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Merits Review Overview
Merits review of immigration decisions has been available since 1982 through the Immigration Review Panel. That panel was created by executive action and was replaced by the legislatively established Immigration Review Tribunal (the IRT) in 1989, later renamed the Migration Review Tribunal (the MRT) on 1 July 1999. The Refugee Review Tribunal (RRT) was established in 1993 and reviews decisions in relation to applications for refugee status and refugee protection visas. Limited appeals lie from both the MRT and the RRT to the Federal Court.
The Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT) have primary jurisdiction to provide merits review of specified decisions made under the Migration Act and Regulations. The Administrative Appeals Tribunal (AAT) can also review a small number of migration decisions on their merits. These tribunals' task is to make the "correct and preferable" decision in the particular case before them. This is a much wider task than that of a judicial review court, which is concerned only with whether a legal error occurred in the making of the decision under review.
In contrast, merits review is concerned with remaking the decision under review ('standing in the same shoes'), not with correcting errors made by the original decision maker.
Merits review tribunals decide all questions of fact and discretion for themselves. They can consider any evidence that will help them come to the correct and preferable decision, including evidence that the applicant failed to put before the original decision maker. In light of that new evidence, they can substitute their own findings of fact-even if the original decision maker's findings were "correct" on the basis of the evidence available at the time.
Further, even if the tribunal does not identify any errors of fact (or law) in the original decision, they may substitute their own judgment of how any discretion should be exercised in order to come to the preferable decision. The tribunals can also form their own views as to the desirability of applying departmental policy in a particular case.
These tribunals' factual and discretionary decisions are subject to judicial review in the Federal and High Courts. However, the general principle that a judicial review court cannot substitute its decision for that under review applies. If a factual or discretionary decision is found to be infected by legal error, the court will remit the decision back to the relevant tribunal to be redecided. Therefore, in practice the merits review tribunals have the final say in the migration decision-making process on questions of fact and discretion, including how any relevant policy should be applied in the exercise of a discretion.
In order to determine the correct and preferable decision in a particular case, the tribunals will often be required to also decide questions of law (especially to interpret provisions of the Act and Regulations). However, constitutional (separation of powers) principles limit the extent to which the tribunals can be given the power to make binding determinations of legal principles without Parliament having invalidly conferred the judicial power of the Commonwealth on them. However, these precise limits remain unclear.
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Notification of decisions
A primary decision maker of the Department of Immigration and a review officer must notify a decision by:
- Sending a notice of the decision to, 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 a person specified by the applicant as a person who may be given notifications about an application
A notification sent within Australia is taken to be received seven days after the date of the document, while notification sent to or from an address outside Australia is taken to be received 21 days after the date of the document. As the Migration Act refers to 'the address at which the applicant intends to live while the application is being processed,' the sending of a notice to a post box address will not bring the deeming provisions of the Migration Act into force.
The Migration Review Tribunal (MRT)
Merits review of immigration decisions is conducted primarily by the MRT, with the exception of:
- Decisions in relation to refugee status made before 1 September 1994, and decisions refusing or cancelling protection visas made after 1 September 1994, are reviewable by the RRT, and
- Decisions to deport a person, decisions refusing or cancelling visas on character grounds under s 501, and decisions cancelling business visas under s 134 are reviewable by the AAT
The following decisions are reviewable by the MRT:
- Decisions refusing a substantive visa to a person who is subject to restrictions under section 48 because of an earlier visa refusal or cancellation
- Decisions refusing applications for December 1989 entry permits
- Decisions refusing a substantive visa where the applicant
is in immigration detention when the decision is notified to
him or her, and decisions refusing a visa made by the Secretary
or by an officer holding or acting in a Senior Executive Service
position
Offshore decisions refusing to grant visas where there is no criterion requiring nomination or sponsorship in that subclass are not reviewable. A decision that an application is not valid is not a decision to refuse to grant a visa and so is not reviewable. Decisions rejecting nominations or sponsorships are not reviewable.
In addition, the Minister has the power to issue a conclusive certificate preventing review of a decision if the Minister believes that it would be contrary to the public interest:
- To change the decision, because any change in the decision
would prejudice the security, defence or international relations
of Australia, or
- For the decision to be reviewed 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
The Migration Act strictly defines the persons who can seek merits review of a migration decision. An applicant for review must be physically present in Australia when the application for review is made.
For off-shore decisions, rights of review are confined to sponsors or nominators in Australia or Australian relatives of the visa applicant rather than being conferred on the applicant himself or herself. The applicant for review must also be a relative as the term is defined in the Regulations.
If you have recently been refused a visa you should received a letter from the Department of Immigration stating the number of days you have to exercise your right for review.
The time limits for applications to the MRT are:
- (i) if the MRT-reviewable decision is covered by subsection 338(2), (3) or (4) - 28 days after the notification of the decision; or
- (ii) if the MRT-reviewable decision is covered by subsection 338(5), (6), (7) or (8) - 70 days after the notification of the decision; or
- (iii) if the MRT-reviewable decision is covered by subsection 338(9) - the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision.
Time does not run for the purposes of review until a person is notified of a decision, although a failure to give notification of a decision does not affect the validity of the decision. The Tribunal has no jurisdiction to extend the time for application.
In addition:
- For decisions refusing a bridging visa to a non-citizen who is in immigration detention because of that refusal or cancelling a bridging visa held by a non-citizen who is in immigration detention because of that cancellation - two working days after notification.
- For decisions refusing a substantive visa where the
applicant is in immigration detention or decisions cancelling
a visa (other than a decision cancelling a bridging visa held
by a non-citizen who is in immigration detention because of
that cancellation) -two working days after notification; or
if the applicant gives notice within those two working days
that s/he intends to apply for review-five working days after
that notice is given.
Powers on review:
The MRT may affirm, vary or set aside a decision under review or remit an application with directions that the applicant must be taken to have satisfied a specified criterion for the visa.
The MRT has all the powers and discretions conferred on the person who made the decision under review. The MRT must not purport to make a decision not authorised by the Act or the Regulations.
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The Refugee Review Tribunal (RRT)
Right to review:
The applicant, who must be in Australia, can only make an application
for review. This means that overseas refugees have no right to
merits review.
Time limit:
The application must be made within 28 days.
These essentially mirror those for the MRT.
The Administrative Appeals Tribunal (AAT)
Referral of matters to the Administrative Appeals Tribunal:
The Principal Members of the MRT and RRT may refer a review involving an important principle, or issue of general application to the President of the AAT. We understand no such referrals have yet been made.
The AAT can review:
- Decisions cancelling business visas
- Criminal deportation decisions
- Decisions refusing or cancelling visas on character grounds,
and
- Decisions refusing or cancelling protection visas on the grounds referred to in articles 1F, 32 or 33(2) of the Convention Relating to the Status of Refugees (s 500)
Prior to 1992, the AAT's jurisdiction in relation to criminal deportation decisions was limited to affirming the decision or remitting it for reconsideration in accordance with recommendations.
The AAT now has determinative powers in respect of all matters, which it may review under the migration Act, including criminal deportations. However, if the seriousness of the circumstances indicate that "it is in the national interest" to do so, the Minister for Immigration acting personally may:
- Exclude review by the AAT of criminal deportation decision,
- Refusing or cancel a visa on character grounds, and
- Refuse or cancel a protection visa
The AAT operates in a more adversarial fashion than the other specialist immigration Tribunals.
Ministerial discretion:
The Minister for Immigration has the discretion to substitute a more favourable decision for that of the MRT and RRT. The minister however is under no duty to consider whether or not to exercise these discretions in particular cases, and these decisions are not subject to merits or judicial review, except by the High Court of Australia.
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Reform of the Merits Review System
In February 1998, the Australian Government announced its long-term intention to amalgamate all the Commonwealth's merits review tribunals into a single Administrative Review Tribunal (ART), with different divisions reflecting the main jurisdictional areas inherited by the new tribunal.
The amalgamation was expected to take place in or about July 2001, however, in the face of strong opposition further consultations continue on issues such as the scope of merits review and what role Government policy should play.
The proposal constitutes the most significant and far-reaching reform to the Commonwealth merits review system since the inception of the AAT in 1976.
Overall, the ART will replace various tribunals that have evolved to deal with the review of administrative decisions of departments and agencies. Specifically, these are the Administrative Appeals Tribunal (the AAT), the Social Security Appeals Tribunal (the SSAT), the Migration Review Tribunal (the MRT) and the Refugee Review Tribunal (the RRT). The Veterans Review Board (the VRB) will remain. The intended change will also re-establish the Administrative Review Council, the body established in 1976 to oversee the system of Commonwealth administrative law.
A migration division within the proposed ART will therefore replace the MRT and RRT. This is unlikely to affect the relevant jurisdictional and standing provisions. However, it is unclear to what extent those tribunal's distinctive procedures will be retained or replaced by more general procedures applying to the tribunal as a whole.
Despite the claimed increased efficiencies and cost savings there do exist serious concerns - identified in the 2001 Senate legal inquiry - with the proposed new administrative review arrangements, such as:
- Lack of independence of the proposed ART from government agencies;
- Loss of multi-member/multi skilled review panels;
- Reduced quality of review;
- Loss of two-tier external review;
- Reduced procedural fairness;
- Restriction on consumer representation despite increased participation
of government agencies; and
- Diminishing administrative review of Government determinations.
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