08 8410 3044, 0412 496 735

  

Level 4, 22 Grenfell St, Adelaide, SA

Migration Centre of South Australia

Tribunals

If the Department makes a decision which is unfavourable, it is sometimes possible to seek a review of that decision.

 

There are a number of different bodies which can review a migration decision

Merits review

 

The Administrative Appeals Tribunal (AAT), Migration and Refugee Division, has the power to conduct merits review of a wide range of decisions in relation to visas (including protection visas) and citizenship applications made by officers of the Department.
Merits review is where a review body considers afresh the claims of an applicant and any additional information which is put forward during the review process. The review body must determine if the correct or preferable decision was made. Importantly, review bodies are generally bound by the same rules as the primary decision-maker and must act in accordance with the applicable law.

A merits review tribunal generally either affirms, varies or sets aside the original decision. In certain cases the tribunal can also remit the matter to the DIBP for reconsideration.

 

Judicial review

 

Judicial review of migration decisions generally involves review of matters of law (while merits review focuses on the facts of a case). Judicial review of immigration decisions has been restricted over the years.
Requests to the Minister for Immigration
A person subject to an unfavourable tribunal decision may ask the Minister to substitute that decision with a decision ‘that is more favourable to the applicant’ – this is commonly referred to as ‘Ministerial intervention’. The Minister will only intervene if ‘it is in the public interest to do so

 

 Other options 

 

In addition to tribunal and court review as well as Ministerial intervention, a person concerned about the manner in which the Department has handled a particular matter may lodge a complaint to various independent bodies, including the Commonwealth Ombudsman, or the Human Rights and Equal Opportunity Commission. These bodies generally only have recommendatory powers (rather than the power to change a decision). However, they can investigate and take action about such things as maladministration and discrimination in policy, process and decision-making.

An applicant who has no review rights can also ask the Department to reconsider the application. However, it is only worth trying this in cases where the Department has made an obvious error. Alternatively, the applicant should examine the reasons for refusal and, if possible, lodge a fresh application with further information.


More information

AAT, Migration and Refugee Division 
AAT