Visa Refusals: Dealing with the AAT 

The Department can refuse a visa for many different reasons, even when you truly believe what you have already submitted is satisfactory. If this occurs, you have the option to appeal the decision to the Administrative Appeals Tribunal (AAT). The AAT provides an independent review of a wide range of decisions made by government officials, including visa decisions. However, it is very important that timeframes are complied with if you do decide to apply for an AAT appeal. (an Immigration lawyer Brisbane can help with this).

According to sections 359C and 360(3) the Migration Act, you can lose your right to appear before the AAT to give evidence and present your arguments. This generally occurs when the applicant fails to supply the requested information or documents to the AAT by the date specified by the AAT.

In plain English, this means that if the AAT requests something from you, and you do not respond to them in time, you lose the right to present your side of the story altogether. If you lose this right, it is fair to say your chances of success are significantly lowered. You will not be given any opportunity to present the reasons why you believe the Department erred in refusing your visa, and the AAT member will make the decision based purely on existing evidence. They will not be able to take any evidence into account from the time that the Department made their decision to present.

The situation described is exactly what happened in the recent decision of Du (Migration) [2019] AATA 4289 (30 September 2019).

What were the circumstances leading up to this case?

The Department of Home Affairs refused to grant the applicant a temporary student visa on the grounds that she was not enrolled in a course of study. Therefore, she was not considered to be a genuine temporary entrant by the Department.

What happened before the AAT appeal and what did the applicant do wrong?

On the 2^nd of September 2019, the AAT wrote to the applicant and asked for more information regarding whether the applicant was currently enrolled in a course of study. This letter made it very clear that if the information was not provided by the 16^th of September 2019, the AAT could make their decision without seeking more information, and that the applicant would lose any rights to appear before the AAT.

The applicant failed to provide any information to the AAT by the 16^th of September 2019, and she did not apply for an extension of time. Therefore, she was not entitled to appear before the AAT. The AAT proceeded to make a decision without any further evidence on her part.

What did the AAT decide?

As the AAT had no additional information from the applicant, they were only able to consider the same information the Department had at the time of their decision.

The AAT was actually satisfied that at the time of the Department’s decision, the applicant was enrolled in several courses of study. That means that the AAT considered that the Department erred in their decision. However, because the applicant failed to provide information regarding her continuing enrolment in these courses, the AAT was unable to satisfy the student criteria at the time of decision. The AAT thus affirmed the decision not to grant the applicant’s student visa.

Failure to provide this information ultimately led to the AAT’s decision to affirm the refusal. This would have been avoided if the applicant had provided the required evidence within the timeframe given by the AAT. If the applicant provided evidence of her continued study on time, it is likely that the AAT would have found that the applicant was a genuine temporary entrant.

This case shows just how important it is to supply the AAT with requested documents within the given timeframe. Failure to provide such information can be detrimental to your chances of success at the AAT.

What does this mean for you?

If you receive any correspondence from the AAT, be sure to promptly confirm receipt and gather any information they are requesting. It is incredibly important that you submit the information requested in the timeframe outlined by the AAT, to avoid losing your rights to appear before the AAT and present your arguments. Not adhering to the timeframes can significantly impact your chances of success at the AAT.

If you have any further queries in relation to your visa application or appeal, please get in touch with the team at Results Migration.

If you are looking to study, visit, work or migrate to Australia, a Results Migration Immigration Lawyer Brisbane are the best in the field, with a team of experienced migration lawyers and registered migration agents that are available to guide you through this complex area of law. Call a Results Migration Immigration Lawyer Brisbane on 1800 808 717 or email us on [email protected] and book your free consultation today!