Last updated 20 May 2020
Merits and/or judicial review are generally available in relation to a migration decision. The Administrative Appeals Tribunal’s (AAT) Migration and Refugee Division (MRD) has power to engage in merits review of decisions. 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.
Where the AAT has jurisdiction, it will decide the application exercising the same powers and discretions as the minister’s delegate. It will consider the legal validity of the order and also any policies that it considers appropriate. The AAT is not bound by the policies used by the minister, but it is bound by any directions made by the minister under s 499 of the Migration Act 1994 (Cth) (Migration Act).
Migration review hearings
The migration hearings within the MRD must generally take oral evidence in public and prepare a written decision with reasons, but is not required to publicly publish its decisions unless a decision is of particular interest.
The MRD is obliged to provide a mechanism of review that is fair, just, economical, informal and quick (s 353 Migration Act). Hearings are conducted in person, by telephone and via video.
An application for review must be lodged at the MRD on the approved form and with a fee of $1764. Applications can be lodged online, by hand, post or fax. 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 remits, sets aside or varies the Department of Home Affairs (DHA) decision, an applicant is entitled to a refund of half of the MRD fee.
The time limits for lodging an application for review are set out in the Migration Act (s 412) and Migration Regulations 1994 (Cth) (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.
Review of refugee cases are different to other migration cases. Hearings are closed to the public to protect the identity of applicants given the sensitivity of protection cases. No fee is payable up front, however, if the review applicant is unsuccessful, a retrospective $1764 application fee is payable and becomes a debt to the Commonwealth.
The review process for people who arrived by boat and applied for Temporary Protection or Safe Haven Enterprise visas is very different. They are subject to a ‘fast-track’ process where a decision to refuse their visa is automatically referred to the Immigration Assessment Authority (IAA) for review. Fast-track applicants have limited review rights. Decisions are usually made ‘on the papers’. The IAA does not have to hold a hearing nor consider any new information unless it considers it is exceptional circumstances. New information not known at the time of the DHA decision must be provided to the IAA within 21 days after the decision.
Time limits for lodging a review application
An application for review, together with the appropriate fee, must be received at the MRD before it can be regarded as lodged.
Note that an applicant is deemed to have received notice of a DHA 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.
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. Prisoners have nine days to seek review of an automatic cancellation of a visa on character grounds. Time limits shorter that 21 days can also apply to those not in immigration detention.
Currently, there is no discretion in the Migration Act or Migration 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. 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.
A limited form of review is allowed of certain decisions to refuse protection visas to some unauthorised maritime arrivals through referral by the minister to the Immigration Assessment Authority (IAA). A person cannot apply for review directly to the IAA. The IAA does not hold hearings but reviews decisions ‘on the papers’. The IAA will only consider new material in exceptional circumstances (pt 7AA Migration Act).
In regard to offshore decisions, any 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.
Processing times 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, the MRD must make its decision within seven working days unless, with the applicant’s agreement, this period is extended. 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.
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.
Review of deportation decisions
Where the minister signs a deportation order against a permanent resident convicted of a crime, the person has a right to appeal on the merits to the Administrative Appeals Tribunal (AAT) (s 500(1)(a) Migration Act).
The AAT is independent of the minister and the Department of Home Affairs (DHA), and is obliged to make a fresh decision.
The decision maker must supply a statement of reasons within 28 days of the application being lodged with the AAT. These documents are required to be lodged at the AAT and are usually made available to the person who has applied for review (ss 37, 39 Administrative Appeals Tribunal Act 1975 (Cth)).
Review of cancellation decisions
If a delegate of the minister has cancelled or refused a permanent visa under s 501 of the Migration Act on character grounds, then very different rules apply.
If the cancellation decision is made personally by the minister, there is no right of appeal to any merits review body such as the AAT, and the person must be detained until removed or granted a visa. The only appeal is to the Federal Court for judicial review (see the Complaints against Government – Judicial Review chapter).
If the cancellation decision is made by a DHA delegate, an application for review may be available to the AAT. An onshore applicant has only nine days from the date of notification to seek review (s 500(6B) Migration Act). Any onshore application to the AAT must be accompanied by one of the sets of documents given to the applicant as notice of the decision to cancel the visa. The minister is then obliged to lodge with the AAT all the relevant documents (including non-disclosable information) within 14 days. A hearing cannot be held until at least 14 days after the minister is notified of the application to the AAT. The AAT itself has the power to direct the minister to provide missing documents.
During any hearing, the AAT must not take into account any information presented orally by or for an onshore applicant unless it was set out in a written statement given to the minister at least two working days prior to the hearing (s 500(6H) Migration Act), nor any document unless it was given to the minister at least two working days prior to the hearing (s 500(6J) Migration Act). The minister, however, can keep providing information to the AAT up to the hearing date (s 500(6J) Migration Act). Finally, the AAT must make a decision within 84 days of the day the onshore applicant was notified of the delegate’s decision (s 500(6L) Migration Act) or the AAT is deemed to have affirmed the primary decision (i.e. the person is deemed to have lost their case).
The minister’s power to overrule Administrative Appeals Tribunal decisions
The minister may overrule a decision of a DHA officer or the AAT not to cancel a visa on the basis of the character test, where the minister is satisfied that cancellation is in the national interest (s 501B Migration Act).