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- Appeal Options
- Merits Review Tribunals
- Judicial Review
- Ministerial Intervention
- Time Limits
- Freedom of Information
- Legal Costs in Litigious Matters
- Why Contact Us?
Appeal Options
Where a visa application is refused, the applicant and / or the sponsor, may have rights to a Merits Review or Judicial Review, depending on their particular circumstances.
There are various avenues and forums to challenge a refusal by the Department of Immigration & Citizenship.
Depending on the nature of the refusal, you may be able to appeal to one of Australia's merits review tribunals:
- the Migration Review Tribunal (M.R.T.)
- the Refugee Review Tribunal (R.R.T.) or, in certain circumstances
- the Administrative Appeals Tribunal (A.A.T.)
In limited circumstances, you may be able to seek Judicial Review of an unfavourable decision from the Courts.
Alternatively, again depending on your circumstances, it may be appropriate for you to seek review of an unfavourable decision through a direct approach to the Minister of Immigration to intervene on your behalf.
In the context of migration law, it is important to note that only merits review bodies, such as the Administrative Appeals Tribunals, can determine questions of fact (Merits Review), and only judicial bodies, such as the Courts, can conclusively determine questions of law (Judicial Review).
Merits Review Tribunals
The Tribunals are established under the Migration Act 1958 and the Tribunals' jurisdiction and powers are set out in the Migration Act and in the Migration Regulations 1994.
Migration Review Tribunal (M.R.T.) If the Department refuses a visa application, you may appeal to the Migration Review Tribunal. There is an application fee of $1,540.00. However, if you are able to demonstrate that you are experiencing severe financial hardship, payment of the fee may be waived. If your appeal is lodged post 1 July 2011 and you are successful, $770.00 of your application fee will be returned to you. The tribunal will hear your case and has the power to change a decision made by the Department.
Refugee Review Tribunal (R.R.T.) If you are applying for refugee status, and you are an onshore applicant, you must lodge your appeal with the Refugee Review Tribunal. Successful onshore applicants are granted a protection visa. The Refugee Tribunal will consider your application and decide whether you satisfy the legal definition of a refugee. Although there is no fee for this application, if your appeal is unsuccessful, you will have to pay $1,540 to the Department of Immigration & Citizenship. Where an application is made offshore, applicants come under the Department's Humanitarian Program.
Judicial Review
If legal error can be established, the court may set the decision aside. This is known as Judicial Review. Judicial review is facilitated by the Judicial Administrative Decisions (Judicial Review) Act 1977 (Cth).
It is important to note that this avenue of appeal is only available where there has been an error of law.
Also, the courts are limited to setting aside the decision complained of; generally they are not vested with the power to substitute a different decision for that of the relevant review Tribunal. This is because Courts are not supposed to inquire into the "merits" of a migration decision (i.e. the particular facts and circumstances of case) - inquiries into the merits of a decision are dealt with by merits review institutions such as the Migration Review Tribunal and the Refugee Review Tribunal.
If you are successful in appealing to the courts, the court will usually remit the decision to the originating administrative tribunal for re-consideration. There is no guarantee, however, that the originating tribunal will find in favour of the applicant even where it has been returned to it by the courts for re-consideration.
Failing a successful outcome in the Federal Court, applicants make seek Special Leave to appeal to the High Court of Australia.
Ministerial Intervention
Sections 351, 417 and 501J of the Migration Act 1958 allow the Minister for immigration to exercise his "public interest powers" and intervene if one of the Administrative Appeals Tribunals has refused your application. The Minister's powers are discretionary, which means that he can not be compelled to intervene on your behalf, or consider intervening.
It is important to note, that Ministerial Intervention is only available if you have first received a decision from one of the Administrative Appeals Tribunals, or in circumstances where this is your initial request for the minister to intervene and you are currently appealing the review tribunal decision through the Courts.
There are certain limited circumstances where the minister cannot intervene even after a decision by a review tribunal has been made. These include where:
- the decision of the Department of Immigration and Citizenship (the department) not to grant a visa is not a decision that can be reviewed by the relevant review tribunal
- the review tribunal has sent your case back to the department for further consideration and a departmental decision-maker has made a subsequent decision on the visa
- your review tribunal decision was made before 1 September 1994
- a finding by the tribunal that the department's decision is not reviewable by it
- a finding by the tribunal that the application made to the tribunal was invalid as it was not made within the required timeframe
- a decision of the AAT that is NOT in respect of an MRT reviewable decision or a protection visa decision.
We are qualified to advise you if your request cannot be considered under the Minister's public interest powers.
Time Limits
Strict time limits apply to the making of an application for review. The time limit depends upon the type of decision, whether you are in immigration detention and whether you were informed of the decision personally or by post. If you aware of a decision to refuse your visa application, you should immediately contact an Australian Immigration Lawyer. In some instances it may be possible to apply extension of time in which to make an appeal application.
Freedom of Information
If you are considering appealing the Departments refusal, you should also make an application under Australia's Freedom of Information Legislation to have your file made available to you for inspection.
This will allow you to see, and make copies of, any file documentation prepared by the Department's representatives in respect of your visa application. Of particular interest is the Departments reasons for refusing your application as it is of vital importance in determining whether or not there are sufficient grounds to justify the commencement of an appeal application.
Legal Costs in Litigious Matters
Recovery of costs from another party
In litigious matters, the court or tribunal may decide who will pay the successful party's costs. If your matter is successful, the court or tribunal may order a party or parties to pay some of your costs.
These costs are known as "party and party costs" and are calculated using the scale of costs applicable to your matter.
In the event that you decided to retain our services in respect of your appeal application, we will provide you with an estimate of the costs you are likely to recover from the other party.
Your liability for the costs of another party
If you are unsuccessful in your litigation you will be required to pay the Ministers legal costs. The total cost will depend on the length of the case and the amount of work done. If you chose to discontinue your case without a hearing, you will generally have to pay a reduced proportion of the Minister's legal costs.
We will provide you with an estimate of what the Ministers legal costs will most likely be in the event that you retain our services in respect of your appeals application.
You will also be responsible for our charges.
You should note that any costs payable to the Minister for Immigration and Multicultural Affairs as a result of unsuccessful litigation is a debt payable to the Commonwealth.
Why contact us?
We are suitably qualified to undertake a comprehensive review of Department's decision, and provide you with a detailed and informed assessment as to whether there are sufficient grounds to justify the commencement of an appeal application.
While we can not guarantee that your appeal application will succeed, we will not advise you to commence appeal proceedings if your application does not have a reasonable prospect of success.
