Appeals

Whilst the AAT – Migration and Refugee Division (MR Division) – can review certain decisions made under the Migration Act 1958, such as decisions to refuse or cancel different types of visas, decisions to refuse to approve a nomination of an occupation or position, and decisions to refuse to approve a sponsor, it does not review all visa decisions that are made by the Department of Home Affairs, the Minister for Home Affairs or the Minister for Immigration, Citizenship and Multicultural Affairs.

When reviewing a decision, such as for example a visa refusal by the Department of Home Affairs or a decision not to approve a nomination or sponsorship, the AAT will review the decision on the merits.

That is, in conducting a merits review, the MR Division of the AAT will consider the matter afresh (or ‘de novo’) and assess the relevant facts, law and policy in order to arrive at a decision that is correct or preferable.

The AAT has the power to affirm the reviewed decision, vary the decision, set aside the decision and substitute a new decision, or remit the decision to the original decision-maker for reconsideration.

Generally, you must lodge an application for review to the AAT within 28 days after the notification of the Department of Home Affairs’ decision.

Stricter time limits apply in some cases.

For decisions made under sections 501 and 501CA of the Migration Act, you will need to apply for AAT review within 9 days after the day when you were notified of the decision. Those provisions concern decisions to refuse or cancel a visa on character grounds (section 501), or decisions to not revoke the mandatory cancellation of a visa on character grounds (section 501CA).

Recently, in December 2022, the Australian Government announced that the Administrative Appeals Tribunal will be abolished and replaced with a new federal administrative review body.  

Cases that are currently before the AAT will continue. Many of the cases before the AAT will be decided or finalised by the AAT before it is abolished. Once the new federal administrative review body is established, any remaining cases that have not yet been decided or finalised by the AAT will transition to the new body.

Federal Circuit and Family Court of Australia

The Federal Circuit and Family Court of Australia can review some decisions made under the Migration Act 1958. These include certain decisions of the Administrative Appeals Tribunal, the Immigration Assessment Authority, and the Minister for Immigration, Citizenship and Multicultural Affairs.

The Federal Circuit and Federal Court can only review decisions in order to determine if a ‘jurisdictional error ‘was made.

A ‘jurisdictional error’ arises when a decision-maker exceeds the authority or power that is conferred on them. It is a situation where the decision-maker fails to comply with an essential condition to, or limit on, the valid exercise of power, such that it may render their decision invalid.

Examples of ‘jurisdictional errors’ include the decision-maker failing to observe procedural fairness in reaching a decision, identifying a wrong issue, ignoring relevant material, or relying on irrelevant material they should not have taken into account.

A ‘jurisdictional error’ may also include incorrect interpretation or application of the law, reaching a decision that is unreasonable, making a decision without evidence, making a decision in bad faith, applying policy inflexibly, or making a decision that was not reasonably open on the material before the decision-maker.

An appeal before the Federal Circuit and Family Court is not a re-hearing of the original dispute. Rather, it is an examination by the Court of whether the law was applied correctly in the circumstances of the case, whether there was a ‘jurisdictional error’.

Generally, party-party costs are awarded in the Federal Circuit and Family Court; the unsuccessful party is ordered to pay the legal costs of the successful party.

Accordingly, if the Federal Circuit and Family Court decides to dismiss or discontinue your application, you will need to pay the Minister’s legal costs.

Federal Court of Australia

Most first instance immigration appeals are to be heard in the Federal Circuit and Family Court of Australia.

For example, the Federal Circuit and Family Court has jurisdiction to review decisions made by the Migration and Refugee Division of the Administrative Appeals Tribunal.

However, there are some immigration matters that can be commenced in the Federal Court’s original jurisdiction.

In certain situations, the Federal Court has original jurisdiction in relation to a ‘migration decision’ under section 476A(1) of the Migration Act, such as decisions to refuse or cancel a visa on character grounds, and decisions regarding the removal of non-citizens who are convicted of a criminal offence and sentenced to imprisonment for 12 months or more.

A ‘migration decision’ under section 5 of the Migration Act means a ‘privative clause decision’, ‘a purported privative clause decision’, or ‘a non-privative clause decision’. Those decisions, in relation to which the Federal Court has original jurisdiction, include the granting, cancelling, suspending, revoking, or refusing a visa. They also include the refusal or failure to make a decision.

The Federal Court has essentially the same jurisdiction in relation to a migration decision as the High Court of Australia under paragraph 75(v) of the Commonwealth Constitution. These are matters with regard to which a writ of mandamus or prohibition, or an injunction is sought against an officer of the Commonwealth.

Consequently, the Federal Court can adjudge ‘questions of law’, that is, consider whether the decision-maker made a legal mistake, or whether there has been a ‘jurisdictional error’.

If you think that a decision by the Administrative Appeals Tribunal is wrong, or you disagree with the decision, you may appeal to the Federal Court of Australia on a question of law.

An appeal to the Federal Court has to be made within 35 days of the date of the AAT’s decision.

Ministerial Intervention

The Migration Act 1958 gives powers to the Minister to replace or substitute a decision of a merits review tribunal with a decision that is more favourable to a person, such as a person who had a visa application refused, if the Minister thinks it is in the public interest to do so.

The Minister has discretion to decide whether or not to intervene on public interest grounds. This means that the Minister is not obliged to consider or intervene in a case, and only a limited number of requests for Ministerial Intervention are referred to the Minister.

The types of matters that can be brought to the Minister’s attention, where the Minister may consider to intervene, would involve unique or exceptional circumstances. The Minister could intervene where there are strong compassionate considerations which, if ignored or not recognised, would result in serious and irreversible harm, and continuing hardship, to an Australian citizen or family unit.
Please note: Tamas Immigration is a firm of Australian Immigration Lawyers and Canadian Immigration Consultants. Accordingly, some reference to laws, or legal requirements, or policy, on this website may only relate to Australian laws, legal requirements, or policy, and the services we provide in our capacity as Australian Immigration Lawyers.