AAT Appeal — Win!!!

• Great news keeps coming from the Newstars professional team — AAT appeal wins are rolling in!

Yes,a DIY student visa application was refused, and with the help of our lawyers,the refusal decision was overturned using written submissions alone, with no hearing required.

Yes, astudent visa AAT appeallodged in late November last year, after waiting more than six months for a hearing,was overturned on the spot!

Yes,a DIY Subclass 485 application refused because the wrong stream was selected, we attended the hearing with our client. The tribunal member cited recent Federal Circuit Court case law and expressed sympathy for our applicant, but noted that under the relevant provisions a reaffirmation of the Department’s decision remained possible,we argued on the spot, secured the opportunity for an additional submission, filed the new submission, and ultimately achieved a successful outcome!

Yes,after a Subclass 485 refusal, the appeal was lodged,within less than one month of filing, without a hearing, the application was remitted directly back to the Department.

• AAT processing speeds

have noticeably improved in recent times, but caseloads remain enormous. Let’s look at the AAT’s official data up to the end of May 2022

–— over 60% of migration cases had been waiting at least one year.

– Over the past period, for migration cases,only 24% were finalised within one year, with a median wait time of 106 weeks

– There are stillnearly 20,000migration cases in the backlog

So we continue to remind everyone: a visa application is never a trivial matter. Even if a refusal can ultimately be overturned, the appeals process is time-consuming, draining, and costly.

• Grounds for expedited processing

If you are unfortunately refused and need to lodge an AAT appeal, is there any chance of getting priority processing?

We’ll use a recentoffshore partner visa (Subclass 309)case as an example.

The timeline was as follows:

– 11 June 2020: visa application lodged

– 8 February 2022: refusal issued; client came to us to handle the AAT appeal

– 26 July 2022: hearing

– 29 July 2022: formal decision — appeal successful!

Some AAT hearings have now resumed in person, particularly for partner visas. In this case, the sponsor attended an in-person hearing in Australia, while the applicant participated online from overseas.

After the client engaged us for the appeal, we assessed the situation thoroughly,evaluated some special circumstances relating to the sponsor, and on that basis applied for priority processing — which is why the entire review took under six months,otherwise, in theory, many partner migration appeals are currently waiting two to three years without being scheduled.

So what circumstances allow you to apply for AAT priority (expedited) processing?

The AAT actually has an internal Direction document that sets out when priority can be applied for. The most broadly applicable grounds are Directions 2.1 and 2.2. Direction 2.2(a) in particular states:

The “Compelling reason” ground was also what we used when applying for priority processing in this case,because the sponsor had some particular circumstances, including health and mental wellbeing considerations, and with sufficient supporting material we were able to apply for expedited processing. The AAT ultimately granted priority and scheduled the hearing accordingly.

Of course, what constitutes a compelling reason depends on the individual case,and it is essential to have corresponding and sufficient supporting material.

Direction 2.2(f) also notes thatthose with relatives in Australia may also be eligible for expedited processing of a refused visitor visa.

We recently had an appeal case where a PR holder’s parents applied for a visitor visa and were refused — the reason being a prior adverse visa history, including an overstay — which ultimately led to the refusal. An application for priority processing was then made to have the hearing scheduled as soon as possible.

In most cases, if priority processing is not granted, applications are still reviewed in order of lodgement date.

• A visa assessment must satisfy requirements at two stages

Every time we appear before the AAT, the tribunal member opens by emphasising that they are now reviewing the casebased on the current circumstances.

Of course, they apply exactly the same migration legislation as the Department of Home Affairs.

Many people may not know that a visa assessment involves meeting requirements at two distinct stages:

the lodgement requirements at the time of application

the grant requirements at the time of decision

Many refusals occur because the grant-time requirements were not met

So if you met the lodgement requirements, but did not meet the grant requirements at the time the Department was making its decision, yet you do meet the grant requirements by the time of the AAT review — the appeal can succeed.

Let us walk you through an example — a Subclass 485 old TR case we won.

The timeline is shown above:

Lodgement requirements met at time of application: language scores, skills assessment lodgement evidence, and all other materials — all satisfied

Grant requirements not met at time of decision: a positive skills assessment result was required but not yet available

Grant requirements met at time of AAT review: a positive skills assessment had since been obtained, so the appeal was successful

The case demonstrates that the core principle of AAT review is whether the applicant meets the application requirements at the time of the AAT’s assessment.

We have previously handled many cases — partner migration, or Subclass 189/190 with secondary applicants — where clients came to us for AAT appeals after a refusal.Because the genuine relationship was real, by the time of the hearing there was naturally more relationship evidence to submit, and these cases typically result in successful outcomes.

• Meeting lodgement requirements at the time of lodgement still matters enormously!

However! We must still emphasise — do not think that because AAT gives you the opportunity to “provide additional documents” or “extend the time”, you can be careless when lodging the original visa application. Meeting the lodgement requirements at the time of lodgement remains critically important!

For example, with the Subclass 485 visa, you must still lodge at least one day after completing your course,if you lodge on the same day the course is completed, the application will certainly be refused, because the lodgement requirement was not satisfied at the time of lodgement.

Migration information sharing and Q&A group