Immigration Appeals & Cancellations
Immigration Appeals & Cancellations
Appeals against immigration decisions form an essential part of Australia’s immigration system, ensuring fairness and justice for those whose visa applications have been refused or cancelled. The appeal process allows applicants to challenge certain decisions made by the Department of Home Affairs and have their cases reviewed by an independent body.
Australia’s migration laws are complex, so getting the right advice from the outset can greatly enhance the potential outcome when dealing with immigration appeals and cancellations. Michael Bellingham has over 20 years of experience in this area and a thorough knowledge of all aspects of migration law. Michael’s expertise can assist in providing an outcome which gives either you or a family member the best possible chance of remaining in Australia, either permanently or for the necessary time required, to study, work temporarily or visit.
Administrative Appeals Tribunal
The Administrative Appeals Tribunal (AAT) is the primary body responsible for hearing immigration appeals in Australia. The AAT is an independent tribunal that reviews decisions made by the Department of Home Affairs about visa applications and certain visa cancellations. The AAT operates under the principle of merit review, which means it considers all relevant facts and circumstances of a case and makes a decision as if it were the original decision-maker.
When the Department of Home Affairs initiates a visa cancellation, the affected individual is usually notified in writing and given an opportunity to respond to the grounds for cancellation. Individuals facing visa cancellation have the right to appeal the decision to the AAT in most cases. The AAT will conduct an independent review and make a decision on whether to uphold or revoke the visa cancellation.
The process of lodging an appeal with the AAT varies depending on the type of decision being appealed. For visa refusals, the applicant typically has a set period, usually 21 or 35 days from the date of the decision, to lodge an appeal. In some cases, applicants may also be granted additional time to appeal if they can demonstrate valid reasons for the delay.
When an appeal is lodged with the AAT, the applicant is given the opportunity to present their case and provide additional evidence to support their claim. The AAT may hold hearings where the applicant, their representative (if applicable), the Department of Home Affairs and any relevant witnesses can give evidence and answer questions. The AAT member presiding over the hearing will assess the credibility and relevance of the evidence presented.
After considering the evidence and conducting a comprehensive review, the AAT will make a decision. The decision can vary from affirming the original decision to setting aside the decision and substituting it with a new one. If the AAT sets aside the original decision, it may grant the visa, remit the matter back to the Department for reconsideration, or refuse the application again. The AAT’s decision is final in most cases. However, in specified circumstances, such as a jurisdictional error, a decision made by the AAT may be subject to judicial review in the Federal Court.
Not all immigration decisions are subject to merits review by the AAT. Some visa decisions, such as character-related visa cancellations on certain grounds, are subject to mandatory cancellation and do not have a right of appeal to the AAT. However, applicants may have other avenues to seek judicial review in the Federal Circuit Court or the Federal Court in certain circumstances.
Grounds for Visa Cancellations
The Department of Home Affairs has the authority to cancel visas under various circumstances. These generally fall within three categories:
- Breach of a condition attached to the visa. The conditions applicable to each visa type are contained in the grant notice and fact sheet issued when a visa is granted. Ongoing compliance is essential to avoid the risk of cancellation. Non-compliance issues vary, depending on the visa type and the circumstances.
- Fraudulent conduct/information. A visa may be cancelled if the Department of Home Affairs becomes aware that the visa holder provided false or misleading information during the visa application process.
- Failure to meet the character test. Essentially, this will occur upon discovering that a visa holder:
- has a substantial criminal record
- has been convicted of an immigration detention offence
- presents a significant risk of engaging in criminal conduct
- belongs to, used to belong to, or is associated with a group, organisation or person involved in criminal conduct
- represents a danger to the Australian community
Getting Help
The cancellation of a visa is a serious matter. If a visa is cancelled, a person becomes an ‘unlawful non-citizen’, and may be placed into immigration detention or forced to leave Australia and prevented from re-entering for a specified period of time, or indefinitely. The removal from Australia on character grounds can make it extremely difficult for a person to obtain another visa to re-enter the country in the future.
If faced with the possibility of visa cancellation, seeking legal advice and understanding the appeal process is essential to present a strong case for retaining a visa.
For expert legal advice, contact one of our lawyers at [email protected] or call 02 92818111.