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Fact Sheet 9 - Litigation Involving Migration and Citizenship Decisions

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We are 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, Clayton Utz, DLA Piper, Sparke Helmore and Minter Ellison.

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 is not represented.

Departmental decisions for refugee determination in offshore protection obligation assessments are reviewable by the Independent Protection Assessment (IPA). This assessment process replaced the similar Independent Merits Review (IMR) system in March 2011. Independent protection assessments are carried out by an independent assessor who undertakes an impartial investigation of the applicant’s protection claims.

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. In the case of the IPA, the recommendation is to the minister.

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, IPA/IMR 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 had been declining since 2003–04, however in the last financial year this pattern has changed and we are now experiencing an increase in the number of applications filed at the courts.

In 2003–04, there were 3746 applications to the Federal Magistrates Court and the Federal Court at first instance. In 2009–10 this had declined to 905 applications, compared with 984 in 2010–11.

Of the 984 applications filed in 2010–11, 54 per cent were reviewing RRT decisions, 21 per cent challenged MRT decisions, with the remaining 25 per cent for review of other decisions.

Time to resolve Federal Court matters

In 2010–11, the Federal Magistrates Court and the Federal Court took approximately five 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), or
  • the court makes a declaration that there is an error of law in the decision.

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
2006–07 337 486 133 1790 3 2749
2007–08 196 228 97 1605 1 2127
2008–09 167 202 82 1076 0 1527
2009–10 115 134 47 751 0 1047
2010–11 155 123 53 1004 2 1337

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 or section 36(2C) of the Migration Act 1958
  • 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 2007.

Applications

Applications to the AAT have generally decreased since 2004–05. In 2004–05, there were 461 resolutions in the AAT, while in 2010–11 there were 370.

The table below sets out AAT resolutions for the previous five financial years.


Year Applicant
withdrawal
Minister
withdrawal
Applicant
win
Minister
win
Other Total
2006–07 89 75 51 97 0 312
2007–08 79 103 60 138 1 381
2008–09 39 86 44 129 1 299
2009–10 73 85 42 82 1 283
2010–11 89 73 48 160 - 370

Except in cases where the minister has personally made a decision to refuse or cancel a visa on character grounds (which are not reviewable by the AAT), 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 website.
See: www.immi.gov.au

The department also operates a national general enquiries line.
Telephone: 131 881
Hours of operation: Monday to Friday from 8.30 am to 4.30 pm. Recorded information is available outside these hours.

Fact Sheet 9. Produced by the National Communications Branch, the Department of Immigration and Border Protection, Canberra.
Last reviewed March 2012.

© Commonwealth of Australia 2010.

Last reviewed Tuesday 19 November 2013

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