This portfolio tribunal is made up of members appointed by the Governor-General who do not generally have a background of previously working for DIAC. The MRT must take oral evidence in public, but is not required to publish its decisions (currently about 40% 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 MRT on the form approved and with a fee of $1,540. Part of this fee can be waived by the Deputy Registrar of the MRT if an applicant can show severe financial hardship. If the MRT sets aside, or varies, DIAC's decision, an applicant is entitled to a refund of half of the MRT fee.

See: "Contacts" at the end of this chapter for MRT contact details.

On 1 July 1993, the RRT commenced hearing applications for reviews lodged in Australia against decisions refusing refugee status, and thereby Protection visas. The RRT claims to be independent of the government (like the MRT; see: "Migration Review Tribunal", above) and conducts reviews by granting oral hearings. However, unlike the MRT, those hearings 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 by post or fax, and there is no fee payable up front (although if you lose, you owe the RRT a retrospective $1,400 "application fee"). Like the MRT, there is a limited right of appeal from the RRT to the federal courts, but only on certain points of law.

See: "Contacts" at the end of this chapter for RRT contact details.

Even after the MRT or the RRT delivers its decision, the Minister retains the right to substitute a "more favourable decision" if they believe 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 rather 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:

The Migration Act attempts to impose severe restrictions on judicial review of decisions under the Act to the Federal Court, Federal Magistrates Court or High Court. Section 474 states that most visa decisions of immigration officers or the portfolio tribunals (MRT and RRT) 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 Court.

However, the Government has not been able to remove the right (under s.75(5) of the Australian Constitution) of aggrieved applicants to challenge decisions of Commonwealth officers. 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 "prerogative writ" where a decision is unlawful (see: Chapter 21*2 Judicial Review, for information about these writs).

As a result of recent amendments to the Migration Act, the Federal Magistrates 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 Magistrates Court, the Federal Court or the High Court respectively within 28 days of the actual (as opposed to deemed) notification of the decision. The general powers of the courts to grant leave to apply out of time are specifically overridden and are subject to an absolute time limit of 84 days after actual notification of the decision (ss.477(2), 477A(2) & 486A(1A)). However, this "absolute" time limit has recently been found to be unconstitutional so far as applications lodged in the High Court are concerned.

Only a specialist immigration lawyer could assist you where you wish to appeal a personal Ministerial decision, or a decision of the AAT, MRT or RRT to one of the federal courts, as the law of judicial review is now extremely complex.

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 DIAC official's conduct infringes any of the relevant legislation. See: Chapters 17 Discrimination and 21 Dealing with the Government, for further details of these agencies.