Please note that the information we provide in this article about the conduct of review under the Migration Act is current as of the date of publication, and the DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions, or speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.
Sections 353 to 359C of the Migration Act 1958 provide for the rules regarding:
- the tribunal’s powers and
- conduct of review of Part 5 reviewable decisions.
What are Part 5 reviewable decisions? These decisions pertain to the grant or cancellation of visas. However, they do not include those that relate to the following:
- protection visas or temporary safe haven visas, or
- decisions with a conclusive certificate.
Under section 338 of the Act, Part 5 reviewable decisions are those that does not grant non-citizens a visa if:
- The visa could be granted while the non-citizen is in the migration zone; and
- The non – citizen made the application for the visa while in the migration zone; and
- The decision was not made when the non-citizen:
- was in immigration clearance; or
- had been refused immigration clearance and had not subsequently been immigration cleared; and
- if the visa is a temporary visa.
Let us now discuss the Tribunal’s powers and the conduct of review of decisions.
How Does the Tribunal Operate?
Under section 353 of the Migration Act, in conducting a review of a reviewable decision, the Tribunal:
- is not bound by technicalities, legal forms or rules of evidence; and
- must act in line with substantial justice and the merits of the case.
The Act also provides that the Tribunal’s President or the Migration and Refugee Division of the Tribunal may issue a direction to refer to a guidance decision.
What’s a guidance decision? Under section 353B, a guidance decision is like a reference for the Tribunal when it reaches a decision on a review of a Part 5 reviewable decision.
Thus, the Tribunal must comply with the guidance decision. However, if the Tribunal considers that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision, it may choose not to comply with the guidance decision.
Nevertheless, this non-compliance with a guidance decision does not automatically invalidate the Tribunal’s decision on a review.
Exhaustive Statement of Natural Justice Hearing Rule
Section 357A of the Act relates to an exhaustive statement of the requirements of the natural justice hearing rule with respect to the matters it deals with.
Exhaustive statements are legal documents that outline the rational basis of a particular decision by the Minister or their delegate. In this Act, sections 375, 375A and 376 are exhaustive statements of the requirements of the natural hearing rule.
The natural justice hearing rule pertains to the requirement that a person must have the opportunity to comment or reply to ‘adverse information that is credible, relevant, and significant.”
An illustration of this concept is the case of Kioa v. West. Here, the Court points out that natural justice places an obligation upon the decision-maker, before reaching a decision, to inform the person of any adverse comment made by other officers in the agency during their internal discussion and analysis of the case.
Documents and Information That Applicant Must Submit to the Tribunal
Section 358 requires the applicant for review by the Tribunal to submit to the Tribunal the following documents:
- a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
- written arguments relating to the issues arising in relation to the decision under review.
Moreover, the Secretary may give the Tribunal written argument about relevant issues that arises from the decision under review.
Under section 359 of the Act, the Tribunal may also require you to submit additional information. During the conduct of review, the Tribunal might ask you any relevant information and must consider such information when making a decision on the review.
Further, the Tribunal may invite, either orally (including by telephone) or in writing, a person to give such relevant information (s359A).
What Happens if the Tribunal Gives the Information and Invitation Orally During the Applicant’s Appearance?
Section 359AA states that if the applicant appears before the Tribunal after an invitation, they may orally give to the applicant clear details of the rational and legal basis of the affirmation of the decision under review.
However, there are requirements. The Tribunal must comply with the following:
- Ensure that the applicant understands why the information is relevant to the review.
- Make the applicant understand the consequences of the information as the basis on in affirming the decision that is under review; and
- Orally invite the applicant to comment on or respond to the information; and
- Advise the applicant that they may seek additional time to comment on or respond to the information.
If the applicant seeks additional time to comment on or respond to the information, adjourn the review. The adjournment only happens if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
What Are the Requirements for a Written Invitation?
Under section 359B, the invitation must specify in which the information or comments may be given in a way that the Tribunal considers appropriate. Other requirements are the following:
| If the invitation is to give information, or comments or a response, at an interview | The interview is to take place: (a) at the place specified in the invitation; and (b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period. |
| If a person is to respond to an invitation within a prescribed period | The Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period. |
| If a person is to respond to an invitation at an interview at a time within a prescribed period | The Tribunal may change that time to: (a) a later time within that period; or (b) a time within that period as extended by the Tribunal for a prescribed further period; and then the response is to be made at an interview at the new time. |
Experiencing Immigration Challenges? Consult JB Solicitors Today.
Our migration lawyers at JB Solicitors can comprehensively explain the rules as to conduct of review of reviewable decisions. If you wish to know more about reviewable decisions under the Migration Act, consult with us today.
We also offer other migration services such as:
- Visa application assistance
- Documentation preparation
- Review of refusal decisions
- Preparation of appeals
- Tribunal representation
Schedule a consultation today.
