Reviews

Based on the contribution of Michael Clothier for The Law Handbook 2016, published by Fitzroy Legal Service, as amended by KevinKardirgamar and current to 1 May 2016

Appeals to the Administrative Appeals Tribunal

Where the minister signs a deportation order against a permanent resident convicted of a crime (as distinct from an unlawful non-citizen) the person has a right to appeal on the merits to AAT However, as is far more likely, the minister will use section 501 of the Migration Act to cancel a prisoner's permanent visa. If the cancellation decision is made personally by the minister there is no right of appeal to any merits review body like AAT and the person must be detained until removed or granted a visa. The only 'appeal' is to the Federal Court for judicial review. If, however, the minister uses the section 201 deportation power or a 'delegate' of the minister cancels or refuses under section 501, then there is a review right to AAT.

The AAT is independent of the DIBP and is obliged to 'put itself in the shoes' of the decision-maker and make a fresh decision. Usually, only permanent residents or persons whose interests are affected by that deportation have a right of appeal to AAT. However, the AAT also has power to review refusals or cancellations of temporary visas on character or security grounds; cancellations of business visas (after entry); migration agent registration refusals and cancellations.

If deportation is involved, an application in AAT should be made for a stay of the deportation order pending review. DIBP has so far consented to all stay applications.

A person whose interests are affected by a deportation order reviewable by AAT may request a written statement setting out the facts upon which the order was made and the reasons for the decision. The minister must supply the written statement within 28 days of the application being lodged with AAT. The statement will refer to documents such as probation officers' reports and policy manuals used by DIBP. These documents are required to be lodged at AAT and are usually made available to the person who has applied for review (s 37 Administrative Appeals Tribunal Act 1975 (Cth)).

Section 501 cancellations and refusals

If a delegate of the minister has cancelled or refused a permanent visa under section 501 of the Migration Act, on character grounds, then very different rules apply. The person must be immediately detained. Section 501G sets out the requirements for the content of character decisions. They must set out reasons for the decision and, if the applicant is onshore, must be accompanied by two copies of every document in the delegate's possession and control that was relevant to the making of the decision.

An onshore applicant has only nine days from date of notification to seek review. Any application to AAT must be accompanied by one of the sets of documents given to the applicant (s 500(6B)). The minister is then obliged to lodge with AAT all the relevant documents (including non-disclosable information) within 14 days (s 500(6F)). Only then can a hearing be held (s 500(6G)). AAT itself has the power to direct the minister to provide missing documents.

During any hearing, the AAT must not take into account any information presented orally by or for an onshore applicant unless it was set out in a written statement given to the minister at least two working days prior to the hearing (s 500(6H)) nor any document unless it was given to the minister at least two working days prior to the hearing (s 500(6J)). The minister, however, can keep providing information to AAT up to the hearing date (s 500(6J)). Finally, AAT must make a decision within 84 days of the day the onshore applicant was notified of the delegate's decision (s 500(6L)) or AAT is deemed to have affirmed the primary decision (i.e. the person is deemed to have lost their case).

Offshore cancellations or refusals under section 501 are also reviewable in AAT, but neither the 84-day rule nor the other draconian evidentiary provisions apply. However, the same government policy on whether a person passes the character test applies to both onshore and offshore applicants.

If a person is the subject of a character visa 'cancellation' decision under section 501, as opposed to a mere visa 'refusal', this is an absolute bar to the grant of any future visa other than a criminal justice visa. This is because all substantive visas require satisfaction of clause 5001 in schedule 5 of the Migration Regulations, which states that an applicant must not have had a visa 'cancelled' under section 501 for either general conduct or criminal conduct. Strangely enough, a visa refusal under section 501 does not seem to have the same draconian effect, although an applicant would still have to pass the character test.

Given the nature of these decisions where an applicant is onshore, it may sometimes be better for a person to leave Australia to avoid the mandatory detention aspects of an onshore decision, and run their appeal to the AAT from offshore. However, under the new scheme of automatic cancellations, for persons sentenced to more than 12 months imprisonment, or those convicted of child sexual offences, that option is not be available.

Where the AAT has jurisdiction, it will decide the application exercising the same powers and discretions as the minister. It will consider the legal validity of the order and also any policies which it considers are appropriate. The AAT is not bound by the policies used by the minister but it is bound by any 'directions' made by the minister under section 499 of the Migration Act.

The character test

A non-citizen is deemed to be of bad character if they have a 'substantial criminal record'. This is defined in section 501(7) to include being:

• sentenced to death;
• sentenced to imprisonment for life;
• sentenced to a term of imprisonment of 12 months or more;
• sentenced to two or more terms of imprisonment (on one or more occasions) where the total of those terms is two years or more; or
• acquitted of an offence on the grounds of unsoundness of mind or insanity as a result of which the person has been detained in a facility or institution.

A non-citizen is also deemed to be of bad character if they have (or had) an association with another individual, a group or an organisation, whom the minister reasonably suspects has been or is involved in criminal conduct. The minister's policy states that this includes having an 'alliance', 'link' or 'connection' and includes a person with blood or family ties to a criminal organisation. Actual membership of a criminal organisation is not essential. A non-citizen can also be found to be of bad character even if their criminal record is less than the above, as the minister or delegate can still have regard to either past and present criminal conduct or past and present general conduct. 'Criminal conduct' means conduct that is punishable by law and has actually been punished by conviction for an offence.

All other conduct, both good and bad - including conduct that may be a crime but was never prosecuted, no conviction was recorded or the non-citizen was acquitted - is treated as 'general conduct'. Accordingly, even an acquittal by a court is not conclusive of good character as the minister or delegate can still make a finding on the balance of probabilities that the crime was committed. Indeed, general conduct is probably the most dangerous area open for abuse by government officials, as it is described in the minister's section 499(1) policy direction as including a situation where there is a significant risk (something less than the balance of probabilities) that the person would:

• engage in criminal conduct in Australia;
• harass, molest, intimidate or stalk another person in Australia;
• vilify [defame or speak ill of, abuse, revile with abusive language, malign] a segment of the Australian community;
• incite discord [provoke conflict, disharmony, disagreement] in the Australian community or in a segment of the community; or
• represent a danger to the Australian community or to a segment of that community by being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment or in any other way ['disruptive' activities do not necessarily involve some irrevocable breakdown in social relationships but may encompass a temporary division or rift ranging from heated and angry confrontation to acute conflict].

General conduct also includes those activities that would, in the absence of any countervailing factors, constitute a failure to pass the character test such as:

• engaging in business activities that fall short of criminal fraud requiring proof beyond reasonable doubt but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;
• continual evasion or non-payment of debt;
• continual disregard as to payments of family maintenance;
• involvement in activities such as organised crime, terrorism, extortion, drugs, fraud and breaches of immigration law;
• provision of a bogus document or a false or misleading statement in connection with any application for the grant of a visa or any kind of government benefit;
• making a false or misleading declaration on an approved form about their character or conduct or both;
• having been removed/deported from Australia or another country;
• having been dishonourably discharged from the armed forces of any country or discharged prematurely as a result of serious disciplinary action; and

• offences that are the subject of unresolved charges taking into account whether there is a pattern of conduct and/or the seriousness of the offence.

Section 499 policy directions

Section 499 policy directions allow the minister to make binding directions on delegates and AAT that must be complied with. The directions are binding both in relation to the matters to be taken into account and what weight should be given to different considerations. There are three primary considerations, as discussed below.

1. Protection of the Australian community

This is an assessment of the level of risk to the community and involves consideration of the seriousness and nature of the conduct, whether it is likely to be repeated and matters of general deterrence where it is important to 'send a message'. Very serious conduct includes:

• production, importation, distribution, trafficking, commercial dealing or selling of illicit drugs, particularly heroin;
• organised criminal activity;

• serious crimes against the Migration Act including offences attracting sentences and imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act, harbouring unlawful non-citizens, arranging a contrived marriage/de facto/interdependency relationship, providing false or misleading information about such a relationship, nominating a person on the basis of a contrived relationship, using or possessing a visa granted to another person or presenting false or forged documents or making a false or misleading statement in connection with ensuring entry or stay in Australia;

• sexual assaults, particularly those involving children;
• armed robbery and home invasion;
• murder, manslaughter, assault, any other form of violence against persons;
• terrorist activity;
• kidnapping;
• blackmail;
• extortion;
• arson;
• serious theft, including 'white collar' crime;
• crimes against children;
• any other crime involving violence or the threat of violence; and
• ancillary offences such as attempting or conspiracy to commit above offences or being an accessory.

2. Expectations of the Australian community

The minister's directions state that the Australian community expects non-citizens to obey Australian laws and the government's views as to what constitute serious offences must be given due regard.

3. The best interests of any children

This applies to children who would be under 18 at the time when the decision is intended to come into effect. The section 499 Direction states that the child's best interests will generally be served by remaining with its parents, but that countervailing situations may point to the child's best interests being served by separation from the non-citizen, including evidence that the non-citizen has abused or neglected the child or that the child has experienced physical or emotional trauma arising from the non-citizen's conduct. Decision-makers are specifically required to consider:

• the nature of the relationship between the child and the non-citizen;
• the duration of the relationship;
• the length of any separations and reasons for separation (the hypothetical prospect for developing a better/stronger relationship in the future would normally be given less weight than the proven history of the relationship);
• the age of the child;
• whether the child is an Australian citizen or permanent resident;
• the likely effect of any separation;
• the time (if any) the child has spent in Australia;
• the circumstances of the receiving country, including educational facilities and standards of health support systems to which the child may have to go, or return; and
• any language or cultural barriers for the child in the country of future residence.

AAT must consider all of the above matters as part of a ministerial direction under section 499 of the Migration Act. AAT can, if it believes that the wrong decision has been made, reverse either a deportation order or a cancellation/refusal. It can also change the decision in the other matters where it has jurisdiction. The latest ministerial direction no. 65 can be found at www.border.gov.au/visas/Documents/ministerial-direction-65.pdf.

Minister's right to overrule AAT decisions

The minister still has a right to overrule an AAT decision if they think it is not in the public interest. In practice, most cases where the minister might be likely to overrule AAT (serious criminal cases and national security cases) do not go to AAT in the first place because the minister makes a 'personal' decision in the 'national interest' that excludes any appeal right to AAT.

Other merits review bodies

A changing system

In 1989, a two-tier statutory merits review system was introduced for certain immigration decisions. The review bodies were called the Migration Internal Review Office (MIRO) and the Immigration Review Tribunal (IRT). This review process, however, did not take over AAT's power to review deportations of permanent residents. Since 1993 there has also been a Refugee Review Tribunal, which hears appeals against decisions to refuse refugee status. On 30 June 1999 the government abolished the MIRO and the IRT and created a new (single-tier) tribunal, called the Migration Review Tribunal. The Refugee Review Tribunal and AAT still retain their separate jurisdictions. The government recently announced in the last Budget speech, that the MRT and the RRT would be 'folded' within the AAT to save costs. This occurred on 1 July 2015 and is now called the Migration and Refugee Division of the AAT.

Migration and Refugee Division of the AAT

This tribunal is made up of members appointed by the Governor-General who do not generally have a background of previously working for DIBP. The non-refugee division of the AAT must take oral evidence in public, but is not required to publish its decisions (currently about 40% are published and available to scrutinise on the web (see www.austlii.edu.au). However, despite not being obliged to make its decisions public, it is still obliged to provide a mechanism of review that is fair, just, economical, informal and quick (s 353).

An application for review must be lodged at the AAT on the form approved and with a fee of $1,673. Part of this fee can be waived by the Deputy Registrar of the AAT if an applicant can show severe financial hardship. If the AAT sets aside, or varies, DIBP's decision, an applicant is entitled to a refund of half of the AAT fee.

See 'Contacts' at the end of this chapter for AAT's contact details.

Time limits for lodging review

An application for review, together with the appropriate fee, must be received at the AAT before it can be regarded as lodged (rr 4.02, 4.11 Migration Regulations).

Note that an applicant is deemed to have received notices (if notified by post) after seven working days, if the person is in Australia, or after 21 days after posting if the person is overseas. The time of receipt is crucial because there are time limits under the Migration Regulations for lodging applications for review. From the legally assumed date of receipt of the notification of a decision, the person to whom the decision relates has to lodge an application for review to the AAT within:

• 21 days if in Australia; or
• 70 days if outside Australia.

If a person is in immigration detention and is refused a bridging visa (to let them out), the time limit for lodging a review application is two working days. In some cases, an extra five working days is allowed (see rr 4.70(2)(a), 4.10(1)(b), (2)(b)). Other short time limits (some as short as two days) apply where a person has been refused a bridging visa and is taken into immigration detention because of that refusal.

Currently, there is no discretion in the Migration Act or Migration Regulations for these time limits to be waived.

What decisions are reviewable?

The classes of visas in which there is a right of review are set out in sections 337, 338(2)(d) and 346(1)(d) of the Migration Act. Since 1 September 1994, the rights of review have been expanded and somewhat simplified. Now, the basic rule is that all onshore decisions refusing to grant or cancelling visas will be reviewable, but only the visa applicant/holder may apply for review.

In regard to offshore decisions, rights of review are confined to some person in Australia, where that person (or organisation) was the nominator or sponsor of the person overseas (s 337).

Time limit for AAT decisions

Where a person is in immigration detention and lodges an application for review, the AAT must make its decision within seven working days unless, with the applicant's agreement, this period is extended (s 367 Migration Act; r 4.26 Migration Regulations).

AAT hearings concerning refusals of protection visas by asylum seekers (who have been immigration cleared) are not in public, for reasons of confidentiality. The time limits for lodging an application for review are set out in the Migration Act (s 412; r 4.31). People in custody have seven working days from the date of notification of an unfavourable decision to lodge an appeal. All others have 28 days.

Applications can be lodged electronically, by post, and there is no fee payable up front (although if you lose, you owe the AAT a retrospective $1,673 'application fee'). There is a limited right of appeal from the AAT to the federal courts, but only on certain points of law.

See 'Contacts' at the end of this chapter for AAT's contact details.

Minister's right to (favourably) overrule AAT decisions

Even after the AAT delivers its decision, the minister retains the right to substitute a 'more favourable decision' if the minister believes it is in the public interest and they are not bound by the Migration Regulations when doing so. This power is not compellable and the minister must publish the reasons for intervening in the case with parliament. Despite these seemingly high hurdles to the exercise of such power, it has been used quite frequently by the minister, particularly as it has taken the place of the traditional 'compassionate/humanitarian' entry category that existed prior to 1989, but for which no specific visa now exists under the codified system. See:

• power to overrule the AAT (non-refugee cases) (s 351); and

• power to overrule the AAT (refugee cases) (s 417).

Federal courts

The Migration Act attempts to impose severe restrictions on judicial review of decisions under the Act to the Federal Court, Federal Circuit Court or High Court. Section 474 states that most visa decisions of immigration officers or the portfolio tribunal are to be called 'privative clause' decisions and are 'final and conclusive' and 'must not be challenged, appealed against, reviewed, quashed or called into question in any court'. Hence, the Administrative Decisions (Judicial Review) Act 1977 (Cth) no longer applies in the Federal Circuit Court, or the Federal Court, or the High Court.

However, the government has not been able to remove the right (under s 75(5) Australian Constitution) of aggrieved applicants to challenge decisions of Commonwealth officers using the constitutional writs. The High Court has stated that where there is 'jurisdictional error', no lawful decision has been made and the government cannot protect unlawful decisions. The High Court has said it will grant a suitable constitutional write (aka 'prerogative writ') where a decision is unlawful.

As a result of recent amendments to the Migration Act, the Federal Circuit Court, subject to certain specific carve-outs provided for in subsection 476(2), has the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution. The Federal Court has only limited jurisdiction in relation to migration decisions with its original jurisdiction in this area limited to the specific circumstances outlined in section 476A of the Migration Act.

Further, sections 477, 477A and 486A of the Migration Act provide that an application for review in relation to a migration decision must be made to the Federal Circuit Court, the Federal Court or the High Court respectively within 35 days of the actual (as opposed to deemed) notification of the decision. Only a specialist immigration lawyer should be used where you wish to appeal a personal ministerial decision, or a decision of AAT, to one of the federal courts, as the law of judicial review is now extremely complex.

Other appeals

It may be appropriate to file a complaint with the Ombudsman, or the Privacy, Equal Opportunity, Race, Sexual Discrimination or Human Rights Commissioners, if a DIBP official's conduct infringes any of the relevant legislation. For more information about these agencies, see Discrimination and human rights.

Freedom of information

Accessing documents

The Freedom of Information Act 1982 (Cth) ('Freedom of Information Act') gives the right of access to official documents of Commonwealth departments and authorities.

The Procedures Advice Manual and all Policy Control Instructions used in the DIBP are available at DIBP's offices. They may be examined free of charge, or copies of the required pages may be purchased. Documents held by DIBP on a particular file, or general files or any other identifiable document, may be requested.

To request documents, write to DIBP's Freedom of Information Unit, stating that the request is made under the Freedom of Information Act (for further details, see 'Contacts' at the end of the chapter). DIBP is required to take all reasonable steps to ensure that a decision is made upon the request as soon as possible, and no later than 30 days after it was received. If it is felt that information so obtained is inaccurate or otherwise may mislead DIBP in its actions, a request may be made to change the record. A form is available from DIBP for this purpose. Currently DIBP charges no fee for personal files.

Freedom of information appeals

If you are dissatisfied with DIBP's decision on your freedom of information request, you may seek an internal review, which means that the request is looked at again by a more senior officer of DIBP who was not involved in the original decision. The officer may reverse, alter or confirm the original decision. An internal review form is available from DIBP. If you wish to have a decision reviewed in this manner, you need to ask for an internal review within 28 days of receiving a reply to your original request and in turn you must be given a new decision within 14 days.

If you are dissatisfied with the internal review, you may seek an independent review by AAT. The Commonwealth Ombudsman may also investigate complaints about DIBP's actions in handling freedom of information requests.