There are three kinds of appeals which you can make when an application is rejected. These are merits review, judicial review, and Ministerial intervention. Deciding which action to take can sometimes be simple, or sometimes complex. The following information is just an initial guide to how the appeal system works.
When a Department of Immigration officer makes a decision on your visa application, you may be able to make an appeal to a Tribunal which has the power to look at all the facts and the law and substitute a decision, or part of a decision, in your favour. There are three Tribunals with separate jurisdictions. Each Tribunal imposes strict time limits on lodging an appeal.
The Refugee Review Tribunal (www.rrt.gov.au) is the most specialised Tribunal. It only deals with refugee applications lodged in Australia for protection visas. It has the distinction of being possibly the only Australian body reviewing decisions made according to the text of an international convention, in this case the Geneva Convention on Refugees 1951, the operative text of which is the definition of “refugee” in its Article 1A. The operation of the RRT has been highly controversial since it was first established in 1993, however overall it has made many positive decisions for genuine refugees. There is no fee for an appeal to the RRT, however if you lose you will be asked to pay a post-hearing fee which is the same as the MRT appeal fee. For more information see [the other side of our site].
The Migration Review Tribunal (www.mrt.gov.au) has the power to review decisions on almost all non-refugee kinds of visas, as long as the application was made in Australia, or if made overseas there is an Australian sponsor (which may be a relative or a sponsoring organisation). The MRT has quite a high set aside rate because it is often able to obtain more detailed information than DIMIA case officers; sometimes it is able to take a different view of the law as well. The fee for lodging an MRT appeal is refundable if you are successful in your appeal.
The Administrative Appeals Tribunal (www.aat.gov.au) is the oldest and largest of the Tribunals. It deals with every area of Australian government, and its role in migration matters is restricted to issues of character and deportation, while it also considers Freedom of Information reviews involving the Department of Immigration. The fee for lodging an AAT appeal is also refunded if you are successful.
In 2001, immediately prior to the Federal Election of that year, the Government introduced measures which were intended to eliminate Federal Court appeals against immigration decisions. It has become apparent, in the light of decisions by the Federal Court and the High Court, that this initiative was only partially successful. Therefore it is still possible to lodge an appeal to the Courts, but essentially only where it can be argued that there was a jurisdictional error. If you are contemplating such an appeal for any reason, it’s best to get reliable advice. Lodging these applications can be expensive, and if you lose you might need to pay the costs of the Australian Government in running your case against you.
Whenever an application has been considered by the MRT or RRT it is possible to ask the Minister for Immigration to substitute a more favourable decision. The Minister currently exercises this power around 500 times a year, mostly in cases involving Australian citizens whose lives would be adversely affected if a visa is not granted. Our fact sheet on this kind of appeal is attached…
We have appeared in the MRT in Sydney and Canberra, the AAT in Sydney, Canberra, Adelaide, Melbourne and Brisbane, and the RRT in Sydney and Canberra. As a former member of the New Zealand Refugee Status Appeals Authority, as well as the Social Security Appeals Tribunal in Australia, George Lombard has a wealth of experience and exposure to Tribunals’ operations and is our principal advocate. In appropriate cases we brief out to barristers, particularly in the AAT. A brief set of links to some of our more interesting or important cases is as follows: [as sent previously].
Almost all the appeal cases we see involve an application lodged either personally or through another agent, and only rarely do people provide all the documentation relevant to that appeal. We therefore usually initiate a request for access to the file at the time of lodging an appeal. In the case of the MRT there are established procedures for access to the file through the MRT. In the case of the AAT it is the responsibility of the Department to provide a set of documents, called the “T Documents”, which set out all relevant file papers. In each other kind of appeal it is normally necessary to obtain the file through a Freedom of Information request. We can normally only identify the full extent of the problems in a particular case when we receive the file, and if you need to lodge an appeal you may need to do so before you can obtain access to the file.