A changing system
In 1989, a two-tier Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. merits review system was introduced for certain immigration decisions. The review bodies were called the Migration Internal Review Office (MIRO) and the Immigration Review A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding. (IRT). However, this review process 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 Migration Review Tribunal and the Refugee Review Tribunal were ‘folded’ within the AAT to save The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs.. This occurred on 1 July 2015 and is 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 Home Affairs. The non-refugee division of the AAT must take oral Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. 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 $1731. Part of this fee can be waived by the AAT’s deputy The officer in charge of the administrative section of a court, which is known as the registry. See also prothonotary. if an applicant can show severe financial hardship. If the AAT sets aside or varies Home Affairs’ decision, an applicant is entitled to a refund of half of the AAT fee. See ‘Contacts’ at the end of this chapter 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 Treated by the law as if something is the case, even if that is not the reality. For example, children may be deemed to have the same home as their parents, whether they actually live there or not. Or a person may be deemed to have given their consent to something if they hear about it and do not object. Compare rebuttable. 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 A permit that allows a person who is not a citizen to stay in a country on certain conditions, for the length of time stated in the 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 Power to choose whether to do something or not. For example, a judge may have discretion to allow a party extra time to complete a document if it would be unfair to enforce the legal time limit. in the Migration A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 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 simplified.
Now, the basic rule is that all onshore decisions refusing to grant or cancelling visas A document that sets out what a person wants to happen to their money and other property after they die. 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 Refuge or protection from persecution, usually in another country. Historically, also a place for the detention and treatment of the mentally ill. seekers (who have been immigration cleared) are not in public, for reasons of The principle that private information told to a person must not be revealed to others. Some professionals must keep information confidential, for example doctor–patient and lawyer–client relationships.. The time limits for lodging an application for review are set out in the Migration Act (s 412; reg 4.31). People in Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds. have seven working days from the date of notification of an unfavourable decision to lodge an The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision.. 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 $1731 application fee). There is a limited right of appeal from the AAT to the federal courts, but only on certain points of law. See ‘Contacts’ at the end of this chapter 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).
The Migration Act attempts to impose severe restrictions on The court’s review of an administrative decision on the basis of a legal error in the decision-making process. For example, a court can review a decision by an official on the ground that the official is biased. Compare review on the merits. See also administrative act. of decisions under the Act to the Federal An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate., 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 merely by calling them ‘private clause’ 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 Chapter 12.2: 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 The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. in relation to migration decisions as the High Court under paragraph 75(v) of the Australian 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.
It may be appropriate to file a complaint with the A public official appointed to investigate citizens’ complaints against government departments and statutory authorities. A specialised ombudsman resolves consumer complaints in a particular industry, for example the banking ombudsman for the banking industry. See also statutory authority., or the Privacy, Equal Opportunity, Race, Sexual Discrimination or Human Rights Commissioners, if a Home Affairs official’s conduct infringes any of the relevant Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute..
For more information about these agencies, see Chapter 11.1: Discrimination and human rights.