Last updated 23 January 2017
Merits and/or judicial review are generally available in relation to a migration decision. The Migration and Refugee Division (MRD) of the Administrative Appeals Tribunal (AAT) is most commonly accessed for merits review. The AAT’s General Division also has jurisdiction in some migration matters such as character cancellation, business visa cancellation, decisions not to revoke a mandatory cancellation, citizenship refusals and cancellations.
Migration review hearings
The migration hearings within the MRD must generally take oral evidence in public, prepare a written decision with reasons, but is not required to publically publish its decisions unless a decision is of particular interest. However, the MRD is still obliged to provide a mechanism of review that is fair, just, economical, informal and quick (s 353 Migration Act 1958 (Cth) (Migration Act)).
An application for review must be lodged at the MRD on the approved form and with a fee of $1673. Part of this fee can be waived by the registrar or authorised tribunal officer of the MRD if an applicant can show severe financial hardship. If the MRD sets aside or varies the Department of Immigration and Border Protection (DIBP) decision, an applicant is entitled to a refund of half of the MRD fee. Applications can be lodged online, by hand, post or fax.
Time limits for lodging review application
An application for review, together with the appropriate fee, must be received at the MRD before it can be regarded as lodged (regs 4.02, 4.11 Migration Regulations 1994 (Cth) (Migration Regulations)).
Note that an applicant is deemed to have received notice of a DIBP decision (if notified by post) after seven working days, if the person is in Australia, or after 21 days after posting if the person is overseas. Receiving notices by hand, email or fax would normally mean notification is on that day. The time of receipt is crucial because there are time limits under the Migration Regulations for lodging applications for review. These time limits vary depending on the circumstances, and it is essential that relevant time limits be checked in each case. Generally, from the legally assumed date of receipt of the notification of a decision, a person able to lodge an application for review must do so within:
- 21 days for onshore visas
- 70 days for offshore visas (s 347 Migration Act).
However, shorter time limits may apply. Immigration detainees have a maximum of seven working days to lodge an application with the MRD, and the time limit is shorter in some circumstances (reg 4.10(2) Migration Regulations). For example, if a person is in immigration detention and is refused a bridging visa, the time limit for lodging a review application is two working days (reg 4.10(2)(a) Migration Regulations). Time limits shorter that 21 days can also apply to those not in immigration detention (reg 4.10(2)(a) Migration Regulations).
Currently, there is no discretion in the Migration Act or Regulations for these time limits to be waived.
The classes of visas in which there is a right of review are set out in ss 338 and 347 of the Migration Act and reg 4.02 of the Migration Regulations. With the exception of onshore refugee status decisions, and decisions subject to review to the AAT, the basic rule is that most onshore decisions refusing to grant or cancelling visas will be reviewable, but only the visa applicant/holder may apply for review.
In regard to offshore decisions, rights of review are confined to some persons in Australia, where that person (or organisation) was, for example, the nominator or sponsor of the person overseas (s 347 Migration Act).
This is a complex and time-critical area and practitioners should carefully check the relevant law.
Time limits for review decisions
Where a person is in immigration detention because of the refusal or cancellation of a bridging visa and lodges an application for review in relation to that refusal or cancellation, MRD must make its decision within seven working days unless, with the applicant’s agreement, this period is extended (s 367 Migration Act, reg 4.27 Migration Regulations). In other matters, cases are prioritised for hearing according to published guidelines, and statistics that provide indications of likely MRD case finalisation are available on the AAT website.
Refugee review hearings
As with migration decisions, refugee review hearings are conducted in person, by telephone and via video. However, hearings are closed to the public to protect the identity of applicants given the sensitivity of protection cases. The time limits for lodging an application for review are set out in the Migration Act (s 412) and Migration Regulations (reg 4.31). People in immigration detention have seven working days from the date of notification of an unfavourable decision to lodge an application for review to the MRD. All others have 28 days.
Applications can be lodged in person, on-line, by post or fax, and there is no fee payable up front, however, if the review applicant is unsuccessful, a retrospective $1673 application fee is payable and becomes a debt to the Commonwealth.
Minister’s power to substitute a more favourable decision following merits review
Even after the MRD has delivered its decision, the minister retains a power to substitute a more favourable decision if they believe it is in the public interest to do so. This power is non-delegable, non-compellable and non-reviewable. The minister must table a statement regarding each case in parliament. Seeking ministerial discretion is a complex process and it is difficult to succeed.