AAT Visa Review – generally the AAT may be able to review the Department of Home Affairs decisions to refuse to grant a visa or to cancel a visa under AAT Migration Division and Refugee Division. You should note that if your visa application has been refused or your visa cancelled while you are in Australia, you may be prevented from lodging another visa application (click here to learn more about section 48 bar and visa application limitations).
Part 5 Reviewable Decision (non-refugee)
Under the AAT Migration Division, the AAT can review Part 5 decisions relate to the grant or cancellation of visas other than protection visas or temporary safe haven visas, or decisions in relation to which the Minister has given a conclusive certificate.
Section 338 of the Act specifies that Part 5 reviewable decisions is a decision unless:
- the Minister believes that it would be contrary to the national interest and has issued a conclusive certificate under s 339 (a)-(b); or
- the visa concerned is a protection visa; or
- the visa concerned is a temporary safe haven visa; or
- the applicant is an UMA
AAT does not have power to review a visa refusal if there is no Nomination review
Section 338(2) covers the Tribunal’s ability to review work related sponsored and nominated visa application (subclass 401, 402, 407, 416, 420, 482, 488, 494 and 870). For eg, a TSS 482 SBS needs to apply to the AAT to review his or her nomination (or sponsorship) refusal before the TSS 482 visa applicant can make a valid AAT Visa Review application. If the TSS 482 nomination has been refused but the SBS has not applied to the AAT to review the nomination refusal, visa applicant cannot make a valid AAT Visa Review as the AAT does not have jurisdiction or power to hear the visa refusal. This is because the visa applicant is required to be nominated.
Section 338(3) covers AAT Visa Review if your non-refugee visa is cancelled while you are in the country, unless:
- you holds a bridging visa that was refused or cancelled while you are in immigration detention
- you have not cleared immigration clearance
- your visa was cancelled for giving incorrect information or was cancelled for other reasons
Section 338(6) covers AAT Visa Review if you are a former PR, have a member of your family who is a PR or a citizen and you applied for a visa outside of Australia.
Section 338(7) covers AAT Visa Review if you applied outside of Australia to visit your Australian resident relatives (you provided their details in your application).
Section 338(7A) covers AAT Visa Review for an applicant who is outside Australia and that visa could be granted regardless of whether the applicant is in or outside Australia.
Section 338(8) covers AAT Visa Review where the visa cannot be granted if the applicant is in Australia and the applicant has to be sponsored or nominated by an Australian citizen or PR or a NZ citizen holding SCV 444 visa.
How to lodge an AAT Visa Review application
An application for AAT Review must:
- be made in an approved form; and
- be made within the prescribed period (eg, 28 days or 70 days or prescribed in the refusal notification; and
- pay any Review application fee
Who can apply for an AAT Visa Review application
Depending on the type of application that was refused, the following may apply for an AAT Review:
- the applicant who is the subject of that decision; or
- the sponsor or nominator; or
- the relative; or
- the person prescribed in the refusal notification.
Must be in Australia to apply for AAT Visa Review
Depending on which provision of section 338 that allows you to apply for AAT Review, you must be:
- physically present in Australia when you lodge the AAT Review application; or
- physically present in Australia at the time of the refusal decision and when the AAT Review application is lodged.
Requesting AAT to obtain oral evidence
If you are in immigration detention centre and your application for a bridging visa is refused or cancelled, you can request the AAT to obtain oral evidence from a specific person.
Power of the AAT in Visa Review
AAT has the power to affirm or vary or remit or set aside and substitute or dismiss and reinstate a visa refused or cancelled.
If the AAT has made a decision to affirm the decision under review, you can apply to the Minister to intervene, that is, to substitute a more favourable decision (if it is in the public interest to do so). However, the Minister’s section 351 power is discretionary and is not compellable.
How does AAT operate
When the Tribunal conduct a Review application, it is not bound by technicalities, legal forms or rules of evidence and it shall act according to substantial justice and the merits of the case.
Part 7 Reviewable Decision (refugee)
Under the AAT Refugee Division, the AAT review Part 7 decisions generally relate to protection visas.
Any other AAT visas review not covered under Part 5 and Part 7 include a decision to cancel business visas, decisions relating to deportation, and the refusal or cancellation of visas on character grounds can be lodged with the AAT General Division.
Section 411 covers what is a Part 7 reviewable decision. In summary, it concerned with protection or refugee visa application unless the Minister personally cancel the holder’s Protection visa or the visa applicant is not physically in Australia when the adverse decision was made or the Minister has issued a conclusive certificate or the decision to refuse a protection visa is a fast track decision.
Section 412 provides for a AAT Review application must be made within 28 days (unless prescribed otherwise) after notification of decision. Only the person who is subject to the refusal can make the AAT review application. And the applicant must physically be in Australia to make a valid application.
AAT Visa Review does not cover fast track decision
Part 7AA – UMA
Unauthorised Maritime Arrival or UMA who entered Australia on or after 13 August 2012 and who were refused protection visas are reviewed by the Immigration Assessment Authority or IAA under Part 7AA, and not the AAT.