Free AssessmentThe Migration Review Division of AAT (Administrative Appeal Tribunal) and Refugee Review Division of AAT (Administrative Appeal Tribunal) conduct merit reviews of visa and visa-related decisions made by the Australian Department of Immigration and Border Protection.
Merits review is an administrative reconsideration of a case. A merits review body makes decisions within the same legislative framework as the primary decision maker, and may exercise all the powers and discretions conferred on the primary decision maker.
- MRD: Reviews a wide range of decisions in relation to visas other than protection visas
- RRD: Reviews decisions in relation to protection visas.
The tribunals are usually constituted by a single member. The tribunals have the power to affirm the primary decision, vary the primary decision, set aside the primary decision and substitute a new decision, or remit (return) a matter to the department for reconsideration with specific directions.
In reviewing a decision to refuse or cancel a visa, the tribunals are required to conduct a merits review that is ‘independent, fair, just, economical, informal and quick’. We aim to make the correct decision in individual cases, and to influence decision-making through quality and consistency of our decisions.
Migration Review Division of AAT (Administrative Appeal Tribunal):
The Migration Review Division of AAT (Administrative Appeal Tribunal) reviews decisions made by delegated officers (delegates) within the Department of Immigration and Border Protection (the department). When the tribunal makes a decision, it prepares a written record of the decision and the reasons for decision. Copies of this statement are provided to the review applicant and to the department.
If the tribunal affirms the decision under review, it has decided that the delegate’s decision should not be changed. The effect of this is that the delegate’s decision remains in force.
If the tribunal sets aside the decision under review, it has decided that the delegate’s decision should be changed. The tribunal may replace (substitute) the delegate’s decision with a new decision.
If the tribunal remits the decision under review, it has decided that the delegate’s decision should be reconsidered. The effect of this is that the department is required to reconsider the application having regard to any directions made by the tribunal.
If the tribunal decides that it has no jurisdiction to review the delegate’s decision, the tribunal has decided that it has no power to review the delegate’s decision.
If you think that the decision of the tribunal is wrong in law, you may consider seeking judicial review in the Federal Circuit Court of Australia.
Refugee Review Division of AAT (Administrative Appeal Tribunal):
The Refugee Review Division of AAT (Administrative Appeal Tribunal) reviews decisions made by delegated officers (delegates) within the Department of Immigration and Border Protection (the department). When the tribunal makes a decision, it prepares a written record of the decision and the reasons for decision. Copies of this statement are provided to the review applicant and to the department.
If the tribunal affirms the decision under review, it has decided that the delegate’s decision should not be changed. The effect of this is that the delegate’s decision remains in force.
If the tribunal sets aside the decision under review, it has decided that the delegate’s decision should be changed. The tribunal may replace (substitute) the delegate’s decision with a new decision.
If the tribunal remits the decision under review, it has decided that the delegate’s decision should be reconsidered. The effect of this is that the department is required to reconsider the application having regard to any directions made by the tribunal.
If the tribunal decides that it has no jurisdiction to review the delegate’s decision, the tribunal has decided that it has no power to review the delegate’s decision.
If you think that the decision of the tribunal is wrong in law, you may consider seeking judicial review in the Federal Circuit Court of Australia.
Tribunal Processing Time:
Processing times within MRT and/or RRT may vary time to time depending upon priority or case to case basis or as per the Minister’s directions. It can be predicted for how long the processing will take.
Ministerial Intervention:
You can make a request for ministerial intervention if you have received a decision by a review tribunal. This is because the minister’s public interest powers need a review tribunal decision to exist before he can intervene. A ‘review tribunal’ means the Administrative Appeals Tribunal (AAT).
However, there are certain limited circumstances where the minister cannot intervene even after a decision by a review tribunal. These include where:
- Our decision not to grant a visa is not a decision that can be reviewed by the relevant review tribunal
- The review tribunal has sent your case back to us for further consideration and one of our decision-makers has made a subsequent decision on the visa
- Your review tribunal decision was made before 1 september 1994
- A finding by the tribunal that our decision is not reviewable by it
- A finding by the tribunal that the application made to the tribunal was invalid as it was not made within the required timeframe
- A decision of the AAT that is not in respect of an MRT reviewable decision or a protection visa decision.
Judicial review:
Judicial review involves a court looking at the way in which the decision was made to determine whether the decision maker made any legal errors that lead to invalidity.
An applicant who wishes to seek judicial review of an MRT, RRT, IPA/IMR or AAT decision can seek to have that decision reviewed by the courts.
While the Migration Act 1958 includes a privative clause (section 474), this does not prevent judicial review of decisions made under the Migration Act which are tainted by jurisdictional error. Jurisdictional error covers most legal errors.
If a court finds such an error in a decision under review, it cannot substitute its own decision. The court must return the legally flawed decision to the decision maker to be reconsidered.
The Migration Act prevents class, representative or otherwise grouped court actions in migration proceedings. There are some exceptions to this prohibition, including consolidation of proceedings by a court in certain circumstances.
Please note EVICON currently does not provide Judicial Review services as such review require a Australian licensed solicitor/barrister to present the case in to the Australian court. EVICON is always happy to discuss such options and help you finding an appropriate MARA registered Solicitor/Barrister.
Please note, not all decisions made by the Department of Immigration and Border Protection Australia are reviewable. Please contact our registered migration agent to assess your eligibility for such information.
