Migration Review Tribunal
The Migration Review Tribunal (MRT) constitutes the second tier of the review system. The MRT is independent of the Department of Immigration but must still apply relevant migration law. (Note: The MRT and the Refugee Review Tribunal are proposed to be amalgamated with other tribunals into the Administrative Review Tribunal. This move has currently stalled in the Senate.)
The MRT can review most decisions made by the Department of Immigration where the applicant is onshore or has an onshore sponsor/nominator and also some other decisions, including decisions relating to detention and removal of illegal entrants and cancellation of visas. The MRT office should be telephoned to ascertain whether a decision may be reviewed by them.
Strict time limits apply to lodgement and applications for review. Applications for review must be lodged:
- within 21 days of the receipt of the Department of Immigration decision if the applicant is in Australia;
- within 70 days of the receipt of the decision if the applicant is overseas.
The application fee is currently $1400. The MRT may waive the application fee if it would cause financial hardship.
Applications for review of decisions relating to detention and removal must be made within two days of the decision.
The MRT conducts a merits review of the original applications in an inquisitorial fashion and not the more usual adversarial manner. The MRT procedure involves two steps. The first is a consideration ‘on the papers’, at which the MRT will consider the applications and, if appropriate, grant the application. If not, the applicant is informed of the reasons why not and invited to attend a full hearing. The applicant then attends a full hearing before the MRT, and has the opportunity to provide verbal evidence. Witnesses may be called at the discretion of the MRT. Legal advisers may not address the MRT except in unusual circumstances.
Administrative Appeals Tribunal
The Administrative Appeals Tribunal (AAT) can only review the following migration decisions:
- refusals and cancellations of visas on the grounds of ‘bad character’;
- cancellation of business visas;
- criminal deportation orders;
- freedom of information decisions;
- Australian citizenship decisions;
- decisions forcing the repayment of income support payments made to people covered by an Assurance of Support (after these have first been reviewed by the Social Security Appeals Tribunal).
An application for review to the AAT must be made within 28 days from the time the applicant receives notice of the decision.
Refugee Review Tribunal/Migration Review Tribunal
There is no merits review available for decisions made under the overseas Refugee and Humanitarian program. Applicants who are refused refugee status should assess the reasons for the decision and consider whether to re-apply with additional evidence to address the grounds of refusal.
The Refugee Review Tribunal (RRT) deals exclusively with refugee applications for review. It reviews refusal of on-shore refugee applicants only. Applications for review must be lodged within 28 days of receiving the refusal. The refusal letter is deemed to be received five working days after the date of the refusal letter.
RRT hearings follow very simple procedures and are conducted in an informal way. After an initial explanation of what lies ahead, any outstanding procedural matters are dealt with. The RRT then proceeds to question the applicant and any witnesses. Opportunities are provided for witnesses to discuss matters about which they had been questioned.
The RRT will also allow applicants to submit additional written evidence after the hearing has concluded.
The Migration Review Tribunal (MRT) also assesses visa and visa-related applications. The name is less controversial than the RRT, and is concerned with all other aspects of the migration review outside the Refugee and Humanitarian Program.
Federal Court of Australia and the Federal Circuit Court
Unlike the above tribunals, the Federal Court conducts judicial review of some migration decisions. This means that it can determine whether a decision is unlawful and, if so, order the decision maker to remake the decision. Judicial review is very complex and normally requires the assistance of an experienced lawyer. The Federal Circuit Court also has jurisdiction over immigration and refugee matters.
High Court of Australia
The High Court of Australia is the final court of appeal in Australia. There have been several important decisions that have come down from the High Court bench concerning refugee rights and the interpretation of immigration legislation. The High Court will only consider a case if there is an important point of law to consider. For example, in one refugee case, the High Court considered the validity of indefinite detention, – being held in custody with no known release date. This was an important legal issue because it raised questions about the Constitution, and whether the indefinite detention of asylum seekers violated the Australian Constitution.
The Commonwealth Ombudsman can review a decision made by the Immigration Department when some mal-administration has occurred. However, the Ombudsman cannot substitute their decision for that of the Department. They may only recommend corrective action if they believe that there has been some failing in the administration of departmental policy. Their recommendations can include stating that the action was unreasonable or oppressive or that there was undue delay in making the decision.
The Ombudsman is precluded from reviewing action taken by the Minister but can investigate a recommendation made by the Department to the Minister.
Any person who is adversely affected by a decision has a right to complain to the Ombudsman, even if there is no right of appeal to the MRT, RRT, AAT or Federal Court. An overseas applicant affected by an adverse decision may also complain. The overseas complainant need not be an Australian citizen or permanent resident of Australia.
The Minister has wide discretionary powers. However, even in cases with no automatic right of review, there must still be compelling reasons for the Minister to change a decision of the Department. Cases that could be considered to show compelling reasons for review could be those where:
- circumstances have materially changed since the Departmental decision was made;
- there is evidence that the Department has not applied policy; and
- there are special compassionate factors.