Applying to the AAT

Further Information for Deportees in New South Wales and Victoria

The information contained in this pamphlet is for persons in New South Wales and Victoria who have received or are likely to receive a deportation order from the Department of Immigration and Citizenship.

In making its decision to deport a person the Department of Immigration and Citizenship usually considers the following factors:

• the risk of you committing further offences;
• the nature and seriousness of your crime;
• the extent of rehabilitation you have already achieved, your prospects of further rehabilitation and any positive contribution to the community you may reasonably be expected to make;
• your length of lawful residence in Australia;
• your strength of family, social, business and other ties in Australia;
• the degree of hardship which would be caused to your child or children. DIMA takes into account the age of the child, the time they spent in Australia and any problems they may encounter if their country of residence changes;
• the degree of hardship which would be caused to lawful residents of Australia (especially Australian citizens) known to be affected adversely by deportation (for example your partner);
• the extent of support for deportation of you from persons directly affected;
• any unreasonable hardship you would suffer as a result of deportation;
• your ties with other countries;
• consideration of public benefit of your deportation; and
• protection of the Australian community.
• Australia's international obligations.

You have the right to appeal against a decision to deport you by applying to the Administrative Appeals Tribunal (AAT), within 28 days from the date you receive the decision. If you do not apply within this time you can still lodge your application, but you will also need to apply for an extension of time at the same time you lodge your application. Also note that simply because you appealed against the decision it does not necessarily mean that the Department of Immigration and Citizenship will not deport you. At the same time you appeal against the decision you need to apply on a separate form (Called "Form 6", PDF version or RTF version) for the deportation order not to be executed. This means that the Tribunal may make an "order" stopping the implementation of the decision, until the case is finalised.

After your application is received the AAT will ask the Department of Immigration and Citizenship to provide documents setting out the reasons for its decisions and any material that it used when it made its decision.

Within 6-10 weeks of your application being received by the AAT a conference will be held. This is called a "first conference".

If you are in custody (in prison or in immigration detention centre) the Conference will be on the telephone. You, a representative from the Department and the Conference Registrar who conducts the Conference will participate in this meeting. If you are not in custody, you can come into the AAT for a face to face conference. Even if you come to the AAT it is likely that the Department representative will participate over the phone.

During the conference the Conference Registrar will ask the Department representative to explain the reasons why they made the decision and you will have an opportunity to ask any questions.

The Conference Registrar will then ask the Department what sort of evidence it will present at the hearing (See below for information on hearings).

The Conference Registrar will ask you why you think you should be allowed to stay.

Depending on your individual circumstances the kind of evidence that would help you may include some of the information set out below:

• parole reports (including a separate reference from the parole officer);
• references from prison officers;
• any work you have done in prison and reports related to it;
• reference from the prison chaplain;
• documentation supporting your prospects of rehabilitation;
• information about your ties with and contribution to the community;
• any courses you have completed or attended;
• references from employers;
• any guarantee of work;
• statement from a leader of a community group;
• information about the impact on your children (if you have any) and other family members. This could include statements from your family, psychological reports about the likely impact on your children, statement from your partner about his or her intention about your relationship;
• statements from friends who may be Australian citizens (of any ethnic background);
• information about life in your country of citizenship (for example country reports), relevant human rights issues and standards, especially if originally you come to Australia as a refugee. Only the possibility of facing economic hardship if you are deported will not be enough evidence. Also note that civil and military hostilities may only affect the timing of deportation but it may not constitute a reason for you to stay in Australia. The Department may consider other places of residence in certain circumstances.

A timetable will be set for the preparation and collection of these sorts of documents.

If there is more information you want to obtain or if you need legal advice, you have the right to ask for a "second conference". A second conference will usually be arranged to give you enough time to collect the information you need for your case.

After the conference process is finished you will usually have a "directions hearing". Directions hearings are usually held to deal with issues like exchange of statements or documents or clarification of issues. Directions hearings may also be held for the purpose of giving directions if there have been unjustified delays by you or the Department. A direction hearing is not the same as the "hearing" where the whole case will be discussed.

If you and the Department do not reach agreement (settle) the AAT will hold a hearing. In "deportation" matters most cases have a hearing. The AAT will write to you and tell you the date and time of the hearing. If you have anyone helping you, you should tell them the date and time the AAT will be hearing your case.

To make its decision the AAT will need to know everything about your case. The hearing will allow you to tell the AAT your side of the case.

Hearings are generally held in public. However, on the request of either you or the Department the AAT can direct that the hearing or part of the hearing take place in private. The AAT can also direct who may be present at a hearing.

Hearings are usually held in hearing rooms on AAT premises. The hearing is generally held in a hearing room, which looks similar to a court room in layout. The hearings are usually informal.

Apart from you and the AAT Member, several other people will be present in the hearing room. An AAT officer will be there to do things to help like calling witnesses and handling paperwork. A person will be there on behalf of the Department.

The hearing may be recorded so that there is an accurate record of what is said. If the hearing is recorded there will be a person operating the recording equipment in the hearing room.

Normally at the beginning of the case the AAT will ask both you and the Department to explain what the case is about. Then the AAT will look at papers which you and the Department have provided. After this the AAT will then ask you and the Department to briefly talk about all of your main points.

You, the Department and the AAT Member will be able to ask any witnesses questions about what they know. If you have references from family, friends, employers and others, it would be useful if these people could give evidence in the hearing. They would have the opportunity to talk about the case and their relationship with you. They would also be asked questions by the Department and by the Tribunal Member.

Having witnesses is important because it gives the Tribunal a better idea of your place in the Australian community.

You must arrange for your witnesses to come to the AAT on the day of your hearing. You should ask at the AAT's office if you are not sure of what you need to know. Witnesses do not need to attend in person; they may give evidence by telephone. If your witnesses live far from Sydney, the Tribunal can hear the matter at a place more convenient to them.

After all the witnesses have had their say, both you and the Department will have an opportunity to give a closing address. This is really a brief summary of all the main points in your case and can include anything which you believe is important.

At the end of the hearing the AAT will either give you its decision immediately or it will tell you that it needs more time. You will be contacted by the AAT and sent a copy of the decision when it is given.

If you need an interpreter the AAT will arrange and pay for an interpreter. Interpreters are available at any stage of the process, at each conference and at the hearing.

If currently you are in custody (in prison) let the AAT know if you have any problems in accessing documents related to your case. You may contact the Welfare Officer in the prison so they can contact the AAT. You may also get your friends or relatives to contact the AAT on your behalf. If you are currently in prison you will be taken to the AAT for the hearing for each day of the hearing.