Reviewable Decisions Migration Act is outlined under Part 5 of the Migration Act. In this article, we will discuss Divisions 1 and 2 under Part 5 on reviewable decisions Migration Act. Division 1, Part 5 consists of the following Sections:
Division 2, Part 5 consists of the following Sections:
Section 336M: Simplified Outline of this Part
This section outlines the process for the Administrative Appeals Tribunal (AAT) within its Migration and Refugee Division to review decisions covered under Part 5, specifically those concerning visa grants or cancellations in specific situations.
It’s important to note that these decisions exclude matters involving protection visas, temporary safe haven visas, and cases where the Minister has issued a conclusive certificate.
Decisions falling under Part 7, primarily centred around protection visas, are subject to review as per the guidelines set in Part 7 by the Administrative Appeals Tribunal in its Migration and Refugee Division.
Additionally, certain decisions stipulated within this legislation may undergo review by the AAT in its General Division. These include:
- (a) Selected business visa cancellation decisions.
- (b) Some decisions linked to migration agents.
- (c) Decisions associated with deportation, protection visas, and visa refusal or cancellation due to character-related reasons.
Fast track reviewable decisions, concerning the refusal of protection visas for specific applicants, such as unauthorised maritime arrivals entering Australia from August 13, 2012, fall under the purview of review by the Immigration Assessment Authority under Part 7AA of this Act.
Section 336N: Scope of this Part
The extent of this section:
- This section pertains to the Tribunal’s assessment of Part 5-reviewable decisions (refer to section 338).
- The Tribunal has authority to act on powers concerning Part 5-reviewable decisions solely within its Migration and Refugee Division.
Section 337: Interpretation
S337 outlines definitions of terms that appear under Part 5 reviewable decisions Migration Act:
- “Australian permanent resident” refers to an individual meeting the criteria outlined in the regulations.
- “Company” encompasses any organisation or association, excluding partnerships.
- “Decision on a review” comprises various outcomes by the Tribunal concerning applications for review of Part 5-reviewable decisions, including affirmation, variation, remittance for reconsideration, substitution of a new decision, and confirmation of dismissal.
- “Member” indicates an individual serving as part of the Tribunal.
- “Nominated” and “sponsored” carry their meanings as defined in the regulations.
- “Officer of the Tribunal” corresponds to its definition under the Administrative Appeals Tribunal Act 1975.
- “Registrar” refers to the Tribunal’s Registrar.
- “Tribunal” denotes the Administrative Appeals Tribunal as defined in subsection 5(1).
“Part 5 – reviewable decision” is detailed in section 338, encompassing decisions subject to review within this Part.
Section 338: Definition of Part 5 Reviewable Decision Migration Act
Part 5-reviewable decisions are decisions subject to review unless:
- The Minister issues a conclusive certificate (under section 339).
- The decision is Part 7-reviewable.
- The decision involves refusing or canceling a temporary safe haven visa.
- It’s a fast track decision.
Other criteria for Part 5 reviewable decisions include specific circumstances such as:
- Refusal to grant a visa when the applicant is in the migration zone.
- Cancellation of a visa for a non-citizen in the migration zone (unless specific exceptions apply).
- Certain decisions regarding bridging visas, Subclass 070 visas, or visas that cannot be granted while the individual is in the migration zone.
- Refusal to grant visas based on sponsorship, family relationships, or intentions to visit Australian citizens or residents.
- Applications for permanent visas made while the applicant is outside the migration zone.
Additionally, decisions regarding assessed scores for visa applicants under section 93 are reviewable if specific criteria are met, and decisions prescribed for review purposes are also considered Part 5-reviewable decisions.
Section 339: Conclusive Certificate
The Minister has the authority to issue a conclusive certificate regarding a decision if they believe:
- (a) Changing the decision would contradict the national interest.
- (b) Reviewing the decision would be against the national interest.
If such a certificate is issued, the decision becomes ineligible for Part 5 review, as detailed in subsections 338(1) and 348(2).
Federal Administrative Review
In December 2023, the Government introduced an Administrative Review Tribunal Bill. This intends to introduce a new body called the Administrative Review Tribunal that will effectively replace the Administrative Appeals Tribunal. For more information on this, read here.
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