Tricky Issues in Migration Law
TRICKY ISSUES IN MIGRATION LAW – MAKING SURE THE CLIENT HAS MERIT REVIEW RIGHTS TO THE AAT
By Lorenzo Boccabella, BA, LLB, a specialist in migration law (23 October 2020)
Merit review in the Administrative Appeals Tribunal
The availability of merit review is an essential insurance for a client. Unforeseen errors, acts of bastardry by a delegate, or just plain bad luck can lead to visa refusal. Generally, a lot of these issues can be fixed up at the merit review stage but only if the client has unambiguous AAT rights.
Of course, the AAT can take into account new facts including general facts occurring after the visa refusal decision. For example for the subclass 482 visa, the time of decision criteria like English and work experience are redetermined at the AAT decision stage, a person not meeting those requirements at the time of visa decision by the delegate can recover by the time the matter gets to the hearing at the AAT.
Important therefore to ensure the client has AAT rights at the time of visa refusal. For the standard ‘onshore’ visa refusal,l many are unaware that the client must be present in Australia at the time of lodging the AAT application in order to validly lodge an application to the AAT – see s347(3). Clients offshore on say a bridging visa B must return immediately to Australia if there is a visa refusal, otherwise, these valuable AAT rights are lost.
If the visa application is lodged while offshore, then the client may have positioned him or herself to lose AAT review rights. Among others, the subclass 189 skilled independents and the 186 Employer Nomination Scheme visas appear to have ideal flexibility, the applicant can be onshore or offshore at both times of application and time of decision.
But what is often not understood is that lodging a visa application while the applicant is offshore can destroy AAT rights if, at visa refusal, the applicant is offshore. This is a consequence of ss339(7A) and 347(3A) which state:
Section 339(7A): A decision to refuse to grant a non-citizen a permanent visa is [AAT] reviewable decision if:
(a) the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and
(b) the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.
Section 347(3A): (3A) If the [AAT] reviewable decision was covered by subsection 338(7A), an application for review may only be made by a non-citizen who:
(a) was physically present in the migration zone at the time when the decision was made; and
(b) is physically present in the migration zone when the application for review is made.
Rarely would a client be able to predict when the visa refusal would occur. Sometimes a ‘natural justice’ letter from the delegate may be a signal, in which case the client, where possible, should immediately come to Australia. If possible all clients from an ETA eligible passport country should always have an ETA visa in one’s back pocket. If not from such a country attempt to ensure the client has some other visitor visa in place during the processing period.
Better still have the client come to Australia for the purpose of applying for a visa to avoid the clutches of Section 347(3A), ie bring your client to Australia to lodge and apply for any visa like the subclasses 189 and 186. After lodgement, the client can apply for a bridging visa B to return to the home country seeking a long validity period for the return. If there is a visa refusal the client can return to Australia to lodge the AAT review application. (In some cases the client may need to make a second trip to Australia.) All this, of course, is advice for the end of the COVID19 period, at the moment it is extremely difficult for a client to make it to Australia. But keep the above advice closely in mind for when ‘situation normal’ returns.