AAT or court: which review path applies after a 407 refusal in 2026?
How AAT merits review and Federal Court judicial review differ after a 407 refusal, and why a court only corrects legal errors.
After a Training visa (subclass 407) refusal in 2026, the review path you can use depends on what you are asking the reviewer to do. The Administrative Appeals Tribunal (AAT) re-decides the case: it looks again at whether you meet the criteria in Schedule 2 to the Migration Regulations 1994 and can reach a different conclusion on the same facts, plus material that did not exist at the time of the refusal. The Federal Court does not. On a judicial review it asks only whether the original decision-maker made a legal error, and it will not re-hear whether your training program was genuine or your English was good enough. The starting point is the decision itself — the Australian Department of Home Affairs' official Training visa (subclass 407) page states that if a visa is refused, you are told in writing why, and whether you have a right to a review of the decision.
What does your 407 refusal notice actually decide?
Quite a lot, and it is worth reading closely before choosing a path. That official page confirms the refusal comes with written reasons and a statement of whether a review right exists. A recorded review right is what opens the tribunal path, and the reasons are what you have to answer on either path. The Department also states on its official Training visa (subclass 407) page that the application charge is not refunded when an application is refused, so a review is not a way to recover the fee — it is a way to challenge the outcome.
If the notice records no right to merits review, the question changes shape. With no tribunal available to re-decide the case, the only remaining issue is whether the decision itself was made unlawfully, and that is a court question rather than a tribunal one.
Is AAT review the same thing as going to court?
No. They are two different functions, and mixing them up is the most common reason people file in the wrong place.
AAT review is merits review. The tribunal re-makes the decision. It is not confined to the material that sat in front of the original decision-maker, so later evidence — a fresh English test result, an updated training plan, a sponsor approval or nomination that has since come through — can be put before it. Because it stands in the shoes of the original decision-maker, it can arrive at a different outcome rather than merely commenting on the old one.
Judicial review in the Federal Court is supervision, not re-decision. The court asks whether the decision was made within the law — not "would I have granted this visa?" If a legal error is established, the ordinary consequence is that the decision is set aside and must be made again according to law. The court does not grant the visa itself.
What counts as a legal error — and what doesn't?
Legal errors are about how the decision was reached, not about whether it was right. On a 407 matter they typically include:
- applying the wrong test to a criterion — for example, assessing functional English under clause 407.212 against something other than the standard set by subsection 5(2) of the Migration Act 1958 and the evidence categories that flow from it
- ignoring a matter the law requires to be considered, such as the factors listed in clause 407.217(a)–(c) for genuine temporary stay
- relying on something irrelevant, or deciding on a basis that was never put to you
- procedural unfairness — adverse information used against you without a genuine chance to respond, which is the natural justice step under section 56 of the Migration Act described in the Department's PAM3 guidance
- reaching a decision so unsupported by the material, or so unreasonable, that it falls outside the lawful exercise of the power
What does not count is disagreement with the result. "The delegate weighed my training plan too harshly", "my English is better than the delegate thought" and "the refusal was simply wrong" are merits arguments. They belong in the tribunal.
Why won't a court re-decide whether your training was genuine?
Because "genuine" is an evaluative judgement about evidence, not a question of law.
The PAM3 guidance for subclass 407 asks decision-makers to test whether the nominated program is a genuine training opportunity rather than work: whether it is structured and tailored to the individual, whether at least 70 per cent of it is workplace-based, and whether it runs at least 30 hours per week. Clause 407.212 asks whether the applicant has functional English. Clauses 407.213 and 407.214 ask whether there is an approved sponsor and an approved nomination. Clause 407.217 asks whether the applicant genuinely intends to stay temporarily. Each is answered by weighing material, and a court that substituted its own view would be doing merits review under another name.
Suppose an applicant is refused because the delegate was not satisfied the program was a genuine training opportunity. Arguing "the training really was structured — here is a fuller plan and a letter from the sponsor" is a merits argument; it asks the reviewer to reach a different conclusion on the evidence. Arguing "the reasons show the training plan already on file was never addressed" is a legal error argument; it says the decision was not made according to law. Identical refusal, two entirely different paths.
Which path fits the reason your 407 was refused?
| Refusal ground under the Regulations | AAT merits review | Federal Court judicial review |
|---|---|---|
| Functional English not met (clause 407.212) | Can consider a later test result or another listed form of evidence | Only if the wrong standard was applied or a valid evidence category was wrongly excluded |
| No approved sponsor or approved nomination (clauses 407.213, 407.214) | Can look at the sponsor's and nomination's current status | Only if the sponsorship or nomination provisions were misread or misapplied |
| Not a genuine temporary stay (clause 407.217) | Fresh assessment of intention, compliance history and other relevant matters | Only if the factors listed in the clause were not considered |
| Health insurance or financial capacity (clauses 407.216, 407.219) | Can consider updated cover or funds evidence | Only if the evidence on file was ignored or the test was misapplied |
| Public interest criterion on false or misleading information (PIC 4020) | Can re-hear the inference drawn from the documents | Only if procedural fairness was denied or the wrong test was applied |
Do you have to finish the AAT process before going to court?
In the usual sequence, judicial review is what follows an AAT decision that affirms the refusal; it is not a parallel version of the same exercise. Running a court case on the basis that "the tribunal got the facts wrong" generally fails, because disagreement with factual findings is exactly what merits review exists to resolve.
Deadlines differ between the two paths as well. Guidance on the Regulations describes a review period of 21 days where the applicant is in Australia holding a substantive or bridging visa, and 28 days where the applicant is outside Australia — but the period printed in your refusal notice is the one that governs your case, and the official published timeframes are the ones to rely on.
So which path applies to you?
- You want the case re-decided, including on evidence that has emerged since the refusal → AAT merits review, filed within the period in your notice.
- You say the decision was made unlawfully — wrong test, material ignored, no fair chance to respond → judicial review, understanding that success means the decision is re-made, not that a visa is granted.
- You are not sure which → ask whether you are arguing about the answer, or about how the answer was reached. The first is merits; the second is law.
One caveat: this article is general information about how the two review paths work and is not advice on your own case. The criteria and deadlines that bind you are those in your decision record and in the official pages current when you act, and if the outcome matters to you, get advice from someone qualified to give immigration assistance — the official page recognises registered migration agents, legal practitioners and exempt persons as the people who can provide it.
Frequently Asked Questions
Can the Federal Court grant me a 407 visa?
No. Judicial review is about whether the refusal was made lawfully. If the court finds a legal error, the decision is set aside and must be made again according to law; the court does not re-decide the visa criteria or issue the visa.
Can I give the court new evidence, such as a better training plan?
Generally not. Judicial review is conducted on the material that was before the decision-maker, because the question is whether that decision was lawful when it was made. Later evidence — a fresh English test, an updated training plan — is a merits matter for the AAT.
What counts as a legal error in a 407 case?
Applying the wrong test to a criterion, ignoring something the law requires to be weighed, relying on something irrelevant, denying procedural fairness, or reaching a decision no reasonable decision-maker could have reached on the material. Disagreeing with how the evidence was weighed is not a legal error.
If the AAT affirms the refusal, is the court my only option?
Judicial review of the tribunal's decision is the usual next step, and it is limited to legal error in what the tribunal did. It is not a second hearing of the same evidence, and it will not succeed merely because you believe the correct outcome was different.
How long do I have to apply for AAT review of a 407 refusal?
The period stated in your refusal notice is the one that governs. Guidance on the Regulations describes 21 days where you are in Australia holding a substantive or bridging visa and 28 days where you are outside Australia, but work from the notice and the official published timeframes.
Is a refusal because my training program wasn't "genuine" a fact question or a legal one?
Usually a fact question. Whether a program is structured, tailored and workplace-based enough is an evaluative judgement about evidence, so it belongs in merits review at the AAT. It becomes a legal question only if the decision-maker applied the wrong test or failed to engage with the training plan actually before them.
Do I get the application charge back if my 407 is refused?
No. The official Training visa (subclass 407) page states that the application charge is not refunded if the application is refused.