Where a person has applied for a visa in Australia or if overseas but was sponsored by an Australian citizen, permanent resident or an Australian company, a negative decision of the department refusing to the grant of the visa can be reviewed.
Depending on the nature of the visa, an application for the review of a decision can be lodged either with a Migration Review Tribunal (MRT), the Refugee Review Tribunal (RRT) or the Administrative Appeals Tribunal (AAT).
Appeals to the MRT
This tribunal reviews decisions of the department where the department has refused to grant a visa where the applicant is onshore or if offshore (outside of Australia) the applicant has been sponsored by an Australian citizen, permanent resident or an Australian based company.
The decision of the MRT are binding upon the department and if a decision is made in favour of the review applicant, the file is referred back to the immigration department with the direction that the grounds for refusal were not upheld and the department is to proceed to process the visa to completion and the grant of the visa on the basis that the requirements for the grant of the visa had been satisfied as determined by the tribunal.
Appeals to the RRT
This tribunal reviews decisions that are made by the department from the Onshore Refugee Unit.
The tribunal only reviews cases relating to the refusal of a grant for a protection visa for people who arrive in Australia claiming to be refugees seeking protection upon arrival.
If the applicant’s application review is upheld once again, the RRT directs the department to substitute its decision for the decision of the department and the application then is deemed to be satisfied and the department is to process the application to finality and issue the visa.
Appeals to the AAT
This tribunal hear decisions of departmental officers in circumstances where the refusal does not relate to the criteria to be satisfied but the decision is an administrative nature and negatively impacted upon the applicant.
Appeals to Higher Courts
These decisions can also be reviewed right up to the level of the High Court of Australia.
We at Australink Alliance have extensive experience in reviews at all levels in this jurisdiction and will be able to initially assess the prospects of your success and if there are grounds of appeal, to represent you in the appeal.
In some cases the tribunal member, whether under the MRT, RRT or the AAT may have made a decision incorrectly interpreting the law.
In such cases, the applicant has a right of appeal initially to the Federal Magistrates Court to have that decision reviewed. If the appeal is successful again, the applicant may request the Federal Court of Australia review the decision of the Federal Magistrates Court and once again a negative decision out of that court can be reviewed by the forecourt of the Federal Court and ultimately by leave of the High Court the decision can be determined by the High Court of Australia.
In some cases there may be procedural unfairness and therefore an application for review can be made based on the Judicial Review Act where the tribunal body or the decision maker had in some way reached the decision by procedural error to enable the applicant to have the benefit of procedures in place.