My visa application was refused. What are my options for appealing the decision?

In Plain English:

If your visa application is refused, you may have the option to have the decision reviewed. The Migration Act 1958 and Migration Regulations 1994 outline which decisions are reviewable and by whom. Generally, you can apply to the Administrative Appeals Tribunal (AAT) for a review. However, there are specific time limits and fees associated with these applications. Also, the Minister has powers to override decisions in some cases.

Detailed Explanation:

The Migration Act 1958 and associated regulations, such as the Migration Regulations 1994, specify the circumstances under which a visa refusal can be reviewed.

Reviewable Decisions:

• Regulation 4.03 of the Migration Regulations 1994 outlines decisions that are not reviewable.
• Regulation 4.12 of the Migration Regulations 1994 lists decisions that are considered reviewable migration decisions. These include decisions related to sponsor approvals, nomination refusals, security requirements, and certain visa refusals (e.g., Subclass 457, 482, 494, 489, 491, and 407 visas) under specific circumstances.

The Administrative Appeals Tribunal (AAT):

• If a decision is reviewable, an application can be made to the AAT for review.
• Section 347(2) of the Migration Act 1958 allows the Migration Regulations 1994 to prescribe information and documents required for review applications (see regulation 4.12A).
• Regulation 4.13 of the Migration Regulations 1994 prescribes the fees for AAT review applications, which can be substantial (e.g., $3,496), although waivers may apply in certain cases.

Ministerial Intervention:

• The Minister has personal powers to cancel visas under certain circumstances, even if a tribunal has made a different decision. For example, sections 133A and 133C of the Migration Amendment (Character and General Visa Cancellation) Act 2014, amending the Migration Act 1958, allow the Minister to cancel a visa if they believe a ground for cancellation exists under sections 109 or 116 of the Migration Act 1958, and that it is in the public interest to do so. This can occur even if a tribunal has previously decided that the ground did not exist or decided not to cancel the visa.
• The Minister can also set aside decisions of the AAT in certain circumstances (see subsections 133A(6) and 133C(6) of the Migration Amendment (Character and General Visa Cancellation) Act 2014).

Important Considerations:

• Time Limits: There are strict time limits for applying for a review.
• Notification: If the Minister decides to cancel a visa, they must notify the visa holder of the decision, the grounds for cancellation, and any review rights (section 50AM of the Migration Reform Act 1992).
• Validity of Decision: Failure to give notification does not affect the validity of the decision (section 50AM(3) of the Migration Reform Act 1992).
• Non-refundable Fees: Subject to regulations, fees paid for a withdrawn application are non-refundable (section 26Q(4) of the Migration Reform Act 1992).