Review rights

Contributed by Michael Clothier and Mary-Anne Kenny and current to 1 September 2005

WHEN CAN A DEPORTEE APPEAL TO THE AAT?

Where the Minister signs a deportation order against a permanent resident (as distinct from an unlawful non-citizen) the person has a right to appeal on the merits to the Administrative Appeals Tribunal (AAT). 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. Usually, only permanent residents or persons whose interests are affected by that deportation have a right of appeal to the AAT. However, the AAT also has power to review refusals or cancellations of temporary visas on character or security grounds; cancellations of business visas (after entry); migration agent registration refusals, and cancellations.

If deportation is involved, an application in the AAT should be made for a stay of the deportation order pending review. The Department of Immigration has so far consented to all stay applications.

A person whose interests are affected by a deportation order reviewable by the Tribunal may request a written statement setting out the facts upon which the order was made and the reasons for the decision. The Minister must supply the written statement within 28 days of the application being lodged with the AAT. The statement will refer to documents such as probation officers’ reports and policy manuals used by the Department. These documents are required to be lodged at the Tribunal and are usually made available to the person who has applied for review (s.37 Administrative Appeals Tribunal Act).

The Tribunal will decide the application exercising the same powers and discretions as the Minister. It will consider the legal validity of the order and also any policies which it considers are appropriate. The Tribunal is not bound by the policies used by the Minister but has adopted an approach of giving greater weight to those policies which have been published.

The Tribunal considers the seriousness of the deportee’s offence by looking at the sentence imposed by the judge, the judge’s comments, and the person’s age at the time of the offence. Prospects of rehabilitation are considered. The interests of the Australian community are considered (e.g. is a person likely to repeat the offence?) and are weighed against the interests of the deportee’s family and likelihood of the deportee suffering persecution on return to his or her homeland.

The public interest is one of the matters considered by the Minister when exercising discretion to order deportation and the Tribunal gives some weight to this issue. The public interest includes the risk of harm to the community should a further offence be committed and also the concern likely to be engendered within the ethnic community when a person who has completed a sentence is given the additional punishment of deportation. Any person or organisation whose interests are affected by the decision of the Minister may apply to become a party to the Tribunal proceeding and present a viewpoint concerning the public interest.

The Tribunal can, if it believes that the wrong decision has been made, reverse a deportation order. It can also change the decision in the other matters where it has the jurisdiction.

MIGRATION REVIEW TRIBUNAL (MRT)

This portfolio tribunal is made up of members appointed by the Governor-General who do not generally work for the Immigration Department. The Tribunal must take oral evidence in public and must publish its decisions (to the world). It is 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 Tribunal on the form approved and with a fee of $1400. This fee can also be waived by the Deputy Registrar of the Tribunal if an applicant can show severe financial hardship. If the Tribunal sets aside, or varies, the Department’s decision, an applicant is entitled to a refund of the MRT fee.

The Tribunal has offices in Sydney and Melbourne. In WA applications can be faxed or mailed to the Melbourne Registry (PO 14158, Melbourne VIC 8001, Phone: (03) 8600 5800 Fax: (03) 8600 5801) or can be filed in person at the Administrative Appeals Tribunal which has an arrangement to accept applications for the MRT (Level 8, Quadrant Building, 1 William Street, Perth WA 6000, Ph: 1300 361 969).

Time limits for lodging review

An application for review together with the appropriate fee must be received at the Tribunal before it can be regarded as lodged (regs 4.02 & 4.11).

An applicant is deemed to have received notices (if notified by post) at the end of seven working days, if the person is in Australia, or 21 days if the person is overseas.

The time of receipt is crucial because there are time limits under the 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 MRT within:

• 21 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 him or her out), the time limit for lodging a review application is two working days. In some cases, an extra five working days is allowed (see regs 4.70(2)(a), 4.10(1)(b) & (2)(b)). Other short time limits (some as short as two days) apply where a person has been refused a bridging visa and is taken into immigration detention because of that refusal.

Currently, there is no discretion in the Act or Regulations for these time limits to be waived.

What decisions are reviewable?

The classes of visas in which there is a right of review are set out in sections 337, 338(2)(d) and 346(1)(d) of the Act. Since 1 September 1994, the rights of review have been expanded and somewhat simplified. Now, with the exception of on-shore refugee status decisions, which are reviewable by the Refugee Review Tribunal, and decisions subject to appeal to the AAT, the basic rule is that all on-shore decisions refusing to grant or cancelling visas will be reviewable, but only the visa applicant/holder may apply for review.

In regard to off-shore 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 MRT decisions

Where a person is in immigration detention and lodges an application for review, the Tribunal must make its decision within seven working days unless, with the applicant’s agreement, this period is extended (s.367 and reg. 4.26).

MINISTER’S RIGHT TO OVERRULE DECISIONS

Even after the MRT delivers its decision, the Minister retains the right to substitute a “more favourable decision” if he or she believes it is in the public interest, and is not bound by the Migration Regulations when doing so. This power is not compellable and the Minister must publish the reasons for intervening in the case with Parliament. Despite these seemingly high hurdles to the exercise of such power, it has been used rather frequently by the Minister, particularly as it has taken the place of the traditional “compassionate/humanitarian” entry category that existed prior to 1989 but for which no specific visa now exists under the codified system; see power to overrule the MRT: s.351.

FEDERAL COURT

The Migration Act attempts to impose severe restrictions on judicial review of decisions under the Act to the Federal Court. Section 474 states that most visa decisions of immigration officers or the portfolio tribunals (MRT and RRT) 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 no longer applies in the Federal Court – nor does the Judiciary Act (used to obtain prerogative writs).

However, the Federal Court’s jurisdiction is not affected in regard to appeals going to the AAT. Applicants also have the option of seeking judicial review of migration decisions directly in the High Court under section 75(5) of the Constitution.

Recent High Court rulings have thrown into doubt the immunity of “privative clause” decisions from judicial review. Only a specialist immigration lawyer could assist you in these circumstances as the law of judicial review is now extremely complex.

OTHER APPEALS

It may be appropriate to file a complaint with the Ombudsman, or the Privacy, Equal Opportunity, Race, Sexual Discrimination or Human Rights Commissioners, if a Department’s official’s conduct infringes any of the relevant legislation.