This article will discuss the rules on the review of visa decisions for non-citizens. Sections 416 to 419 of the Migration Act 1958 outline this. Moreover, this is in connection with the our blog article: "What are reviewable decisions?"
Under the Migration Act 1958, reviewable decisions refer to decisions that the Administrative Appeals Tribunal (AAT) can review. These decisions include:
- Decisions about visas made under the Migration Act 1958 by the Department of Home Affairs, the Minister for Home Affairs, or a delegate of the Minister.
- Decisions to refuse to grant a bridging visa to a non-citizen in immigration detention.
- Decisions to cancel a bridging visa held by a non-citizen.
- Decisions to refuse to grant a non-citizen a visa under specific circumstances. Such as when they could not grant a visa while the non-citizen is in the migration zone and the non-citizen had sponsorship or nomination by certain entities.
Section 416: Multiple Review Applications
Who conducts the review of visa decisions? The review body under the Migration Act. Section 416 of the Act provides that "review body" means:
- the former Refugee Review Tribunal; or
- the Tribunal.
The Refugee Review Tribunal was abolished from 1 July 2015, and its functions were transferred to the Migration and Refugee Division of the Administrative Appeals Tribunal ("the Tribunal").
Moreover, this section applies if:
- a non-citizen has made an application (the earlier application) to a review body for review of a decision under this Part; and
- a review body has determined the earlier application; and
- the non-citizen makes a further application, to the Tribunal, for review of a Part 7-reviewable decision.
However, do note that the review body need not consider earlier information. Thus, the Tribunal, in considering the further application:
- need not consider any information considered in the earlier application; and
- may have regard to, and take to be correct, any decision that a review body has made about or because of that information.
Section 417: Substitution of Decisions
The rule under section 417 states that in the review of visa decisions, the Minister may substitute more favourable decision. Specifically:
- If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision. Provided that such decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
- In exercising such power on or after 1 September 1994, the Minister is not bound by Subdivision AA (application for visas) or AC (grant of visas) of Division 3 of Part 2 of the Migration Act or by the regulations, but is bound by all other provisions of this Act.
Only the Minister personally can exercise substitution power. If, during the review of visa decisions, the Minister substitutes a decision, he or she must lay a statement before each House of the Parliament that:
- sets out the decision of the Tribunal; and
- sets out the decision substituted by the Minister; and
- sets out the reasons for the Minister's decision, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest.
Statements in the Substitution
A statement made in the substitution during the review of visa decisions is not to include:
- the name of the applicant; or
- any information that may identify the applicant; or
- if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned–the name of that other person or any information that may identify that other person.
Moreover, it has to be laid before each House of the Parliament within 15 sitting days of that House after:
- if the decision is made between 1 January and 30 June (inclusive) in a year–1 July in that year; or
- if a decision is made between 1 July and 31 December (inclusive) in a year–1 January in the following year.
Remember that the Minister does not have a duty to consider whether to exercise such power in respect of any decision during the review of visa decisions, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
Section 418: Notification to the Secretary
Section 418 lays down the rule that the tribunal must notify the Secretary of the review application. The rules as to the notification requirement during the review of visa decisions are stated as follows:
- If an application for review is made to the Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.
- The Secretary must, within 10 working days after being notified
of the application, give to the Registrar the prescribed number of
copies of a statement about the decision under review that:
- sets out the findings of fact made by the person who made the decision; and
- refers to the evidence on which those findings were based; and
- gives the reasons for the decision.
Also, the Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document. Such document is in the Secretary's possession or control and the Secretary considers it relevant to the review of the decision.
Section 419: Prescription of Decisions on Review
Like all other decisions, they must make a review of visa decisions within the prescribed period. Section 419 states that the Tribunal must comply with the prescribed period if:
- one makes an application for review of a Part 7-reviewable decision under section 412; and
- the Part 7-reviewable decision is a decision of a kind mentioned in paragraph 411(1)(e) (that an unlawful non-citizen is no longer a person in respect of whom a protection would be made);
Nevertheless, the Tribunal may, with the agreement of the applicant, extend the period for the purposes of a particular application.
Consult with a Migration Lawyer
If you're having issues with the review of visa decisions, having a consultation with a migration lawyer can be of big help. A migration lawyer from JB Solicitors can provide you with legal advice and representation throughout the review process, increasing your chances of success and making the process less stressful.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
