The Department of Home Affairs (DHA) is responsible for making decisions related to visas in Australia. If you disagree with a decision made by the DHA, you can apply to the AAT for a review of that decision, if a review option is available. The AAT is an independent body that provides a final, independent review of visa and visa-related decisions made by the DHA.
The Outcomes of an AAT Review
There are several outcomes of an AAT review:
- If the AAT affirms the DHA’s decision, it means that the decision will stand and will not be changed. The effect of this is that the DHA’s decision remains in force.
- If the AAT sets aside the DHA’s decision, it means that the decision will be changed. The AAT may also replace (substitute) the DHA’s decision with a new decision.
- If the AAT remits the DHA’s decision, it means that the DHA must reconsider the decision, taking into account any directions made by the AAT. The effect of this is that the DHA is required to reconsider the application having regard to any directions made by the AAT.
- If the AAT decides that it has no jurisdiction to review the DHA’s decision, it means that it does not have the power to review the decision.
If you think that the AAT’s decision is wrong in law, you may be able to seek judicial review in the Federal Circuit and Family Court of Australia within 35 days of the decision of the AAT.
Combined Applications
In cases involving members of the same family, any document or correspondence given by the AAT to the primary review applicant or an authorized recipient will apply to all members of the family who combined their applications, unless otherwise indicated.
What Happens Next?
After the DHA receives the advice on the AAT’s decision on your review, the DHA will act to give effect to the AAT’s decision. Your immigration status in Australia may change following the AAT’s decision.
If you hold a bridging visa that is associated with the application that was reviewed by the AAT or with a decision to cancel a visa, the status of your visa may change as a result of the AAT’s decision.
- If the AAT sets aside the DHA’s decision and substitutes a decision that your visa be granted, your bridging visa will cease.
- If the AAT remits the DHA’s decision back for reconsideration, your bridging visa will remain in effect while your application is being processed by the DHA.
- If the AAT affirms the DHA’s decision or decides that it has no jurisdiction to review the decision, your bridging visa will cease either 35 days after the AAT’s decision is made (if your bridging visa was granted on or after November 19, 2016) or 28 days after you are notified of the AAT’s decision (if your bridging visa was granted prior to November 19, 2016).
- If you decide to seek judicial review of an AAT decision, you may be eligible for a bridging visa that will keep your immigration status lawful throughout this process. You should apply for another bridging visa before your current bridging visa ceases.
The effect on a bridging visa may be different if there is a decision to set aside the DHA’s decision and substitute a decision not to cancel a visa, or if the visa application is invalid. In these circumstances, contact a Registered Migration Agent for specific information about your situation.
If you do not have a visa to remain in Australia and you are unable to depart Australia due to travel restrictions or no available flights or other reasonable reasons or have no merits of being granted any other visa, you must apply to the DHA for a Bridging Visa E, if allowed by law, to remain temporarily in Australia.
You will be expected to leave Australia as soon as practicable once your departure from Australia becomes possible.
The Minister for Home Affairs’ Power to Substitute a More Favorable Decision
The Minister for Home Affairs has powers under the Migration Act 1958 to substitute a more favourable decision for any decision made by the AAT. This means that the Minister can change the AAT’s decision if they think it is more appropriate. If the Minister substitutes a more favourable decision, the AAT’s decision will no longer be in effect.
Conclusion
The AAT provides a review process for decisions made by the DHA related to visas in Australia. If you disagree with a decision made by the DHA, and review rights are available to you, you can apply to the AAT for a review of that decision. There are several outcomes of an AAT review, including affirming the DHA’s decision, setting aside the DHA’s decision, remitting the DHA’s decision back for reconsideration, or deciding that it has no jurisdiction to review the decision. If you think that the AAT’s decision is wrong in law, you may be able to seek judicial review in the Federal Circuit and Family Court of Australia within 35 days of the AAT’s decision. The status of your visa may change as a result of the AAT’s decision, and special arrangements are in place during the COVID-19 pandemic for individuals who are unable to leave Australia. The Minister for Home Affairs also has the power to substitute a more favourable decision for any decision made by the AAT.
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If you believe that the AAT’s decision is wrong in law and you would like to seek judicial review, it is recommended that you contact an immigration lawyer for guidance on the process. If you have any questions or concerns about your immigration matter or would like assistance with the AAT review process, it is also recommended that you contact a registered migration agent for professional guidance.