If you have received an adverse decision from the Administrative Appeals Tribunal (AAT), you may be able to appeal the decision to the Federal Circuit Court (the Court).
The Court only reviews a decision in order to determine if a “jurisdictional error” has been made by the AAT. This means the Court determines if the decision of the AAT has been made according to law.
Examples of jurisdictional errors include the decision-maker:
1. not adopting a fair process in making the decision (i.e. failing to afford you “procedural fairness”);
2. identifying a wrong issue;
3. ignoring relevant facts, claims, considerations or materials the decision-maker was required to look at;
4. relying on considerations or materials the decision-maker should not have looked at;
5. incorrectly interpreting or applying the law;
6. reaching a decision that is unreasonable in the legal sense;
7. making a decision for which there was no evidence, or that was not reasonably open on the materials before it; and/or
8. being biased in the course of their decision, or making a decision in a manner that would cause a reasonable, fair minded lay observer to perceive the decision as being biased.
If the Court finds a jurisdictional error in the decision of the AAT, it can refer your case back to a different decision maker at the AAT with directions that the matter be heard again a according to law.
The Court cannot:
1. reconsider the facts and reasons for your visa application;
2. take new factual information into account (unless it is relevant to a question of whether the decision maker made a jurisdictional error); or
3. grant you a visa.
If your appeal to the Court is successful, your case will be remitted back to the AAT with directions that it be heard again according to law. Only the DIBP can grant you a visa, so you must also be successful in your subsequent AAT hearing for you to potentially have a visa refusal overturned or a visa cancellation set aside.
There are strict time limits that apply if you wish to appeal a decision of the AAT to the Court. You will have 35 days from the date you were informed of your AAT decision to appeal. This can be extended in limited circumstances.
If you lodge an appeal to the Court, you will not automatically be granted a new Bridging Visa. You must apply for a new Bridging Visa and should do so within 28 days of the AAT’s decision if you want to ensure the most beneficial Bridging Visa is granted to you.
We offer all our prospective clients an initial meeting, during which we will examine the decision of the adverse AAT and let you know what we can do for you moving forward.
To organize a initial consultation with us, please contact one of our experienced immigration lawyers on (02) 9590 3987.