It is always best to submit any application for appeal within the prescribed time limit to avoid an unnecessary negative result, however a new Federal Court decision now gives hope for those seeking late review.

Refusal or cancellation

If you have received a sponsorship, nomination or visa refusal or cancellation and want this decision reviewed, you will need to apply to the Administrative Appeals Tribunal (AAT) within a prescribed time limit.

Many applicants fail to seek advice or prepare their review application inside these deadlines and can miss out on the opportunity to have a negative decision overturned. In a recent decision of the Federal Court, it has now been recognised that the AAT has the discretion to accept late applications.

Time limits

If you receive a refusal letter from the Department of Home Affairs, it will typically specify that any appeals to the AAT must be lodged within 21 or 28 days. When this time limit starts also depends on how you received the refusal letter. For decisions to refuse or cancel a visa relating to section 501 character grounds, an appeal must be lodged within nine days.

The ruling

In the Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787 judgement handed down on 19 November 2018, Justice Greenwood held that the AAT has the power to extend the time for making an application for review of a decision under s 347(1)(b) of the Migration Act 1958 (Cth). This power is conferred on the AAT under s 29(7), (8), (9) and (10) of the Administrative Appeals Act 1975 (Cth).

How to apply for an extension

If your time limit has expired, you will need to ask the AAT to grant you an extension.
This must be done in writing and you can complete the relevant form on the AAT website, email the AAT or write a letter.
You must outline why you were unable to apply.
You can also call the AAT for advice on 1800 228 333.

Getting assistance

An appeal to the AAT can be a complex affair requiring legal submissions to be drafted. If a decision to refuse or cancel a visa is upheld, this can leave a permanent mark against your name affecting future visa applications.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.