Appeals and Court Proceedings
No Borders Migration Advocates is well placed and legally highly experienced to provide assistance and advice where your visa application is refused or you receive an unfavourable outcome on an application or appeal.Court Proceedings
Registered Migration Agents and Lawyers in our dedicated and experienced team have the expertise to prepare necessary submissions and appear on your behalf before the Administrative Appeals Tribunal or the Federal Court.
The services we offer include:
- Providing advice, preparing and drafting submissions to the Department of Immigration and Border Protection where you receive an ‘Invitation to Comment’ or ‘Request for More Information’ on a particular matter
- Assisting with applications for review by the Administrative Appeals Tribunal of decisions by the Department of Immigration and Border Protection
- Advice in relation to Ministerial Intervention applications as well as drafting Ministerial Intervention submissions to the Minister for Immigration and Border Protection
- Assistance with judicial review applications by the Federal Circuit Court of Australia
- Representation before the Federal Court of Australia
Review by the Administrative Appeals Tribunal
If your Australian visa, citizenship, company nomination or sponsorship application has been refused, or your visa or sponsorship is cancelled, you may have an opportunity to seek review of the decision by the Administrative Appeals Tribunal.
Our Migration Agents/Lawyers can advise whether your matter is eligible for review, the likelihood of success and what other options you may have at your disposal.
We will advise on the costs involved in seeking a review of a decision by the Tribunal, inform about applicable timeframes and due dates as well as assist in obtaining information and documents relied upon by the decision maker in refusing your application. Prior to preparing and submitting your application to the Administrative Appeals Tribunal we will review your documentation, and the material used in arriving at the decision to refuse or cancel, and we can guide you in your efforts to prepare to attend at a Tribunal hearing where required or appear on your behalf.
The Administrative Appeals Tribunal is a statutory body established by the Administrative Appeals Tribunal Act 1975. It conducts de novo independent merits review of administrative action such as decisions on visa applications and visa related matters made by officers of the Department of Immigration and Border Protection.
The Tribunal will look afresh at the facts, law and policy relating to the decision, when conducting a review, so as to arrive at a legally correct decision or, where there is more than one correct decision, make a decision that it deems preferable.
The Tribunal has the power to affirm a decision concerning a visa. It can also vary a decision, set aside a decision and substitute a new decision, or remit a decision to the decision-maker for reconsideration.
In carrying out its functions, the Tribunal is to pursue the objective of providing a mechanism of review that is accessible, fair, just, economical, informal and quick, as well as proportionate to the importance and complexity of the matter whilst promoting public trust and confidence in the decision-making process.
The time limit for making an application to the Administrative Appeals Tribunal is ordinarily stated in the decision subject of the review and will usually be 28 days after the decision to be reviewed is received.
The Migration Act 1958 gives the Minister for Immigration and Border Protection the power to substitute a decision of the Administrative Appeals Tribunal with another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
In exercising the powers under the Migration Act 1958, the Minister is guided by various principles and may consider factors such as, for example, whether application of the relevant legislation would lead to unfair or unreasonable results in a particular case, whether strong compassionate circumstances exist such that a failure to recognise them would cause irreparable harm and continuing hardship to an Australian citizen or family unit, whether exceptional economic, scientific, cultural or other benefit to Australia would result from the visa applicant being permitted to remain in Australia, and whether the applicant can demonstrate that the length of time he or she has been present in Australia has given rise to a sufficient level of integration into the Australian community.
Where a decision is made by the Tribunal to affirm the decision under review, or that the Department’s decision should not be changed, or the Tribunal determines that there is no jurisdiction to review a decision, the Ministerial Intervention application will need to be submitted 28 days after notification of the decision is received.
At No Borders Migration Advocates we take pride in the knowledge and competence of our Migrations Agents/Lawyers in providing assistance and advice in relation to Ministerial Intervention Applications.
The Federal Circuit Court of Australia
The Federal Circuit Court of Australia can review specific decisions made under the Migration Act 1958, and these encompass decisions made by the Minister for Immigration and Border Protection and the Administrative Appeals Tribunal.
The Federal Circuit Court can judicially review a decision in order to determine if a jurisdictional error has been made; whether the decision is made according to law. Whilst the Federal Circuit Court is independent of the decision makers of the Department of Immigration and Border Protection, it does not consider the merits of individual applications or whether the visa applicant ought to be granted a visa.
If the Federal Circuit Court identifies a jurisdictional error, it can refer the matter back to the decision maker, and prevent the Minister from taking steps in conformity with the decision. The Federal Circuit Court will not reconsider the facts and reasons for the visa application, grant a visa or take new factual information into account unless it is relevant to the question of whether the decision maker made a jurisdictional error.
An application for review must be filed within 35 days of the date of the migration decision and a further visa application typically needs to be made.
The Federal Court of Australia
In some circumstances, a migration matter may be brought before the Federal Court of Australia.
Under the Migration Act 1958, the Federal Court has original jurisdiction in relation to a migration decision if the Federal Circuit Court transfers a pending proceeding in relation to the decision to the Federal Court, or the decision is a privative clause decision or a purported privative clause decision of the Administrative Appeals Tribunal, or the decision is a privative clause decision or purported privative clause decision made personally by the Minister, or the Federal Court has jurisdiction in relation to the decision under provisions of the Administrative Appeals Tribunal Act 1975.
A decision in relation to which the Federal Court may exercise its jurisdiction includes the suspension, cancellation, revocation or refusal of a visa and also situations where there is a failure or refusal to make a decision.
Whilst the Federal Court does not review the merits of a migration decision, it may determine whether the migration decision has been tainted by jurisdictional error. Examples of jurisdictional error include the decision-maker identifying a wrong issue, asking a wrong question, ignoring relevant material, relying on irrelevant material, or incorrectly interpreting or applying the law to the facts in a manner that affects the exercise of power.
As with applications to the Federal Circuit Court, an application to the Federal Court to review a migration decision has to be made within 35 days of the date of the migration decision and a further visa application may be required.
The team of Registered Migration Agents and Immigration Lawyers at No Borders Migration Advocates have the skills, competence and experience to provide quality advice and representation in cases adjudicated upon by the Federal Court of Australia.
Free Initial Consultation
At No Borders Migration Advocates we pride ourselves on our solid track record with Ministerial Intervention submissions, Administrative Appeals Tribunal review, and matters involving judicial review applications and hearings before the Federal Court and Federal Circuit Court of Australia.
We welcome enquires pertaining to our services with Ministerial Intervention applications and proceedings under the jurisdictions of the Administrative Appeals Tribunal, the Federal Circuit Court of Australia or the Federal and Federal Circuit Court of Australia and we offer initial consultations at no cost (please contact us beforehand as conditions may apply).Book a Free Consultation»