Are visa refusals outside australia reviewable năm 2024

If you have recently been refused an Australian visa, and disagree with the decision, there are some steps you can take. Information below may help you to generally better understand your options.

• Merits Review Overview
• Notification of Decisions
• The Administrative Appeals Tribunal (AAT)
• Reform of the Merits Review System

What is the AAT?

The Administrative Appeals Tribunal is an independent body that reviews decisions made by Australian government agencies and departments, and provides a forum for individuals and organizations to have their disputes resolved in a fair and efficient manner.

Why was the AAT established?

• The Administrative Appeals Tribunal (AAT) was established in Australia in 1975, as part of a wider reform to the administrative justice system. The establishment of the AAT was in response to concerns about the fairness and transparency of government decision-making, and the need for a more accessible and efficient system of administrative review.
• The AAT provides a ‘fair, just, economical, informal and quick mechanism’, of de novo merits review of government decisions.
• The AAT is part of the Executive arm of Government but it is also meant to provide independent review. It holds hearings; parties can be legally represented; it hears evidence; and it provides reasoned decisions that are publicly available.
• The AAT conducts independent merits review of administrative decisions made by the Commonwealth Government , which means that it has the authority to reconsider the facts surrounding the decision under review and decide whether to substitute its decision. Therefore, the Tribunal performs the unique role of making “the correct or preferable decision” based on the merits of the case (Drake).
• The AAT review process has underlying objectives of ‘impartiality and fairness’, accessibility and making decisions that promote faith in the decision-making of the tribunal.

What sort of visa appeals go to the AAT?

The Administrative Appeals Tribunal (AAT) has two main divisions that affect migration matters:

1. The Migration and Refugee Division – This division is responsible for reviewing most visa refusal decisions made by the Department of Home Affairs
2. The General Division – This division is responsible for reviewing most character-related visa decisions or citizenship refusals

The AAT has the power to review matters that relate to decisions about bridging visas, family visas, nomination/sponsor applications, partner visas, permanent business visas, skilled visas, student visas, temporary work visas, some visitor visas, some humanitarian visa categories and citizenship.

The AAT does not review decisions relating to fast-track humanitarian visas.

What decisions can the AAT make?

If an individual’s visa application has been refused or cancelled by the Department of Home Affairs (DOHA), they may be eligible to apply to the AAT for a review of that decision.

The Administrative Appeals Tribunal member will decide to affirm, vary, set aside, or remit the decision made by the Department of Home Affairs by virtue of section 43 of the AAT Act.

• If the AAT affirms the decision, it means the decision made by the Department of Home Affairs is not changed. If this happens you will need to immediately consider your next best steps such as appealing the decision to court, applying for another visa or leaving Australia
• If the AAT varies a decision, it means the decision made by the Department of Home Affairs is changed or altered in some way
• If the AAT sets aside a decision, it means the AAT agrees or partially agrees the original decision made by the Department of Home Affairs was wrong
• If the AAT remits a decision, it means it sends the matter back to the Department of Home Affairs to make a new decision in accordance with the AAT’s instructions or recommendations. In essence, This means you won your appeal case! Generally if your matter is remitted, you will need to wait to hear from the Department of Home Affairs before your visa is granted.

Time Limits for the AAT

If you are in the community, you must apply within 28 days from the date you were notified of the refusal.

Every offshore visa applicant, for either temporary or permanent visas, can challenge any adverse visa decision in the Australian courts.

Every officer of the Department of Immigration is subject to the supervision of the Australian courts, irrespective of whether the officer is onshore or offshore or is a locally engaged officer offshore. Any person making a decision about a visa no matter who he or she is (including the Minister personally) can be challenged in a court.

For example any and all offshore student visa applicants can challenge a student visa refusal in the Federal Circuit and Family Court! Or any subclass 188 visa applicant lodging a business visa application while offshore can similarly challenge a visa refusal in the Federal Circuit and Family Court.

However, there is a complex web of rules riddled with quick sand, as to which court has jurisdiction and it varies depending on which visa.

In some cases only the High Court has jurisdiction! That is, in order to challenge some decisions by a delegate, it is necessary to commence proceedings, directly in the High Court.

One example is, any permanent resident visa, where the visa applicant is offshore and the visa is a visa which can be granted when the applicant is either on-shore or offshore.

Recently the writer commenced proceedings directly in the High Court for a subclass 132 visa offshore visa applicant, who was refused a visa while he was offshore. Ultimately the High Court ruled in the applicant’s favour and set aside the visa refusal. There was no other court to go to! The High Court could not remit the case to any other court because no other court, other than the High Court had jurisdiction! [See Nguyen & Ors v Minister for Immigration, High Court of Australia, C1/2022]

The other area where only the High Court has jurisdiction is where a person lodged a visa application when present in Australia then had the visa application refused while in Australia but left Australia before lodging an application in the Administrative Appeals Tribunal (AAT). This happened to the unfortunate applicant in Gajjar HC Matter No B37 of 2012.

The lesson from Gajjar is always apply to the AAT BEFORE leaving Australia – see s347(3) of the Migration Act, which states:

(3) If the was covered by subsection , , or , an application for review may only be made by a who is physically present in the when the application for review is made.

Thirdly, if one misses the unextendible time limit for lodging a review application to the AAT then the only avenue of review is by a direct application to the High Court. This happened in the important decision of Berenguel v Minister for Immigration and Citizenship [2010] HCA 8.

One has to have a certain level of confidence in the strength of one’s case, to apply directly to the High Court for judicial review!

Note the time limit for lodging an application to the High Court and any other court, is 35 days (see s486A) and noting that in all judicial review, time runs from the date of decision, NOT from the date of receipt of the decision. All courts have power to extend the time if “it is necessary in the interests of the administration of justice”.

Of course, wherever possible one should position a visa applicant’s situation to always have access to merit review in the AAT. For example I always very strongly advise subclass 188 visa applicants to come to Australia and be present in Australia when lodging the visa application. Then I also strongly require the clients to always have in place the visa ability to return to Australia in the event of a visa refusal in order NOT to be caught by s347(3) of the Migration Act. For example of a subclass 188 visa is refused at the moment when the applicant was offshore, the visa applicant could return to Australia and lodge an application for review to the AAT.

Generally this is not possible for offshore student visa applicants. Rarely would a student visa applicant get a visa to come to Australia temporarily before visa grant (apart of course form visa applicants from developed countries where an ETA is possible or a ‘European E visa).

Judicial review has far less scope than merit review. In judicial review, generally no new evidence can be produce and the court acts in its supervisory jurisdiction only. In contract the AAT hears the case afresh on the merits and new evidence can be called. However like the visa applicant in Nguyen & Ors v Minister for Immigration, High Court of Australia, C1/2022, the ability to go to the High Court to correct an error by the delegate saved the day!

In summary at the risk of oversimplification, every onshore visa application has access to merit review in the AAT provided the applicant, ‘is physically present in the when the application for review is made”.

Some visa applicants like those for an ENS visa or permanent residence skilled visa, if the application is lodged offshore, they have to be present in Australia both at time of visa refusal and when lodging in the AAT in order to lodge a valid AAT application, see s347(3A) which reads:

(3A) If the was covered by subsection , an application for review may only be made by a who:

(a) was physically present in the at the time when the decision was made; and

(b) is physically present in the when the application for review is made.

Note that s states:

(7A) A decision to refuse to grant a non-citizen a is a Part 5-reviewable decision if:

(a) the non-citizen made the application for the visa at a time when the non-citizen was outside the ; and

(b) the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.

Rarely would one be able to predict when a visa decision is made by the delegate, so for these people, for all practical purposes, there is no merit review, the only avenue of review is judicial review, directly to the High Court.

Returning to cases where a person missed a time limit to seek merit review in the AAT, again the only avenue is judicial review directly in the High Court. There is a short opening between the expiration of 21 days and the 35 day time limit to lodge in the High Court, where no extension of time is necessary.

Beyond the 35 days, the applicant would need an extension of time. Generally if the application for judicial review has merit the High Court would grant an extension of time.

So, if an offshore visa applicant has a visa refused, it is a set back, but it may not be fatal, if there are proper grounds for judicial review, the courts may come to rescue.

The High Court decisions can be found here: Nguyen & Ors v Minister for Immigration, High Court of Australia, C1/2022 and Gajjar HC Matter No B37 of 2012.

Is there any chance of Australia visa after refusal?

If you were not given a ban on reapplying, you can certainly apply again. The chance of another rejection are 100% if you don't fully address and answer, with new evidence, the reason for the initial rejection.

Does Australia visa refusal affect UK visa application?

Immigration authorities will take into account your visa refusal history when considering any new application. This is because a visa refusal would indicate that you may not be a genuine visitor or migrant, or that you may not comply with the conditions of your visa.

Will Australia visa refusal affect US visa?

It depends on the specific reasons for your visa denial and the overall strength of your US visa application. If your Australian visa was denied due to a lack of evidence or documentation, this could raise concerns with US immigration officials as well.

Can you apply for another visa after refusal Australia?

If you have had a visa refused or cancelled on character grounds since you last arrived in Australia, you will be prevented from making any further visa applications, except for a Protection visa.