AAT cannot review invalid visa application: What is the solution?
AAT cannot review an invalid visa application even if it is a combined visa application and a decision was made with regard to 1 of the applicants. Click here to learn when and how to apply for an AAT hearing and the types of decision that can be reviewed by the AAT.
For example, if you made a combined application for a Protection Visa or subclass 866 (click here to learn more) and the Department of Immigration (Department of Home Affairs) refused your application but did not make a decision in respect of your dependent or secondary applicant. Can your partner apply to the AAT or Administrative Appeals Tribunal to review his or her application?
The Australian Migration Act 1958 gives the AAT its power or jurisdiction to conduct a merits review on visa applications that have been refused by the Department of Immigration. With Protection Visa refusal, the power is conferred by Part 7 of the Act.
What is a Part 7 decision?
Under the Migration Act, section 414 (click here to learn more) states that if a review application for a Protection Visa or a refugee visa is validly made, it is a known as a Part 7 reviewable decision. The AAT is required to review.
Section 415 of the Act gives the AAT the power to review a Part 7 decision (click here to learn more). However, the AAT only has the power to review certain decisions to refuse to grant or to cancel a Protection Visa. If the Department of Immigration has not made a decision in respect to a visa applicant, then the AAT has no power to review that application. In short, if the Department of Immigration did not consider or make a decision regarding the visa application, then the AAT does not have the power to conduct a remits review on that invalid visa application.
If the Department of Immigration had decided that a Protection visa application was not validly made, then section 47 of the Act states that decision is not a Part 7 decision (click here to learn more).
An invalid visa application is an application that was withdrawn, or visa was granted, or visa was refused, or the applicant is prevented from applying.
An invalid visa application is not a decision to refuse
When the Department of Immigration returned your application as an invalid visa application, that does not mean your visa application was refused (click here to read Minister for Home Affairs v CLR15 [2019] FCAFC 45). The Department of Immigration may return your application as an invalid visa application because, for example, you failed to do your biometrics when asked.
You should re-submit your visa application as soon as possible.
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) regarding your visa application (click here to learn more about how an immigration lawyer can help you with AAT application). You may also refer to our FAQs for answers regarding visa application or visa cancellation by clicking here.
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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.
