Written by Administrator
Thursday, 13 December 2012 09:48
If you have recently been refused an Australian visa, and disagree with the decision, there are some steps you can take.
The Migration Review Tribunal MRT
The Refugee Review Tribunal RRT
The Administrative Appeals Tribunal AAT
Merits Review Overview
Merits review tribunals decide all questions of fact and discretion for themselves. They can consider any evidence that will help them come to the correct and preferable decision, including evidence that the applicant failed to put before the original decision maker. In light of that new evidence, they can substitute their own findings of fact-even if the original decision maker's findings were "correct" on the basis of the evidence available at the time.
Further, even if the tribunal does not identify any errors of fact (or law) in the original decision, they may substitute their own judgment of how any discretion should be exercised in order to come to the preferable decision. The tribunals can also form their own views as to the desirability of applying departmental policy in a particular case.
Time limits for review
If you have recently been refused a visa you should received a letter from the Department of Immigration stating the number of days you have to exercise your right for review.
The time limits for applications to the MRT are:
- if the MRT-reviewable decision is covered by subsection 338(2), (3) or (4) - 28 days after the notification of the decision; or
- if the MRT-reviewable decision is covered by subsection 338(5), (6), (7) or (8) - 70 days after the notification of the decision; or
- if the MRT-reviewable decision is covered by subsection 338(9) - the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision.
Time does not run for the purposes of review until a person is notified of a decision, although a failure to give notification of a decision does not affect the validity of the decision. The Tribunal has no jurisdiction to extend the time for application.
The Refugee Review Tribunal (RRT)
Right to review
The applicant, who must be in Australia, can only make an application for review. This means that overseas refugees have no right to merits review.
The application must be made within 28 days.
These essentially mirror those for the MRT.
The Administrative Appeals Tribunal (AAT)
Referral of matters to the Administrative Appeals Tribunal:
The Principal Members of the MRT and RRT may refer a review involving an important principle, or issue of general application to the President of the AAT. We understand no such referrals have yet been made.
The AAT can review:
- Decisions cancelling business visas
- Criminal deportation decisions
- Decisions refusing or cancelling visas on character grounds, and