If the Australian Government refuses a visa, the decision letter must tell you if you have review rights. Most immigration cases go to the Migration & Refugee Division of the Administrative Appeals Tribunal (the Tribunal). It was previously known as the Migration Review Tribunal or MRT.
An appeal to the Tribunal is a merit review process. The Tribunal has the power to reconsider your whole case from the beginning and to look at new evidence and consider new legal arguments. The Tribunal is bound by immigration law (legislation, regulations and case precedents). The tribunal must make a decision in accordance with the law. It is not a court, so
- Immigration doesn’t get to argue it’s case against you, or send it’s lawyers
- The Tribunal is informal. It is not bound by rules of evidence and proceedings like a court is
- Your immigration lawyer plays a special role, explained below
You must apply to the Tribunal on time. There are strict time limits to seek the Tribunal’s help. The Immigration Department is obliged to explain this is their letter refusing a visa. If you are late the Tribunal cannot consider your case. It will be returned to you with a letter saying that it has no jurisdiction to help you.
In some cases, you may have other options that are better than an appeal. Get holistic legal advice on your situation before your appeal deadline. Make the best choice.
Having an experienced immigration lawyer is your best chance to win. This is how we help our clients:
- Assess Immigration’s decision
- Did the Immigration Department use the correct law?
- Did they make any mistakes of law or fact?
- Did Immigration skip any issues? If Immigration skipped some important issues when they refused your case it is vital to know what those issues are and deal with them, or risk losing because of them. The Immigration Department has the power to refuse a visa as soon as it decides that any one of the rules is not met. They do not have to provide you with a full report on all issues.
- Critically Review Immigration’s File – We obtain a copy of the Immigration Department’s file on your case and review it to identify key issues to raise with the Tribunal.
- Is anything missing from the file that should be there?
- Did Immigration follow proper legal process?
- Does the information on Immigration’s file contradict their conclusion?
- What do the department’s abbreviations and shorthand mean?
- Was the department’s approach to your case the same as in other recent cases?
- Are there any factual conflicts revealed?
- Help you understand the rules. The rules are much more than just the information in Immigration’s refusal letter (where they state the law, their policy and conclusions).
- What court cases and Tribunal cases apply to this situation?
- Do any court cases in other fields of law assist your case?
- Has the law changed since the decision was made? Do you have to meet the new law? Do the law changes create any extra requirements you are not aware of?
- Answer the Tribunal’s questions – the Tribunal can seek your comment on issues it thinks important to your case. It is vital to understand the issues underlying a situation like this, so the answer given is best for your case.
- Prepare a Case Plan
- Predict what the key issues will be
- What evidence should you get to support your case?
- Will the passage of time help your case or create complications? Tribunal cases can take up to 2 years to be decided.
- What are your work rights?
- What are your travel rights?
- Can you change jobs? Will that effect your chance to win?
- Written Arguments to the Tribunal – You can win your case if the Tribunal is convinced by the arguments and evidence put forward in writing. If that happens no Hearing is called. Well written legal arguments can win your case, and save you the stress and cost of a Hearing.
- Help you at a Hearing – A Hearing is more like an interview than a normal court Hearing. Immigration cannot send lawyers to argue against you. You cannot have a lawyer to speak for you (if we represent you, we will have already given the Tribunal written arguments by this stage). You must speak to the decision marker personally. Having an experienced immigration lawyer present can make a big difference, because we
- Advise you who you should call as witnesses and what you need them to cover
- Know what is important and what is peripheral and can request a brief adjournment to advise you about something that you need to say or clarify
- Make comments and arguments, if the decision maker allows. This is usually at the end of a Hearing. In our experience decision makers are usually happy to hear from your lawyer, who may have some important additional information or clarification to give, or a key question to ask you to answer for the Tribunal.
- Listen, make notes and prepare an action list, if any extra information needs to be provided to the Tribunal after the Hearing. This is normally with the permission of the decision maker. The Tribunal is not obliged to await extra information, but may do so where they think it is appropriate.
If you win, the Tribunal will “remit” your case to the Immigration Department, ordering them to reconsider your case and accept the Tribunal’s conclusions of law and fact. The Immigration Department will then continue the normal visa consideration process. Your case will be handled by a different Immigration officer to the one who refused your case previously. In some cases, it is essential to deal with extra issues at this stage to avoid being refused again. Your visa application must meet all the rules current at that time.
If you lose, the Tribunal will “affirm” the decision of the Immigration Department. If you are unsuccessful at the Tribunal then:
- Your bridging visa will expire 28 days later.
- You must either make a further appeal or leave Australia. There are a number of options including:
- Appeal to a court
- Make a request for Ministerial Intervention
- You may have other options, every case is unique