Any decision made by a Government decision-maker – except in exceptional cases – is subject to merits review at a relevant tribunal.
For a visa applicant, this means that if you have a decision taken to refuse to grant, or to cancel, your visa, you are likely to have a right to appeal that decision to the Administrative Appeals Tribunal.
The most common exceptions outlined in the Migration Act 1958 and Migration Regulations 1994 are:
– Where the applicant is outside of Australia, or
– Where the Minister exercises their discretion personally to refuse to grant, or to cancel, a person’s visa under certain provisions.
What is Merits Review?
Merits Review entitles the applicant to a completely new hearing of their case, with a secondary decision maker (in this case, the AAT member) considering whether the original decision was correctly made. The AAT member has the power to throw out the original decision and substitute it with a new decision of their own.
This right to merits review is founded in the equitable legal principle of ‘natural justice’ – that is, a person is entitled to an objective reassessment of their case where a government decision maker has made an adverse decision on their case. Originally, it was intended to ensure that the individual was treated objectively and fairly and not affected by maladministration. This principle continues today.
What is Judicial Review?
In general, if you have had a decision made not to grant, or to cancel, your visa and you have been unsuccessful in your appeal to the AAT, your only other potential avenue of appeal is directly to the Minister, who has the power to grant any visa to a person.
So what is the role of the court in all this? There is an essential distinction that we need to draw, which is this:
– Tribunals provide merits review, which includes looking at whether the original decision was correctly made, in line with the requirements of the legislation, and
– Courts undertake judicial review, which does not consider the merits of the case, but instead whether there has been an ‘error of law’ – that is, whether the law itself has been correctly applied in the circumstances.
A court will assume that the original decision was correctly made. Accordingly, in order to be successful on judicial review, an applicant is required to demonstrate that the law was applied incorrectly or (and this is much more difficult) the law itself is invalid.
The biggest drawback of judicial review is that in order to seek a hearing, you need to demonstrate why, specifically, your case warrants consideration by a court. If the court is not convinced by the strength of your application, it will refuse to hear it. Additionally, appeals in the migration division, which falls within the Commonwealth jurisdiction, need to be made at a Federal court (usually the Federal Circuit Court in the first instance) which can be very expensive for an applicant to access.
In sum, while applicants are sometimes successful in their judicial appeals, you and your advisors need to carefully consider whether your case has a realistic chance of success before committing you to such an action.