Understanding the Australian Appeals System

Review by the Administrative Appeals Tribunal

If your Australian visa, citizenship, company nomination or sponsorship application has been refused, or your visa or sponsorship is cancelled, you may have an opportunity to seek review of the decision by the Administrative Appeals Tribunal.

No Borders migration agents and immigration lawyers can advise whether your matter is eligible for review, the likelihood of success and what other options are available.

We will advise on the costs involved and how long it might take, and help you get access to the documents that informed the decision-making process. We will then review your application material, assist with your application to the Administrative Appeals Tribunal, and help you prepare for a Tribunal hearing. Where applicable, we can appear on your behalf.

The Administrative Appeals Tribunal is a statutory body established by the Administrative Appeals Tribunal Act 1975. It conducts de novo 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.

When conducting a review, the Tribunal will look at the facts, law and policy relating to the decision 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 provides 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 while promoting public trust and confidence in the decision-making process.

The time limit for making an application to the Administrative Appeals Tribunal is stated in the decision subject of the review and will usually be 28 days after the decision to be reviewed is received.

Contact No Borders today to discuss your situation.

Ministerial Intervention

At No Borders Migration Advocates we take pride in the knowledge and competence of our migration agents and immigration lawyers in providing assistance with and advice on Ministerial Intervention Applications.

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 whether:

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.

Contact No Borders today to discuss your situation.

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 review a decision to determine if a jurisdictional error has been made; that is, whether the decision is made according to law. While 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.

Contact No Borders today to discuss your situation.

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.

While 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.

The team of registered migration agents and immigration lawyers at No Borders Migration Advocates have the skills, competence and experience to provide quality advice and representation in cases adjudicated upon by the Federal Court of Australia.