AAT affirmed visa refusal or visa cancellation – How do I appeal AAT decision?
If the Department had refused your visa application or cancelled your visa and you applied to the AAT to review the refusal or cancellation, but the Tribunal affirmed the Department decision to refuse to grant you the visa or cancel your visa, you can appeal the AAT decision.
Challenging AAT decision
AAT affirmed visa refusal or visa cancellation can be appealed to the Federal Circuit Court or FCC. What this mean is, if you do not agree with the AAT decision you can challenge the decision by going to the FCC. If the FCC agrees with you that the AAT has made an error of law, the Court will ask the Tribunal to determine your case again, usually by a new Member.
However, if you simply did not like the reason why AAT affirmed your visa refusal or visa cancellation will not be enough to convince the Court that the Tribunal decision is wrong. This is because the Court cannot conduct a merits review of the AAT decision. The Court will only agree that the AAT decision is wrong if there is a jurisdiction error.
What is jurisdictional error?
There many possible categories of jurisdictional error and the common categories for migration decisions include (they are not limited to) the following:
- the Tribunal identifies the wrong issue or asks itself the wrong question;
- the Tribunal ignores relevant material;
- the Tribunal relies on irrelevant material;
- the Tribunal fails to follow mandatory procedures;
- the Tribunal shows actual or apprehended bias; and
- the Tribunal decision is illogical, irrational or unreasonable.
You should be aware that the Court cannot grant you the visa you applied. The Court’s role is to determine if the AAT made a material error in arriving at the decision it arrived at.
If you decided to challenge the AAT affirmed visa refusal or visa cancellation at the FCC, you should not argue that the Department decision was also wrong because the Court has no jurisdiction in relation to the Department decision. Similarly, if you have relied on the Department’s website to help you with your visa application, even if the information given in the website is incorrect, that information cannot establish jurisdictional error on the part of the AAT. Whatever information the Department provide on its website is irrelevant because the Migration law clearly lay down what is required for a visa application to be approved or for not cancelling a visa. The Migration law is the relevant consideration and not the information provided on the Department’s website. Similarly, even you are misguided by your friends or you did not have the assistance of a migration agent or migration lawyer. There is no right to migration assistance when applying for a visa.
You cannot argue that the AAT affirmed visa refusal or visa cancellation because you do not understand or misunderstood the Migration law. This does not establish jurisdictional error on the part of the AAT.
You should also be aware that if your visa application was refused because you did not satisfy a mandatory requirement, for e.g., you applied for a Subclass 485 visa (click here to learn more about Subclass 485 visa) before you sit for your IELTS test, your Subclass 485 application will be refused even if you have payment receipt to show you applied to sit for the test before lodging the visa application. This applies even if you have sat for the test 1 day after you lodged the visa application and you managed to obtain 8.5 in each band of the IELTS test. In this example, all Subclass 485 visa applications have to be “accompanied by evidence” that they have taken an English Language Test within the 3 years immediately before the day they lodged their visa application. Making an innocent mistake is no excuse for not satisfying a mandatory requirement.
You should note that in some situations the AAT may received adverse material or info from the Department but is not permitted to disclose to you if the Tribunal was issued with a section 375A certificate (click here to learn more about section 375A non-disclosure certificate).
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you to explain how to apply to the FCC in the event the AAT affirmed visa refusal or visa cancellation or click here to learn more about making FCC application or when you should apply to the FCC.
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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.