Preparing a Visa Refusal Appeal at the Administrative Appeals Tribunal (AAT)

Two powerful resources to prepare an AAT visa refusal appeal application

By
Mark Walsh
on
September 29, 2021
Category:
Hints, tips & how-to

It’s the sort of correspondence that any visa applicant or visa holder dreads to see. The Department of Home Affairs has notified you that your Australian visa application has been refused, or your current visa is cancelled.

 

Your options may be limited now, particularly if you don’t want to (or cannot) leave Australia to make another visa application.

 

You read the decision record and think the reason for refusal is weak, or there is some misunderstanding with the Case Officer.

 

So, you are considering a visa refusal appeal at the Administrative Appeals Tribunal (AAT).

 

Here’s a basic introduction to two resources for researching and preparing for your visa refusal appeal.

 

Let’s use a typical visa refusal example as a way to guide you in using these resources - a refusal of a second Working Holiday visa (subclass 417) application.

 

Many second Working Holiday visa application refusals occur because the Case Officer is not satisfied that you met the 3-month work requirement. Often the decision will come down to correctly calculating and demonstrating, with suitable documentation, the required three months (88days).

1. AAT website resources

Earlier this year, the AAT website received a well-deserved update. The new content is a vast improvement from that in the previous version of the site.

 

There are plenty of resources on the AAT website. However, let’s focus on the visa-specific resources available. Go to the AAT website. Choose resources, factsheets, migration and refugee reviews.

AAT website - Migration and Refugee review resources

The ‘general information’ links will give you a broader understanding of the AAT review process. In this case, we are looking at the ‘Preparing your case’ section– specifically, ‘Working Holiday Visa (Work Requirements)’

AAT website - Preparing your case - Second Working Holiday visa

These visa-specific factsheets will give you some great hints about what sort of documentation the AAT Member will be considering. Read the ‘what information can I give the AAT to support my review?”

AAT website - Second Working Holiday visa 'factsheet'

The document list may reveal any gaps in the documentation you provided for the original visa application. The list may give you further hints that you haven’t considered before.

 

For example, in your original visa application, you may have provided payslips and work references. However, you may have overlooked including personal bank statements (which indicate receipt of salary payments payment) or even evidence of travel to/ from the workplace.

 

Examine the list in the AAT factsheet to see where you could add to the body of evidence you provide to the AAT.

2. AustLII

 

The Australasian Legal Information Institute (AustLII) is a free online resource that publishes Australian legal materials, such as AAT review decisions. This database is the primary source of research material for Registered Migration Agents and lawyers for representing review applicants at the AAT.

 

Using this resource can give you an idea of how the AAT deals with similar cases to yours. You can find recent AAT decisions and get some great insight into what things the AAT is looking for with your type of case.

 

Please note, the following is only a very simplistic introduction to this powerful resource. It is not intended as legal assistance or as a replacement for such aid.

 

To start your research on your refusal, you’ll need to understand which legislative criterion you did not meet.

The legislative requirement for a typical second Working Holiday visa refusal is clause 417.211(5). Your decision record will give the full text of that criterion for your reference.

Look at your visa refusal decision record to find the specific legislative item.

Second Working Holiday visa refusal decision record sample

To start your AustLII research, go to the AustLII website

Select 'Cth' (Commonwealth),

AustLII website home page - choose 'Cth' (Commonwealth decisions)

...then 'Administrative Appeals Tribunal (AATA) 1976'

AustLII website - choose 'Administrative Appeals Tribunal (AATA) 1976 -'

In the search term, you would enter 417.211 - the relevant legislative item.

AustLII website - search term for cl 417.211

You’ll now start to look into the decisions which reference cl. 417.211. This process requires some time and patience because not all of the results will be relevant to your situation.


At the time of writing, the first two decision results were highly relevant. Let’s take a look some of the significant parts.

When researching previous AAT review decisions, take note of the following aspects of the record.

AAT review decision record example

a. Date of decision

 

Ideally, you’d like to review recent decisions. If the decision is too old, it may not reflect accurately the current approach the AAT is taking concerning the legislative item.

 

b. Reference to your legislative item.

In this case, cl. 417.211 (5) is relevant to the Second Working Holiday visa application refusal.

It is essential you make sure the search result contains your legislative item. It may be the case that the legislative item is mentioned in the AAT review decision only in passing. However, in this particular case, it appears that cl.417.221 (5) is the sole item the Member considered.

 

c. Decision

 

You can research positive and negative AAT outcomes because they may provide different insights you may not have considered.

In this case, the application was remitted to the Department of Home Affairs for further consideration. In other words, the review application was successful.

 

More details on decisions to come in future articles.

d. Consideration of Claims and Evidence

AustLII website - Consideration of Claims and Evidence

The ‘Consideration of Claims and Evidence’ section provide some clear insight into the sort of documentation the AAT considers helpful. Use decisions like this to get ideas about which documents you could compile in your AAT review case.

 

This section is also helpful because it may give you insight into other circumstances the Member may consider when deciding. In the case above, the Member noted that the employer had ceased to trade, therefore has accepted the applicant’s inability to provide certain supporting documents.

 

All of this sort of information is useful.

Final Thoughts

 

This article gives you some insight into the resources used by Registered Migration Agents or lawyers when preparing a visa appeal application for a client at the AAT.

Trying using this basic introduction to research resources for preparing your AAT visa refusal review application. If you find the details too overwhelming, consider contacting a Registered Migration Agent or lawyer to get advice on your situation.

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The information provided in this article or anywhere on this website is of a general nature, it does not relate to your specific circumstance. This general information must not be used to form any assessment or opinion on individual visa eligibility. For an individual assessment you must contact us for a consultation session to confirm if you are eligible for any visa. 

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Mark Walsh

Registered Australian Migration agent | Content Writer | MARN 0848884 | Melbourne, Australia