Under the Migration Act 1958, reviewable decisions refer to decisions that the Administrative Appeals Tribunal (AAT) can review. The AAT can review some, but not all, decisions about visas made under:
- The Migration Act 1958 by the Department of Home Affairs (DHA)
- The Minister for Home Affairs; or
- A delegate of the Minister.
If you want to learn more about provisions for reviewable decisions, then read this article.
Section 347: Application for Review of Part 5
Part 5-reviewable decisions relate to the grant or cancellation of visas in some circumstances. They do not include decisions relating to:
- Protection visas or temporary safe haven visas; or
- Decisions in relation to which the Minister has given a conclusive certificate.
Section 347 sets out the requirements for applying for a review of a Part 5 reviewable decision. The Minister or an immigration officer under the Migration Act makes this decision that affects a non-citizen’s immigration status. The section sets out the following requirements for an application for review:
- The party must make the application in the approved form.
- They must make the application to the Tribunal within the prescribed period, which is 28 days for some decisions and 70 days for others.
- The application must be accompanied by the prescribed fee (if any).
- Only the following can make the application:
- Non-citizen who is the subject of the decision;
- Sponsor or nominator of the non-citizen;
- Relative of the non-citizen; or
- Person prescribed in the regulations for the kind of decision in question.
What if the decision was made while the non-citizen was not physically present in the migration zone? Then the non-citizen must accomplish the application if they are physically present in the migration zone.
What if the decision was made under subsection 338(4)? Then the approved form for an application for review must include a statement. This statement must advise the applicant that they may request:
- The opportunity to appear before the Tribunal; and
- The Tribunal to obtain oral evidence from a specified person or persons.
The regulations made for the purposes of Section 347 paragraph (1)(b) may specify different periods in relation to different classes of Part 5-reviewable decisions. These may be decisions that relate to non-citizens in a specified place.
Section 348: Tribunal to Review Part 5-Reviewable Decisions
Section 348 sets out the circumstances in which the Administrative Appeals Tribunal AAT) must review a Part 5-reviewable decision. The AAT must review a Part 5-reviewable decision if an application for review is properly made under section 347. Additionally, the AAT must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under Section 339.
Section 349: Tribunal Powers
Section 349 states that the AAT can review a reviewable decision and has the power to:
- Affirm the decision (i.e., uphold the decision)
- Vary the decision (i.e., change the decision)
- Remit the matter for reconsideration (i.e., send the matter back to the original decision-maker for them to reconsider the decision)
- Set aside the decision and substitute a new decision (i.e., cancel the original decision and make a new decision)
- Dismiss or reinstate an application if the applicant fails to appear at the hearing
If the AAT varies or sets aside a decision and substitutes a new decision, the new decision is considered to be a decision of the Minister. The AAT cannot make a decision that is not authorised by the Act or the regulations.
Section 350: Review of Assessments Made Under Section 93
According to Section 350, the AAT must consider:
- The regulations that were in force at the time the assessment under Section 93 was made; and
- The regulations that are in force at the time the AAT makes its decision.
The AAT must choose the regulations that are more favourable to the applicant. When the AAT is determining which regulations are more favourable to the applicant, it must consider:
- The applicable pass mark; and
- The applicable pool mark that applied at the time the assessment was made; and
- The applicable pass mark and the applicable pool mark that applies at the time the AAT makes its decision.
Note: The pass mark is the total mark that a person must score to be eligible for a grant of visa. The pool mark is the minimum number of points that a skilled visa applicant must score for the system or authorise to hold their their visa application in reserve.
Section 351: Minister May Substitute More Favourable Decision
Section 351 states that the Minister may substitute a more favourable decision for a decision of the AAT under section 349. This is if the Minister believes it is in the public interest. The Minister is not bound by the regulations or Subdivision AA or AC of Division 3 of Part 2 of the Act when exercising this power.
However, the Minister must still comply with all other provisions of the Act.
The Minister must personally exercise this power and must table a statement in both Houses of Parliament setting out the following:
- The decision of the AAT
- The decision substituted by the Minister
- The reasons for the Minister’s decision, including the Minister’s reasons for believing that the decision is in the public interest
- The statement must not include the name of the applicant or the name of any other person connected with the matter if the Minister believes it would not be in the public interest to publish the name.
The statement must be tabled in Parliament within 15 sitting days of the House after:
- 1 July in the year the decision was made if the decision was made between 1 January and 30 June
- 1 January in the following year if the decision was made between 1 July and 31 December
The Minister is not required to consider whether to exercise this power in respect of any decision. This is the case whether the Minister is requested to do so by:
- The applicant or by any other person; or
- In any other circumstances.
Section 352: Tribunal to Notify Secretary of Application for Review of Part 5-Reviewable Decisions
Section 352 states that the Registrar must notify the Secretary of an application for review of a Part 5-reviewable decision as soon as practicable. The Secretary must then, within 10 working days of being notified of the application, provide the Registrar with the following documents:
1. A statement about the decision under review that:
- Sets out the findings of fact made by the person who made the decision;
- Refers to the evidence on which those findings were based; and
- Gives the reasons for the decision.
2. Any other document in the Secretary’s possession or control that the Secretary considers to be relevant to the review of the decision.
What if the application is for review of a decision covered by subsection 338(4) (certain bridging visa decisions)? Then the Secretary must provide the documents within 2 working days of being notified of the application. The Secretary must provide the documents to the Registrar as soon as practicable after being notified of the application.
Why Is It Important To Seek Legal Advice About Migration Law?
JB Solicitors can help you understand your rights and options and represent you in any review or appeal process. Our migration lawyers have a proven track record of success in challenging migration decisions. Moreover, we are passionate about helping you get the outcome you deserve. Here are some of the reasons why it is important to seek legal advice about reviewable decisions:
- The law is complex and it can be difficult to understand your rights and options. A lawyer can help you understand the law and explain your options.
- The process of challenging a decision can be complex and time-consuming. A lawyer can help you navigate the process and make sure that they handle your correctly.
- A lawyer can represent you at any hearing or appeal. This can be helpful if you are not comfortable representing yourself or if you need someone to advocate for your case.
Contact us today for more information about reviewable decisions for migration law matters.
