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).

A panel of firms of solicitors provide litigation solicitor services in the courts and the AAT. These panel firms are Australian Government Solicitors, Blake Dawson Waldron, Clayton Utz, Phillips Fox and Sparke Helmore.

Merits review

Many departmental decisions are reviewable on their merits. The merits review is conducted by independent tribunals. Since 2001, the Tribunals have transformed from two agencies operating independently into a single administrative entity.

• 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 relating to refugee status.

These tribunals undertake an impartial investigation and the department or Ministers 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 delegates.

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.

Since 2 October 2001, a new judicial review scheme has applied to applications for judicial review of decisions made under the Migration Act 1958 (Migration Act).

The scheme uses a 'privative clause' that applies to most decisions made under the

Migration Act, including decisions of the RRT, MRT and AAT.

In February 2003, the High Court upheld the constitutional validity of the privative clause but found that it did not apply to decisions 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 also 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 increased over the past ten years.

In 1993-94 there were 381 applications to the Federal Magistrates Court and the Federal Court, compared with 3748 in 2003-04.

Of the 2714 applications filed in 2004-05, 73 per cent were reviewing RRT decisions, 17 per cent challenged MRT decisions, with the remaining 10 per cent for review of other decisions.

Time to resolve Federal Court matters

In 2004-05, the Federal Magistrates Court and the Federal Court took approximately 8.8 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).
  

In 2004-05 the Federal Magistrates Court and the Federal Court at first instance:

• dismissed 2099 applications after hearing and another 896 before hearing when applicants discontinued, and

• upheld 112 applications after hearing and remitted the decisions for reconsideration.

In addition, the Minister withdrew from 264 matters prior to hearing.

The table below sets out first instance Federal Court resolutions.

Year	Applicant Withdrawal	Minister Withdrawal	Applicant Win	Minister Win	Total
2000-01	396	205	71	611	1283
2001-02	410	131	75	811	1427
2002-03	526	53	48	879	1506
2003-04	890	136	102	2451	3579
2004-05	896	264	112	2099	3371

AAT merits review

Jurisdiction

The Administrative Appeals Tribunal 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 FOI Act 1982) and
• review of certain decisions made under the Australian Citizenship Act 1948.

Applications

Applications to the AAT have generally increased over the past 10 years. In 1993-94 there were 72 matters resolved in the AAT. Last financial year there were 399.

The table below sets out AAT resolutions.

Year	Applicant Withdrawal	Minister Withdrawal	Decision under Review Set Aside	Decision under Review Affirmed	Total
2000-01	77	31	66	146	320
2001-02	98	80	78	95	351
2002-03	97	46	86	170	399
2003-43	164	89	124	197	574
2004-05	118	97	71	175	461

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.

Costs

For the year ending 30 June 1996 the litigation expenditure for the department was less than $6.5 million. For the last financial year the cost was in excess of $42 million.

 

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 9am to 4pm (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 November 2008.

© Commonwealth of Australia 2008.