AAT Appeal, Win!!!

Great news about successful AAT appeals keeps rolling in!

One client had their DIY student visa application refused, and with the help of our lawyers overturned the earlier refusal on written submissions alone, with no hearing required.

Another, a student visa AAT appeal lodged at the end of last November, waited more than half a year for the hearing and had the refusal overturned on the spot!

Another client had their DIY 485 application refused because they chose the wrong stream. We attended the hearing alongside them; the tribunal member cited the latest FCC case law and expressed sympathy for our applicant, but under the rules was likely still going to reaffirm the Department of Home Affairs’ decision. We pushed on the spot, secured an opportunity to lodge an additional submission, filed the new material, and ultimately won the case!

Another, an employer-sponsored 187 nomination appeal that had been pending for 3 years — the wait was not in vain!

Another, an appeal following a 485 refusal, was remitted directly back to the Department of Home Affairs within a month of lodgement, with no hearing required.

Reading this far, some of you may be wondering: why does one appeal take a month while another takes 3 years? And does a successful appeal mean the visa is granted outright?

Today we’ll walk you through “AAT priority processing” and the core principles behind a successful AAT appeal.

AAT Priority Processing

AAT Processing Speed

There has been a clear uptick in processing speed recently, but case volumes remain enormous. Here is the official AAT data as at the end of May 2022:

– Over 60% of migration cases have been waiting at least 1 year.

– Over the recent period, only 24% of migration cases were finalised within 1 year, with a median wait time of 106 weeks.

– There is still a backlog of nearly 20,000 migration cases.

So we remind everyone again: no visa matter is trivial. Once refused, even if the refusal is ultimately overturned, it is a drain on time, energy, and money.

Grounds that may qualify for priority processing

If you are unfortunate enough to be refused and need to appeal to the AAT, is there any chance of getting the matter expedited?

Let us explain using a recent offshore partner visa (subclass 309) as an example.

Timeline:

– 11 June 2020: visa application lodged

– 8 February 2022: application refused; client engaged us for the AAT appeal

– 26 July 2022: hearing

– 29 July 2022: formal decision — appeal allowed!

The AAT has resumed in-person hearings for some matters, particularly partner visas. In this case, the sponsor attended in person in Australia, while the applicant, being offshore, participated online.

After the client engaged us for the appeal, we reviewed the details and assessed certain special circumstances affecting the sponsor, and decided to apply for priority processing. As a result, the entire matter was resolved in under six months — otherwise, in theory, many partner-visa appeals currently sit untouched for two to three years.

So Under What Circumstances Can You Apply for AAT Priority?

The AAT has an internal Direction setting out when priority can be requested. The most commonly applicable grounds are 2.1 and 2.2 — in particular, 2.2(a) provides:

“Compelling reason” was the ground we relied on when requesting priority in this case, because the sponsor had several unusual circumstances — including physical and mental health issues — so with adequate supporting evidence we applied for expedited hearing. The AAT ultimately listed the matter on a priority basis.

Of course, whether “compelling reason” is made out turns on the facts of each case, and it must be supported by sufficient and appropriate evidence.

In addition, Direction 2.2(f) notes that a refused visitor visa where the applicant has relatives in Australia may also qualify for priority processing.

We recently handled another appeal involving a PR’s parents whose visitor visa was refused. The refusal was based on an adverse visa history, including prior overstay. We applied for priority processing so the matter could be listed for hearing as quickly as possible.

In most cases, where priority is not granted, matters are heard in order of lodgement.

The Core Principle of a Successful AAT Appeal

A visa assessment must satisfy the requirements at two separate stages

Every time we appear before the AAT, the member opens by emphasising that they are reconsidering the matter afresh based on the current circumstances.

Of course, the AAT applies exactly the same migration law as the Department of Home Affairs.

What many people may not realise is that during visa processing, an application must satisfy requirements at two stages, namely:

The requirements that must be met at the time of lodgement

The requirements that must be met at the time of decision

Many refusals arise from failing to meet the decision-stage requirements

So, if you satisfied the lodgement-stage requirements, and the Department of Home Affairs case officer refused because the decision-stage requirements were not met at the time of decision, but you do satisfy the decision-stage requirements by the time of the AAT hearing, the appeal can s\ucceed.

Let us share one successful 485 old-TR case as an example.

Timeline as shown:

Lodgement-stage requirements: language results, evidence of skills-assessment lodgement and other documents — all satisfied.

Decision-stage requirements: a positive skills assessment outcome was required — not achieved.

Decision-stage requirements at the AAT hearing: by then, a positive skills assessment had been obtained, and the appeal s\ucceeded.

This case shows that the core principle of AAT review is: whether the applicant satisfies the requirements at the time of the AAT’s review.

We have previously handled many cases — partner visa applications, or 189/190 applications with secondary applicants — that were refused and brought to us for AAT appeal. Because the relationships are genuine, by the time of the hearing there is naturally more relationship evidence available to supplement the record, and such matters typically result in a successful outcome.

Satisfying the lodgement-stage requirements is still critical!

But — and this is the point we must emphasise — do not assume that because the AAT offers a chance to “supplement evidence” or “extend the timeframe”, you can afford to be careless when lodging the visa application. Satisfying the lodgement-stage requirements remains absolutely critical!

Take the 485 visa, for example: you must still lodge at least one day after course completion. If you lodge on the day of completion itself, refusal is certain, because the lodgement-stage requirements will not have been met.

In reality, among the various appeals clients bring to us, the visas people assume to be “simple” — 485, student visas, and visitor visas — are the most common, followed by partner visas that people believe will “automatically be granted as long as the relationship is genuine”.

This is not to say DIY applications are bound to go wrong, nor that every refusal is beyond repair — we want every case to be salvageable.

But “simple” does not mean “hard to get wrong”, and putting things right will always involve “a round of trouble”.

We hope you all secure your visas smoothly and never need to go to the AAT!