Key Takeaways
- If your visa application is refused or cancelled, you may challenge the decision through the Administrative Review Tribunal.
- Timely action is crucial: 7 days for detention appeals, 28 days for non-detention cases for protection visas, and various deadlines for general visas.
- There are specific costs associated with appeals: no fee for protection visa appeals, but a $3,000 fee for general visa appeals, with possible reductions.
- Character-related visa refusals have strict appeal timelines: 9 days in Australia for appeals, and 28 days to request revocation for mandatory cancellations.
- If the Tribunal rules against you, appeals to the Federal Court are limited to legal errors, requiring strong legal arguments.
Challenging Visa Refusals and Cancellations
If your visa application to visit, enter, or remain in Australia has been refused or cancelled, you may be eligible to challenge the decision. Navigating the appeals process requires a clear understanding of your rights, strict time limit, and the relevant legal pathways. This guide outlines the appeals process, key deadlines, costs, and available legal support.
The Administrative Review Tribunal
The Administrative Review Tribunal (the Tribunal) reviews decisions made by the Department of Home Affairs, and other government agencies, departments, or ministers. These decisions include:
- Protection visas: visas granted for individuals seeking asylum or fearing persecution.
- General visas: including visitor, student, partner, family, business, and skilled visas.
- Character-based decisions: visa refusal or cancellations due to criminal records or character grounds.
The tribunal replaced the Administrative Appeals Tribunal (AAT) and Immigration Assessment Authority (IAA) on 14 October 2024, with all existing cases transferred automatically.
Appealing a Protection Visa Decision
If your protection visa application is refused, you can request a review through the Tribunal.
Key Details:
- Time Limits:
- If you are in immigration detention, you must appeal within 7 working days.
- If you are not in detention, you have 28 days to lodge your appeal.
- These time limits cannot be extended.
- Cost:
- There is no application fee for a protection visa appeal.
- If your appeal is unsuccessful, a fee of $3,000 will apply.
What You Should Do: Seek legal advice immediately upon receiving the decision to ensure you lodge the appeal on item.
Appealing General Visa Decisions
If your application for a general visa (e.g., visitor, student, partner, business, or skilled visa) is refused, you can seek a review at the Tribunal.
Key Details:
- Application Fee: The fee for appealing a general visa decision is $3,000.
- Fee Reduction: The Tribunal may reduce the fee by 50% if you demonstrate severe financial hardship
- Refunds:
- If the Tribunal decides in your favour, 50% of the application fee will be refunded.
- If your application is deemed invalid, the full fee will be refunded.
- If you withdraw your application, refunds are only granted in limited circumstances.
What You Should Do: Carefully review your options and consult a legal professional to prepare a compelling case.
Appealing Visa Refusals or Cancellations on Character Grounds
If your visa has been refused or cancelled on character grounds, you can appeal this decision at the Tribunal.
Key Details:
- Character Grounds: a visa may be refused or cancelled if you:
- Have a substantial criminal record (e.g., sentenced to 12 months or more).
- Commit offences while in immigration detention.
- Notice of Cancellation: You will receive a Notice of Intention to Consider Cancellation, informing you of the Department’s intent to cancel your visa.
- Time Limits:
- You must lodge your appeal within 9 days if the decision of you are in Australia.
- For mandatory cancellations (e.g., criminal offences while serving a full-time sentence), you can request a revocation within 28 days.
- If the revocation is denied, you must appeal to the Tribunal within 9 days of notification.
What You Should Do: Contact a legal professional immediately to help you meet the strict deadlines and understand your options.
Appealing Tribunal Decisions to the Federal Court
If the Tribunal rules against you, you may be able to appeal to the Federal Court of Australia.
Key Details:
- Appeals to the Federal Court are limited to legal errors made by the Tribunal, such as:
- Procedural mistakes
- Misinterpretation or misapplication of the law.
- Federal Court appeals are complex and require strong legal arguments.
What You Should Do: Obtain expert legal advice right away to determine if you have valid grounds for appeal.
Costs and Time Limits Overview
| Visa Type | Time Limit for Appeal | Application Fee |
| Protection Visa | 7 days (in detention) 28 days (outside) | No fee (but $3,000 if unsuccessful) |
| General Visa | Varies (refer to refusal notice) | $3,000 (50% reduction possible) |
| Character-based Refusals | 9 days | $3,000 |
| Mandatory Cancellations | 28 days for revocation request | N/A |
Key Legislation
- Migration Act 1958: Governing legislation for visa refusals and cancellations.
- Adminitrative Review Tribunal Act 2024: Establishes the Tribunal’s jurisdiction and processes.
Resources and Support
- Federal Court of Australia: Information on judicial reviews and appealing Tribunal decisions.
- Department of Home Affairs: Resources on visa applications, cancellations, and policies.
- Victoria Legal Aid (VLA): Provides support for protection visa appeals, including interpreters and assistance for individuals with communication difficulties.
Conclusion
Challenging a visa decision requires understanding strict deadlines, procedural requirements, and potential costs. Acting promptly and seeking professional legal advice can significantly improve your chances of success. Ensure you explore all available resources and take timely action to protect your rights.
