Student visa appeals in the AAT

If you are refused a student visa by the Department of Immigration, you can “appeal” that decision by seeking review in the Administrative Appeals Tribunal (AAT). The AAT stands in the shoes of the Departmental decision-maker who refused the student visa application and can technically review all the criteria you are required to meet for the grant of the student visa. However, more commonly, the AAT will focus its review on the reason why your student visa application was refused.

The most common criterion that student visa applicants fail to meet is the one contained in cl 500.212 of schedule 2 of the Migration Regulations 1994 (Cth) which reads:

The applicant is a genuine applicant for entry and stay as a student because:

(a)  the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i)  the applicant’s circumstances; and

(ii)  the applicant’s immigration history; and

(iii)  if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

(iv)  any other relevant matter; and

(b)  the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i)  the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii)  the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

(c)  of any other relevant matter.

As can readily be seen, cl 500.212 requires decision-makers to make a highly evaluative decision based among other things on the student’s subjective intention. This is an area where careful submissions and good evidence can make or break a person’s appeal (review application).

More scepticism and scrutiny is generally applied where an applicant has (1) a relative with a concerning immigration history, (2) an intention to study in a field unrelated to their previous field of study or employment and (3) given inconsistent information to the Department. Decision-makers may also use statistical and intelligence reports to determine whether a given applicant might be committing migration fraud.

Its important to be very careful when putting together submissions and statements for your appeal in the AAT. Any inconsistent information will be held against you. If there is already inconsistent information it has to be carefully explained. Too many highly winnable applications are lost through bad preparation and carelessness.

If you want immigration legal advice you can trust about your student visa appeal or anything else, please don’t hesitate to reach out to us.