For international students in Australia, apart from their studies, the issue they care about most is their visa. While study must come first, living far from home on one’s own is never easy. Many students do not fully understand visa requirements, which leads to frequent problems with their student visas. Added to this, some unprofessional agents provide incorrect advice or behave irresponsibly, and as a result student visas can end up being cancelled or refused at the time of an onshore renewal.

Does a refusal mean the end of your time in Australia? Not necessarily. After a refusal, many people first consider lodging an appeal through the AAT (Administrative Appeals Tribunal), seeking to overturn the Department of Home Affairs’ refusal decision.

What should you do after a visa refusal?

There are many possible reasons for a refusal: perhaps unfamiliarity with the policies and regulations, insufficient supporting documents, or a case officer who did not have a complete picture of your situation and reached the wrong decision.

If your visa is refused, do not give up too easily. Contact our experienced migration agents and lawyers straight away. We can help you lodge an appeal with the Administrative Appeals Tribunal (AAT) and seek a review of your visa application.

What is an AAT appeal?

AAT stands for the Administrative Appeals Tribunal. In Australia, the AAT not only reviews visa refusal and cancellation matters — it also hears cases involving Australian citizenship, child support, family assistance, social security, taxation, and more. If your visa is refused, you can appeal to the AAT for a review; if the appeal s\ucceeds, you may still obtain your visa.

Refusal

If your onshore visa application is refused, you must lodge an appeal with the AAT within 21 days of receiving the refusal letter (or you will need to depart Australia within 28 days).

Visa cancellation

However, if your visa has been cancelled, the Department of Home Affairs usually only allows 5 or 7 days to appeal.

Important

Missing these deadlines may mean losing your right to appeal. We have seen students come to us with the 21 days almost expired, or even after they had passed — which leaves very little time to prepare and puts the appeal outcome at serious risk. So if you are unlucky enough to receive a refusal letter, please get in touch as early as possible to plan your next steps.

The three stages of an AAT appeal

An AAT appeal is not as out of reach as many people think. Below we set out the AAT process in detail, along with success rates that may surprise you. A visa appeal at the AAT involves three stages: the AAT application stage, the hearing preparation stage, and the hearing itself.

At the hearing stage, please note:

— You must attend the AAT hearing. (If attending in person is difficult, you may appear by telephone or video.)

— AAT staff will be present at the hearing. If you will be accompanied by a legal representative or other witnesses, you must notify the AAT in advance.

— If you have any language barriers, you can request that the AAT arrange a professional interpreter.

— Hearings are open to the public, so anyone may attend.

— A hearing typically lasts 1 to 4 hours, depending on the complexity of the case and the number of issues and witnesses involved.

Important

Not every visa refusal carries a right of appeal. Generally speaking, only visa applications lodged onshore in Australia can be appealed. Applications lodged offshore usually have no right of appeal unless there is a sponsor supporting the application.

The AAT review process

The appeal process includes the following steps:

Once you lodge a valid application, the AAT will send the applicant a confirmation letter. At the same time, the AAT notifies the Department of Home Affairs, which provides the applicant’s relevant application materials to the AAT. The applicant will then hold a lawful bridging visa and can remain in Australia while the matter is considered.

The AAT assigns a file number to the application.

An AAT case officer begins reviewing the matter.

The AAT invites the applicant to attend a hearing or to provide written materials.

The AAT makes a decision based on the materials provided and notifies the applicant of the decision in writing.

AAT appeal outcomes

After the appeal, the AAT re-examines your application — known as a “merits review” — reconsidering all the evidence, including any new evidence, and then makes one of the following decisions:

Overturn the Department of Home Affairs’ refusal decision and send the matter back for reassessment (Set Aside), or

Affirm the Department’s refusal decision (Affirm), or change or overturn the Department’s decision and substitute a new decision (Remit)

Important

If your case is well prepared at the application stage — enough to satisfy the AAT Member — it is possible to obtain a Set Aside or Remit outcome without needing a hearing. NS Legal has handled a number of such successful cases.

Cost and timing of an AAT appeal

AAT appeal fees in Australia

At present, AAT applications can be lodged directly online. The application fee is AUD 3,000 (effective after 26 June 2021); once the application is successfully lodged, the AAT will issue a receipt.

How long does the whole AAT process take?

Whether successful or not, the typical wait is around 66 weeks — more than a year. Only 38% of matters are resolved from lodgement to outcome within 12 months. That said, this depends on many factors: the type of visa applied for, the complexity of the application, and how busy the Tribunal is. Please refer to the AAT’s official website for current timing information.

Key things to keep in mind for an AAT appeal

1) Lodge within the strict 21-day time limit

If you are lawfully in Australia when you appeal, the AAT will extend your bridging visa so that you can remain lawfully in the country. During this period, the AAT may ask you for further information or put questions to you.

2) Prepare thoroughly for the AAT hearing

At this stage we will provide all the most up-to-date evidence that supports your case. NewStars’ experienced migration lawyers will help you prepare all materials, set out the specific grounds of appeal by reference to the relevant law, and advance arguments in your favour, with the aim of overturning the earlier refusal decision.

3) Attend the AAT hearing

Even though extensive written materials and evidence will have been prepared for you in advance, you still need to take this opportunity to speak for yourself — your attendance matters a great deal to the outcome of your appeal.

Success story

Student visa refused over suspected document fraud — refusal overturned

Mr LIN received a refusal letter in January 2020. The reason given was that the Department of Home Affairs considered some of his supporting documents to be fraudulent. Mr LIN was deeply worried and did not know what to do. Through a referral from a friend, he came to NewStars and we began the AAT appeal. We prepared a comprehensive strategy for Mr LIN and lodged a detailed explanation letter on his behalf. In May 2021, Mr LIN received his AAT hearing notice and prepared carefully for it. Following the hearing, the Member accepted that Mr LIN was a genuine student coming to Australia to study, overturned the earlier refusal, and his visa was ultimately granted.

We should remind everyone that visa matters are never trivial. Even though an AAT appeal gives you a chance to overturn a refusal, it is still a very involved, time-consuming, and demanding process.

We once worked alongside a client on a 186 AAT appeal and prepared well over a hundred pieces of evidence together, with a submission running to nearly 10 pages — that level of detail is common at the AAT.

So from the very beginning, take your studies and your visa seriously, and engage a qualified and professional agent to look after you. Avoiding a refusal or cancellation in the first place is by far the better outcome.

Finally — what if the AAT appeal fails?

If a visa applicant is not satisfied with the AAT or the Minister’s decision, they can appeal to the Federal Court. At that stage, however, the Court will only consider questions of jurisdictional error. In other words, the Court will only examine whether the AAT or Ministerial decision was lawful — not whether the individual ought to be granted the visa. The Court will not consider the facts and merits of a visa application, will not consider new evidence or information in the way the AAT does, and cannot itself grant the applicant a visa.