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After months, or often years of waiting on a decision from the
Department of Home Affairs (DHA), receiving a refusal notice can be
a stressful experience. Whilst the Administrative Appeals Tribunal
(AAT) may offer a pathway to appeal a negative outcome, approaching
the AAT process itself can be complex and daunting. With the right
guidance and understanding, you can effectively appeal the
DHA’s decision for a more favourable outcome.
UNDERSTANDING THE AAT
Before delving into the appeal process, it is essential to
understand the role and jurisdiction of the AAT. The AAT is an
independent body that reviews decisions made by the DHA, with a
sole function of making administrative decisions. The decision
makers have been appointed by the Government and are called
Members. The AAT Member’s role is to review your case and give
you the opportunity to present your arguments and evidence, in a
fairly informal setting.
INITIATING THE REVIEW PROCESS
The first step in seeking review by the AAT is lodging an
application within the prescribed time frame. Depending on the type
of application refused, the prescribed time frame can differ. It is
crucial to act promptly as there are strict time limits for lodging
appeals. Once the time limit is missed, your opportunity to appeal
is lost. The specific process for lodging an application can vary
depending on the type of decision being challenged and the relevant
legislation, it is important you submit your application correctly
to validly appeal the decision.
PREPARING YOUR APPEAL APPLICATION
Once your application is lodged, you will need to prepare your
supporting documents and submissions. This involves gathering
relevant documents, evidence, and supporting materials to
substantiate your claims. In some cases, it may even require
preparing witnesses for your hearing. It is essential to thoroughly
review the reasons for the original decision and ensure it is
sufficiently addressed in the appeal application. Seeking legal
representation can be invaluable at this stage, as they can provide
guidance on strategy, evidence collection, and legal arguments.
ATTENDING THE HEARING
In some cases, the AAT may decide your application based on
documents and submissions alone. However, the AAT will often
schedule a hearing to consider the matter further. This provides
you with an opportunity to respond to questions from the AAT Member
about your submissions. In cases where a subjective criteria is
under review, or your general character or credibility are being
assessed, the presiding Member may prefer to meet you face-to-face.
Preparation is key to success at the hearing, so ensure that you
are well-versed in the facts of your case, familiar with relevant
legislative criteria, and are confident in articulating your
position.
During your hearing, you will be seated opposite the AAT Member
making the decision in your case. If required, you have the option
to request an interpreter to be present which is organised by the
AAT to assist with communication between you and AAT Member. You
are also welcome to be accompanied by your legal representative, a
support person, and any witnesses you have requested to give
evidence.
If the AAT Member is not satisfied with the supporting evidence
and oral evidence provided, they may request further submissions or
documents to be provided after the hearing within a specified
timeframe.
RECEIVING THE TRIBUNAL’S DECISION
Following the hearing, the AAT will consider all the evidence
and submissions presented to make a decision. This decision will be
communicated to you in writing, outlining the AAT’s findings
and reasons for its determination. The most common outcomes
are:
- Affirm the decision – the AAT agrees
with the DHA’s original outcome - Set aside the decision – in this case
the AAT may substitute a new decision to replace the DHA’s
previous decision - Remit the decision – the AAT has made a
positive decision and sends it back to the DHA to finalise the
application
The AAT can only set aside decisions for certain types of
applications. The benefit of this is the DHA is not required to
further assess the application. If your application is remitted,
the DHA is then required to further process the application and may
assess other aspects of the application which were not considered
in the original decision. Once satisfied that the remaining
criteria has been met, a final decision is made by the DHA.
Navigating the AAT process can be complex and challenging, but
with the right guidance and preparation, you can effectively appeal
your application.
If you have received an adverse decision from the DHA and are
considering seeking a review with the AAT, we recommend seeking
legal advice from experienced practitioners who can provide
tailored support throughout the process.
By understanding the steps involved and taking proactive
measures to prepare your case, you can maximize your chances of
achieving a favourable outcome.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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