Student Visa refusal AAT Appeal - HECT Migration & Appeal Experts

Student Visa Refusal Appeal

AAT Appeal

About student visa refusal appeal

When appealing a student visa refusal in Australia, it’s crucial to comprehensively address the reasons stated by the Department of Home Affairs. This appeal, usually handled by the AAT, requires demonstrating a genuine temporary intent for study purposes. Key elements include showing ties to your home country, the relevance of your study program to future career goals, and financial stability for your stay in Australia. Each appeal is unique, requiring a tailored approach based on individual circumstances.

This article aims to guide you through this process and sheds light on recent student visa rejection statistics, emphasizing the importance of a customized strategy for each case.

AAT Review Rights

To be eligible for a review by the AAT, you must meet the following criteria:

You lodged your student visa application while you were in Australia.
You are physically present in Australia when you apply for the review.

If you submitted your student visa application from outside Australia, you won’t have the option to seek a review from the AAT.

Additionally, if the refusal decision is based on character grounds and was personally made by the Minister, you will also be ineligible for an AAT review

Deadline of submitting the AAT review

Understanding the deadlines for appealing an Australian student visa refusal to the Administrative Appeals Tribunal (AAT) is critical. For general cases, the application for a review must be submitted within 21 calendar days after you have been notified of the visa refusal decision. This strict deadline underscores the importance of acting promptly to ensure your right to appeal is not forfeited.

However, in situations where the refusal of your Australian student visa is specifically based on character grounds, the timeframe to seek a review is even shorter. Under these circumstances, you must apply for the review within just 9 calendar days following the notification of the decision. This expedited timeline applies provided that the refusal decision was not made personally by the Minister and that you would have been eligible for a review had the decision been based on another ground.

It is essential to be aware that the AAT does not have the authority to extend these deadlines for lodging your review application. Missing these specified time limits results in losing your right to appeal through the AAT. This loss may necessitate leaving Australia by a certain date, and failure to comply can have significant implications for your future visa eligibility. Furthermore, it’s important to consider that some options for addressing visa issues are only viable after an unsuccessful review by the AAT, as further elaborated later in this article.

Determine the Reasons for Your Visa Refusal

To begin with, it’s crucial to carefully review the refusal notification letter you received from the Department. This letter consists of two main components:

Notification of Refusal of Your Application:

Refusal Date and Receipt Acknowledgment
Note the refusal date and when you’re deemed to have received the letter for review purposes.
Review Rights Timeline
Pay close attention to the timeline for exercising review rights, typically 21 calendar days from the date you’re deemed to have received the refusal letter. This timeframe is critical for submitting a review application to the AAT.
Visa Status and Departure Requirements
Understand your current visa status and requirements for leaving Australia if not pursuing a review or alternative action.
Bridging Visa Expiry
In the section about your immigration status, note if it indicates that your bridging visa will expire in 35 calendar days if you don’t appeal. This is crucial for maintaining lawful status in Australia.
Information on Subsequent Visa Applications
Details on how lodging another visa application may affect your current visa status.

AAT Review Application Process
Find how to apply for an AAT review, including contact information for State registries.

Decision Record:

Application and Immigration Details
Includes visa subclass, application date, migration agent details, and immigration history.
Department’s Consideration
Outlines information and evidence assessed by the Department.
Findings and Criteria Assessment
Explains the reasons for not meeting visa criteria, with detailed reasons and legislative references.
Legislative Context
A separate section may detail relevant legislation for your case.
For comprehensive information, refer to the official documentation provided with the refusal notice.

After reviewing this information, the initial steps to take are:

Determine whether you have the right to apply for a review and be aware of the deadline for doing so.
Understand your current visa status in Australia and the deadline for departing the country or taking alternative action. Maintaining lawful status in Australia is crucial. Note these dates carefully and act promptly if any circumstances arise that may prevent you from leaving Australia by your visa’s expiration date. Seek assistance from a migration professional or the Department if needed. It’s essential not to overlook this and take immediate action to avoid potential issues that could impact your future visa eligibility in Australia.

AAT's Evaluation Criteria for Student Visa Appeals

When deciding on a student visa refusal appeal, the AAT evaluates several key factors:

Applicant’s Circumstances in Home Country:
This includes family, social, economic ties, and intentions after study completion.
Potential Circumstances in Australia:
Factors like living arrangements and community ties in Australia.
Course Relevance:
How the chosen course aligns with the applicant’s past studies and future career plans.
Immigration History:
Previous visa applications and compliance with visa conditions.

Each factor is crucial in determining the genuineness of the applicant’s intention to stay temporarily in Australia for educational purposes. For a comprehensive overview, you can refer to the AAT’s fact sheet here.

Key Information to Support Your AAT Review

When preparing information to support your review with the AAT, it’s essential to provide a comprehensive and compelling case. While the list below outlines examples of useful information, it is by no means exhaustive. The specific information you should provide will depend on your unique circumstances. Here are key points and considerations:

Reasons for Studying in Australia:
Explain why you chose to undertake your studies in Australia instead of your home country. This might include discussing the quality of education, specific courses, or academic opportunities not available in your home country.
Ties to Your Home Country:
Demonstrating strong ties to your home country is crucial. Provide evidence of any properties or assets you own there. Additionally, mention immediate family members and dependents residing in your home country, as these connections may encourage your return.
Employment in Your Home Country:
If you have current or proposed employment opportunities in your home country, provide relevant details and documents. Clearly express your intention to return or commence this employment after completing your studies.
Return Ticket:
If you have already purchased a return ticket to your home country, include this as evidence of your intent to leave Australia after completing your studies.
Enrolment Confirmation:
Present official confirmation of your enrolment in an Australian educational institution. This verifies your student status and commitment to your studies.
Past Academic History:
Include evidence of your prior academic achievements and qualifications. Discuss how your current course of study is relevant to your past education or proposed future employment.
Explaining Gaps or Failures:
If there are gaps in your study history or if you’ve experienced failures, provide explanations. Include medical reports or documentation if you’ve faced health issues that impacted your studies.
Supporting Statements:
Collect statements from credible individuals who can vouch for your character, commitment to your studies, or the validity of your case. These could be academic advisors, teachers, employers, or other relevant parties.
Correcting Departmental Information:
If you believe that specific information in the Department’s decision is incorrect, provide evidence to support your claim. This could include documents that contradict the information or expert opinions.
New Information and Changes in Circumstances:
Highlight any new information that has become available since the original decision or any changes in the circumstances of your case. Explain how these factors affect your eligibility for a student visa.
Additional Documentation:
Finally, submit any other documents or information that substantiate your circumstances, strengthen your case, or clarify any ambiguities.

Submitting Information to the AAT

It is advisable to submit your information to the AAT as early as possible.

If the AAT finds the provided information satisfactory, it may lead to a favorable decision without the necessity of a formal hearing.

Preparing Evidence for AAT Hearings

When attending a hearing, you will be asked to provide evidence and answer questions related to your application. It’s important to note that you should provide any additional information or evidence to the AAT no later than 7 days before the scheduled hearing date, or as specified if they request an earlier submission.

An AAT Member conducting the hearing will carefully consider all the information you present, including any documents you’ve previously submitted. The information and evidence you provide during the hearing are crucial in supporting your case.

Properly preparing this evidence well in advance of the hearing can be instrumental in presenting your case effectively and assisting the AAT Member in making an informed decision.

Steps in the AAT Appeal Process:

Step 1

Lodging an Appeal

Timeframe: The window for lodging an appeal is typically very tight, often 21 days from the date of the decision. Missing this deadline usually means losing the right to appeal.
Application Form and Fee: Complete the specific application form for visa decisions and submit it along with the required fee. There are provisions for fee reduction or exemption in certain circumstances.
Acknowledgment of Appeal: Once lodged, the AAT will acknowledge receipt of your appeal and provide a reference number.

Step 2

Pre-Hearing Developments

Submission of New Evidence: This is your opportunity to introduce new evidence or information not previously considered. This might include personal statements, expert opinions, or additional documentation.
Direction and Requests from AAT: The AAT may issue directions or requests for further information, which you must comply with by the specified deadlines.

Step 3

Hearing Preparation

Understanding the Process: Familiarize yourself with the hearing process. The AAT hearings are less formal than court proceedings, but proper protocol is followed.
Representation: Decide whether to represent yourself, hire a legal professional, or engage a migration agent. This choice can significantly impact your case.

Step 4

The Hearing

Presentation of Your Case: You or your representative will present your case, argue your points, and answer questions posed by the AAT member.
Nature of the Hearing: Hearings can vary in length and complexity. Some may be completed in a day, while others may require adjournments.

Step 5

Decision Making

Deliberation by the AAT: After the hearing, the AAT member will deliberate on the case. This period can vary in length.
The Decision: The AAT may either uphold the original decision or overturn it, potentially resulting in a different outcome for your visa status.

Step 6

Post-Decision Pathways

If Decision is Not in Your Favor: Explore further legal options, such as appealing to the Federal Circuit Court, if there are grounds to challenge the AAT’s decision.
If Decision is Favorable: The Department of Home Affairs will be directed to reconsider your visa application in line with the AAT’s decision.

Types of Decisions

Affirms:
The AAT agrees with the original decision and keeps it as is.
Sets Aside:
The AAT completely overturns the original decision.
Remits:
The AAT sends the case back to the original decision-maker for re-evaluation.

Cost

AAT Visa Appeal Application Fee
AUD 3,374

The fee is subject to the latest pricing set by the Administrative Appeals Tribunal (AAT).

AAT
Processing time

Processing Times (Calendar Days) – 1st July 2023, to 30th Dec 2023

Visa Category	50% of Cases (days)	90% of Cases (days)
Bridging	11	457
Family	789	1634
Nomination/Sponsor Approval	1306	1464
Partner	1374	1799
Permanent Business	1295	1491
Skill Linked	722	1132
Student Cancellation	393	502
Student Refusal	435	608
Temporary Work	903	1408
Visitor	326	436
Other	453	1079
Protection	1577	2212
Total Migration Categories	701	1604
Total Protection Categories	1577	2212
Total	959	2158

(Note: The numbers represent the median (50%) and 95th percentile (95%) processing times in calendar days for reviews finalized between July 1, 2023, and December 30, 2023.)

AAT review processing times are determined by the Administrative Appeals Tribunal and can vary based on the case category and workload. Ensure you submit all required documents with your AAT review application to avoid potential delays. Please note that processing times may change, and the provided estimates are for general reference only.

Other Options

Even if you have the right to request an AAT review, you also have the option to apply for another visa while you are in Australia. However, your choices will be influenced by the following considerations:

Section 48
Section 48 restricts visa applicants with this condition to only apply for specific visa subclasses, including the 491, 190, and 494 visas, while they are in Australia. For more details, please refer to the following link.
Section 48 bar.

Schedule 3
Schedule 3 of the Migration Regulations imposes additional requirements for granting onshore partner visas in cases where the visa applicant does not hold a substantive visa at the time of application. These additional requirements can be waived in certain limited circumstances.

Exclusion Periods
If your student visa was refused due to not meeting the Public Interest Criteria (PIC) 4020, you may be subject to an exclusion period of either three or ten years. During this period, you will not be eligible for another Australian visa. It is possible to apply for a waiver of this exclusion period in specific circumstances.

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