Seeking Review of Migration Decisions

Based on the contribution of The Late Michael Clothier, former Accredited Immigration Law Specialist, as amended by by Er-kai Wang, Migration Lawyer, Legal Aid ACT (LPN: 5512853) and current to June 2022

NOTE: The Immigration and Refugees chapter is under substantial revision. The information in the following section may not be accurate. Readers should be aware that the Migration Regulations change rapidly. Before using the information listed here, we recommend that you check if the law is still current by seeking advice from a migration agent or visiting the Department of Home Affairs' website.

Appeals to the Administrative Appeals Tribunal

Not all visa refusal or cancellation decisions are merits-reviewable by the Tribunal. Decisions that can be reviewed by the Tribunal are set out in Part 5, Part 7 and s 500 of the Migration Act.

The AAT is independent of the Department and is obliged to “put itself in the shoes” of the decision-maker and make a fresh decision. In its Migration and Refugee Division (MRD), the Tribunal can review Part 5 and Part 7 reviewable decisions. In its General Division (GD), the Tribunal has powers to review refusals or cancellations of temporary visas on character or security grounds; cancellations of business visas (after entry); decisions relating to migration agent and citizenship matters.

Section 501 Cancellations and Refusals

If a delegate of the minister has cancelled or refused a permanent visa under section 501 of the Migration Act, on character grounds, then very different rules apply. The person must be immediately detained. Section 501G sets out the requirements for the content of character decisions. They must set out reasons for the decision and, if the applicant is onshore, must be accompanied by two copies of every document in the delegate’s possession and control that was relevant to the making of the decision.

An onshore applicant has only nine days from date of notification to seek review. Any application to AAT must be accompanied by one of the sets of documents given to the applicant (s 500(6B)). The minister is then obliged to lodge with AAT all the relevant documents (including non-disclosable information) within 14 days (s 500(6F)). Only then can a hearing be held (s 500(6G)). AAT itself has the power to direct the minister to provide missing documents.

During any hearing, the AAT must not take into account any information presented orally by or for an onshore applicant unless it was set out in a written statement given to the minister at least two working days prior to the hearing (s 500(6H)) nor any document unless it was given to the minister at least two working days prior to the hearing (s 500(6J)). The minister, however, can keep providing information to AAT up to the hearing date (s 500(6J)). Finally, AAT must make a decision within 84 days of the day the onshore applicant was notified of the delegate’s decision (s 500(6L)) or AAT is deemed to have affirmed the primary decision (i.e. the person is deemed to have lost their case!).

Cancellations or refusals decisions made under s 501 concerning a non-citizen who is overseas may also be reviewable by the Tribunal, however, affected persons should seek professional advice because those review rights are dependent on the type of visa cancelled and other circumstances.

If a person is the subject of a character visa “cancellation” decision under s 501, as opposed to a mere visa “refusal”, this is an absolute bar to the grant of any future visa other than a protection visa or a criminal justice visa. This is because all substantive visas require satisfaction of clause 5001 in schedule 5 of the Migration Regulations, which states that an applicant must not have had a visa “cancelled” under s 501 for either general conduct or criminal conduct.

Given the mandatory detention provisions, in some circumstances, it may be better for a person to leave Australia to avoid the mandatory detention aspects of an onshore decision, and run their review (or part of it) to the Tribunal from offshore.

Where the AAT has jurisdiction, it will decide the application exercising the same powers and discretions as the minister. It will consider the legal validity of the decision under review and also any policies that it considers are appropriate. The Tribunal is bound by the Departmental policies and directions made by the minister under s 499 of the Migration Act.

The Character Test

A non-citizen is deemed to not pass the character test if they have a “substantial criminal record”. This is defined in section 501(7) to include being:

• sentenced to death;
• sentenced to imprisonment for life;
• sentenced to a term of imprisonment of 12 months or more;
• sentenced to two or more terms of imprisonment (on one or more occasions) where the total of those terms is two years or more; or
• acquitted of an offence on the grounds of unsound­ness of mind or insanity as a result of which the person has been detained in a facility or institution.

A non-citizen is also deemed to fail the character test if they have (or had) an association with another individual, a group or an organisation, whom the minister reasonably suspects has been or is involved in criminal conduct. The minister’s policy states that this includes having an “alliance”, “link” or “connection” and includes a person with blood or family ties to a criminal organisation. Actual membership of a criminal organisation is not essential. A non-citizen can also be found to be of bad character even if their criminal record is less than the above, as the minister or delegate can still have regard to either past and present criminal conduct or past and present general conduct. “Criminal conduct” means conduct that is punishable by law and has actually been punished by conviction for an offence.

All other conduct, both good and bad – including conduct that may be a crime but was never prosecuted, no conviction was recorded or the non-citizen was acquitted – is treated as “general conduct”. Accordingly, even an acquittal by a court is not conclusive of good character as the minister or delegate can still make a finding on the balance of probabilities that the crime was committed. Indeed, general conduct is an area too broad which may leave room for possible abuse or misinterpretation.

As it is described in ministerial direction No 65, in considering a person's past and present criminal conduct, these factors are to be taken into account:

In considering a person's past and present general conduct, these factors are taken into account:

Section 499 Ministerial Directions

Section 499 policy directions allow the minister to make binding directions on delegates and AAT that must be complied with. The directions are binding both in relation to the matters to be taken into account and what weight should be given to different considerations. There are three primary considerations, as discussed below.

Section 499 policy directions allow the minister to make binding directions on delegates and the Tribunal that must be complied with. The directions are binding both in relation to the matters to be taken into account and what weight should be given to different considerations.

Under Ministerial Direction No. 65 'Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA', there are three primary considerations and other considerations, as discussed below.

Primary considerations:

• Protection of the Australian community;
• Best interest of minor children;
• Expectations of the Australian community.

Other considerations:

• International non-refoulement obligations;
• Impact on family members;
• Impact on victims;
• Impact on Australian business interests.

AAT must consider all of the above matters as part of a ministerial direction under s 499 of the Migration Act. The Tribunal can, if it believes that the wrong decision has been made, reverse either a deportation order or a cancellation/refusal. It can also change the decision in the other matters where it has jurisdiction. Direction no. 65 can be found at https://www.homeaffairs.gov.au/visas/Documents/ministerial-direction-65.pdf

Minister’s Power to Set Aside AAT decisions

The Minister has the power to set aside a Tribunal decision if the Minister thinks it is in the public interest to do so (see e.g. ss 133A, 133C and 501BA).

In practice, most of the cases where the Minister might be likely to ensure that the cancellation decision stands (e.g. cases concerning serious criminal conduct or national security) do not go to the Tribunal in the first place. The minister can exercise personal powers in the “national interest” that excludes any merits review right to the Tribunal.

Other Merits Review Bodies

A Changing System

In 1989, a two-tier statutory merits review system was introduced for certain immigration decisions. The review bodies were called the Migration Internal Review Office (MIRO) and the Immigration Review Tribunal (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 costs. This occurred on 1 July 2015 and is called the Migration and Refugee Division of the AAT.

The Immigration Assessment Authority (the IAA) was established in April 2015, as a separate office within the Refugee Review Tribunal. From 1 July 2015, the IAA became an independent authority within the Migration and Refugee Division of the Administrative Appeals Tribunal. The IAA is independent of the Department of Home Affairs and of the Minister.

The role of the IAA is to conduct reviews of fast track reviewable decisions. Fast track reviewable decisions are those decisions made by the Minister, or delegate, to refuse to grant a protection visa to a fast track applicant.

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 the Department. The non-refugee division of the AAT must take oral evidence 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 $1,731. Part of this fee can be waived by the AAT’s deputy registrar if an applicant can show severe financial hardship. If the AAT sets aside, or varies, the Department’s decision, an applicant is entitled to a refund of half of the AAT fee. See Contacts and Resources.

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 deemed to have received notice (if notified by post) after 7 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 or 28 days, if in Australia; or
• 70 days, if outside Australia.

If a person is in immigration detention and is refused a bridging 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 (regs 4.70(2) (a), 4.10(1) (b), and (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 discretion in the Migration Act or Migration Regulations for these time limits to be waived.

For a review of character related decisions, the time limit is 9 calendar days after the person is notified of the decision (s 500(6B)).

What decisions are reviewable?

The type of decisions which are merits reviewable are set out in ss 337, 338(2) (d) and 346(1) (d) of the Migration Act. Since 1 September 1994, the rights of review have been expanded and somewhat simplified. Now, the basic rule is that all onshore decisions refusing to grant or cancelling visas will 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 asylum seekers (who have been immigration cleared) 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 electronically, by post, and there is no fee payable up front (although if you lose, you owe the AAT a retrospective $1,731 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 and Resources.

Federal Courts

The Migration Act attempts to impose severe restrictions on judicial review of decisions under the Act to the Federal Court, 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 right for judicial review is guaranteed in the Australian Constitution (s 75(5)). Aggrieved applicants may challenge decisions of Commonwealth officers by seeking 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 writ (as known as a “prerogative writ”) where a decision is unlawful. For more information, see 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 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 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.

Other Appeals

It may be appropriate to lodge a complaint with the Commonwealth Ombudsman, or the Australian Human Rights Commission, if the conduct of a Departmental staff breaches any of the relevant legislation.For more information about these agencies, see Discrimination Chapter and Human Rights Chapter.

Freedom of Information

Accessing Documents

The Freedom of Information Act 1982 (Cth) ('Freedom of Information Act') gives the right of access to official documents of Commonwealth departments and authorities.

The Procedures Advice Manual and all Policy Control Instructions used in the Department are available at Department’s offices. They may be examined free of charge, or copies of the required pages may be purchased. Documents held by the Department on a particular file, or general files or any other identifiable document, may be requested.

To request documents, write to Department’s Freedom of Information Unit, stating that the request is made under the Freedom of Information Act (see Contacts and Resources). The Department is required to take all reasonable steps to ensure that a decision is made upon the request as soon as possible, and no later than 30 days after it was received. If it is felt that information so obtained is inaccurate or otherwise may mislead the Department in its actions, a request may be made to change the record. A form is available from the Department for this purpose. Currently the Department charges no fee for personal files.

Freedom of Information Appeals

If you are dissatisfied with the Department’s decision on your freedom of information request, you may seek an internal review, which means that the request is looked at again by a more senior officer of the Department who was not involved in the original decision. The officer may reverse, alter or confirm the original decision. No particular form is required for the request for internal review, but it would help the decision-maker if you included in your application the ground on which you consider the decision should be reviewed. If you wish to have a decision reviewed in this manner, you need to ask for an internal review within 28 days of receiving a reply to your original request and in turn you must be given a new decision within 14 days.

If you are dissatisfied with the internal review, you may seek an independent review by AAT (for more information, see Appealing government and administrative decisions). The Commonwealth Ombudsman may also investigate complaints about the Department’s actions in handling freedom of information requests (see Complaining About Commonwealth Decision Making).