If your employer sponsored visa application has been refused, you may have the option of appealing the decision.
What are the requirements for a visa refusal appeal?
To appeal a visa refusal decision you must:
- Have received a visa refusal decision (this should be attached to your appeal application)
- Lodge the appeal paperwork with the relevant appeal body (generally online or in person)
- Lodge the appeal paperwork within the relevant deadline (there are strict appeals deadlines when appealing to the ART)
- Pay the relevant appeals fee (some appeals are free or have the option of having the fee reduced or waived)
Most commonly you will lodge an employer sponsored visa refusal appeal with the Administrative Review Tribunal (ART). You can find more information about the ART appeals process on our ART page. In some cases you may instead appeal to the Federal Circuit Court, the Federal Court and in rare cases with the High Court of Australia.
You may be able appeal a refusal decision to the ART under the following situations:
- Your business applied for approval as a Standard Business Sponsor and this was refused
- Your business applied to nominate an employee and this application was refused
- Your sponsored employee’s visa application was refused
Our migration lawyers are experts at corporate immigration appeals and regularly advise businesses on the prospects of success of an ART appeal as well as any cheaper or quicker migration alternatives.
What is the immigration appeal process for an employer sponsored visa decision?
Each employer sponsored visa refusal decision is different, and it is important that you understand your own case. You need to read the visa refusal notice carefully to make sure you know the following three things:
Whether you have the right to appeal the employer sponsored visa refusal decision
Some decisions cannot be appealed or may require that you appeal both a nomination refusal and a visa refusal decisions.
What the timeframe or deadline is to lodge your appeal
Some appeal deadlines are very strict and can be as little as 2 days or as long as 35 days. This is why it is important you read the notice carefully and make sure to act quickly. Appeal deadlines for the Administrative Review Tribunal cannot be extended. Appeal deadlines to the courts can be extended in some circumstances, although, missing the deadline can have other consequences so it is always best to appeal within the court appeal deadline.
Where you should appeal your decision
Different employer sponsored visa refusal decisions may need to be appealed to different appeal bodies:
- The Administrative Review Tribunal (the most common appeal body)
- The Federal Circuit Court
- The Federal Court
- The High Court of Australia
We know that receiving a visa refusal decision can be very disruptive to your business and upsetting for your employee. We recommend that if you are unsure about any of the above three pieces of information or the reasons for the visa refusal, you seek urgent immigration advice. Our migration lawyers are experts at appealing visa refusal decisions and can give you clear advice about the best course of action for your business.
Where are visa refusal appeals heard?
Employer sponsored visa refusal appeals are most commonly lodged with the Administrative Review Tribunal (ART), however, in some cases you may need to appeal to the Federal Circuit Court, the Federal Court of Australia and in some cases with the High Court of Australia. You should read the visa refusal notice carefully to understand which appeal body is relevant in your case.
ART appeals generally include a hearing. The hearing will typically be held at the ART in a hearing room with an ART Tribunal Member. Each Australian state and territory has their own ART location. The ART will write to you and inform you of the date, time and location of your hearing. They will also advise you if an interpreter has been booked for your hearing.
In many ART appeals, the hearing will take place in person however, under certain circumstances, you may be requested to attend your hearing via telephone or video conference.
A hearing is an important opportunity to put forward your business situation in detail and address any issues that you may have found in the Departmental refusal decision. It is important to be well prepared for the hearing, to have supportive evidence and to ensure all the legal criteria are met in order to have a successful appeal.
For information regarding ART hearings you can visit our Administrative Review Tribunals page.
If your visa appeal has been refused by the ART you may be able to appeal this decision to the Federal Circuit Court. In limited circumstances, you may need to appeal directly to the Federal Court of Australia or the High Court of Australia.
