Australian Visa refusals: Defective Notification. Out of time for Tribunal review?

For nearly all cases of visa refusal received from Australia’s Department of Immigration and Border Protection (DIBP)you will have a limited number of days to apply to the Administrative Appeals Tribunal (AAT)for review of the decision. 2 days, 7 days, 21 days, 28 days; sometimes more. The point here is that these review application deadlines cannot be extended. The Tribunal does not have any power to do so.

Failure to lodge a review application on time usually means that your case is finished, because if you miss the step of Tribunal review, you are usually unable to take any further steps, such as Judicial review or Ministerial Intervention, either.

What’s the exception? Occasionally the DIBP gets it wrong with how they notify visa applicants of the refusal of their application. For example, they may send the application to an email or street address that was not the address correctly given as the address for notification. Or, they may not use the authorised recipient’s name in addressing the letter (for example if they write to a migration agent’s or lawyer’s business name but do not use the name of the individual who is authorised to receive communications). In these and a limited number of other situations, it may be possible to insist that the DIBP sends a new notification of the refusal.

If a new notification is sent, the time period for lodging a valid application for review at the Tribunal resets and starts again. It is unusual but not unheard of, for this circumstance to occur. We see these cases from time to time. If you have missed a deadline for a review application, we suggest that you seek advice about whether there appears to be any flaw in the notification of refusal to grant a visa that you or your migration representative received. In some cases this might just save your situation and allow you to go on to apply for review at the AAT.

Michele Clayton
MARN 0957773
Legal Practitioner NSW 55486

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