If you have applied to the Department of Immigration for a visa and they have rejected your application or you are not satisfied with the visa decision, you may be able to ask for the decision to be reviewed.
Prior to 1 July 2015, the type of visa for which you had applied determined which Tribunal would review your matter. Now, all visa appeal applications are heard by the Migration and Refugee Division of the Administrative Appeals Tribunal.
How do I make an application for review of the visa refusal?
To have a decision of the Department of Immigration reviewed, you need to file an application for a merits review and pay the necessary fees at the Migration and Refugee Division of the Administrative Appeals Tribunal. Your application will be allocated to a Member for review. Strict time limits apply in which you may file your application for a merits review.
Once your application has been filed, the Tribunal will send you a letter acknowledging receipt of your application, and will request information from the Department. They will assess your application to make sure it is valid and will let you know if there are any problems.
The Tribunal may seek further information from you, or ask you to comment on particular aspects of your application. You may be invited to appear before a Member, or to speak with the Member by telephone, at which time you can present statements and explain why the Member should overturn the Department’s decision.
The length of time it will take the Member to review your application will depend on the type of visa that has been refused and the complexity of your matter.
The Migration Act 1958 outlines the decisions that can be reviewed, who may apply for a decision, how the application is to be reviewed, and the time limits that apply.
What happens once my application has been reviewed?
Following review of your application, the Tribunal will either:
- affirm the decision, which means that the Tribunal agrees with the decision made by the Department
- vary the decision, which means that the Tribunal agrees in part with the decision of the Department
- set aside the decision and substitute a new decision, which means that the Tribunal has accepted your arguments and has decided to change the decision made by the Department
- remit the decision, which means your case will be sent back to the Department for review with specific directions from the Tribunal, or
- decide that they have no jurisdiction to review the Department’s decision.
What do I do if I don’t agree with the Tribunals decision?
If the Tribunal affirms the Department’s decision, you may be able to seek judicial review at the Federal Circuit Court. However, the Court can only hear an appeal if it relates to an error of law. It does not have the power to reconsider the facts or reasons relating to your visa application, or to grant you with a visa.
Alternatively, the Immigration Minister can override the decision of the Tribunal with an outcome that is more favourable to the applicant if it is in the public interest to do so. However, this will only occur in very exceptional cases.
How can I get copies of the documents used to determine the visa decision?
If you are considering appealing the visa decision, you may want to get a copy of the documents used in making the determination, which are held by the Department of Immigration. This can be done under the Freedom of Information Act 1982 by completing Form 424A and lodging it with the Department of Immigration office in your state.