Immigration, Refugees and Citizenship

Review of Decisions

Overview

Migration law deals with decisions and actions taken by government decision-makers. As such it is part of the body of law known as administrative law. Administrative law governs a person's ability to challenge a decision made by the Department and provides two formal mechanisms for review: merits review, and judicial review (see generally AdministrativeLaw). Where the Department makes a decision that is unfavourable to a visa applicant or visa holder, in many cases the applicant or their sponsor can seek a review of that decision.

Merits review

Merits review of migration decisions is undertaken by three tribunals: the Migration Review Tribunal (MRT) (see Review by the Migration Review Tribunal), Refugee Review Tribunal (RRT) (see Review by the Refugee Review Tribunal) and Administrative Appeals Tribunal (AAT) (see Review by the Administrative Appeals Tribunal). These tribunals review the original decisions (also known as primary decisions) made by the Department by standing in the shoes of the original decision-maker and considering all the relevant facts and the application of the law. The tribunals do more than look for errors in the original decision, they make an entirely new or "de novo" decision.

The principal objective of merits review is to ensure that reviewed administrative decisions are legally correct and preferable. This in turn aims to secure fair and equitable treatment of all people affected by government decisions and improve the quality and consistency of primary decisions. The merits review tribunals have the power to uphold the original decision, vary the decision, substitute a new decision or transfer the matter back to the Department for reconsideration.

Judicial review

Judicial review of migration decisions generally becomes available after an applicant has exhausted their right to merits review (see Asking the Courts to Intervene - Judicial Review). In these circumstances, depending on the type of decision to be reviewed, the Federal Court, the Federal Magistrates Court or the High Court of Australia may review the decision. The types of decisions the Courts are able to review are limited due to the operation of what are known as privative clauses recently introduced into the Act by Parliament.

Unlike merits review, judicial review is restricted to examining the legality of a decision. The Courts will not re-consider the facts, evidence or merits of the case in order to determine whether the decision taken was the most appropriate decision. Rather, they will examine whether the decision maker acted within the law and applied the law properly. If a Court finds that there has been an error of law, they will usually refer the matter back to the decision-maker for further consideration.

Other mechanisms

In addition to merits and judicial review, there are other mechanisms available for challenging the practices and decisions of the Department. Aggrieved parties can apply to the Minister to intervene on their behalf (see Asking the Minister to Intervene). They can also complain to the Commonwealth Ombudsman or the Australian Human Rights Commission (see Other Forms of Review) and even attempt to apply pressure by raising public awareness of an issue.

Review by the Migration Review Tribunal

The Migration Review Tribunal (MRT) provides merits review of visa related decisions made by the Minister and his/her delegates. The MRT was established under the Act and began operating on 1 June 1999. The Act and Regulations set out which decisions are reviewable by the MRT, who can apply for review, the time limits on applying, and the procedures that must be followed.

The MRT comprises a Principal Member, a Deputy Principal Member, Senior Members and many full-time and part-time Members. All members are appointed by the Governor-General for a period of five years and cross-appointed to the Refugee Review Tribunal (RRT) (see Review by the Refugee Review Tribunal). The Registrar of the MRT looks after the general operation of the tribunal and its staff.

In general, a review applicant's matter will be heard by one, two or three members of the MRT sitting at one time (s 354). Where two members review a decision and hold different opinions on what to do, the decision of the "presiding member" stands (s 357). Once the Tribunal has examined the matter, it has the power to affirm the original decision (in which case the applicant is unsuccessful), vary the decision, substitute a new decision or remit the matter back to the Department for reconsideration in certain circumstances (s 349).

Which decisions are reviewable?

Section 338 of the Act and reg 4.02 of the Regulations set out the types of migration decisions reviewable by the MRT. Essentially, the MRT has jurisdiction to review most migration decisions, including the following:

• a decision to refuse a visa;
• a decision to cancel a visa where the holder is in Australia (this does not include a decision to cancel a visa on character grounds);
• a decision not to revoke cancellation of a student visa under s 137J;
• a decision about an applicant's score on the points test (see Skilled Visas); and
• a decision to refuse or reject certain business sponsorships and nominations.

The following decisions are not reviewable by the MRT:

• a decision to impose/change/not to waive a condition on a visa;
• a decision about the validity of a visa application;
• a decision to specify the period of a temporary visa;
• a finding that a person is not the holder of an absorbed-person visa or an ex-citizen visa;
• a decision that the Minister has made personally;
• a decision relating to refugee / humanitarian visas (see Refugees and Humanitarian Entrants); and
• a decision relating to cancellation / deportation on character grounds (see Public Interest Criteria at A. Character; also Visa cancellation and Removal and deportation).

Who can apply for review?

In different circumstances, the Act provides visa applicants, former visa holders, sponsors, nominators and relatives with "standing" to apply for review at the MRT. Whether or not someone is able to apply for review depends on the nature of the decision being appealed and the location of the review applicant. Section 347 of the Act stipulates that the following people have standing to bring an application for review of a decision before the MRT:

• Non-citizens who are in Australia and who have had a visa application refused, a visa cancelled, or have had their request to revoke cancellation of their student visa refused;
• Non-citizens who are in immigration detention because they have had a bridging visa refused or cancelled;
• Sponsors and nominators of visa applicants who have applied for a visa from outside Australia (in this case the sponsor / nominator is called the review applicant and the person who applied for the visa offshore is called the visa applicant); and
• Relatives of people who have applied for a visa from outside Australia. The relatives must be Australian citizens or permanent residents. The visa applied for must have a requirement either that the applicant was a former Australian resident or intended to visit their Australian relative.

Time limits for lodging applications

The Act and Regulations provide strict time limits for applying for review of a migration decision. The length of time allowed to apply for review depends on the type of decision being challenged, where the review applicant is located and where the application for review is lodged. Refer to reg 4.10 to ascertain how long an applicant has to lodge an application for review.

Time limits run from the date the review applicant is notified of the decision. Therefore, it is extremely important to work out whether an applicant was properly notified and exactly when they received notification. For information on notification dates for visa refusals and cancellations, see Challenging a decision to refuse a visa and [42.4.4.2], and Challenging a decision to cancel a visa, respectively. The Department's letter of notification sent to the applicant should also provide information on how long they have to apply for review of the decision.

Lodging an application for review

Once an applicant has verified they have a right to review (see Who can apply for review?) and ensured they are within the time limits (see Time limits for lodging applications), they need to consider the reasons for the Department's decision and their prospects of success should they apply for review. To this end, it may be helpful to lodge a Freedom of Information request with the Department or MRT (see FreedomOfInformation).

If they decide they wish to challenge the decision, they should complete and lodge one of the following forms with the MRT:

• Application Form for applicants not in immigration detention
• Application Form for applicants in immigration detention

Applicants should aim to lodge evidence and submissions in support of their case along with their application form.

Unless they are applying for review of a bridging visa decision which has resulted in them being in immigration detention, applicants must also pay an application fee of $1400. The Registrar of the MRT may waive this fee if the applicant can prove that paying it would cause severe financial hardship. The fee will be refunded if the application is ultimately successful or is invalid.

MRT procedures

When reviewing the decision, the MRT should be fair just, economical and quick. It is not bound by technicalities, legal forms or rules of evidence and should act according to substantial justice and the merits of the case (s 353). In doing so, it must make its decisions according to the law set out in the Act, Regulations and Ministerial Directions. The MRT must apply the law as it stood at the time the original decision was made by the Department.

Unlike the Courts, the MRT plays an 'inquisitorial' role when conducting a review. Tribunal members may request any information they believe is relevant or invite any person to provide additional information. They are not restricted to considering the evidence that is presented to them by the review applicant or the Department.

The procedures the MRT must follow when reviewing a decision are set out in the Act and Regulations. In particular, Part 5, Division 5 of the Act entitled "Conduct of Review" is considered to be an exhaustive statement of the natural justice rule that would otherwise apply to administrative law matters.

If the MRT can reach a favourable decision for the applicant on the basis of the applicant's written application, it need not invite the applicant to appear or give evidence (s 360).

However, if a favourable decision cannot be reached "on the papers" then the MRT must provide the applicant with the "adverse information" it possesses in relation to the applicant's case (unless the information is not about the applicant personally, was already provided by the applicant or is privileged). The MRT can either invite the applicant to comment on or respond to that information at a hearing (s 359AA) or in writing (s 359A).

If the MRT has chosen to conduct a hearing, the applicant can lose their right to attend. This will occur where:

• they advise the Tribunal they do not intend to come to the hearing or otherwise agree that the tribunal should make a final decision without an oral hearing (s 360);
• they fail to attend the scheduled oral hearing (s 362B);
• they fail to provide a response to the Tribunal's written request for information within the specified time frame (s 359C(1)); or
• they fail to respond to the Tribunal's letter advising them of adverse information (see above) within the specified time frame (s 359C(2)).

A. The review hearing

As explained in MRT procedures, the MRT is not obliged to conduct a hearing to review a migration decision. However, where the MRT decides to put adverse information to the applicant orally at a hearing, then its members must ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant and the consequences of the information being relied upon. The MRT must invite the applicant to respond and advise them that they can seek an adjournment to obtain additional time to comment (s 359AA).

Dissimilar to appearing before a Court, review applicants before the MRT have no right to legal representation unless exceptional circumstances exist (for example, the applicant is unable to speak or understand English) (ss 366A and 363A). Someone may be present to assist the applicant at the hearing but they are not entitled to address the members or present arguments on behalf of the applicant. However, in practice, the MRT commonly offers migration agents assisting clients at a hearing the opportunity to address its members. Moreover, applicants have a right to obtain advice or assistance with preparation and written submissions.

Neither the Minister nor Departmental officers are entitled to appear at the hearing, unless they are invited by the Tribunal for the purposes of obtaining evidence (ss 360 and 363A). If they are invited, the Department has no right to assistance or representation while appearing (s 366B).

In order to support their application, review applicants may request that the Tribunal call certain witnesses or obtain evidence from third parties (s 361). However, the Tribunal is not obliged to obtain such evidence orally or otherwise. If the Tribunal does call witnesses, then the applicant is not entitled to examine or cross-examine them (s 366D).

For further information on hearings at the MRT, see the Tribunal's publication, ' Information about Tribunal Hearings' and visit the MRT website.

Review by the Refugee Review Tribunal

The Refugee Review Tribunal (RRT) provides merits review of protection visa decisions made by the Minister for Immigration or his/her delegates. The RRT was established in 1993 under Part 7 of the Act and replaced the Refugee Status Review Committee. The Act and Regulations set out which decisions are reviewable by the RRT, who can apply for review, the time limits on applying and the procedures that must be followed.

The RRT comprises a Principal Member, a Deputy Principal Member, Senior Members and many full-time and part-time members. All members are appointed by the Governor-General for a period of five years and cross-appointed to the Migration Review Tribunal (MRT) (see Review by the Migration Review Tribunal). The Registrar of the RRT looks after the day to day operation of the Tribunal and its staff.

The RRT is constituted by a single member. This means that each application for review is heard and decided by one member of the RRT. Once the member has examined the matter, they have the power to affirm the original decision (in which case the applicant is unsuccessful), vary the decision, substitute a new decision or remit the matter back to the Department for reconsideration in certain circumstances (s 415).

Which decisions are reviewable

The RRT has the power to review decisions to refuse or cancel protection visas, as long as the following criteria are met:

• the protection visa applicant/holder must have been in Australia at the time the Department made the decision to refuse or cancel the visa (s 411(2)(a));
• the Minister must not have issued a conclusive certificate stating that he/she believes it would be contrary to the national interest to change or review the decision (s 411(2)(b)); and
• the decision to refuse or cancel the visa was not made on character grounds (the AAT undertakes review of these decisions) (s 500(4)(c)).

Who can apply for review?

Only non-citizens who are the subject of a protection visa refusal or cancellation can make a valid application for review. They must be in Australia at the time they lodge their review application (s 412).

One of the essential criteria for the grant of a protection visa is that the applicant is a person to whom Australia has protection obligations under the 1951 United Nations (UN) Convention Relating to the Status of Refugees, as amended by the 1967 UN Protocol Relating to the Status of Refugees. In practice, much of the RRT's time is spent reviewing whether an applicant meets this criterion (see generally Refugees and Humanitarian Entrants).

Time limits on applying for review

The Act and Regulations provide strict time limits for applying for review of protection visa decisions. The RRT has no power to extend these time limits. Therefore, if a potential applicant fails to lodge their review application within the time specified by the legislation, they forfeit their right to review.

Applicants who are in immigration detention have seven days after the day they are notified of the decision to refuse or cancel their protection visa to apply for review (reg 4.31(2)(a)). They must notify the custody review officer at the detention centre on the day they lodge their review application.

Applicants who are not in immigration detention have 28 days after the date of notification to apply for review (reg 4.31(2)(b)).

The date on which the applicant is deemed to have been notified varies according to how the Department informed them of the refusal/cancellation. For people who are informed of the decision by post, the date of notification is seven days from the date on the letter if the letter is sent to an address in Australia (s 494C(4)(a)). For people notified by fax, email, other electronic means or even by hand, the date of notification is the day the decision was communicated to them (s 494C). The Department's letter of notification should also provide information on how long they have to apply for review of the decision. For more information on notification dates for visa refusals and cancellations, see Challenging a decision to refuse a visa and Challenging a decision to cancel a visa, respectively.

Lodging an application for review

Once an applicant has verified they have a right to review (see Who can apply for review?) and ensured they are within the time limits (see Time limits on applying for review), they need to consider the reasons for the Department's decision and their prospects of success should they apply for review. To this end, it may be helpful to lodge a Freedom of Information request with the Department or MRT (see Freedom of Information).

If they decide they wish to challenge the decision, they should complete and lodge one of the following forms with the RRT:

• Application Form for applicants not in immigration detention
• Application Form for applicants in immigration detention

Applicants should aim to lodge evidence and submissions in support of their case along with their application form. However, where this is not possible, applicants can provide relevant material and submissions up to 14 days from the date of lodgement. Where additional documentary information or submissions appear necessary after this date, applicants should provide the information no later than seven days before the scheduled hearing date or one day if the applicant is in immigration detention (see Principal Member Direction 3/2005 made under s 420A of the Act which can be found on the RRT's website).

Generally, a fee of $1400 becomes payable once the review is completed if the RRT decides to uphold the decision of the Department (reg 4.31B).

RRT procedures

Generally, the same principles and procedures which apply to the MRT (see MRT procedures) also apply to the RRT. When conducting a review, the RRT should act according to substantial justice and the merits of the case. It is not bound by technicalities, legal forms or rules of evidence and should aim to be fair, just, economical, informal and quick (s 420). The RRT should make its decisions according to the law as laid out in the Act, Regulations and Ministerial Directions. It must apply the law as it stood at the time the original decision was made by the Department. The RRT is required to provide a clearly understandable written statement outlining each of its decisions and the reasons behind them (s 430).

The procedures for RRT review are outlined in Part 7, Division 4 of the Act entitled 'Conduct of Review'. These procedures are broadly similar to those of the MRT: see MRT procedures for more detailed information.

There are a few differences between MRT and RRT procedures. Procedural requirements unique to the RRT are as follows:

• the RRT must conduct the review within 90 days of receiving the review application; (s 414A)
• the RRT must conduct hearings in private; (s 429)
• if a review applicant fails to attend a hearing the RRT may proceed to make a decision, however, the member has discretion to re-schedule the hearing (the MRT is unable to re-schedule in these circumstances and will proceed to a decision regardless); (s 426A(2)) and
• if a review applicant requests an interpreter at the hearing, the RRT's policy is to arrange and pay for a qualified interpreter.

For further information on hearings at the RRT, see the Tribunal's publication, 'Information about Tribunal Hearings' and visit the RRT website.

Review by the Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) began operating on 1 July 1976 and was established under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Migration Act has been amended to provide the AAT with power to review a specific set of immigration and citizenship related decisions (see Which decisions are reviewable ?).

However, the AAT's jurisdiction extends well beyond the review of migration decisions. There are now over 400 pieces of legislation which give the AAT power to review decisions on topics as diverse as social security, taxation, veterans' affairs, workers' compensation, civil aviation, corporations law, customs and freedom of information. For a more detailed discussion of the powers and procedures of the AAT, see Administrative Appeals Tribunal.

The AAT has a President, other Presidential Members, Senior Members and Members. Once the Tribunal has reviewed the decision, it has the power to affirm the original decision (in which case the applicant is unsuccessful), vary the decision, substitute a new decision or remit the matter back to the Department for reconsideration in certain circumstances (s43(1) of the AAT Act).

Which decisions are reviewable ?

The AAT has jurisdiction to review the following migration and citizenship decisions:

• decisions of a departmental officer to refuse or cancel a visa on character grounds under s 501 (jurisdiction only exists if the applicant would have a right to review at the MRT if the refusal was made on other grounds) (s 500);
• decisions to refuse or cancel a protection visa under Articles 1F, 32 or 33(2) of the 1951 United Nations (UN) Convention Relating to the Status of Refugees which deal with serious criminal offences, war crimes and crimes against humanity respectively (s 500);
• decisions to cancel a business visa on the basis that the business was not established or the investment has been withdrawn prematurely (s 136);
• decisions made under s 200 of the Act to deport a permanent resident convicted of a serious offence (s 500);

decisions made under the Australian Citizenship Act 1948 (Cth) and the Australian Citizenship Act 2007;

• decisions made by the Migration Agents Registration Authority (MARA) to caution a migration agent or to suspend or cancel a migration agent's registration; and to bar a former registered migration agent from being a registered migration agent for a period of up to five years (ss 306 and 311F); and
• decisions referred to the AAT by the MRT or RRT pursuant to ss 381(1) and 443(1) of the Act (these decisions must involve important principles or issues of general application and be referred by the Principal Member).

The AAT also has the power to review decisions made under the Freedom of Information Act 1982 (Cth). For more information on Freedom of Information and its relevance to migration decisions, see FreedomOfInformation.

There are several restrictions on the AAT's jurisdiction worth noting:

• decisions to cancel of refuse visas on character grounds are not reviewable if they are made by the Minister personally (s 500(1)(b));
• decisions to cancel a visa on character grounds are not reviewable if they were made when the visa holder was outside Australia;
• decisions made to deport a permanent resident for criminal conviction under s 200 and decisions made to cancel or refuse a protection visa on character grounds (see above) are not reviewable if the Minister personally decides to issue a conclusive certificate stating that it is in the national interest to exclude the person from review (s 500(1)(c)).

Who can apply for review?

Generally, the person affected by the decision taken by the Department or Minister must apply for review personally. However, if an applicant has applied for a visa from outside Australia and had the application refused on character grounds, then their sponsor, nominator, or relative who is in Australia may apply for review. This is similar to the requirements for standing before the MRT (see Who can apply for review?).

Time limits on applying for review

The time limits for lodging a review application at the AAT vary according to the type of decision to be reviewed. In general, a review application must be lodged within 28 days after the applicant is notified of the Department's decision (see s 29 of the Administrative Appeals Tribunal Act 1975 (Cth)). The AAT has the power to extend the time allowed if it is satisfied that it is 'reasonable in all the circumstances to do so'. (s 29(7)) Applicants must lodge a written request for extension of time and should use the form from the AAT's website, Application for Extension of Time for Lodging Application for Review of Decision.

In contrast to the general 28 day period, the Act imposes a specific time limit on people who are inside Australia and wish to apply for review of a decision to refuse or cancel their visa on character grounds (under s 501). In these circumstances, applicants must lodge their application with the AAT within nine days after the day they were notified of the decision (s 500(6B)). The AAT cannot extend this time limit. Therefore, if an applicant in this situation fails to lodge the application for review within nine days, they forfeit their right to challenge the decision.

Similarly, the Act provides particular time limits for the review of a decision of the Minister to refer an agent to the MARA for disciplinary action under ss 306AC(1) or 306AGAA(8). Migration agents may only seek review of the Minister's decision to refer them to MARA if the Authority decides to caution the agent or to suspend or cancel an agent's registration as a result of the referral.

A. Notification

Time limits begin to run on the date an applicant is notified of the decision by the Department. Ascertaining exactly if or when a person is properly notified is therefore extremely important. Section 501G of the Act, stipulates that the Minister must provide a person whose visa has been refused or cancelled on character grounds with a written notice explaining:

• what decision has been made;
• what provision of the Act provides authority for the decision and the effect of the provision; and
• the facts or reasons behind the decision.

In cases where this type of decision is made by a delegate of the Minister (rather than by the Minister personally) and the applicant is in Australia, the written notice must also state:

• that the AAT can review the decision;
• the time limits for lodging a review application;
• who can apply for review; and
• where the review application can be made.

Moreover, if the decision is made by a delegate of the Minister and the person affected is in Australia at the time the decision is made, then the notice of the decision must be accompanied by two copies of every document which is relevant to the decision.

The notification provisions of the AAT Act apply to other migration decisions reviewable by the AAT. Section 29(2) of the AAT Act provides that the time period for review begins on the day the applicant is actually given the decision.

The Department's failure to comply with the proper procedures for notification will not invalidate the decision itself. However, time limits for review do not begin to run until a person is correctly notified.

Lodging a review application

Once an applicant has verified they have a right to review at the AAT (see Who can apply for review?) and ensured they are within the time limits or have applied for an extension (see Time limits on applying for review), they need to consider the reasons for the Department's decision and their prospects of success should they apply for review. To this end, it may be helpful to lodge a Freedom of Information request with the Department or MRT (see FreedomOfInformation).

If they decide to challenge the decision, they should complete and lodge the Application for Review of Decision obtained from the AAT website.

Applicants who are in Australia and who seek review of a decision to cancel or refuse a visa on character grounds under s 501 of the Act, should attach to the application form a copy of the Department's letter of notification along with one set of the documents relied upon by the Department.

Applicants must pay the application fee of $682 for their matter to proceed. This fee is refunded at the end of the matter if the application is successful. Alternatively, applicants can apply for a waiver of the fee on the grounds that paying the fee would cause them severe financial hardship. For more information, see the AAT website.

Procedures

The procedures of the AAT differ from the MRT and RRT in many ways. Broadly speaking, the AAT still aims to provide a quick, informal, fair and economical mechanism for the resolution of disputes. Neither is it bound by the usual rules of evidence which apply to judicial review (see Asking the Courts to Intervene - Judicial Review). However, the following significant differences in procedure should be kept in mind:

• After the applicant has applied for review, the decision-maker (usually the Minister or a delegate) must provide the AAT, review applicant and any other parties with a statement of reasons for the decision and all documents considered relevant to the review of the decision (these are known as 'T Documents'). Applicants before the MRT and RRT usually need to make a Freedom of Information Request to obtain this type of information (s 37 of the AAT Act);
• Review applicants at the AAT are entitled to representation by a lawyer or other person of their choice at the hearing (s 32 of the AAT Act); and
• Both the review applicant and the Department (or their representatives) have the right to address the members of the AAT, to call witnesses and to examine and cross-examine them.

For further information on the steps that occur after an application is lodged at the AAT, see What Happens Next?.

Helpful information on AAT procedure can also be found on the AAT website which contains the Tribunal's General Practice Direction and information sheets for deportees and non-citizens applying for review of a decision to cancel or refuse visas on character grounds.

Asking the Minister to Intervene

The Minister for Immigration has the power to substitute a more favourable decision for the applicant than that reached by a review tribunal. Generally, the Minister must wait until the MRT, RRT or AAT have informed the review applicant that their application was unsuccessful before he/she has the power to intervene. If the MRT or RRT chooses to refer the applicant's matter to the AAT, then the Minister must wait until the AAT has decided the matter. Once the Minister has intervened using an intervention or 'public interest' power, he or she can grant the non-citizen a visa whether or not they meet the visa criteria set out in the Act.

The Act provides that the Minister may substitute a more favourable decision for a decision of:

• the MRT (s 351);
• the RRT (s 417);
• the AAT (in relation to an MRT or RRT reviewable decision (ss 391 and 454) or a protection visa decision (s 501J)).

The Minister also has the power to substitute a decision of the former Migration Internal Review Office (MIRO) and Immigration Review Tribunal (IRT). (Transitional provisions set out in Schedule 1 of the Migration Legislation Amendment Act (No 1) 1998 (Cth) enable the Minister to intervene in relation to these former tribunals. These powers were originally provided for by ss 345 and 351 of the Act as it existed before 1 June 1999.)

The Minister must exercise the power to intervene personally. He or she has no legal obligation whatsoever to intervene in a person's case or to even consider intervening. Moreover, the Courts do not have the authority to review the Minister's decision (ss 476(2) and 476A, and see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003)).

The Minister can only intervene in a person's case if he or she considers that it is in the public interest to do so (see When will the Minister decide to intervene? at A. Public interest). Another check on this broad power is that the Minister must table a statement in Parliament setting out the decision of the Tribunal, the substituted decision and the reasons why he or she thinks it is in the public interest to intervene. The only other mechanism in place to supervise the use of Ministerial discretion is the Ombudsman's ability to investigate a complaint against the quality of a briefing given to the Minister by the Department (see Commonwealth Ombudsman).

When will the Minister decide to intervene?

The Minister's discretionary powers to intervene were intended to act as a safety net for difficult cases that fall outside the strictly codified visa criteria. However, the numbers of requests for intervention made to the Minister has burgeoned from just a handful each year to over 4,000 requests in 2006-2007.

In an effort to manage the number of requests for intervention, the Minister has released guidelines about the types of unique or exceptional circumstances that should generally exist before he will consider exercising his powers to intervene. These new guidelines are located in PAM III entitled "Minister's guidelines on ministerial powers (s 345, s 351, s 391, s 417, s 454 and s 501J)."

The Minister has also invited the tribunals to recommend his intervention in cases which they believe fall within these guidelines. As such, the Principal Member of the MRT/RRT has issued a Guideline for Members entitled "Referrals for Ministerial intervention consideration." The MRT/RRT guidelines with the Minister's guidelines attached are available at: www.mrt-rrt.gov.au/Conduct-of-reviews/Guidelines/Guidelines/default.aspx.

The current Minister's guidelines apply to requests for intervention lodged on or after 14 September 2009. People who lodged requests for ministerial intervention before this date will have their requests assessed against the policy instruction that was current at the time they lodged their request.

Applicants should note that the Minister's guidelines are policy only and therefore not legally binding. The sole legislative criterion is that the Minister considers that it is in the 'public interest' to intervene.

A. Public interest

The "Minister's guidelines on ministerial powers (s 345, s 351, s 391, s 417, s 454 and s 501J)" (for background, see When will the Minister decide to intervene?) state the policy on 'public interest' as follows:

The public interest may be served through the Australian Government responding with care and compassion where an individual's situation involves unique or exceptional circumstances.

I may only exercise my public interest powers if it is in the public interest to do so in each case. What is and what is not in the public interest is a matter for me to determine. This will depend on various factors, which must be assessed by reference to the circumstances of the particular case.

I will generally only consider the exercise of my public interest powers in cases which are referred to the department for my consideration by a review tribunal or which exhibit one or more unique or exceptional circumstances. Where a person is in the community (i.e. is not in immigration detention), however, I generally do not wish to consider their case unless they hold a bridging or other visa, or have an application for a bridging visa before the department.

The Courts have noted that "public interest" and "national interest" are not the same. National interest "directs attention to the interests of Australia as a whole" and can "include a consideration of Australia's position as a nation in relation to other nations." Meanwhile, public interest may refer to local, regional and municipal concerns. See Wong v MIMIA (2002) at [33 - 34].

Applying for Ministerial intervention

There are two principal methods of accessing Ministerial intervention. The first is through the review tribunals and the second is by direct application to the Minister (see immediately below at A. Accessing Ministerial intervention through the tribunals and B. Making a direct request, respectively). Both methods are discussed in the Minister's guidelines (see When will the Minister decide to intervene?). Despite the methods for accessing ministerial intervention explained in this chapter, the Minister's intervention power is not limited to cases brought to his attention in any particular manner.

In practice, matters referred or requests made to the Minister are initially handled by the Ministerial Intervention Unit (MIU) within the Department. Case officers in the MIU 'vet' requests and provide submissions to the Minister. If a particular matter does not fit within the Minister's guidelines it is highly unlikely that it will be brought to the Minister's attention.

There is no limit on the number of requests that an applicant can make. However, case officers will only refer a repeat request to the Minister if they are satisfied there has been a significant change in the applicant's circumstances since the last request. The change in circumstances must raise new issues that the Minister has not previously considered and must mean that the application falls within the Minister's guidelines (see When will the Minister decide to intervene?).

The process of seeking Ministerial Discretion is lengthy and applicants can be left without income for over a year. A person requesting ministerial intervention for the first time may be eligible for a Bridging Visa E (cl 050.212(6) of Sch 2 to the Regulations) (see Bridging Visa E). However, if the person was unlawful for any period between the decision of the tribunal and lodging their request for ministerial intervention, they cannot obtain work rights (cl 050.612A). If they remained lawful throughout this period and they were able to work on their last visa, they may be granted work rights (cl 050.615).

Someone who lodges a repeat request for intervention only becomes eligible for a Bridging Visa E after the Minister has decided to intervene in their case but because of a cap set on the number of visas granted each year cannot grant them a visa immediately (cl 050.212(6AA)). Such a person can only get work rights if they can show a compelling need to work (cl 050.212(6AA)).

Work rights may only be granted in compelling circumstances when the request has moved from the MIU to the Minister's desk and he is then said to be 'actively considering it' (cl 050.612A). A person only has a 'right' to a Bridging E visa for a repeat Ministerial request when the Minister has already decided to intervene in the matter and is waiting for administrative issues to be satisfied such as health examinations and police certificates (cls 050.212(6AA) and (6A)).

A. Accessing Ministerial intervention through the tribunals

The Ministerial guidelines allow the review tribunals to refer matters to the Department for the Minister to consider. In this vein, the Presiding member of the MRT/RRT has issued a Guideline for referrals for ministerial intervention (see When will the Minister decide to intervene?). The AAT currently has no formal process for referral.

Members of the MRT/RRT may refer matters to the Department on their own initiative. Alternatively, review applicants can request a member to refer their matter to the Department. If a member thinks a case should be considered for intervention, they must set out the circumstances they believe warrant the Minister's attention in their statement of decision. If the member decides not to agree to an applicant's request to refer a matter, they should refer to the request in their statement of decisions and notify the applicant that they can apply for ministerial intervention directly (see immediately below, at B. Making a direct request)

Once a member decides that a particular matter deserves the Minister's attention, a referral letter is sent to the Department. A case officer in the Department then assesses the matter against the Minister's guidelines (see When will the Minister decide to intervene?) and provides a submission to the Minister for his or her consideration.

In addition to this, the Department is automatically notified when a tribunal upholds a departmental decision. In this situation (where there is no referral from a tribunal member) case officers have the option to assess the visa applicant's circumstances against the Minister's guidelines although there is no obligation for them to do so. If they believe the case falls within the guidelines they will bring it to the Minister's attention in the form of a submission. In very limited circumstances, where the visa applicant's circumstances fall outside of the guidelines, case officers may also decide to bring the case to the Minister's attention.

B. Making a direct request

The Ministerial Guidelines allow individuals to make a direct request to the Minister to intervene in their case. The request must be made by the person who is the subject of the request or their authorised representative such as their migration agent. While supporters or organisations cannot make a request on behalf of an applicant, they can provide information along with the request for the Minister to take into account.

Applicants (or their authorised representatives) must make their request in writing or via electronic transmission such as email. A request can take any format from a one-page letter to a complete submission. However the Minister's guidelines stipulate that all requests must be accompanied by supporting documentation unless the person can show compelling reasons for their inability to provide the documentation.

Requests can be lodged at the Minister's office. As at June 2010, the address for lodging a request for Ministerial Intervention is as follows:

Senator Chris Evans, Minister for Immigration and Citizenship

Parliament House

Canberra ACT 2600

Asking the Courts to Intervene - Judicial Review

Applicants affected by an adverse migration decision may be able to apply to the Courts for judicial review of the decision. Unless applicants apply directly to the High Court, judicial review of migration decisions only becomes available after an applicant has exhausted their right (if any) to merits review (see Merits review).

Applying to the courts for judicial review is not the same as appealing to a merits review body such as the MRT. Judicial review is restricted to examining the legality of a decision (see What is judicial review?). Even where courts find there has been a legal error, they will not substitute their own decision for that of the original decision maker. In most cases, they will remit the matter back to the tribunal or primary decision maker for reconsideration (see Remedies provided by the courts).

Parliament has attempted to regulate judicial review by enacting legislation to limit which courts can review migration decisions (see Which courts can review migration decisions?). These amendments to the Act also impose time limits on applying for review (see Time limits for review) and restrict the types of migration decisions the courts can consider (see Which migration decisions can the courts review?).

What is judicial review?

Unlike merits review tribunals, the Courts will not re-consider the facts of the case or weigh up the evidence to determine whether the decision taken was the 'right' decision. Rather, when conducting judicial review, the Courts examine whether the decision maker had the power to make the decision, acted within the law and applied the law properly.

In general, the Courts will affirm migration decisions unless the applicant can show there was a 'jurisdictional error' on the part of the decision maker. What constitutes a 'jurisdictional error' is difficult to define and is constantly changing. However, in the case of Craig v South Australia (1995) at 179, the High Court noted that a tribunal (or decision maker) which exceeds its authority or powers because it:

• identifies a wrong issue;
• asks itself a wrong question;
• ignores relevant material;
• relies on irrelevant material;
• (in some instances) makes an erroneous finding; or
• reaches a mistaken conclusion

will have made a jurisdictional error.

Remedies provided by the courts

If a Court reviews a migration decision and finds that the decision maker has made a jurisdictional error (see What is judicial review?) they have the power to grant three main remedies: mandamus, prohibition and injunction (s 75(v) of the Constitution and see ss 476 and 476A of the Act).

A writ of mandamus is an order forcing a Commonwealth officer or decision-maker to perform a public duty, such as re-making a migration decision. This type of remedy is often given in tandem with an order to set aside a decision (known as an order for certiorari). In this way, the Courts can order that a migration decision be set aside (certiorari) and direct the primary decision-maker to re-consider the matter according to law (mandamus).

A writ of prohibition orders an officer or decision maker to refrain from doing something unlawful (such as making a certain decision) or from continuing to do something unlawful. Similarly, the Courts have the power to grant an injunction, which can among other things restrain a Commonwealth decision-maker from taking any further action based on an unlawful action they have already taken (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) at 392 - 393).

In addition to the three remedies of mandamus, prohibition and injunction, the Courts may make a declaration about the law relating to a particular matter. If, for example, the Courts make a declaration about the interpretation of a particular provision of the Act, the Department is likely to apply the same interpretation when making migration decisions.

Finally, the writ of habeas corpus is available to secure the release of a person from illegal detention.

In practical terms, the effect of these remedies is that in most cases where the Court finds a jurisdictional error has been made (see What is judicial review?), they will highlight the mistake and refer the decision back to the primary decision maker to reconsider. This does not guarantee that the new decision will be favourable to the applicant.

Which courts can review migration decisions?

The High Court of Australia, the Federal Court and the Federal Magistrates Court have jurisdiction to review migration decisions (s 484). Section 75(v) of the Constitution provides the High Court with 'original jurisdiction' to review all matters (including migration decisions) 'in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.' (see Remedies provided by the courts). The fact the High Court has 'original jurisdiction' means a review applicant can apply directly to the Court for review of the migration decision affecting them without having to apply to another court first. However, see Which migration decisions can the courts review? at E. Which migration decisions can the High Court review? for things applicants should consider before embarking upon this type of action.

The High Court also possesses 'appellate' jurisdiction in relation to migration decisions. In practice, this means that if an applicant applies to the Federal Court for review of a migration decision and that court finds no legal error in the decision, the applicant may then be able to lodge an appeal with the High Court. This will only occur in extremely limited circumstances as the Federal Court does not have jurisdiction to review most migration decisions. In addition, applicants who wish to appeal to the High Court must be granted 'leave' to appeal. The High Court will only grant an applicant leave to appeal if it is convinced there are special reasons to hear the matter.

Ultimately, most migration decisions are reviewed by the Federal Magistrates Court. Section 476(1) of the Act provides the Federal Magistrates Court with the same 'original jurisdiction' to review migration decisions as the High Court subject to certain restrictions (s 476(2)) (see Which migration decisions can the courts review? at D. Which migration decisions can the Federal Magistrates Court review?). The High Court also has the power to 'remit' or transfer matters back to the Federal Magistrates Court for consideration if the Federal Magistrates Court has jurisdiction to decide the matter.

Unlike the High Court and Federal Magistrates Court, the Federal Court of Australia only has the power to review migration decisions in extremely limited circumstances (s 476A and see Which migration decisions can the courts review? at F. Which migration decisions can the Federal Court review?).

Which migration decisions can the courts review?

Ordinarily, the High Court, Federal Court and Federal Magistrates Court have broad powers to review administrative decisions made by commonwealth decision makers (see, for example, the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth)). However, Parliament has sought to restrict the types of migration decisions the Courts can review by introducing amendments to the Act.

In particular, the Parliament passed the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (the MLAJR Act) which introduced a 'privative clause' to the Act. Then in the case of S157 of 2002 v Commonwealth (2003) ('S157'), the High Court considered this privative clause and interpreted it in such a way as to render it meaningless. In response, the Parliament introduced more changes to the Act. These amendments have had the effect of restricting the type of migration decisions that are reviewable by the Federal Court and the Federal Magistrates Court.

An understanding of what the privative clause really means and how this affects the Courts' ability to review migration decisions is essential for applicants who are deciding whether to apply for judicial review. An explanation of the meaning of the privative clause and its effect can be found immediately below at headings A. The privatitive clause, B. Interpreting the privative clause, and C. The current legislative regime.

A. The privative clause

According to s 474(2) of the Act, a "privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made"under this Act." This type of decision is "final and conclusive"and must not be challenged, appealed against, reviewed, quashed or called in question in any court"" (s 474(1)).

Sub-section 474(4) provides a very limited list of decisions which are not considered to be privative clause decisions. Sub-section 474(5) states that the Government may make regulations specifying other types of decisions which are not privative clause decisions.

The wording of s 474 appears to preclude the Courts from reviewing almost any decision made under the Act, including decisions to refuse and cancel visas or detain and remove non-citizens. It also specifically excludes the Courts from reviewing a decision of the Minister to intervene in an applicant's case.

B. Interpreting the privative clause

However, Parliament never intended the privative clause to be read literally or to exclude judicial review entirely. In his second reading speech for the MLAJR Act, Minister Ruddock noted that the privative clause would operate so that Courts could only review migration decisions if the decision maker:

• made the decision in bad faith; or
• had not been given authority to make the decision; or
• made a decision that did not relate in anyway to the subject of migration; or
• made a decision they did not have the power to make according to the Constitution.

The Minister believed the privative clause would not be given a literal interpretation and should be interpreted in the way he suggested as a result of the case: R v Hickman; Ex parte Fox and Clinton (1945).

However, in the case of S157 of 2002 v Commonwealth (2003), the High Court refused to accept the Government's proposed interpretation of the clause. The Court noted that the "so-called 'Hickman principle' [was] simply a rule of construction" and that there was "no general rule as to the meaning or effect of privative clauses" (S157 per Gleeson CJ at [60]). Essentially, the majority found that a privative clause such as that found in the Act could not prevent a person from applying to the Courts for judicial review. The right of an individual affected by a decision of an officer of the Commonwealth to apply to the High Court for judicial review appears to be entrenched in s 75 of the Constitution itself. See Kerr's article about the S157 decision.

C. The current legislative regime

As a result of the High Court's decision in S157 (See immediately above at B Interpreting the privative clause), any attempt by the Government to legislate to directly oust the jurisdiction of the High Court would be futile. Parliament's response has been to shape judicial review of migration decisions by other means through the enactment of the Migration Litigation Reform Act 2005 (Cth) (the MLR Act).

The MLR Act inserted the following definition into s 5(1) of the Act:

""migration decision" means:

(a) a privative clause decision; or

(b) a purported privative clause decision; or

(c) a non privative clause decision."

The newly inserted s 5E then defined a "purported privative clause decision" as "a decision"that would be a privative clause decision if there were not"a failure to exercise jurisdiction"or"an excess of jurisdiction"in the making of the decision."

Section 476A(1) now prevents the Federal Court from reviewing the majority of both privative and purported privative clause decisions. Instead, the Federal Magistrates Court has the authority to review those decisions (s 476).

In addition, the High Court can now only refer migration decisions to the Federal Magistrates Court for consideration (s 476B(1)) except in very limited circumstances (s 476B(3)). There are also uniform time limits on applying for judicial review in all three courts (see Time limits for review) and provisions for costs orders to be made against lawyers who encourage migration litigation that has "no reasonable prospects of success." (see Representation and cost of judicial review proceedings).

D. Which migration decisions can the Federal Magistrates Court review?

Sub-section 476(1) of the Act provides the Federal Magistrates Court ('FMC') with the same "original jurisdiction" to review migration decisions as the High Court (see Which courts can review migration decisions?). Unlike the High Court, however, this jurisdiction is subject to certain restrictions (ss 476(2)(a)-(d)).

In particular, the Federal Magistrates Court cannot review decisions that the MRT or RRT have jurisdiction to review unless those decisions are "non privative clause decisions." (ss 476(2)(a) and 476(4)(a)) The vast majority of migration decisions reviewable by the MRT and RRT are in fact "privative clause" decisions (such as decisions to refuse or cancel visas or remove or impose visa conditions).

In practice, this means that almost all applicants who have a right of review before the MRT or RRT must apply for review before those tribunals. Only after the MRT or RRT have handed down their decisions can an applicant apply to the FMC for judicial review of the tribunal's decision (not the original decision). If an applicant could have applied to the MRT or RRT for review but failed to do so within the relevant time limits (28 days, see Time limits for lodging applications (MRT) and Time limits on applying for review (RRT)), they are unable to apply to the Federal Magistrates Court for review at all (s 476(4)(b)).

In cases where the Federal Magistrates Court does not have jurisdiction to review the decision, applicants will have to apply to the High Court in its "original jurisdiction" for judicial review. However applicants should consider whether they have exceeded the time limits for review by the High Court (see Time limits for review) along with other matters (see Representation and cost of judicial review proceedings and E. Which migration decisions can the High Court review? Immediately below).

E. Which migration decisions can the High Court review?

As explained in Which courts can review migration decisions?, the Constitution provides the High Court with "original jurisdiction" to review all types of migration decisions. The High Court also has appellate jurisdiction to review decisions of the Federal Court in relation to migration.

However, applicants who wish to apply to the High Court in its original jurisdiction should be aware of the following matters:

1) Subject to certain exceptions the Federal Magistrates Court has the same jurisdiction as the High Court to hear migration matters. A person cannot apply to the FMC for review and, if they are unsuccessful, ask the High Court to review the decision again. Applicants for review before the High Court must reveal whether they have already commenced proceedings for judicial review of the same decision in another court (s 486D(3)). If they have commenced proceedings, they will not be allowed to re-litigate the matter in the High Court.

2) Applying to the High Court is can be both complex and costly. Applicants are often unable to obtain legal aid to support them in applying to the High Court.

3) The High Court has the power to give summary judgment where it is satisfied that the proceeding has no reasonable prospect of success (see s 25A of the Judiciary Act 1903 (Cth)). This means that, at the request of the Commonwealth, the Court can make a decision "on the papers" that the applicant has no prospect of succeeding. The Court will refuse to give the applicant a hearing and dismiss the matter. The applicant and their advisors (if they exist) can then be ordered to pay costs (see Representation and cost of judicial review proceedings). Both the Federal Magistrates Court and Federal Court also have jurisdiction to grant summary judgment.

4) The High Court has the power to decide to transfer or "remit" the matter back to the Federal Magistrates Court or Federal Court if those courts also have jurisdiction to hear the matter (s 476B).

F. Which migration decisions can the Federal Court review?

The Federal Court has limited jurisdiction to review migration decisions. At present, the Court can only review the following types of decisions:

• Decisions of the AAT (including decisions of the AAT made under s 500 of the Act); (see Review by the Administrative Appeals Tribunal)
• Decisions made personally by the Minister under ss 501,501A, 501B and 501C; (a subset of the provisions allowing visa refusal or cancellation on 'character' grounds); and
• Decisions transferred by the Federal Magistrates Court (s 476A(1)).

Time limits for review

In general, applicants must apply for review within 35 days of the "date of migration decision." (ss 486A, 477 and 477A) The term "date of migration decision" is defined in s 477(3) of the Act and varies according to the type of migration decision being challenged. It is important to note that the time period begins to run from the "date of migration decision" even if the decision is invalid (s 477(5)).

All courts have the flexibility to extend the 35 day period if the court thinks it is in the interests of the administration of justice to do so. An applicant must file a written request for an extension showing why it is in the interests of the administration of justice to grant the extension.

The current uniform time limits for review are the result of recent changes to the Act brought about by the passage of the Migration Legislation Amendment Act (No 1) 2009 (Cth). Before this, applicants had to apply for review within 28 days of the decision. For example, then s 486A provided:

"(1) An application to the High Court for a remedy to be granted in exercise of the court's original jurisdiction in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

(1A) The High Court may, by order, extend that 28 day period by up to 56 days if:

(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

(b) the High Court is satisfied that it is in the interests of the administration of justice to do so.

In the case of Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) at 651, the High Court found that then s 486A of the Act was invalid because it had the effect of curtailing an applicant's ability to seek relief under s 75(v) of the Constitution.

Representation and cost of judicial review proceedings

Migration agents are not able to represent their clients before the Courts. Applicants who wish to apply for judicial review should seek legal advice from a qualified legal practitioner before doing so. Legal practitioners can provide advice about whether to lodge an application and the likelihood of success. They can also represent an applicant in court. However, it is possible for someone who is 'unrepresented' to apply for review and appear in court personally.

Legal advisors and other parties should understand that the Act provides the Courts with the power to make cost orders against anyone who encourages a person to commence or continue migration litigation if they have no reasonable prospect of success (s 486F(1)). Moreover, litigation does not have to be "hopeless" or "bound to fail" to have "no reasonable prospect of success" (s 486E(2)). Much has been made of the effect Part 8B of the Act will have on advocacy for migration litigants, particularly in the pro-bono sector. See generally, Stanton, M. "Removing Voices from the Voiceless: The Migration Litigation Reform Act 2005" (Mar 2006) 31:1 Alternative Law Journal 29.

In addition, applicants should be aware that the cost of legal proceedings can be high. They should consider costs such as court filing fees and the price of legal representation before lodging an application.

Other forms of review

Commonwealth Ombudsman

The Commonwealth Ombudsman functions as a government 'watchdog'. He or she aims to ensure that the administrative action of Commonwealth government agencies is both fair and accountable. In 2005, the Parliament amended the Ombudsman Act 1976 (Cth) ('OA') to strengthen the role of the Commonwealth Ombudsman in relation to immigration and to allow the Ombudsman to refer to him/herself as the Immigration Ombudsman when investigating immigration matters.

Essentially, the Immigration Ombudsman has the power to investigate decisions made by DIAC in Australia or overseas. 2005 amendments to the Migration Act also oblige the Ombudsman to assess the appropriateness of immigration detention arrangements for people who have been in detention for over two years (s 486O). The Ombudsman's recommendations and assessment in this regard must be tabled before Parliament.

A. Complaints and investigations

Individuals, groups and organisations - whether they are overseas or in Australia - can make a complaint to the Ombudsman on behalf of themselves or someone else. In the year 2008-09, the Ombudsman received 45,719 approaches and complaints and investigated 5,233 of these. See www.ombudsman.gov.au/pages/making-a-complaint/complaints-the-ombudsman-can-investigate/ for further information about making a complaint to the Ombudsman.

Complainants cannot force the Ombudsman to investigate their matter. The Ombudsman has the discretion to decide whether to investigate a particular complaint. He or she may refuse to take up a matter if (among other things):

• the complainant has not raised the matter directly with DIAC in an attempt to have it resolved;
• the person who is the subject of the complaint has rights to merits review (see Merits review) or judicial review (see Judicial review) which they have not exercised;
• the complaint is vexatious or frivolous or is not made in good faith;
• the complainant does not have a sufficient interest in the matter;
• an adequate solution or remedy has already been found. (s 6 of the OA).

Even if a complaint has not been made, the Ombudsman has the power to investigate a particular matter of his or her 'own motion' or accord. (s 5 of the OA) However, whether of his/her own motion or as the result of a complaint, the Ombudsman does not have the power to investigate actions taken by the Minister for Immigration personally or actions taken by Court judges. (s 5(2) of the OA)

B. The result of Ombudsman investigations

Unlike the Tribunals or Courts, the Ombudsman does not have the power to force DIAC to change its decisions. Once the Ombudsman has investigated a complaint, the Ombudsman's power is limited to making recommendations to the Department. Despite appearances, this can be very effective. The Ombudsman can make recommendations that the Department should offer a remedy to a particular client or change its procedures more broadly (see www.ombudsman.gov.au/docs/fact-sheets/FactSheet3_Remedies.pdf for more information). If the Ombudsman is not satisfied with DIAC's response to its recommendations, the Ombudsman can report to Parliament and publish their findings. The force of political and public opinion may have the effect of motivating the Department to provide the appropriate remedy or put into place recommended procedural changes.

For more information on the Commonwealth Ombudsman, see Commonwealth and ACT Ombudsman.

Australian Human Rights Commission

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