What Does it Mean to Appeal My Visa Matter? | Migration Appeals FAQ
What is an Appeal in the Migration context?
An appeal, also known as judicial review, is a legal process that allows you to challenge a decision made by the Department of Home Affairs or Administrative Review Tribunal (ART) if you believe that the delegate made a jurisdictional error in your matter. You may appeal to the Federal Circuit and Family Court of Australia, requesting that the decision be set aside.
What are the grounds for appeal?
An appeal is not a re-hearing of the original case. Instead, it focuses on whether the law was applied correctly in your situation. To succeed in your appeal, you must demonstrate that the judge made a ‘jurisdictional error’, which is a significant legal mistake. For instance, if the judge applied an incorrect legal principle, this could be grounds for appeal.
What might the Appeal Process involve?
When appealing, it's crucial to understand what the judge can and cannot do:
Cannot Grant or Cancel Visas: The judge will not have the authority to decide whether a visa should be granted or cancelled.
No New Evidence: The appeal does not allow for new evidence or information that was not presented during the original hearing, except in special circumstances.
No Witnesses: The judge will not call witnesses to provide evidence during the appeal.
Review of Documents and Transcripts: The judge will examine all relevant documents and, if available, the transcript of the original case.
Legal Arguments: The judge will listen to legal arguments from both parties involved in the appeal.
Do I Need a Lawyer to Appeal?
It is strongly recommended that legal advice be sought before initiating an appeal. Court staff cannot provide legal advice, and only a qualified lawyer can offer the expertise needed for your case. Lawyers are trained to interpret the law and understand its application to individual circumstances. They can assist you in the following ways:
Identifying Legal Issues: Lawyers can help determine whether your case has valid legal grounds for an appeal.
Providing Practical Options: They can outline the options available to you and the potential outcomes.
Explaining Costs: A lawyer will inform you about the costs associated with litigation, including filing and setting down fees.
Are there any Financial Considerations before deciding whether to Appeal?
An appeal can be costly. You will need to pay a filing fee when you submit your Notice of Appeal and a separate fee for setting down the matter for hearing. If you lose the appeal, you may also be liable for the Minister’s legal costs. Therefore, even if you intend to represent yourself, obtaining legal advice is essential to assess the validity of your grounds for appeal.
Successful appeals hinge on demonstrating that the original judge did not apply the law correctly.
How Can Agape Henry Crux Help
The appeal process requires constructing a technical and complex statement, which you must present succinctly in your Notice of Appeal. We recommend that you contact us at Agape Henry Crux, our Accredited Specialist Immigration Lawyer(s), and our team of immigration lawyers specialise in handling highly complex matters. You may schedule an appointment with one of our lawyers to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin, Cantonese and Malay. If this isn’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.