The Visitor (Class FA) subclass 600 visa, granted at the condition of 8101, prohibits the visa holder from engaging in work in Australia. In the present case, Lily was granted this visa with 8101 condition and still she engaged in work. Upon cancellation of her visa, Lily has the option to get the decision reviewed by the Administrative Appeals Tribunal (AAT). Further, Lily has the option to get a judicial review of this decision through the Federal Court. Lastly, Lily also has the option to get ministerial intervention, but such decisions are only reviewed by the Minister under special circumstances.
The general time limit for filing an appeal against the AAT decisions is 28 days, but in specific cases, this limit is sometimes shorter or longer. The Migration decisions, in terms of cancellation of the visa, have to be appealed against within 9 days of such decision.
The Migration Act, 1958 (the Act), along with the Migration Regulations, 1994 (the Regulations), governs the migration process in Australia. As per Section 5F of the Act, a person is considered as a spouse of another, if they are in a married relationship. Further, such individuals are considered to be in a married relationship only if they have been married to each other and such marriage is valid for the purpose of this act; there is a presence of mutual commitment to share their lives as a husband and wife; the relationship is genuine, as well as, continuing; and the couple lives together, and where they live separately, such separation is on a temporary basis.
But, Section 48 of the Act, a person is barred from applying for another visa, if the visa of such person has been cancelled, while in Australia, unless such person fulfills the prescribed criteria. So, even though Lily married Bob, she is cannot apply for the Partner visa.
The decisions made by the Department of Immigration and Border Protection, or DIPB, regarding the refusal or cancellation of the visas are reviewed by the Migration and Refugee Division, or MRD. The Immigration Assessment Authority has been established within the MRD of the AAT. If the DIPB refuses application for a visa, a person can get such decision reviewed from the AAT. So, Lily can appeal to the AAT.
The time limit to apply for a review to the AAT is depended upon the mode of communication. If the notice for the cancellation of visa has been posted to the visa holder, the date of deemed notified is seven working days, excluding public holidays, as well as Saturday-Sunday, from the date of such notice. After this, the individual has nine days, including the Saturday-Sunday but excluding the public holidays, from the date of deemed notified to file the review application.
The cost of such appeal is $1,673, which is reduced to $836.50, if the decision is made in the applicant’s favor and where the tribunal is satisfied that the payment of the entire fees causes financial hardships on such individual.
In the case of Casey v Repatriation Commission, Justice Hill stated that in order for a material to be admissible in the tribunal, the criteria is not to be found in the rules of evidence, but has to be found within the limits of relevance. This infers that the material which is relevant to the matter of appeal in front of AAT would not be rejected on technical grounds that such new evidence should not be admitted during the course of hearings. The relevance of such material would finalize if AAT would admit the evidence.
In the present case, Lily fronted up to the hearing with her new baby. This was material evidence, which would establish that the relationship of Bob and Lily was genuine. So, the Tribunal can take this new development into consideration while making its decision.
In cases where an appeal was made to the AAT, the application fee is reduced as stated in question (c) above. If the AAT makes the decision that the application is invalid, the whole amount is refunded to the applicant. Further, if the applicant withdraws such application, the Tribunal refunds the applicant amount in rare cases. Further, if the applicant paid such fee, even when they were not required to do so, the AAT refunds all of the application fee to the applicant. Furthermore, 50% of the application fee is refunded in case of a favorable decision.
Since, in this case, Lily was able to show that her relationship was genuine, she would be successful in her appeal, and hence, can get 50% of the application fee refunded to her by the AAT.
Casey v Repatriation Commission (1995) 60 FCR 510 at 514
Migration Act, 1958 (Cth)
Migration Regulations, 1994 (Cth)
Administrative Appeals Tribunal, Migration and Refugee Division (2016) <
Administrative Appeals Tribunal, Fees (2016) <
Administrative Appeals Tribunal, Time limits (2016) <
Department of Immigration and Border Protection, Australian Government, Partner Migration (2016) <
Legal Aid New South Wales, Appealing a visa decision (2016) <
Legal Aid New South Wales, Visa cancellation kit (2016) <
Tang Law, Visa Cancellation or Refusal (2016) <