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Migration Law: Administrative Appeals Tribunal

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Question:

Discuss about the Migration Law for Administrative Appeals Tribunal.

 

Answer:

Introduction

Lily Lee can file appeal in Administrative Appeals Tribunal (AAT), against the decision of cancellation of Visa. In case of refusal or cancellation of Visa appellant can file appeal in AAT, because from 1st July 2015 AAT is the only merit review tribunal which can make a decision. AAT is an independent organization, which review the decision made by government.

AAT does not review all the decisions, for example in case minister personally decide to refuse or cancel the visa under section 501 of the Migration Act 1958, then person cannot file appeal against the decision of minister in AAT[1]. AAT generally review the following decisions:

General Division, this Division Review all the Decisions Relating to:

Matters of character

Matters related to citizenship of appellants.

Matters related to Office of the Migration Agents Registration Authority.

  • Migration and Refugee Division (MRD), this division review all the matters related to refusal and cancellation of migration and refugee visa.
  • Immigration Assessment Authority, it is n independent office within the AAT, this division review the matter related to protection visa decisions.
 

Lily must lodge her appeal within 9 days from the date it is deemed that she is notified of the decision. The amount of time is depending on the way through which notice is received by Lily[2].

Yes Lily can apply for the partner Visa, even if her visitor visa was cancelled but for some particular visa. According to section 48 of Migration Act 1958 any person who is non-citizen in Australia, and whose visa is refused or cancelled can apply for particular visas. In this case, Lily was deporting from Australia within 10 days as per the decision, but she married from Bob who was naïve Australian Chinese, and worked in the same restaurant in which Lily worked. They just got married by simple registry process[3].

They applied for the Visa Partner visa (subclasses 820 and 801). For applying under this visa it is necessary that partners are genuinely in a relationship, and does not married for the getting resident visa in Australia or for any other reason. It is necessary that both the parties give their free consent to the relationship[4].

Yes Lily can file appeal against the decision of DIBP. In this case Lily can file appeal Migration and Refugee Division (MRD or MR Division). Migration and Refugee Division review the decisions made by Department of Immigration and Border Protection for refusal and cancellation of visa. Any decisions which formerly reviewed under Migration Review Tribunal and Refugee Review Tribunal are now reviewed in division of migration and refugee[5].

In this case Lily has 150 calendar days to file an appeal. In this 150 calendar days are counted from the day on which decision was lodged by Department of Immigration and Border Protection, and it shall be 90 days also and 90 days are counted from the day on which decision was constituted[6]. Lily cost fee for $A 1673 for filing appeal under migration law[7].

In this case, while appeal is pending Lily actually become pregnant from the Bob child and at the day of hearing she attends the hearing with her new born baby. Yes this new consideration is relevant and tribunal considers this while making the decision. In case of permanent partner visa (subclasses 100 and 801), visa is not granted to the person less than two years from the date of application. But there are some exceptions to this rule; visa is granted to the person if they have dependent children[8].

 Yes, Lily gets refund of the fees she paid for the appeal. Tribunal refunds the fees in the case when decision is in the favor of the appellant. Tribunal refund 50% of the fees of the full application, if appellant receives decision in his favor. Tribunal also refunds the fees if it found that application is invalid.

 

Bibliography

Websites

Australian Government: DIBM. What if my visa application is refused or my visa is cancelled. Accessed on 17th October 2016. https://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/what-if-my-visa-application-is-refused-or-my-visa-is-cancelled. 

AAT. Time limits. Accessed on 17th October 2016. https://www.aat.gov.au/applying-for-a-review/time-limits. 

Commonwealth Consolidated Acts. Migration Act 1958 - SECT 48. Accessed on 17th October 2016. https://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s48.html. 

Australian Government: DIBM. Partner visa (subclasses 820 and 801). Accessed on 17th October 2016. https://www.border.gov.au/Trav/Visa-1/801-. 

AAT. Migration and Refugee Division. Accessed on 17th October 2016. https://www.aat.gov.au/migration-and-refugee-division. 

AAT. Time Standards. Accessed on 17th October 2016. https://www.aat.gov.au/migration-and-refugee-division/applying-for-a-review/time-standards. 

AAT. How much will it cost. Accessed on 17th October 2016. https://www.aat.gov.au/migration-and-refugee-division/steps-in-a-review/how-much-will-it-cost. 

Australian Government: DIBM. Partner Migration. Accessed on 17th October 2016. https://www.border.gov.au/FormsAndDocuments/Documents/1127.pdf.

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