This article is written by our AAT expert and Senior Migration Agent, Vanessa De Pretis.
Every day, I work with clients whose dreams of living and working in Australia have turned into a nightmare. They have received a letter from the Department of Home Affairs (DHA) telling them that their visa is cancelled or refused. Their heads are in a spin and stress levels rising. If you’ve ever received one of these letters, you’ll know what I’m talking about. If you haven’t, here’s a little taste of one:
Dear Applicant
Notification of refusal of a XXX visa application
Name XXXX XXXXX XXXXXXX D.O.B DD MM YYY
I wish to advise that the application for approval of xxx visa has been refused. The attached decision record outlines details about this decision.
After careful consideration of the information provided, the applicant has failed to demonstrate how they have met the relevant criteria for the approval of this visa as set out in Australian migration law…
The letter will state your right to appeal the decision to the Administrative Appeals Tribunal (AAT) and the time limit which applies. Depending on the type of visa matter, the timeframe to appeal may be as little as seven days. I’m not kidding. Although most are 21 days, it’s hardly any time to even digest what it says, let alone act.
But act you must.
And quickly.
This may be your last chance to stay in Australia and, once you begin the process of taking action, you will have some time up your sleeve to prepare. Let me talk you through the latest statistics from the AAT to show you why. The report I’ll be referring to details cases for the eleven months ending 31 May 2022. It presents the national caseload of visas by visa subclass and the related decisions made during this period.
Before I talk about the report, let me introduce the AAT.
What does the AAT do?
The Administrative Appeals Tribunal (AAT) undertakes independent reviews for a wide range of decisions made by the Australian Government. This includes migration and visa related decisions made by the Department of Home Affairs (Immigration). They review decisions based on merit, meaning that you can dispute the decision by presenting your case, along with a range of relevant evidence to support it.
The review process involves the AAT looking at the facts presented, the law and policy to come to a decision. There are three main outcomes. The AAT may:
- Affirm a decision: this means that the AAT agrees with the original decision made by the Department
- Set aside: this means that the Department’s decision is ‘set aside’ and replaced with a new decision
- Remit: this means that the AAT has decided that the delegate’s (Immigration’s) decision should be reconsidered having regard to any directions made by the AAT.
The AAT may also refer the matter to the Minister for Immigration in cases where certain guidelines have been met.
To find out more about the AAT decision process, visit their website.
Tell us about the statistics
The statistics are called ‘MRD caseload summary by subclass’. They relate to the period 1 July 2021 to 31 May 2022 (11 months) and present the cases lodged, finalised and active for this period. MRD stands for Maintenance Requirements Determination (Australian government). This describes the evidence based decision approach that the AAT is based upon.
The statistics include cases lodged with the AAT relating to pretty much any visa category. These include bridging visas, family visas, nomination / sponsor approvals, partner visas, skilled and skilled linked visas, protection (refugee) visas, student visas, temporary work visas and visitor visas.
During this period, there were 19,363 lodgements to the AAT and 18,927 cases were finalised, meaning that a decision was made. As at 31 May 2022, however, there remained 56,517 active cases. With ongoing case lodgement, these statistics imply that it can take the AAT more than three years to assess, review and decide on a case. If you’re case is ‘active’, this is valuable time for you to prepare your submission in support of your application and consider your options.
Let’s look at a few of the more common categories where people come to us seeking our support with their AAT applications.
Partner visa cancellations and refusals decided during this period totalled 1,525. There were 1,304 cases lodged and 4,426 remain active. In this category, it has taken over two years and ten months for a case to be decided. If we look at a common visa type, the subclass 820 which allows the partner of an Australian citizen or permanent resident or a New Zealand citizen to live in Australia temporarily, there were 610 lodgements and 558 cases decided. This sounds promising, in terms of backlog, but there remained 1,975 active cases.
There were 433 cases lodged to the AAT relating to Nomination refusals. A Nomination is where a business identifies a position to be filled by an overseas worker. The business may apply for a Nomination as a Sponsor or via a labour agreement with the Department (including DAMAs – Designated Area Migration Agreement). Before submitting the Nomination, the business must undertake labour market testing and meet a range of other requirements, so the Nomination refusal is usually based on the Department deciding that the Nomination does not meet these requirements. During the 11 months ending 31 May 2022, 2,263 Nomination cases were finalised. It is interesting to see that the case outcomes were split almost exactly a third each across the decision being affirmed (ie. AAT agrees with the Department’s original decision), set aside (changed by the AAT) or withdrawn. There remained 3,808 active cases as at 31 May, so we can see that it takes just over a year and a half for a case to be heard by the AAT.
If we look at Subclass 186 refusals, which is a visa relating to skilled workers being nominated by their employer and able to live in Australia permanently, 407 cases were finalised and 40% being set aside. 947 cases remained active. The wait for these cases is over two years. For the Subclass 187, which allows skilled workers, who are nominated by their employer in regional Australia, to live and work in Australia permanently, there were 907 cases assessed, 38% set aside. The backlog of active cases was 1,640 as at 31 May, with the wait time on cases appearing before the AAT being around one year and nine months. However, our experience has shown that in most recent matters, it is taking up to 3 years for a decision to be made on a nomination and visa application. In some cases, it can then take the Department of Home Affairs up to another 6 months to make a decision on a remitted visa application.
If you have a problem with a Temporary Graduate visa, Subclass 485 refusal, you might be one of 988 cases lodged at the AAT this past 11 months. During this time, 563 decisions were made, 61% a positive outcome for applicants. There were 816 active cases remaining, so the decision timeframe is around one year and five months. For the Student visa (Subclass 500) refusals, 3,177 cases were submitted to the AAT and 3,118 decided, with 46% being affirmed (AAT upheld the Department’s decision). With 2,594 active cases remaining, the wait time is one of the shortest, being 9 – 10 months. For cancellations in this same subclass, the total numbers were lower, with 122 cases submitted, 47% of cases affirmed and 134 cases remained active. The wait time here was nearly a year and a half.
If you have applied to become a permanent resident under the skilled Subclass 190 visa and your case is to be heard by the AAT, you’re one of 102 cases lodged in the past year. There were only 45 decisions made in the past 11 months and 163 cases remain active, so your wait time is likely to be over three years!
The Temporary Skill Shortage Visa (Subclass 482) allows an employer to sponsor a suitably skilled worker to temporarily fill a position (as long as the nominated occupation is on one of the eligible lists of occupations or is included in a labour agreement or a Designated Area Migration Agreement). Lodgements at the AAT included 18 that had been cancelled and 446 refused visa applications. There were 43 decisions made by the AAT on cancellations in this subclass during the 11 months and only eight remained active. With regards to refusals, 490 decisions were made, 38% set aside, 17% affirmed and 39% withdrawn. There remained 1,590 active cases, so the wait time is just over three years – this timeframe is quite unbelievable, considering this visa is designed to fill short term labour supply issues.
Of the total cases submitted to the AAT, 9,879 related to refugee visas and 9,484 related to business, individual, partner or family applications. There is a backlog of 36,708 refugee cases and 19,809 other cases with the AAT. To access the complete report of statistics relating to the AAT MRD caseload summary by subclass, for the period 1 July 2021 to 31 May 2022, go to the AAT website.
Given the processing times I have provided for each of these categories, there is a significant amount of time to prepare your case BUT you have to take the first steps immediately. Upon responding to your notification of refusal or cancellation from the Department, you can see from these statistics that some cases will have up to three years to improve your chance of success at the AAT or to look into other, more suitable visa options.
We recently had a visit from someone who had their AAT affirmed (refused) and came to see us to find out what they could do. They had appointed a different migration agent to help them at the AAT and brought in their supporting documents to show me. In the cases where I am appointed to support or assist with a matter at the AAT, together with the client, we prepare volumes of supporting documentation to present the application and submission in the strongest way possible. In this instance, the information submitted to the AAT on behalf of this applicant, consisted of a few paragraphs only and did not address the reason for the initial refusal! The sad and very disappointing thing with this matter was, if they had received the right advice, they would have had a very strong chance of success at the AAT (based on our experience and assessment of the original departmental refusal and their professional experience and ongoing job role).
The lesson is, do not delay tomorrow what you can do today AND get professional advice from an experienced migration agent. My team and I have helped hundreds of applicants and employers present their matter to the AAT. If you, a friend or colleague need assistance, get in touch.
Vanessa De Pretis
AAT expert and Senior Migration Agent
