The first question most people ask when they receive an unfavourable decision from the Department of Immigration is whether there is a right to have the decision reviewed.
There are several different bodies that are charged with the role of reviewing certain migration decisions. However, it is important to note that not all migration decisions have a right of review. In most cases the decision letter will inform the visa applicant if review rights exist. However, if it is silent on this point, it would be wise to seek immediate advice.
If a decision does have review rights, the time during which the application can be lodged is prescribed and must be strictly adhered to. In most cases, if the review application is not lodged within the prescribed period, the review rights are lost. To complicate matters, time limits vary depending on the nature of the decision, where the application for review is being made, and where the applicant is.
Reviews are either conducted by Tribunals – called merits review—or – or Courts – Judicial review. The Migration Act specifies which decisions are subject to what type of review.
The Administrative Review Tribunal (ART) deals with a general range of migration decisions in addition to reviews of the Protection visa applications.
Yet another Tribunal, the Administrative Appeals Tribunal, has jurisdiction in relation to the cancellation of Business visas, decisions about deportation, character, some Protection visas, Citizenship, passports and matters relating to the Migration Agents Registration Authority.
The Merits Review Tribunals review an application on its merits and are not bound by any of the findings in the original decision. The Tribunals may either agree with the original decision, vary it, or overturn it. Because the review is usually in relation to whether certain visa criteria have been met, the Tribunal may not be in a position to grant the visa even though the original decision is overturned. Usually this is because other visa related requirements might still be outstanding – for example, health examinations. In these cases the Tribunals will send the file back to the Department of Immigration with the direction that the qualifying criteria have been met and that processing of the application should continue on this basis.
Applications to the Courts for judicial review of a migration decision are restricted by the Migration Act so that it is only possible in limited circumstances. The Courts that applications can be lodged in are the Federal Magistrates Court, The Federal Court of Australia or The High Court. However, the restrictions mean that it is only possible to bring an application if it can be demonstrated that a jurisdictional error has been made. Determining whether this has occurred can be quite a difficult matter, and it is most important that legal advice be obtained before embarking on any applications to the Court. Again, because strict time limits are involved, it is necessary to seek advice at the earliest available opportunity.
If a judicial review application is successful, the Court does not have the power to grant the visa sought and can only refer the application back to the earlier decision maker with the direction that it be decided according to the law – in other words, the court has agreed with the applicant that a jurisdiction error has occurred and that the application must be reconsidered according to the law. This does not necessarily mean that once the application is returned, the decision maker will decide that the visa should be granted, as there may be other reasons that would still result in an adverse outcome.
Another avenue of appeal is to apply to the Minister for Immigration to overturn the decision. The Migration Act gives the Minister for Immigration the power to substitute decisions in the public interest even if all visa criteria are not satisfied. However, the Minister can only do so once the visa applicant has exhausted other avenues of appeal. The Minister has made it clear that he wishes to keep the use of this power to a minimum and has issued comprehensive guidelines in relation to matters that should be considered when preparing an application for consideration. Once again, it is recommended that legal advice be obtained if contemplating making any type of review application or an application to the Minister.