The main review mechanism for decisions of Government in Australia is the Administrative Appeal Tribunal (AAT).
Up until 1 July 2015, decisions made in accordance with the Migration Act 1958 were subject to review by the AAT or one of two specialist Tribunals; the Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT), depending on the subject matter of the decision.
Since 1 July 2015, these functions have been rolled into the AAT, in a new Migration and Refugee Division. Practically, this has made little difference as the expertise and staff have transitioned to the new Division of the AAT along with their functional responsibility.
In addition, the existing review processes of the MRT and RRT were amalgamated into the new AAT Migration and Refugee Division meaning, practically, that the structure and approach of the body are largely unchanged.
For applicants, the new structure is functionally simpler, as there is now one single entry point for all appeals related to adverse visa and citizenship applications – the AAT.
Appeals to the AAT
The AAT is a non-adversarial, independent decision-making tribunal. For applicants, this means that it provides a forum to have their case re-heard if they feel they have been treated unfairly in the way the original decision was made.
The AAT decision maker has the power to affirm (agree with and keep) the original decision, or remit the decision (in which case the decision is returned to the Department to be reconsidered as directed).
AAT hearings are conducted face-to-face with the AAT member. At AAT hearings the Department is not represented, which ensures applicants are not subjected to direct questioning from any Department representatives. Applicants for review may provide additional evidence, on paper or in person, that they think will assist the tribunal in deciding in their favour. The hearing also provides an opportunity to further explain relevant circumstances to an applicant’s case or to call witnesses to attest to particular facts.
Always provide as much evidence as you can to the tribunal, because this will be your last opportunity to provide more information in support of your claims.
Decision Making in the AAT
The AAT decision maker is required to ‘stand in the shoes’ of the original decision maker. What this means in practice is they must consider all information, policies, laws, etc. that the original decision maker had available to them, as well as any other information that the AAT member considers relevant at the time of their decision.
Accordingly, it is possible that the decision maker considers the original decision correct but, due to the existence of new information (that was not available to the original decision maker at the time) that decision is now incorrect and a new decision ought to be substituted.
If an AAT Appeal is Unsuccessful
In the event that your application for review at the AAT does not succeed, two primary avenues for recourse remain; appeal to a Federal Court (usually the Federal Circuit Court) or directly to the Minister for personal intervention.
Both of these avenues are very challenging, but if your case has adequate strength there is a prospect of success.
Appeal to a Court (Judicial Review)
While the AAT is empowered to consider the merits of the original decision, a court is not. Indeed, a court’s role is limited to the application of the law; in order to be successful in a review to a court (which, for the purposes of immigration matters, would have to be a court in the Federal jurisdiction), an applicant must demonstrate that the law was improperly applied in their case.
This consideration goes beyond the facts of the case and requires an ‘error of law’ to exist. This could take many forms, but a relevant example might be that a decision maker correctly applied the criteria from a subsection of the Migration Regulations 1994 in making a decision not to grant a visa but, owing to a peculiar legislative construction of that provision, the decision maker should never have applied those criteria at all. Alternatively, in an extreme case, the applicant may be able to demonstrate that the law itself is incorrect (e.g. unconstitutional) and on that basis the decision was not properly made.
To read more about judicial review, please see our article: The Role of the Courts.
If all other appeal avenues have been exhausted, it may be worth considering a direct appeal to the Minister to intervene under the powers vested in them by the Migration Act 1958.
Instances of Ministerial intervention these days are, regrettably, rare. However, the Department will not remove an applicant from Australia until a decision has been made on their application.
Generally speaking, the Minister will only intervene in cases where an applicant has requested review from the AAT and been unsuccessful.
It’s important to consider Ministerial intervention as a last resort; we say this for two reasons:
1. It entails a very poor prospect of success, and
2. Once you apply for intervention, you will receive a Bridging E visa, which removes your capacity to work or study without approval, as well as apply for other visa types.