Decisions to grant, refuse or cancel visas are usually made by departmental case officers. These officers are public servants who are making administrative decisions using power which has been delegated to them by the Minister. Unfortunately, they don’t always get it right. However, in most (not all) cases there is a right of merits review of those decisions in the AAT (Administrative Appeals Tribunal).
What is merits review?
The principal objective of merits review is to:
“ensure that the administrative decision reached in a case is the correct and preferable decision. Correct in the sense that the decision made is consistent with law and policy, and preferable in the sense that, if there is an area of discretion in making a correct decision, the decision made is the most appropriate in the circumstances. A merits review system should also improve the general quality and consistency of decision-making, and enhance openness and accountability across a particular area of administration”.
In effect merits review involves another decision maker (this time a Tribunal member) using a “fresh set of eyes” to look at your application. The AAT is separate and independent of the department.
In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd, Smithers J said: In essence the Tribunal is an instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government.'”
Unlike an appeal, you will have the opportunity to provide additional evidence and documents to the AAT. This was set out in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 588:
‘The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.’
There are strict time requirements on the lodging of applications in the AAT. If you miss the deadline your rights of review are lost.
Applications are generally lodged online and there is a filing fee payable. If you are successful 50% of the fee will be refunded to you.
The AAT can decide a matter in the applicant’s favour on the papers. However, it is more usual for matters to progress to a hearing before a tribunal member. The hearing of the matter is not adversarial (the Minister does not participate). However, directions will be made for the provision of additional evidence and written submissions.
Careful preparation of witness statements and supporting documents as well as clear and concise written submissions can be the difference between winning and losing in the Tribunal.
Who can apply?
Usually the visa applicant is the right person to be the review applicant.
If the visa application was lodged offshore, then the Australian sponsor needs to the applicant.
There is no merits review right if the visa applicant was lodged offshore and there is no sponsor.
Lodging the Application
The application is lodged online…..
How can I help?
When the AAT notifies you of a hearing, then I can help you by preparing evidence you will need and by drafting written submissions.