Migration Act: What are Reviewable Decisions?

This article will discuss what are reviewable decisions under sections 411 to 415 of the Migration Act. The Act governs the entry, stay and departure of non-citizens from Australia. It also sets out the framework for visa decisions for non-citizens and refugees.

Visa decisions for non-citizens and refugees are complex and often involve a delicate balance of competing interests. On the one hand, the Australian government has a legitimate interest in protecting its borders and maintaining national security. On the other hand, Australia has a long history of welcoming people from all over the world and providing refuge to those fleeing persecution.

What Are Reviewable Decisions?

Under section 411, the following decisions are reviewable decisions:

1.  A decision, made before 1 September 1994, that a non-citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made after a review by the Minister of an earlier decision that the person was not such a refugee);
2. A decision, made before 1 September 1994, to refuse to grant, or to cancel, a visa, or entry permit, a criterion for which is that the applicant for it is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made under the Migration (Review) (1993) Regulations or under the repealed Part 2A of the Migration (Review) Regulations);
3. A decision to refuse to grant a protection visa, other than a decision that authorities made relying on the following reasons – 
   • The Minister’s consideration that:
     • the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
     • the person committed a serious non-political crime before entering Australia; or
     • the person has been guilty of acts contrary to the purposes and principles of the United Nations.
   • The Australian Security Intelligence Organisation does not assess the applicant to be directly or indirectly a risk to security.
   • The applicant is not a person whom the Minister considers:
     • a danger to Australia’s security; or
     • convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
   • If the non-citizen was not able to satisfy the section 36 criteria.

Additional Points

4. A decision to cancel a protection visa, other than a decision that authorities made because of:
   • The above-mentioned reasons.
   • An assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ).

5. A decision under subsection 197D(2) that an unlawful non-citizen is no longer a person in respect of whom authorities would make a protection finding.

What Are Not Reviewable Decisions?

The section also identifies decisions that are not reviewable decisions:

1. any decision to cancel a protection visa that the Minister makes personally;
2. decisions in relation to a non-citizen who is not physically present in the migration zone when the decision is made;
3. decisions in relation to which the Minister has issued a conclusive certificate;
4. fast track decisions.

Additionally, the Minister may issue a conclusive certificate in relation to reviewable decisions if the Minister believes that:

• it would be contrary to the national interest to change the decision; or
• it would be contrary to the national interest for the decision to be reviewed.

Application for Review of Reviewable Decisions

Section 412 sets out the requirements for application. An application for review of reviewable decisions must be:

1. Made in the approved form; and
2. Given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
3. Accompanied by the prescribed fee (if any).

Who can make an application? An application for review may only be made by:

• The non-citizen who is the subject of the primary decision.
• A non-citizen who is physically present in the migration zone when the application for review is made.

Who Reviews Reviewable Decisions?

Section 414 states that if a valid application is made under section 412 for review of a reviewable decision, the Tribunal must review the decision. Furthermore, the Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate.

Section 415 enumerates the powers of the Tribunal in reviewing these decisions. The Tribunal may, for the purposes of the review of a reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

These are the powers of the Tribunal:

• affirm the decision; or
• vary the decision; or
• if the decision relates to a prescribed matter–remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
• set the decision aside and substitute a new decision; or
• if the applicant fails to appear–exercise a power under section 426A in relation to the dismissal or reinstatement of an application.

However, if the Tribunal varies the decision or sets aside the decision and substitutes a new decision, such decision as varied or substituted is taken to be a decision of the Minister. Additionally, to avoid doubt, the Tribunal must not, by:

• varying a decision or
• setting a decision aside and substituting a new decision,

purport to make a decision that is not authorised by the Act or the regulations.

Contact a Migration Lawyer

The Australian visa application process can be complex and daunting, but it doesn’t have to be. By hiring a registered migration lawyer in Australia, you can increase your chances of success and make the process less stressful.

Migration lawyers have a deep understanding of Australian immigration law and the visa application process. They can help you to choose the right visa type, prepare your application correctly, and address any potential concerns that the Department of Home Affairs may have.

If you’re serious about moving to Australia, hiring a migration lawyer from JB Solicitors is a wise investment. Contact a registered migration lawyer today to discuss your visa application needs.