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Review Tribunal

Overview

At DDA Migration, we understand how difficult it can be when things go
wrong on your migration journey. Our registered and experienced migration specialists can help you in:

  • Dealing with breaches of your visa conditions
  • Advising you on the options available to you to regularise your status while remaining in
    Australia
  • Preparing an application for review by the Administrative Appeals Tribunal of decisions
    by the Department of Immigration and Border Protection
  • Advising you on how to be released from detention
  • Advising you on your chances of being able to return to Australia
Review By Administrative Appeals Tribunal

If your Australian visa has been refused or cancelled, you may have an opportunity to seek review of the
decision by the Administrative Appeals Tribunal.
The Administrative Appeals Tribunal is a statutory body established by the Administrative Appeals Tribunal
Act 1975. It conducts independent merits review of administrative action such as decisions on visa
applications and visa related matters made by officers of the Department of Immigration and Border
Protection. The Tribunal will look afresh at the facts, law and policy relating to the decision, when
conducting a review, so as to arrive at a legally correct decision or, where there is more than one correct
decision, make a decision that it deems preferable. The Tribunal has the power to affirm a decision
concerning a visa. It can also vary a decision, set aside a decision and substitute a new decision, or remit a
decision to the decision-maker for reconsideration.
In carrying out its functions, the Tribunal is to pursue the objective of providing a mechanism of review that
is accessible, fair, just, economical, informal and quick, as well as proportionate to the importance and
complexity of the matter whilst promoting public trust and confidence in the decision-making process.
The time limit for making an application to the Administrative Appeals Tribunal is ordinarily stated in the
decision subject of the review and will usually be 28 days after the decision to be reviewed is received.

Ministerial Intervention

The Migration Act 1958 gives the Minister for Immigration and Border Protection the power to substitute a
decision of the Administrative Appeals Tribunal with another decision that is more favourable to the
applicant, if the Minister thinks that it is in the public interest to do so.
In exercising the powers under the Migration Act 1958, the Minister is guided by various principles and may
consider factors such as, for example, whether application of the relevant legislation would lead to unfair or
unreasonable results in a particular case, whether strong compassionate circumstances exist such that a
failure to recognise them would cause irreparable harm and continuing hardship to an Australian citizen or
family unit, whether exceptional economic, scientific, cultural or other benefit to Australia would result from
the visa applicant being permitted to remain in Australia, and whether the applicant can demonstrate that the
length of time he or she has been present in Australia has given rise to a sufficient level of integration into
the Australian community.
Where a decision is made by the Tribunal to affirm the decision under review, or that the Department’s
decision should not be changed, or the Tribunal determines that there is no jurisdiction to review a
decision, the Ministerial Intervention application will need to be submitted 28 days after notification of the
decision is received.

The Federal Circuit Court Of Australia

The Federal Circuit Court of Australia can review specific decisions made under the Migration Act 1958,
and these encompass decisions made by the Minister for Immigration and Border Protection and the
Administrative Appeals Tribunal.
The Federal Circuit Court can judicially review a decision in order to determine if a jurisdictional error has
been made; whether the decision is made according to law. Whilst the Federal Circuit Court is independent
of the decision makers of the Department of Immigration and Border Protection, it does not consider the
merits of individual applications or whether the visa applicant ought to be granted a visa. If the Federal
Circuit Court identifies a jurisdictional error, it can refer the matter back to the decision maker, and prevent
the Minister from taking steps in conformity with the decision. The Federal Circuit Court will not reconsider
the facts and reasons for the visa application, grant a visa or take new factual information into account unless
it is relevant to the question of whether the decision maker made a jurisdictional error.
An application for review must be filed within 35 days of the date of the migration decision and a further
visa application typically needs to be made.

The Federal Court Of Australia

In some circumstances, a migration matter may be brought before the Federal Court of Australia.
Under the Migration Act 1958, the Federal Court has original jurisdiction in relation to a migration decision
if the Federal Circuit Court transfers a pending proceeding in relation to the decision to the Federal Court, or
the decision is a privative clause decision or a purported privative clause decision of the Administrative
Appeals Tribunal, or the decision is a privative clause decision or purported privative clause decision made
personally by the Minister, or the Federal Court has jurisdiction in relation to the decision under provisions
of the Administrative Appeals Tribunal Act 1975. A decision in relation to which the Federal Court may
exercise its jurisdiction includes the suspension, cancellation, revocation or refusal of a visa and also
situations where there is a failure or refusal to make a decision.
Whilst the Federal Court does not review the merits of a migration decision, it may determine whether the
migration decision has been tainted by jurisdictional error. Examples of jurisdictional error include the
decision-maker identifying a wrong issue, asking a wrong question, ignoring relevant material, relying on
irrelevant material, or incorrectly interpreting or applying the law to the facts in a manner that affects the
exercise of power.
As with applications to the Federal Circuit Court, an application to the Federal Court to review a migration
decision has to be made within 35 days of the date of the migration decision and a further visa application
may be required.