Visa cancellations in Australia can have serious consequences for individuals, affecting not only their right to remain in the country but also their future immigration opportunities. When the Department of Home Affairs cancels a visa, the individual affected often has the right to seek a review of the decision. This review process is usually conducted by the Administrative Appeals Tribunal (AAT), an independent body that assesses whether the decision to cancel the visa was fair, lawful, and consistent with government policy.
Understanding how the AAT reviews visa cancellations is crucial for applicants who wish to challenge these decisions and improve their chances of a positive outcome.
What Is the Administrative Appeals Tribunal?
The Administrative Appeals Tribunal (AAT) is an independent body established under the Administrative Appeals Tribunal Act 1975. It reviews decisions made by Australian Government ministers, departments, and agencies across a wide range of matters, including migration and refugee law.
When it comes to migration matters, the Migration and Refugee Division (MRD) of the AAT is responsible for reviewing visa refusal and cancellation decisions. The AAT has the authority to affirm, vary, or set aside a decision, as well as remit the matter back to the Department of Home Affairs for reconsideration.
More information about the AAT’s functions can be found on the AAT official website.
Common Reasons for Visa Cancellations
Visas can be cancelled under a variety of grounds, depending on the circumstances. Some of the most common reasons include:
- Character grounds under section 501 of the Migration Act 1958, usually related to criminal conduct or associations.
- Breaches of visa conditions, such as working in breach of visa limitations, overstaying, or failing to comply with reporting requirements.
- Provision of false or misleading information in the visa application process.
- Failure to meet health or public interest criteria.
- Concerns about national security or risks to the Australian community.
Once a visa is cancelled, the affected person typically becomes unlawful unless they hold another valid visa, and this makes timely action critical.
The Right to Review a Visa Cancellation
Not all visa cancellations can be reviewed by the AAT. The right to review depends on the type of visa, the grounds of cancellation, and who made the cancellation decision.
For example:
- If a delegate of the Minister cancels the visa, the individual usually has the right to apply for AAT review.
- If the Minister personally cancels a visa under specific powers (such as section 501 character grounds), the decision often cannot be reviewed by the AAT.
Applicants should carefully read their cancellation notice to confirm whether they have a right to review. The notice usually specifies if the decision is reviewable and provides instructions on how to lodge an application.
Lodging an Appeal with the AAT
If a visa cancellation is reviewable, the next step is lodging an appeal with the AAT. This process involves:
- Time limits: Applicants must lodge their appeal within a strict time frame, often within 7 to 28 days, depending on the circumstances. Missing this deadline usually means losing the right to review.
- Application process: Appeals are lodged online through the AAT application portal. Applicants need to complete the relevant forms, pay an application fee, and provide supporting documentation.
- Fees: As of 2025, the standard fee for a review application is AUD 3,374, although concessions and partial refunds may apply in some cases.
Once the application is accepted, the AAT schedules a review process where the applicant can present their case.
How the AAT Reviews Visa Cancellation Decisions
The AAT conducts a merits review, meaning it looks at the facts of the case afresh. The tribunal does not just consider whether the Department of Home Affairs made a legal error; it also considers whether, based on all the evidence, the decision should be changed.
The review process typically involves the following steps:
- Collection of Information – The AAT requests the Department’s file and any relevant documents.
- Submissions and Evidence – The applicant can provide written statements, witness testimony, or new evidence to support their case.
- Hearing – Most applicants are invited to attend a hearing, either in person, by telephone, or via video link. Here, they can explain their situation and answer questions from the tribunal member.
- Assessment – The AAT member considers whether the cancellation was appropriate, taking into account legislation, ministerial directions, and policy guidelines.
- Decision – The AAT issues a written decision, which may affirm the cancellation, overturn it, or send it back to the Department for reconsideration.
The review process aims to ensure fairness by allowing the applicant to fully present their side of the story.
Factors Considered in a Visa Cancellation Review
When reviewing a visa cancellation, the AAT applies principles set out in legislation and ministerial directions. Some of the key considerations include:
- The protection of the Australian community – For example, whether the applicant poses a risk of reoffending or engaging in harmful behavior.
- The seriousness of the conduct – Such as the severity of criminal offenses or breaches of visa conditions.
- The strength of ties to Australia – Including family connections, length of residence, and contributions to the community.
- The best interests of children – If the applicant has children in Australia, their welfare is considered a primary factor.
- International obligations – Australia’s human rights commitments, such as those under the Convention on the Rights of the Child or the Refugee Convention.
The AAT balances these factors when determining whether the visa should remain cancelled.
Possible Outcomes of the Review
After the review, the AAT may make one of several decisions:
- Affirm the decision – The cancellation stands, and the visa remains cancelled.
- Set aside the decision – The cancellation is overturned, and the visa is reinstated.
- Remit the matter – The case is sent back to the Department of Home Affairs for reconsideration, usually with specific instructions.
- Vary the decision – The conditions of the cancellation are changed.
Applicants should note that the AAT does not issue visas; it only reviews whether the cancellation was justified. If the cancellation is overturned, the applicant retains their visa as if it had never been cancelled.
What Happens After an AAT Decision?
If the AAT affirms the visa cancellation, the applicant may have limited further options. These could include:
- Appeal to the Federal Circuit and Family Court of Australia on legal grounds, such as jurisdictional error.
- Ministerial intervention, where the Minister for Immigration personally decides to grant a visa due to compelling or compassionate circumstances.
If the AAT sets aside or remits the decision, the applicant can continue living in Australia under their existing visa conditions.
The Importance of Legal Assistance
Challenging a visa cancellation before the AAT can be complex, particularly for individuals unfamiliar with Australian immigration law. Legal representation, particularly from registered migration agents or immigration lawyers, can significantly improve the chances of success.
The Office of the Migration Agents Registration Authority (OMARA) provides a searchable register of qualified professionals who can assist applicants with appeals.
Conclusion
The Administrative Appeals Tribunal plays a critical role in ensuring that visa cancellations are reviewed fairly and transparently. For individuals whose visas have been cancelled, the AAT offers a vital opportunity to challenge the decision, present new evidence, and seek justice.
However, strict timelines, detailed documentation, and complex legal considerations mean that applicants must act quickly and carefully. By understanding how the review process works and seeking appropriate support, individuals can maximize their chances of having a visa cancellation overturned.
