
But if your visa has been cancelled, the Department generally only allows 5 or 7 days to appeal.
Important —
if you go past these deadlines, you may lose your right to appeal.We’ve seen students come to us right before the 21-day deadline expires — or even after it has already passed — leaving us very little time to prepare, which is very unfavourable for the outcome of the appeal.So if you unfortunately receive a refusal letter, please contact us as early as possible to arrange your strategy.
The three stages of an AAT appeal
An AAT appeal isn’t as out of reach as you might imagine. Below is a detailed look at how the AAT process works, and the appeal success rate you might not expect. An AAT visa appeal is divided into three stages: the application stage, the hearing preparation stage, and the hearing stage.
At the hearing stage, you need to be aware of the following:
—You must attend the AAT hearing.(If attending in person is difficult, you can take part by phone or video.)
—AAT staff will be present at the hearing. If you have a representative lawyer or other witnesses, you need to notify the AAT in advance.
— If you have a language barrier, you can ask the AAT to arrange a professional interpreter.
— The hearing is open to the public, and anyone can attend.
— The hearing generally lasts 1-4 hours, depending on the complexity of the case, the issues involved, and the number of witnesses.
Important —
not all visas are eligible for appeal after a refusal. Generally speaking, only visa applications lodged within Australia can be appealed.Visa applications lodged outside Australia are not eligible to appeal unless there is a sponsor.
The AAT review process
The appeal process includes the following steps:
Once you lodge a valid application, the AAT will send the applicant a confirmation letter. At the same time, the AAT will also notify the Department of Home Affairs, and the Department will provide the applicant’s relevant application documents to the AAT. As a result, the applicant will hold a valid bridging visa and can wait onshore.
The AAT will assign a file number to the application
The AAT’s case officer begins reviewing the case
The AAT invites the applicant to attend a hearing, or to provide written material.
The AAT makes a decision based on the material provided, then notifies the applicant of the decision in writing.
AAT appeal review decisions
After the appeal, the AAT will review your application afresh — known as a “Merits Review” — reconsidering all evidence, including any new evidence, before making one of the following decisions:
Overturn the Department’s refusal decision and remit the case back to the Department for reconsideration (Set Aside)or
Uphold the Department’s refusal decision (Affirm)or
Change/overturn the Department’s decision and substitute a new decision (Remit)
Important —
If you’re well prepared at the application stage, and provide enough to persuade the AAT Member, there’s also a chance you won’t need a hearing at all, and can get a Set Aside or Remit outcome directly.Newstars has handled quite a few successful cases like this.
AAT appeal costs and timeframes
Australian AAT appeal fees
The AAT currently allows applications to be lodged directly online, with an application fee of AUD 3,000 (effective from 26 June 2021). Once lodged successfully, you’ll receive an AAT receipt.
How long does the whole AAT process take?
Whether successful or not, the average wait time is 66 weeks, that is, more than a year, with only 38% getting a result within a year of lodging. That said, this depends on many factors — the type of visa you applied for, the complexity of the application, and how busy the Tribunal is, among others. Please refer to the AAT’s official website for specific timeframes.
AAT appeals —
essential things to note
1) You must lodge your application strictly within the 21-day deadline
If you’re lawfully in Australia at the time of the appeal, the AAT will extend your bridging visa so you can continue to stay in Australia lawfully. During this time, the AAT may ask you to provide more information or answer some questions.
2) Prepare thoroughly for the AAT hearing
At this stage, we need to provide all the latest evidence in your favour. Newstars’ experienced migration lawyers will help you prepare all the material, set out the specific grounds for appeal based on the relevant legislation, and put forward arguments in your favour — working to overturn the earlier refusal decision for you.
3) Attend the AAT hearing
Even though a large amount of written material and evidence will have been prepared for you in advance, you still need to seize the opportunity to advocate for yourself in person — this is very important for your appeal.
Success story
Student visa refused over suspected fraudulent documents — appeal overturned
Student Lin received a refusal letter in January 2020, with the Department stating the refusal was because Lin had allegedly submitted false documents. Lin panicked and didn’t know what to do, and was referred by a friend to Newstars, where the AAT appeal process began.We provided Lin with the most comprehensive plan and submitted an explanatory letter on his behalf.In May 2021, Lin received notice of the AAT hearing and prepared thoroughly for it.After the hearing, the Member was satisfied that Lin’s intention to study in Australia was genuine, overturned the earlier refusal decision, and Lin ultimately obtained the visa.
We must remind everyone that no visa matter is trivial. Even though there’s a chance of a successful outcome through an AAT appeal after a refusal, and an AAT appeal can overturn a decision, it’s also an extremely lengthy, complex and demanding process.
We once worked with a client on a Subclass 186 AAT appeal where we prepared hundreds of documents and a submission running to nearly 10 pages of explanation — and cases like this are common at the AAT.
So it’s essential to take your studies and your visa seriously from the very start, and to work with a qualified professional agent to help protect you and avoid ever reaching the point of a refusal or cancellation!
Finally, what happens if your AAT appeal is unsuccessful?
If a visa applicant is unhappy with the AAT’s or the Minister’s decision, they can appeal to the Federal Court, but at this stage the court will only consider whether there was a jurisdictional error.In other words, the court will only consider whether the AAT’s or the Minister’s decision was lawful — not whether the person should be granted the visa.So the court will not consider the facts and merits of a visa application, will not weigh new evidence and information the way the AAT does, and will certainly not grant a visa directly.
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