This page examines the role of merits review of Migration and Citizenship matters by the Administrative Appeals Tribunal (AAT). Although Australia’s Federal Courts can review migration and citizenship decisions it is the Administrative Appeals Tribunal’s work I shall explore here.
In the 1990’s the Department of Immigration has an internal review system called MIRO. This has long since gone, and today we have two different sections of the AAT – the Migration/Refugee Division, and the General Division of the Tribunal.
Migration matters include a variety of migration matters (certain non-character visa cancellations, visa and sponsorship/nomination reviews, protection visa (refugee) reviews). These are lodged with the MRDivision, where there is an inquisitorial approach to hearing the matter (meaning the Presiding Member asks lots of questions). After a period of waiting (and indeed activity), an applicant will be advised of a Hearing and requested to send appropriate evidence and submissions to the Tribunal.
The Tribunal is obliged to act fairly, and “sits in the shoes” of the original decision maker. The Presiding Member has full authority to examine any aspect of an application. The Presiding Member is generally obliged to advise an applicant of any important issue in the person’s case (there is a statutory basis for this in the Migration Act, which may provide a ground for judicial review if the Tribunal does not follow this).. At Hearing the Presiding Member will ask the review applicant (the person who has had an application refused or visa cancelled) a number of questions under oath or affirmation. The applicant can ask the Tribunal to hear witnesses. An adviser or professional assisting may be present (strictly unless there are exceptional circumstances, is not expected to speak – but the Tribunal rarely exercises this restriction).
A decision will be notified to the applicant (or her representative), and important decisions will be published.
Up to the time the Member makes a decision, further evidence or submissions can be sent (but should of course be lodged within any deadline set by the Tribunal, as one doesn’t precisely know when a decision will be made).
It is extremely important that review applications to the Tribunal are made “in time”, that is within the statutory time limits for making an application to the Tribunal. A number of different time periods apply, depending on the nature of the decision.
The Department of Home Affairs will state a time period on Decision Records, but this should be professionally checked as they are not always correct. The Federal Court’s Full Court has recently confirmed the validity of these time limitations, and that they are strict (if an application is lodged outside of time, the Tribunal has no jurisdiction to hear the application).
Application fees apply when making an application to the Tribunal (although in Protection Visa reviews, this only applies after an unsuccessful decision of the Tribunal).
The General Division of the Administrative Appeals Tribunal (AAT)
The General Division of the Tribunal typically deals with visa refusals or visa cancellation under section 501 of the Migration Act and other character decisions, and Citizenship matters. Again there are strict deadlines for the making of reviews, depending on the nature of the refusal or visa cancellation.
The operation of the Tribunal is very different in the General Division. The proceedings are “adversarial”, more like a Court than the Member questioning approach of the MR Division of the Tribunal. The Department will be represented legally, and the Minister will be the formal respondent. It it highly advisable that the assistance of a lawyer be sought for applicants. A registered migration agent cannot practice in this Division of the Tribunal.
Unlike the MR Division, there will be a mediation conference between the parties (usually by phone), and possibly several, with the formal exchange of evidence between the parties. A formal statement of issues and contentions must be submitted by an applicant, with a response from the Minister’s solicitors.
The usual aspects of presenting a case in a court will be followed in the General Division, including examination in chief and cross examination of witnesses.
Although like a court, the General Division is not a costs jurisdiction – that is if an applicant does not win the case, s/he does not need to pay the Minister’s legal fees.