Migration concerns the movement of people across boundaries. Australian federal migration law relates to the entry into, and residence in, Australia by people who are not Australian citizens. The two key sources for Australian federal migration law are:
Migration Act 1958 (Cth) (Migration Act); and
Migration Regulations 1994 (Cth).
Issues concerning Australian citizenship may also involve the Australian Citizenship Act 2007 (Cth). Although we manage all aspects of immigration law and practice, we come alive in the context of visa appeals.
Can I appeal a visa refusal decision in Australia?
Most Australian visa refusals decisions have the right to be appealed. If you have had a visa refused in Australia, you may be eligible to appeal the visa refusal to a tribunal or a court. Some visas do not have a right of appeal if they were lodged offshore and there is no sponsor in Australia.
If you have the right to appeal your decision
The timeframe available to lodge the appeal
The relevant appeal body your appeal should be directed to
If your letter does not outline this information, contact us urgently.
The most common place to appeal a visa refusal decision to is the Administrative Appeals Tribunal (AAT). There are strict time limits when appealing to the AAT so it is very important to read the appeal deadline in your visa refusal letter carefully. Unfortunately, AAT appeal deadlines cannot be extended. You can read more about this process on our Administrative Appeals Tribunal page.
Some visa refusal decisions are appealed to the courts instead. For example, when the Minister for Immigration personally decides to refuse a visa based on character grounds. We will prepare your visa appeal so that you can learn if your visa appeal is likely to win. In some cases a visa appeal cannot win because certain visa criteria have not been met. In other situations there may be a quicker or cheaper solution to appealing the visa refusal, such as applying for another visa.
What are the requirements for a visa refusal appeal?
To appeal a visa refusal decision you must:
Have received a visa refusal decision (you should include a copy of this with your appeal application)
Lodge the appeal paperwork with the relevant appeal body (generally online or in person, however, the IAA does not require an application)
Lodge the appeal paperwork by the relevant deadline
Pay the relevant appeals fee (some appeals are free or have the option of having the fee reduced or waived)
Most commonly you will lodge a visa refusal appeal with the Administrative Appeals Tribunal (AAT). In some cases you may instead appeal to the Immigration Assessment Authority, the Federal Circuit Court, the Federal Court and in some cases with the High Court of Australia.
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Migration cases may be heard by the Federal Court or the Federal Circuit Court. However, in many matters, the original jurisdiction of the Federal Court is limited by the Migration Act and most first instance applications must be heard in the Federal Circuit Court. If the migration matter is an appeal from the Federal Circuit Court or an appeal-related application, then the Federal Court will generally have jurisdiction to hear it within the Court’s appellate jurisdiction.
Under section 476A(1) of the Migration Act, the Federal Court has original jurisdiction in relation to a migration decision if and only if:
The Federal Circuit Court transfers a proceeding to the Federal Court under s 39 of the Federal Circuit Court of Australia Act 1999 (Cth);
The decision is a "privative clause decision" or "purported privative clause decision" of the Administrative Appeals Tribunal (AAT) on
Review under s 500 of the Migration Act For example: decisions relating to the removal of non-citizens who are sentenced for 12 months or more for a criminal offence.
The decision is a "privative clause decision" or "purported privative clause decision", made personally by the Minister under ss 501, 501A, 501B or 501C of the Migration Act; For example: refusal or cancellation of visa on character grounds.
The decision is made by the AAT under ss 44(3) or is a referral by the AAT under 45(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act);
If the Federal Court has original jurisdiction in relation to a migration decision under (a), (b) or (c) above, that jurisdiction is the same as the jurisdiction of the High Court of Australia under paragraph 75(v) of the Commonwealth Constitution.
A “migration decision” under the Migration Act includes privative clause decisions, purported privative clause decisions and non-privative clause decisions. These terms are all defined in the Migration Act. A “decision” includes the granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission, including a visa. It also includes a failure or refusal to make a decision.
What the Court cannot do in migration proceedings.
Hearings in Federal Court
In hearing a migration case, the Federal Court cannot decide whether a visa should or should not be granted, nor whether a visa should or should not be cancelled. Whether the Court would have made the same, or a different, decision than the decision-maker is not something that can be canvassed in a hearing.
What the Court can do in migration proceedings:
The Court can consider whether a legal mistake has been made by the decision-maker. Current legal terminology describes legal mistakes that the Court can do something about as “questions of law” (under ss 43(3) or 45(2) of the AAT Act) or “jurisdictional errors”. Examples of jurisdictional errors include the decision-maker:
Not adopting a fair process in making the decision;
Identifying a wrong issue;
Ignoring materials the decision-maker was required to look at;
Relying on materials the decision-maker should not have looked at;
Incorrectly interpreting or applying the law;
Reaching a decision that is unreasonable in the legal sense;
Making a decision for which there was no evidence, or that was not reasonably open on the materials.