If your visa application is refused or your visa is cancelled in Australia, you have the right to appeal the decision in most cases. The appeal process for a visa decision typically involves applying for a review of the decision by a tribunal. Here’s a general guide on how to appeal against a visa refusal or cancellation in Australia:
1. Check Your Refusal Letter for Appeal Rights
Not all visa refusals or cancellations can be appealed. Your refusal or cancellation notice should state whether you have the right to a review by the Administrative Appeals Tribunal (AAT), and the time frame within which you must apply.
2. Understand the Time Limits
There are strict time limits for lodging an appeal with the AAT. This time limit is usually set from the date you receive the decision. Failing to apply within this period typically means you lose your right to appeal. You may become unlawful.
3. Apply for a Review by the Administrative Appeals Tribunal (AAT)
If your letter states that you can apply for a review, you must file an application to the AAT. This can be done online, by post, by fax, or in person. The AAT is an independent body that reviews government decisions, including visa refusals and cancellations.
4. Pay the Application Fee
There is a fee for lodging an appeal with the AAT. In some cases, this fee can be reduced or refunded, depending on the outcome of the appeal. In most cases, the full review application fee must be paid to the AAT at the time of applying for review.
5. Provide Additional Information
After you lodge your appeal, you can submit additional information or evidence to support your case. This information should address why you believe the Department of Home Affairs should not have refused or cancelled your visa.
6. Attend the Hearing
The AAT will review your case and may hold a hearing where you can present your argument. You have the right to be represented by a lawyer or migration agent during this process.
7. Wait for the Decision
After reviewing your case and the initial decision made by the Department of Home Affairs, the AAT will make a decision. The AAT can either affirm the original decision, vary it, set it aside, substitute a new decision, or remit it back to the Department of Home Affairs for reconsideration with specific directions.
8. Further Appeal Options
If the AAT affirms the original decision and you believe there has been an error in law, you may have the option to appeal to the Federal Circuit and Family Court of Australia (FCFCA).. Legal advice and representation is highly recommended at this stage.
9. Understand Your Visa Status During the Appeal
If you held a valid visa when you received the refusal or cancellation decision, in many cases you will continue to hold that bridging visa allowing you to lawfully stay in Australia while your review is being processed by the AAT. In the case of an appeal to the FCAFC, you may be able to secure a Bridging A visa until the court appeal is finalised.
It’s important to note that appealing a visa decision is a complex and time-consuming process. Seeking advice from a qualified and experienced immigration lawyer is strongly advised to navigate this process effectively. They can provide guidance specific to your case, including the likelihood of success on appeal and any alternative options you may have.