Challenging administrative decision
Most applicants are conferred to a right to review administrative decisions issued by the Department of Home Affairs or the Minister of Immigration regarding their visas.
Usually, if your visa is denied, you will receive a decision letter that includes the reason for the refusal and the eligibility to apply for review. The Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) are the main legislation allows the applicant to bring their cases to AAT to revise those decision.
The Administrative Appeals Tribunal is an amalgamated tribunal that deal with wide range of civil matters. It includes visa-related decision matter under Migration and Refugee Division of the AAT under Part 5 of the Migration Act 1958.
As specified on the Department website, the Department can review certain decision made under the Migration Act 1958:
- To refuse or cancel different types of visas
- To refuse to approve a nomination of an occupation, activity or position
- To bar, refuse to approve or cancel the approval of a sponsor
- Relating to requiring a security
Exceptions
The Department cannot
- Review every decision to refuse or cancel a visa
- Review a decision to cancel a bias made personally by the Minister of Home Affairs or Minister for Immigration
- Review a decision of you are not entitled to apply for a review
Refugee
Pursuant to Migration Act 1958 (Cth) section 500, the applicant has no right to appeal on fast track decision such as decision about protection (refugee) visa.
Unless it is a review of
- Character-related decisions about protection visas made under or relying on section 5H(2), 36(1C), 36(2C), 501 or 501CA of the Migration Act or
- Other visa and visa-related decisions
Character-related visa decisions
Pursuant to Migration Act 1958 (Cth) section 501, the Department prohibited the right to review on character grounds, such as character-related visa decisions.
After AAT accepted to review the decision which is usually done within 21 days from the date of a decision to refuse a visa application and 7 days from the date of a decision to cancel your visa. In the meantime, you may be eligible to apply for a bridging visa while lodging of your review application. The Tribunal may decide to affirm, set aside or remit the DIBP’s decision.
If the Tribunal affirmed the decision, it indicates that is agrees with the Department’s decision and the outcome will not be changed.
If the Tribunal set aside the decision, it indicates that the decision will be changed and the final decision of the Tribunal will substitute the original decision.
If the Tribunal remitted the decision, it indicates that the matter is sent back to the Department for reconsideration. The Department must take all the relevant factors into account before making the decision.
Applicants must be physically present in Australia when applying for a review. In relation to offshore decision, right of review are confined to some persons in Australia. For instance, sponsors, nominators, Australian relatives.
Merits Review
The Migration Amendment Act 1989 introduced statutory merits review through the Immigration Review Panel and now form part of the Administrative Appeals Tribunal AAT on 1 July 2015.
Unlike judicial review, AAT reviews migration decision should be within the scope of merit review and every decision must be “correct and preferable”.
The objective of merits review is to:
“ensure that the administrative decision reached in a case is the correct and preferable decision. Correct in the sense that the decision made is consistent with law and policy, and preferable in the sense that, if there is an area of discretion in making a correct decision, the decision made is the most appropriate in the circumstances. A merits review system should also improve the general quality and consistency of decision-making and enhance openness and accountability across a particular area of administration”.
The Tribunal will generally decide all questions of fact and discretion for themselves. They must use ‘fresh set of eyes’ to look at any evidence including new evidence that the applicant failed to put before the original decision maker and override or substitute the original decision.
Service of Decision letter
The decision letter will be served by:
- Sending or leaving a notice of the decision at the last residential address given to the Minister by the applicant, or
- Handing a notice of the decision to the applicant or nominated person
The delivery time within Australia may take around 7 days after the date of the document. For an address outside Australia, it may take around 21 days after the date of the document.
Reviewable decisions
The following decisions can be reviewed by AAT:
- Decision to refuse to provide a substantive visa to a person who has restricted under section 48 of the Act due to a previous visa refusal or cancellation
- Decisions refusing applications for December 1989 entry permits
- Decision to refuse to provide a substantive visa to a person who is detained in immigration detention when notifying him or her of the decision to refuse a substantive visa, and the decision to refuse a visa by the secretary or an official holding or holding a senior administrative service position
- Decisions refusing protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012 as fast track reviewable decisions by the Immigration Assessment Authority (IAA) within the AAT.
- Decisions in relation to refugee status made before 1 September 1994, and decisions refusing or cancelling protection visas made after 1 September 1994
- Decisions to deport a person, decisions refusing or cancelling visas on character grounds under s 501, and decisions cancelling business visas under s 135 are reviewable by the AAT
Non-reviewable decisions
With respect to offshore decision where there is no criterion requiring nomination or sponsorship and nomination or sponsorships decision is not reviewable.
The Minister for immigration has the discretion to award a favourable decision but only in unique or exceptional circumstances.
The Minister could exercise his discretion to issue a conclusive certificate preventing review of a decision under public interest grounds.
- To change or overturn the decision due to prejudice the security, defence or international relations of Australia, or
- To review the decision because such review would require consideration by a review officer or the Tribunal of deliberations or decisions of the Cabinet or of a committee of the Cabinet
Time limits for review
The time limit to apply for a review is specified in your decision letter and the number of days differ depending on the types of visa. According to section 347(1)(b)(i), (ii),(iii) of Migration Act,
The applicant can exercise their right to review within 28 days if the reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) such as temporary visa, bridging visa to a non-citizen who is in immigration detention.
The applicant can exercise their right to review within 70 days if the reviewable decision is covered by subsection 338(5), (6), (7) or (8) for offshore visas such as sponsorship, Special category Visa, parent, spouse, de facto partner, child, brother or sister visa.
The applicant can exercise their right to review as specified in the decision letter if the MRT-reviewable decision is covered by subsection 338(9), Part 5 reviewable decision.
Please be aware that AAT has no jurisdiction to extend the time for application.
Ministerial discretion
The Minister for immigration has the discretion such as substitution powers and powers to vary processes, order release from detention and cancel visas on character grounds to confer a favourable decision. However, it merely applies to unique or exceptional circumstances such as public interest.
Fees
An application to review of migration decision will cost you AUD$3496 unless it is a review of a bridging visa decision.
Date updated 2024.07.
The Tribunal will decline 50% of the cost if you are suffering financial hardship.
If the Tribunal achieved a favourable decision, 50% of the full application fee is refundable. Also, full refund is available if the applicant or a member of the visa applicant was a deceased, the parent visa applicant has applied for another parent visa and seek for the decision on the other visa.
