Can You Appeal Your Migration Decision (and Should You)?
15 Feb 2021
When a visa applicant receives a refusal decision, it’s only natural that their immediate reaction is to enquire into making an appeal. This is not always a simple decision and involves practical and cost considerations, as well as exploring the legal questions to be raised.
These decisions are also complicated by the current COVID-related travel restrictions.
As a general rule of thumb, most onshore visa refusals can be appealed to the Administrative Appeals Tribunal (AAT). The AAT has the legal authority to reconsider the whole visa application (known as a ‘de novo’ review). It can even consider additional evidence that has come to light since the visa refusal. A bridging visa will be issued to the applicant once the Department of Home Affairs is notified of the appeal. For certain visas, this can offer a chance to sort out issues raised in the refusal before any hearing takes place. A bridging visa may also allow the applicant to continue with their studies or work.
For example, an applicant refused an onshore partner visa can utilise the bridging visa period (currently more than 24 months) to accumulate further evidence to show that their relationship with their sponsor/partner is genuine and ongoing. This evidence includes updated photos, chat logs and joint mail, household bills, bank accounts and social invitations.
The obvious downside is cost – lodging an appeal currently costs $1,826.00 but preparing the relevant submissions, collating the documents and appearing at the hearing can cost between $12,000 and $15,000. In addition, there is the often long and uncertain wait period (up to 18 months), and the strain that it involves. Pre-2020, it was often easier (and cheaper) for the applicant to return to their home country and make a fresh visa application. COVID has changed this situation somewhat, but any decision to appeal must still be considered carefully.
Appealing a work visa refusal can be more complicated. For employer-sponsored visas, it may be that the employer themselves has been refused approval as a work sponsor, or they have failed to put forward persuasive evidence that the applicant’s proposed position cannot already be filled from the domestic labour market. In these circumstances, the proposed employee may have little input into the decision to appeal, which will typically be governed by commercial considerations. The proposed employee (if they are onshore) may face a lengthy period (up to two years) of uncertainty waiting for the outcome of an appeal in which they have a personal stake, but little control.
Again, it may be that the employee has another option available to them (such as applying for a partner visa or being sponsored by another employer). Careful planning and accurate advice are needed to allow them to choose the best option.
Beyond the AAT, it is sometimes possible for an appeal in either of the above cases to be made to the Federal Court.
It is important to understand what the Federal Court can and cannot do. Unlike the AAT, the Federal Court has little power to re-make the refusal decision from scratch. The Court looks at how the decision was made, rather that substituting a new decision. It can only consider whether a legal mistake has been made by the previous decision-maker, for example, was the decision made without relevant evidence?
In the last 10–15 years, the Court’s large caseload has meant its decisions have become very technical and complicated, and it is often not easy to give straightforward advice about prospects of success. If the Court does find that there was a legal error, however, it will refer the matter back to the original decision-maker and prevent the Minister for Home Affairs from acting on the original decision.