Other merits review bodies

 

The Refugee Review Tribunal (RRT) and the Migration Review Tribunal (MRT) are currently two separate bodies. They may in future be submerged within the AAT. There are time limits but onshore decisions to refuse or cancel visas are generally reviewable by the MRT. Offshore decisions are more restricted. The RRT reviews refusal to grant refugee status. The Minister can intervene overrule decisions in ther applican’t favour. The government has tried unsuccessfully to abolish all rights of appeal to courts. Ombudsman complaints may also be made.

A changing system

In 1989, a two-tier statutory merits review system was introduced for certain immigration decisions. The review bodies were called the Migration Internal Review Office (MIRO) and the Immigration Review Tribunal (IRT). This review process, however, did not take over AAT’s power to review deportations of permanent residents. Since 1993 there has also been a Refugee Review Tribunal, which hears appeals against decisions to refuse refugee status. On 30 June 1999 the government abolished the MIRO and the IRT and created a new (single-tier) tribunal, called the Migration Review Tribunal. The Refugee Review Tribunal and AAT still retain their separate jurisdictions. The government recently announced in the last Budget speech, that the MRT and the RRT would be “folded” within the AAT to save costs. This occurred on 1 July 2015 and is now called the Migration and Refugee Division of the AAT.

Migration and Refugee Division of the AAT

This tribunal is made up of members appointed by the Governor-General who do not generally have a background of previously working for DIBP. The non-refugee division of the AAT must take oral evidence in public, but is not required to publish its decisions (currently about 40 per cent are published and available to scrutinise on the web (see www.austlii.edu.au). However, despite not being obliged to make its decisions public, it is still obliged to provide a mechanism of review that is fair, just, economical, informal and quick (s 353).

An application for review must be lodged at the AAT on the form approved and with a fee of $1,673. Part of this fee can be waived by the AAT’s deputy registrar if an applicant can show severe financial hardship. If the AAT sets aside, or varies, DIBP’s decision, an applicant is entitled to a refund of half of the AAT fee. SeeContacts” for AAT’s contact details.

Time limits for lodging review

An application for review, together with the appropriate fee, must be received at the AAT before it can be regarded as lodged (regs 4.02, 4.11 Migration Regulations).

Note that an applicant is deemed to have received notices (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. The time of receipt is crucial because there are time limits under the Migration Regulations for lodging applications for review. From the legally assumed date of receipt of the notification of a decision, the person to whom the decision relates has to lodge an application for review to the AAT within:

21 days if in Australia; or

70 days if outside Australia.

If a person is in immigration detention and is refused a bridging visa (to let them out), the time limit for lodging a review application is two working days. In some cases, an extra five working days is allowed (see regs 4.70(2)(a), 4.10(1)(b), (2)(b)). Other short time limits (some as short as two days) apply where a person has been refused a bridging visa and is taken into immigration detention because of that refusal. Currently, there is no discretion in the Migration Act or Migration Regulations for these time limits to be waived.

What decisions are reviewable?

The classes of visas in which there is a right of review are set out in sections 337, 338(2)(d) and 346(1)(d) of the Migration Act. Since 1 September 1994, the rights of review have been expanded and somewhat simplified. Now, the basic rule is that all 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 person in Australia, where that person (or organisation) was the nominator or sponsor of the person overseas (s 337).

Time limit for AAT decisions

Where a person is in immigration detention and lodges an application for review, the AAT must make its decision within seven working days unless, with the applicant’s agreement, this period is extended (s 367 Migration Act; reg 4.26 Migration Regulations).

AAT hearings concerning refusals of protection visas by asylum seekers (who have been immigration cleared) are not in public, for reasons of confidentiality. The time limits for lodging an application for review are set out in the Migration Act (s 412; reg 4.31). People in custody have seven working days from the date of notification of an unfavourable decision to lodge an appeal. All others have 28 days.

Applications can be lodged electronically, by post, and there is no fee payable up front (although if you lose, you owe the AAT a retrospective $1,673 application fee). There is a limited right of appeal from the AAT to the federal courts, but only on certain points of law. SeeContacts” for AAT’s contact details.

Minister’s right to (favourably) overrule AAT decisions

Even after the AAT delivers its decision, the minister retains the right to substitute a “more favourable decision” if the minister believes it is in the public interest and they are not bound by the Migration Regulations when doing so. This power is not compellable and the minister must publish the reasons for intervening in the case with parliament. Despite these seemingly high hurdles to the exercise of such power, it has been used quite frequently by the minister, particularly as it has taken the place of the traditional “compassionate/humanitarian” entry category that existed prior to 1989, but for which no specific visa now exists under the codified system. See:

power to overrule the AAT (non-refugee cases) (s 351); and

power to overrule the AAT (refugee cases) (s 417).

Federal courts

The Migration Act attempts to impose severe restrictions on judicial review of decisions under the Act to the Federal Court, Federal Circuit Court or High Court. Section 474 states that most visa decisions of immigration officers or the portfolio tribunal are to be called “privative clause” decisions and are “final and conclusive” and “must not be challenged, appealed against, reviewed, quashed or called into question in any court”. Hence, the Administrative Decisions (Judicial Review) Act 1977 (Cth) no longer applies in the Federal Circuit Court, or the Federal Court, or the High Court.

However, the government has not been able to remove the right (under s 75(5) Australian Constitution) of aggrieved applicants to challenge decisions of Commonwealth officers using the constitutional writs. The High Court has stated that where there is “jurisdictional error”, no lawful decision has been made and the government cannot protect unlawful decisions. The High Court has said it will grant a suitable constitutional write (aka “prerogative writ”)where a decision is unlawful (for information about these writs, see Appealing government and administrative decisions).

As a result of recent amendments to the Migration Act, the Federal Circuit Court, subject to certain specific carve-outs provided for in subsection 476(2), has the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution. The Federal Court has only limited jurisdiction in relation to migration decisions with its original jurisdiction in this area limited to the specific circumstances outlined in section 476A of the Migration Act.

Further, sections 477, 477A and 486A of the Migration Act provide that an application for review in relation to a migration decision must be made to the Federal Circuit Court, the Federal Court or the High Court respectively within 35 days of the actual (as opposed to deemed) notification of the decision. Only a specialist immigration lawyer should be used where you wish to appeal a personal ministerial decision, or a decision of AAT, to one of the federal courts, as the law of judicial review is now extremely complex.

Other appeals

It may be appropriate to file a complaint with the ombudsman, or the Privacy, Equal Opportunity, Race, Sexual Discrimination or Human Rights Commissioners, if a DIBP official’s conduct infringes any of the relevant legislation. For more information about these agencies, see Discrimination and human rights.