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Not All Visa Decisions Are Final

A 'decision' means a final decision to grant, refuse to grant or cancel a visa. Such a decision by the department of immigration is made from the instant the decision is committed to paper or electronic record.

There is no power in the Migration Act to revisit or remake a decision, even if a mistake has been made. In most circumstances, remaking a decision is an unlawful exercise of power.

Following a line of reasoning by the Australian High Court, the immigration department may be able to revisit a decision where a court would find that it was affected by jurisdictional error.

This means there is no power in the Migration Act to revisit or remake a decision, even if a mistake has been made. In fact, the Migration Act under s69 prevents an immigration officer from doing so. And in most circumstances, remaking a decision would be an unlawful exercise of power by the department.

In this context, a 'decision' means a final decision to grant, refuse to grant or cancel a visa, even if the decision does not take effect until later.

Such a decision is made from the instant the decision is committed to paper or electronic record, with the exception of automatic cancellation under s137J.

There is, however, a line of reasoning by the High Court that allows the department to revisit a decision in certain circumstances where a court would grant relief on the basis that it was affected by 'jurisdictional error'.

As a general guide, jurisdictional error occurs where a decision maker does not correctly exercise their powers and responsibilities. This is a complex and evolving area of law, described in more detail below.

A decision affected by jurisdictional error is, in law, no decision at all. Thus, in the event of jurisdictional error, the duty to make a decision must be carried out in the first instance by the department.

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