Please note that the information in this article on powers of the IAA is current as of the publication date. The DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions. Additionally, speak with an immigration lawyer for the most up-to-date information. Laws and conditions are subject to change.
This article will discuss sections 473EA to 473EC of the Migration Act 1958. It sets out the rules as to the decision-making and exercise of powers of the IAA of Australia.
The Immigration Assessment Authority (IAA) is an independent statutory authority of the Australian government. It is responsible for reviewing fast-track reviewable decisions made by the Department of Home Affairs (DHA).
The IAA’s role is to provide an independent review of these decisions to ensure that they are lawful, reasonable, and consistent with Australia’s immigration and refugee laws. Here’s another article about the IAA that you might want to check out.
Powers of the IAA: The Authority’s Decision and Written Statement
One of the powers of the IAA is to make a decision and written statement. Section 473EA states that if the Immigration Assessment Authority (IAA) makes a decision on a review in relation to certain protection visas, the Authority must make a written statement that:
- sets out the decision of the Authority on the review; and
- sets out the reasons for the decision; and
- records the day and time when the Authority makes the statement.
How and When do the IAA Need to Make Written Decisions?
This section also states that a decision on a review is taken to have been made:
- by the making of the written statement; and
- on the day, and at the time, the written statement is made.
One of the limits of the powers of the IAA is the revocation of a decision. Note that the Immigration Assessment Authority (IAA) has no power to vary or revoke a decision after the day and time that it makes a written statement.
After the Immigration Assessment Authority makes the written statement, the Authority must:
- return to the Secretary any document that the Secretary has provided in relation to the review; and
- give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
The validity of a decision on a review, and the return of the documents provided by the Secretary are not affected by:
- a failure to record the day and time when they made the written statement; or
- a failure to return the documents by the Authority.
Notification of Immigration Assessment Authority’s Decision
It is a requirement under section 473EB that the Immigration Assessment Authority must notify the referred applicant of a decision on a review by giving the referred applicant a copy of the written statement discussed in the previous section.
The applicant must receive the copy:
- within 14 days after the day on which the decision is taken to have been made; and
- by one of the methods by which Immigration Assessment Authority gives documents to a person other than the Secretary. (473HB)
Moreover, the Secretary must also receive a copy of that statement:
- within 14 days after the day on which the they have made the decision; and
- by one of the methods by which Immigration Assessment Authority gives documents to the Secretary. (473HC)
Remember that a failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.
Powers of the IAA: Publication of its Decisions
Section 473EC stipulates that the Immigration Assessment Authority may publish any s473EA statements that the President thinks are of particular interest. Although one of the powers of the IAA is to publish statements, the Authority must not publish any statement which may identify a referred applicant or any relative or other dependent of a referred applicant.
Powers of the IAA: Exercise of its Functions
Section 473FA provides that in carrying out the powers of the IAA under the Migration Act, the Authority must constantly pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).
Section 473DB enshrines one of the powers of the IAA. It states that the Authority generally needs to undertake a review on the papers. The IAA, in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence.
Under s473FB , the President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:
- the operations of the Immigration Assessment Authority; and
- the conduct of reviews by the Authority.
The directions may:
- relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or
- set out procedures to be followed by persons giving new information to the Authority in writing or at interview.
Thus, the IAA must, as far as practicable, comply with the directions. However, non-compliance with any direction does not mean that the Authority’s decision on a review is an invalid decision. If the Authority deals with a review of a decision in a way that complies with the directions, it is not required to take any other action in dealing with the review.
Furthermore, the IAA is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.
Section 473FC establishes the rule that the President may, in writing, direct that a decision (the guidance decision) of the Tribunal, the IAA or the former Refugee Review Tribunal specified in the direction is to be complied with by the Authority in reaching a decision on a review of a fast track reviewable decision of a kind specified in the direction.
In reaching a decision on a review of a decision of that kind, the Authority must comply with the guidance decision unless it believes that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.
However, non-compliance by the Immigration Assessment Authority with a guidance decision does not mean that the Authority’s decision on a review is an invalid decision.
Consult a Migration Lawyer
If you have any migration questions or clarifications regarding the powers and functions of the IAA in relation to protection visas, JB Solicitors’ migration lawyers are here for you. Our lawyers can provide legal advice, assistance in resolving visa or migration issues, and court representation.
Contact us today.