Fact Sheet 9 - Litigation Involving Migration Decisions

The Department of Immigration and Citizenship is responsible for arranging the representation and appropriate defence of decisions of the portfolio Ministers and their delegates in the courts and the Administrative Appeals Tribunal (AAT).

Litigation solicitor services are provided to the Department by its legal services panel. The legal services panel comprises the Australian Government Solicitor, Blake Dawson, Clayton Utz, DLA Phillips Fox and Sparke Helmore.

Merits review

Many departmental decisions are reviewable on their merits. The merits review is conducted by independent tribunals:

• The Migration Review Tribunal (MRT) reviews a range of visa refusal and visa cancellation decisions. It was established in 1999 and comprises the former Migration Internal Review Office and the Immigration Review Tribunal.
• The Refugee Review Tribunal (RRT) was established in 1993 to review decisions made in respect of Protection visas.

These tribunals undertake an impartial investigation and the department or Minister are not represented.

In addition, certain decisions are reviewable by the Administrative Appeals Tribunal (AAT). Its powers are adversarial, allowing both sides to present their case.

All merits review tribunals have the power to set aside the departmental decision and substitute the decision of the tribunal, including making appropriate directions to the departmental decision-makers.

Judicial review

Judicial review involves a court looking at the way in which the decision was made to determine whether the decision maker made any legal errors that lead to invalidity.

An applicant who wishes to seek judicial review of an MRT, RRT or AAT decision can seek to have that decision reviewed by the courts.

While the Migration Act 1958 includes a privative clause (section 474), this does not prevent judicial review of decisions made under the Migration Act which are tainted by jurisdictional error. Jurisdictional error covers most legal errors.

If a court finds such an error in a decision under review, it cannot substitute its own decision. The court must return the legally-flawed decision to the decision-maker to be reconsidered.

The Migration Act prevents class, representative or otherwise grouped court actions in migration proceedings. There are some exceptions to this prohibition, including consolidation of proceedings by a court in certain circumstances.

Trends in judicial review

Applications

Applications to the Federal Magistrates Court and the Federal Court at first instance for judicial review of portfolio decisions have been steadily declining since 2003-04.

In 2003-04, there were 3746 applications to the Federal Magistrates Court and the Federal Court at first instance, compared with 1334 in 2008-09.

Of the 1334 applications filed in 2008-09, 75 per cent were reviewing RRT decisions, 18 per cent challenged MRT decisions, with the remaining 7 per cent for review of other decisions.

Time to resolve Federal Court matters

In 2008-09, the Federal Magistrates Court and the Federal Court took approximately 6.5 months on average to resolve cases.

Outcomes

A case is resolved when:

• either the applicant or the Minister withdraws before hearing, or
• the court remits the decision to the decision-maker for reconsideration (applicant wins), or
• the court dismisses the application (Minister wins).

The table below sets out first instance Federal Court and Federal Magistrates Court resolutions for the past five financial years.

Year	Applicant Withdrawal	Minister Withdrawal	Applicant Win	Minister Win	Other	Total
2004-05	897	264	113	2090	2	3366
2005-06	541	654	132	1962	3	3292
2006-07	337	486	133	1790	3	2749
2007-08	196	228	97	1605	1	2127
2008-09	167	202	82	1076	0	1527

AAT merits review

Jurisdiction

The AAT has jurisdiction to review the following departmental decisions on their merits:

• to refuse to grant a protection visa or to cancel a protection visa relying on Articles 1F, 32 or 33 of the Refugee Convention
• to cancel a business visa
• to order the deportation of a non-citizen convicted of certain crimes
• to register, or refuse to register, a person as a migration agent
• to deregister, or refuse to deregister, a person as a migration agent
• to cancel or suspend a person's registration as a migration agent
• to refuse to grant, or to cancel, a visa on the basis that the non-citizen does not satisfy the delegate of the Minister that the person passes the character test
• access to information (decisions made under the Freedom of Information Act 1982)
• review of certain decisions made under the Australian Citizenship Act 1948.

Applications

Applications to the AAT have generally decreased since 2004-05. In 2004-05, there were 461 resolutions in the AAT whilst in 2008-09, there were 299.

The table below sets out AAT resolutions.

Year	Applicant Withdrawal	Minister Withdrawal	Applicant Win	Minister Win	Other	Total
2004-05	118	97	71	175	0	461
2005-06	100	91	68	184	2	445
2006-07	89	75	51	97	0	312
2007-08	79	103	60	138	1	381
2008-09	39	86	44	129	1	299

Except in cases where the Minister has personally made a decision to refuse or cancel a visa on character grounds, visa refusal and visa cancellation decisions on character grounds made in Australia involve a time-frame of 84 days for review of the decision.

The legislation deems an affirmation of the delegate's decision if the AAT does not complete its review within 84 days of the applicant being notified of the decision. To date, the AAT has always met this time-frame.

Further information is available on the department's web site.
See: www.immi.gov.au

The department also operates a national telephone service inquiry line.
Telephone: 131 881
Hours of operation: Monday to Friday from 9 am to 4 pm (recorded information available outside these hours) for the cost of a local call anywhere in Australia.

Fact Sheet 9. Produced by the National Communications Branch, the Department of Immigration and Citizenship, Canberra.
Revised on 17 July 2009.

© Commonwealth of Australia 2009.