Administrative Appeals Tribunal Replaced | An Update
The government has announced Australia’s Administrative Appeals Tribunal (AAT) will soon be replaced with a new body to process reviews of adverse government decisions such as visa cancellations and refusals.
Since the AAT was established in 1976, it has helped to promote the quality, consistency and fairness of administrative decisions made by the government across areas such as Migration, Social Welfare, Taxation and Corporation and Financial Services. Migration was added to its portfolio in 2015 with the number of reviews in this area being significantly larger than other AAT divisions.
However, recently there have been concerns that the current system has not been functioning optimally, which has resulted in a significant backlog of AAT cases. To alleviate this, the government has committed $63.4 million over two years to address the backlog.
The government has also recognised a new merits-based and transparent approach to appointing AAT members is required. It announced that an Expert Advisory Council will be tasked with guiding the reform of the AAT, including the recruitment of an additional 75 new members.
The expectation is that the new body will help to reduce processing delays experienced in recent years at the AAT. Here’s what the tribunal replacement means for visa cancellations and refusals.
When will the new federal administrative review body be in place?
This will depend on how quickly the government moves through the processes of public consultation and the passage of laws, which are subject to parliament consideration.
The government announced it expects to develop legislation on how the new body will be governed in coming months and will introduce this to parliament in 2023.
What happens if my visa is refused or cancelled while the new review body is being established?
The AAT is still operating as normal until a replacement body is established, which means you can continue to apply for a review of a visa decision at this time.
Existing cases that have been submitted for review by the AAT will be unaffected. The AAT stated that it expects many cases currently before the AAT will be decided or finalised before it is replaced, and any remaining cases will be transferred to the new review body. Applicants will receive notice by the AAT if their case is transitioned to the new body.
Cases that have already reached a decision by the AAT are considered valid and final, apart from options to appeal further to a court. They will not be considered again by the new federal administrative review body.
How does the AAT review decisions for visa refusals and cancellations? | Merits Review
The AAT reviews decisions “on the merits”. This means they take a fresh look at the relevant facts, law and policy and arrive at its own decision on whether a visa should have been cancelled or refused.
The AAT has the power to affirm, vary or set a new decision, or remit a decision to the decision-maker for reconsideration.
How is a ‘merits review’ different to a ‘judicial review’ of a visa decision?
A merits review is usually the first step to seek a review of a government administrative decision, such as a visa cancellation or refusal. It is an administrative reconsideration of the facts of the case and the legislation.
If your attempt for a merits review was unsuccessful at the AAT, you may be able to apply for a judicial review of the tribunal’s decision at a court.
Judicial review is a review by the court to determine whether the decision maker (for example, the AAT) acted within its powers to make the decision and if it was made fairly without the error of law.
What is involved in the process of applying for a merits review of a visa refusal or cancellation decision?
To apply for merits review of a decision by the Department of Home Affairs to cancel or refuse a visa, you will need to provide evidence and submissions about:
- Whether the grounds for cancellations/refusal exist and;
- Whether or not the visa should be cancelled/refused.
You should prepare your evidence and submissions in a way that is clear and compelling. Unfortunately, many people underestimate the difficulty of the process involved as it often requires an understanding of the migration legislation surrounding your case.
You may also have a deadline to apply before a certain date stated in your Department notice. It can be beneficial to consult a Registered Migration Agent that is experienced in visa refusal and cancellation cases, such as Interstaff.
Interstaff | Visa Refusal and Cancellation Experts Since 1988
Should you require professional advice on your visa or sponsorship options, we encourage you to contact Interstaff’s Registered Migration Agents.
Interstaff is an Australian-owned and operated business providing strategic migration advice to businesses and individuals Australia-wide and internationally since 1988. Simply call Interstaff’s Migration Agents on 08 9221 3388 (Perth) or 02 7200 2567 (Sydney) or 03 8319 0902 (Melbourne) or +61 8 9221 3388 (International).
Attorney General’s Media Release