ADMINISTRATIVE REVIEW OF IMMIGRATION DECISIONS:

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Currently, a person who wishes to challenge an immigration decision will do so in a different tribunal (depending on whether they are a general migration applicant or an asylum seeker). The Migration Review Tribunal or MRT (which took over from the abolished Migration Internal Review Office and the Immigration Review Tribunal in 1999) has the power to conduct a merits review (which involves a review body considering the facts of a particular case and changing the original decision if it is found to be wrong) and change the decision that was originally made.

REVIEW FOR SKILLED, FAMILY, AND SPECIAL ELIGIBILITY APPLICANTS:
  • Skilled, Family, and Special Eligibility applicants who feel that their application has been decided incorrectly can lodge a claim for further review in the MRT- this claim for appeal will cost the applicant $1400 (unless they are in detention).

  • The MRT conducts a ‘court-like’ hearing, and considers any written submissions and evidence presented by the applicant and the Department of Immigration and Citizenship (DIAC). The MRT can also conduct its own investigation into the matter as well, and may summon witnesses for questioning or subpoena documents. Applicants do not have to be legally represented during the actual trial, though they may choose to seek advice from lawyers before the hearing (though they are disadvantaged by the DIAC having access to the most esteemed law firms in the country). The decision of the MRT, to either uphold or overturn the initial decision, is considered binding.

  • If an applicant fails in challenging an immigration decision in the MRT, they may choose to further challenge the decision in the Federal Court, though this is a very time-consuming and expensive process that should not be attempted without legal representation (which some applicants may not be able to afford or have access to).

  • Amendments to the Migration Act 1958 (Cwlth), made in October 2001, prevent the Federal Court from overturning an MRT decision unless the decision maker was biased or not acting in ‘good faith’, or had no authority under law to make that time of decision (which is not likely). The amendments also prohibit class actions (when a group of people making the same claim present their claims in the same case), which means that applicants cannot save money by combining their claims, making the process more expensive for them.

REVIEW FOR REFUGEE AND HUMANITARIAN PROGRAM APPLICANTS:
  • Refugee and humanitarian program applicants who have not been recognised as refugees may challenge this decision before the Refugee Review Tribunal (or RRT). Their appeal must be lodged within 28 days of the decision being made; otherwise it will not be valid.

  • The RRT operates similarly to the MRT as it conducts merit reviews. However, it cannot consider applications that have been refused on the grounds that the asylum seeker does not meet health or character requirements, as these decisions must be appealed to the Administrative Appeals Tribunal.

  • Applicants who have lost an appeal can seek further review in the Federal Court (though the same restrictions apply as do for applicants appealing to the Federal Court from the MRT, meaning that RRT decisions cannot be overturned by the Federal Court unless the decision maker was biased or had no authority to make the decision).

REVIEW THROUGH THE ADMINISTRATIVE APPEALS TRIBUNAL:
  • The Administrative Appeals Tribunal, or AAT, was created to hear appeals from decisions made by a range of government authorities (including the Department of Immigration and Citizenship).

  • The AAT can conduct merit reviews, but is different to the MRT and the RRT as both parties involved in the hearing may be legally represented. The only migration-related decisions that can be appealed in the AAT are decisions that a person is not a refugee, that a person does not meet the character and health requirements, decisions to deport a person for committing a criminal act, and decisions to cancel a Business Skills Visa.

EFFECTIVENESS OF THE ADMINISTRATIVE REVIEW OF IMMIGRATION DECISIONS:
  • Overall, the administrative review of immigration decisions is very effective, as the review system is set up into many different tribunals which each deal with a specific immigration issue or type of applicant (e.g. the Refugee Review Tribunal deals with refugee and humanitarian program applicants only), making the case results more specialised. It is also effective as an appeals system is available, meaning that there are many chances for incorrect immigration decisions to be redressed and corrected.

  • Some disadvantages of the administrative review of immigration decisions are that:
Ø Skilled, Family and Special Eligibility applicants are disadvantaged in cases heard by the Migration Review Tribunal as they DIAC has access to the most esteemed law firms in the country, whereas the applicants have finite resources and not enough money, so they are not able to access the best legal representation and advice, making them less likely to win the appeal.

Ø If applicants fail in challenging their immigration decision in the MRT, they have the option to further challenge the decision in the Federal Court- however, this is a very time-consuming and expensive process, and applicants may not be able to afford or access the adequate legal representation needed, making them incapable of appealing the immigration decision further.

Ø Class actions are prohibited by the Migration Act 1958 (Cwlth) which means that applicants cannot save money by combining their claims, making the process more expensive for them.

Ø The Federal Court cannot overturn decisions made by the MRT and the RRT unless the decision maker was biased or had no authority to make the decision, which means it is pointless for the applicants to continue appealing the decision unless they are sure that the decision maker was biased or that they did not have appropriate authority to make the decision.

By Jacqui Boyton.