REVIEW OF MIGRATION DECISIONS
THE MIGRATION REVIEW TRIBUNAL (MRT)
- THE JURISDICTION
- THE POWERS OF THE MRT
- THE APPEAL PROCESS
- THE HEARING
- THE DECISION OF THE MRT
- JUDICIAL REVIEW
1. THE JURISDICTION
The Migration Act (1958) establishes jurisdiction of appeals from decisions of delegates. Decisions relating to Protection Visas are handled by the Refugee Review Tribunal (RRT). Decisions relating to character and citizenship are dealt with by the Administrative Appeals Tribunal (AAT).
The Migration Review Tribunal (MRT) has the jurisdiction for merits review of decisions of delegates set out in s338 and s347.
MRT reviewable decisions are those decisions to refuse to grant a non-citizen a visa except for
- S501(13) (Character cancellation)
- Minister issues a conclusive certificate s339
Reg 4.02 sets out a number of decisions that are MRT reviewable.
An appeal must be made on the approved form, within the prescribed period and with the prescribed fee. (s347) New forms from 1 November 2001
Review times are set out in reg 4.10:
- 21 days from receipt of decision (Applicant within Australia)
- 70 days (Applicant outside Australia)
- 7 working days (bridging visa and cancellation of bridging visa)
There are deemed times under s494C of the Migration Act - receipt being 7 days (in Australia) and 21 days (outside Australia). The validity of the MRT reviewable decision is a decision that ought be made by a Tribunal member. The Tribunal has no jurisdiction to consider an appeal lodged outside the time period. Lee v MIMIA [2002] FCAFC 305 (4 October 2002)
The current fee is $1400. Where applications are combined, only 1 fee is payable. The fee may be waived in cases of severe financial hardship. (Reg 4.13) The decision in the Federal Court of Braganza v MIMA [2001] FCA318 held that if the waiver application were unsuccessful, then the fee must be paid before the hearing to ensure there is a valid appeal. This case overturns the previous practice of the MRT and may well go on appeal or the law may be changed.
Fees may be refunded in the following cases: (Reg 4.14)
- Decision is set-aside or varied
- Decision is remitted for reconsideration
- No jurisdiction
- Conclusive certificate is issued under s339
- Application withdrawn due to death of the applicant or member of family unit
- When an applicant dies
Where an appeal is by a nominator/sponsor of a relative, that nominator/sponsor may make the appeal and sign the forms. So if a last remaining relative is being nominated, the nominating relative is the only relative who can sign the appeal. Other relatives (eg another sibling) could not sign the appeal as they were not the nominating relative.
Certain decisions can only be reviewed by the applicant who must be present to lodge the appeal.
A review applicant can seek the opportunity to appear before the MRT or for the MRT to take certain evidence from people. Such requests ought be on the appeal form. There is provision on the form for this.
2. THE POWERS OF THE MRT
In conducting the review, the MRT has all the powers and discretions that the delegate had in making the decision. (s349).
The MRT can affirm or vary a decision. It can remit a matter for reconsideration with certain directions, or set the decision aside and substitute a new decision. (s349(2))
S350 provides that for the review of s93 assessments, the MRT is to use the Regs most favourable to an applicant (ie: regs at time of decision or regs at time of review decision)
Communication between Tribunal and applicant/advisor
- Communication between a member and an advisor/applicant ought normally be in writing.
- If not in writing, ought be tape recorded or in the presence of a staff member of the Tribunal (Practice Directions)
Whilst an advisor does not have a right to appearance before the Tribunal, in practice advisors are allowed to present at a hearing. Normally oral submissions by an advisor are at the end of a hearing. Some members will invite an advisor to comment if further issues need to be addressed or questions asked of the applicant.
The Minister has a non-compellable discretionary power to substitute a more favourable decision to an applicant under s351. The Guidelines for this are set out in MSI 225
Division 4 deals with the Exercise of the MRT’s powers. S353 deals with the exercise of powers and the equivalent section for the RRT (s420) was subject to judicial review in Eshetu v MIMA(1999)162 ALR 577
The Principal member of the MRT may give directions regarding the operations and conduct of reviews by the MRT. (353A) The current practice directions can be found on the MRT website (mrt.gov.au).
Normally, the MRT is constituted by a single member however it is possible for hearing to have 2 or 3 members (s354). A 2 members Tribunal must be unanimous in its decision unless one member is the Principle member. A 3 member Tribunal can have a 2/1 majority. (s356)
The Principal member can reconstitute the Tribunal under s355 where a member is unavailable and s355A for efficient conduct of the review. Delay in making a decision will not necessarily give rise to reconstitution of the MRT.
3. THE APPEAL PROCESS
Division 5 sets out the Conduct of a review.
Applicants may provide a statutory declaration of their claims and other written submissions. (s358)
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PRACTICE TIP
In practice, it is better to present an applicant’s statements in the form of a statutory declaration in chronological order with numbered paragraphs. This enables cross-reference to particular issues more easily and also provides a readable case for a member.
Written submissions that address the criteria for the review application and any relevant legal issues ought be separate from the statutory declaration. It is important to identify the relevant visa criteria and how an applicant meets those criteria.
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The MRT may seek additional information (s359) or invite a person to give evidence.
The MRT can also have regard to other files such as a visitor visa application or information that is personal to an applicant that is available to the MRT on a Departmental file.
An applicant can have access to the DIMA and MRT files under s362A.
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PRACTICE TIP
It is important for practitioners to be aware of all documents on their client’s file. Copies of the file (MRT and DIMA) can be obtained through Freedom of Information (FOI) provisions before an appeal is lodged or under s362A after the appeal is lodged with the MRT
An application under s362A must be made on the correct form and no fee will be required. Applicants or advisers can inspect MRT files and request copies of any documents on that file unless they are exempted.
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In some cases, an application must be given certain information under s359A. Replies to adverse information in s359A ought be made within the time frame provided or the Tribunal may move to a decision (s359C). It is possible to obtain an extension of the time to respond. (Ng v MIMIA [2002] FCA 1146)
4. THE HEARING
The applicant must be invited to appear unless:
- the MRT can move to set aside a decision on the papers or
- an applicant consents to a decision without appearing, or
- an applicant has failed to give additional information or comments. (s360)
The invitation to appear is set out in a Notice that sets out the consequences of failure to appear: namely, the MRT can then move to a decision. (s360, s362B).
The MRT will provide an interpreter (s366C) and the hearing will be tape-recorded. Applicants or advisors can request a copy of the hearing tape at the end of a hearing.
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PRACTICE TIP
At the end of a hearing, it is useful to clarify with the presiding member what issues they would like to hear submissions on or have you provide further submissions. This will enable you to focus on the issues which are adverse to your client. There is no right to make oral submissions but it is common practice at the MRT.
A focused submission which addresses particular issues is more effective than a ‘shotgun’ submission on everything. Commonly submissions will need to address such things as credibility or decision criteria
If it is intended to make further submissions, then ask for a copy of the hearing tape. It is often useful for applicants to listen to the tape again to check for errors. If there are some doubts about the accuracy of the interpreting, then get the tape checked by a qualified expert. Clients are sometime reluctant to complain about an interpreter in front of the interpreter.
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An applicant may request evidence be taken from witnesses but the MRT is not obliged to take evidence from these witnesses (s362).
Witnesses may provide evidence to the MRT in the form of a statement or statutory declaration before the hearing.
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PRACTICE TIP
It is good practice to supply witness statements in the form of a statutory declaration of that witness. That ensures the evidence is before the MRT and therefore must be considered.
PSYCHOLOGICAL AND MEDICAL EVIDENCE
It is rare for the MRT to require medical or psychological examinations as this then requires the MRT to pay for the report. More commonly, applicants will seek their own reports and submit them to the MRT.
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The MRT may require an applicant to undergo medical examinations (s363), or summon a person to appear before the MRT and produce documents.
MRT reviews are in public (s365), however the MRT may decide that certain oral evidence can be taken in private where it is in the public interest. (s365(2)). It is possible to take oral evidence by telephone (s366) or video link ups.
If you wish to be linked up by telephone because you are not in the place of hearing, then sufficient notice ought be given to the Tribunal to facilitate such an arrangement if the MRT agrees.
There is not right for an adviser to be at a hearing. In the MRT, advisors are called ‘assistant’ (s366A). An assistant cannot present oral argument or address the MRT unless the Tribunal is satisfied that because of exceptional circumstances, the assistant should be allowed to do so.
If a person other than the applicant appears before the MRT, they are not entitled to have representation or be assisted before the hearing at the MRT. (366B(1)) This does not preclude representation or assistance for such people apart from at the hearing. (s366B(2))
No cross-examination or examination in chief is permitted. (366D)
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PRACTICE TIP
Advisors do not a have a right of appearance at a hearing, so you appear with leave of the Tribunal. This is usually given and no formal application need be made.
Whilst it is a matter for instructions, and maybe cost whether you attend a hearing, it is often of benefit to attend a hearing. This will provide an opportunity to be apprised of adverse material or credibility issues. Sometimes, they can be addressed through oral submissions, or by referring the Tribunal to another part of a statement or evidence that the Tribunal may not appear to have considered.
Whilst constant interruptions of the Tribunal are to be avoided in most cases, it may be appropriate where the Tribunal seems to have forgotten what is on evidence, or misheard an answer.
It is important for an advisor to adhere to proper forms of address and etiquette in all dealings with the Tribunal and its officers in both written or oral submissions.
In rare occasions, it may be appropriate to intervene where it appears an applicant is being ‘badgered’ by the Tribunal. Such interventions are strategic and experience will show when it is best to intervene or to not intervene.
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5. THE DECISION OF THE MRT
Division 6 sets out provisions relating to the Decisions of the MRT. The MRT must provide a written decision in accordance with s368.
There has been considerable judicial consideration of this section and the identical section for RRT cases, s430. The High Court ruled in two cases, MIMA v Israelian (M64/1999) and MIMA v Yusuf [2001]HCA30, that the RRT must consider all the material and relevant material and failure to do so can be an error under s476. There is also the possibility of ‘jurisdictional error’, as outlined by Gummow J in Eshetu.
The MRT can give an oral decision but such decisions must be written in 14 days. (368D). The MRT must invite the parties to a formal handing down of the decision (s368B). If an applicant or their representative does not attend a handing down, then the decision will be posted to the applicant and their nominated representative.
The handing down is not done by the member making the decision, but by a senior officer of the MRT. Usually, the officer will state whether the decision is affirmed or set-aside and then give a copy to the applicant and their representative if they are there. The process is quite quick.
Referral to the AAT
The MRT may refer matters involving an important principle to the Administrative Appeal Tribunal (AAT). Only one case has been so referred and that was by the RRT, the East Timorese case or SRPP [2000]AATA 878.
The AAT Act applies for such reviews however there are modifications of the AAT Act set out in ss447, 448, 449, 450, 451, 452.
Functus officio
When is a decision a decision? This was considered in the High Court in MIMA v Bhardwaj [2002]HCA11. The High Court held that a merits review Tribunal (there the MRT) had the power to correct its own error when it failed to discharge its statutory function. This case involved an ‘error of fact’. It also held that a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness. The case was decided on a basis of jurisdictional error.
6. JUDICIAL REVIEW
Part 8 of the Migration Act covers judicial Review of RRT decisions. The Constitutional validity of Part 8 was upheld by the High Court in Abebe v MIMA (1999)162 ALR1. The Migration Legislation Amendment (Judicial Review) Act 2001 creates a privative clause which is intended to remove all judicial review from the Federal Court.
www.mrt.gov.au - Migration Review Tribunal
Kerry Murphy © May 2003