AAT Appeal on Character Grounds: Process and Strategy
The AAT and its role in character appeals
The Administrative Appeals Tribunal (AAT) is the body that reviews the DHA’s administrative decisions at the request of an applicant. For decisions to refuse or cancel a visa on character grounds, the AAT offers an important opportunity to appeal — but not one without limits.
Understanding the process, the scope of the AAT’s jurisdiction, and the strategy for building an appeal case is the key to maximising your chances of success.
The character test under section 501
The most common legal basis for a character-related decision is section 501 of the Migration Act 1958. A person does not pass the character test if they:
- Have been sentenced to imprisonment of 12 months or more (whether suspended or not)
- Have a “substantial criminal record” as defined in section 501(7)
- Are assessed as a danger to the community or to an individual
- Are involved in harassment, family violence, or organised crime
When the Minister or a delegate makes a decision under section 501 by discretion (rather than mandatorily), that decision can usually be appealed to the AAT. However, for a mandatory decision under section 501(3A) (mandatory cancellation), the path of appeal at the AAT is limited.
Limits on the AAT’s jurisdiction
Not every character decision can be appealed to the AAT:
- A personal decision of the Minister under section 501(3) cannot be appealed to the AAT and can only be challenged at the Federal Court through judicial review.
- A person in detention under a deportation order or subject to mandatory cancellation needs in-depth legal advice to determine the available path of appeal.
The appeal process at the AAT
Step 1 — Lodge the appeal: The time limit is usually 9 working days from receiving the refusal or cancellation decision (for a person in detention), or longer for a person not in detention. Missing this deadline means losing the right to appeal.
Step 2 — Exchange of documents: The DHA provides all the documents it relied on in making its decision. This is your opportunity to understand the DHA’s arguments and prepare to rebut them.
Step 3 — Submit evidence and arguments: The appellant lodges a written statement, supporting documents, and witness letters before the hearing.
Step 4 — The hearing: The AAT holds a hearing at which the appellant, the DHA representative, and witnesses can present. The AAT member asks questions to clarify the points in dispute.
Step 5 — Decision: The AAT can affirm the DHA’s decision, set it aside, or remit the matter to the DHA for reconsideration. The wait for a decision can range from several months to more than a year.
Evidence strategy
A successful character appeal usually rests on one or more of the following factors:
Rehabilitation: Evidence of completing a drug rehabilitation programme, psychological treatment, or a reintegration programme. Letters from psychologists, social workers, or corrective services officers are valued highly.
Community ties: Evidence of deep ties to the Australian community — family (especially children who are Australian citizens), employment, voluntary contributions, and a role in religious or cultural organisations.
Impact on family: Demonstrating that cancellation would cause disproportionate harm to family members, especially children. The AAT is required to weigh the best interests of children in its analysis.
Length of lawful residence in Australia: A person who has resided lawfully for many years and built a stable life has a stronger argument about the harm of removal.
A realistic assessment of the chances of success
The AAT does not readily overturn a DHA character decision, especially for serious violent offences or offences involving children. However, the success rate is not zero, and the following factors can improve the outcome significantly:
- The longer the time since the offence, with no reoffending
- Sincere acknowledgement of fault without blaming circumstances
- Specific, verifiable evidence of changed behaviour
- A clear and specific impact on family if removal occurs
Having an immigration lawyer represent you is not mandatory but significantly increases the quality of the case and arguments. Appealing on your own without professional advice is a major risk.