AAT Review

The role of the Migration and Refugee Division of the AAT is to review decisions made by the Department of Immigration and Border Protection (DIBP). The AAT have the power to affirm, vary or set aside DIBP’s decision, or to return the matter to DIBP for reconsideration with specific directions. The AAT is able to consider a wide range of visa-related decisions, including refusals and cancellations. Decisions are based on the merits of each particular case.

Your application for review MUST be lodged with the AAT within the required time frame. The letter that you receive from DIBP regarding the decision to refuse or cancel your visa will refer to the exact time frame within which you must lodge your review application, should you take this step. In most cases the relevant time frame for application is 21 days from the date of a decision to refuse a visa application, and 7 days from the date of a decision to cancel your visa.

The AAT can decide to:

• affirm DIBP’s decision, meaning that is agrees with DIBP’s decision and it will not be changed;

• set aside DIBP’s decision, meaning that the decision will be changed. In this situation, the AAT has the option of substituting DIBP’s decision with a new decision, or returning the matter to DIBP for reconsideration (see below).

• remit DIBP’s decision, meaning that the matter will be returned to DIBP for reconsideration. The AAT may then give DIBP directions that it must take into account when reconsidering its decision.

You MAY qualify for a bridging visa upon lodgement of your review application. The type of bridging visa that you qualify for (if any), along with the conditions of that visa, will depend upon your circumstances at the time that you lodged the visa application that is under review (if the review relates to a refusal decision).

Please note that it may take up to several months for the AAT to complete its assessment of your application and make a decision, depending upon the amount of material that it must consider, and the complexity of your case.

Merits review of immigration decisions has been available since 1982 through the Immigration Review Panel. That panel was created by executive action and was replaced by the legislatively established Immigration Review Tribunal (the IRT) in 1989, later renamed the Migration Review Tribunal (the MRT) on 1 July 1999, to become part of the Administrative Appeals Tribunal (AAT) on 1 July 2015. The former Refugee Review Tribunal (RRT) established in 1993 also merged with the AAT on 1 July 2015 in its Migration and Refugee Division, and reviews decisions in relation to applications for refugee status and refugee protection visas. In addition, the Immigration Assessment Authority (IAA) was created in April 2015, as a separate office within the Refugee Review Tribunal (RRT), which from 1 July 2015 also became an independent authority within the AAT. Limited appeals lie from both the AAT to the Federal Court.

The former Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT), now form part of the AAT, which has primary jurisdiction to provide merits review of specified decisions made under the Migration Act and Regulations. The Administrative Appeals Tribunal (AAT) reviews migration decisions on their merits. The tribunals’ task is to make the “correct and preferable” decision in the particular case before it. This is a much wider task than that of a judicial review court, which is concerned only with whether a legal error occurred in the making of the decision under review.

In contrast, merits review is concerned with remaking the decision under review (‘standing in the same shoes’), not with correcting errors made by the original decision maker.

Merits review tribunals decide all questions of fact and discretion for themselves. They can consider any evidence that will help them come to the correct and preferable decision, including evidence that the applicant failed to put before the original decision maker. In light of that new evidence, they can substitute their own findings of fact-even if the original decision maker’s findings were “correct” on the basis of the evidence available at the time.

Further, even if the tribunal does not identify any errors of fact (or law) in the original decision, they may substitute their own judgment of how any discretion should be exercised in order to come to the preferable decision. The tribunals can also form their own views as to the desirability of applying departmental policy in a particular case.

These tribunals’ factual and discretionary decisions are subject to judicial review in the Federal and High Courts. However, the general principle that a judicial review court cannot substitute its decision for that under review applies. If a factual or discretionary decision is found to be infected by legal error, the court will remit the decision back to the relevant tribunal to be redecided. Therefore, in practice the merits review tribunals have the final say in the migration decision-making process on questions of fact and discretion, including how any relevant policy should be applied in the exercise of a discretion.

In order to determine the correct and preferable decision in a particular case, the tribunals will often be required to also decide questions of law (especially to interpret provisions of the Act and Regulations). However, constitutional (separation of powers) principles limit the extent to which the tribunals can be given the power to make binding determinations of legal principles without Parliament having invalidly conferred the judicial power of the Commonwealth on them. However, these precise limits remain unclear.

A primary decision maker of the Department of Immigration and a review officer must notify a decision by:

• Sending a notice of the decision to, or leaving a notice of the decision at, the last residential address given to the Minister by the applicant, or
• Handing a notice of the decision to the applicant or a person specified by the applicant as a person who may be given notifications about an application

A notification sent within Australia is taken to be received seven days after the date of the document, while notification sent to or from an address outside Australia is taken to be received 21 days after the date of the document. As the Migration Act refers to ‘the address at which the applicant intends to live while the application is being processed,’ the sending of a notice to a post box address will not bring the deeming provisions of the Migration Act into force.

The following decisions are reviewable by the AAT:

• Decisions refusing a substantive visa to a person who is subject to restrictions under section 48 because of an earlier visa refusal or cancellation
• Decisions refusing applications for December 1989 entry permits
• Decisions refusing a substantive visa where the applicant is in immigration detention when the decision is notified to him or her, and decisions refusing a visa made by the Secretary or by an officer holding or acting in a Senior Executive Service position
• Decisions refusing protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012 as fast track reviewable decisions by the Immigration Assessment Authority (IAA) within the AAT.
• Decisions in relation to refugee status made before 1 September 1994, and decisions refusing or cancelling protection visas made after 1 September 1994
• Decisions to deport a person, decisions refusing or cancelling visas on character grounds under s 501, and decisions cancelling business visas under s 135 are reviewable by the AAT

Offshore decisions refusing to grant visas where there is no criterion requiring nomination or sponsorship in that subclass are not reviewable. A decision that an application is not valid is not a decision to refuse to grant a visa and so is not reviewable. Decisions rejecting nominations or sponsorships are not reviewable.

In addition, the Minister has the power to issue a conclusive certificate preventing review of a decision if the Minister believes that it would be contrary to the public interest:

• To change the decision, because any change in the decision would prejudice the security, defence or international relations of Australia, or
• For the decision to be reviewed because such review would require consideration by a review officer or the Tribunal of deliberations or decisions of the Cabinet or of a committee of the Cabinet

The Migration Act strictly defines the persons who can seek merits review of a migration decision. An applicant for review must be physically present in Australia when the application for review is made.

For off-shore decisions, rights of review are confined to sponsors or nominators in Australia or Australian relatives of the visa applicant rather than being conferred on the applicant himself or herself. The applicant for review must also be a relative as the term is defined in the Regulations.

If you have recently been refused a visa you should received a letter from the Department of Immigration stating the number of days you have to exercise your right for review.

The time limits for applications to the AAT are:

• (i) if the reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)- 28 days after the notification of the decision; or
• (ii) if the reviewable decision is covered by subsection 338(5), (6), (7) or (8) – 70 days after the notification of the decision; or
• (iii) if the MRT-reviewable decision is covered by subsection 338(9) – the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision.

Time does not run for the purposes of review until a person is notified of a decision, although a failure to give notification of a decision does not affect the validity of the decision. The Tribunal has no jurisdiction to extend the time for application.