Appealing a Visa Refusal or Visa Cancellation – Merits Review and Judicial Review
A person’s visa may be refused or cancelled under various grounds pursuant to the Migration Act 1958 (Cth) (the Act). Depending on the person’s circumstance and whether the person’s visa refusal or visa cancellation was valid or not, there may be a right to appeal the decision.
Generally, among other things, a valid Notice of Refusal of Application or Notice or Cancellation will state whether the application for a visa is a reviewable decision or not, and will usually specify a strict time period if the decision can be appealed.
To ascertain whether the respective notice is valid and/or whether the decision is reviewable, we recommend that you immediately seek legal advice because of the strict limits that apply. We offer a free twenty (20) minute consultation to discuss your matter with our Director of Litigation and registered migration agent, Craig DoRozario (MARN 1910298).
Common Grounds for Visa Refusal or Visa Cancellation
Section 501 of the Act empowers the Minister to refuse or cancel a person’s visa based on character grounds.
Similarly in Section 501CA, and as previously discussed in >Visa Cancellations and Criminal Convictions – How does a criminal conviction affect my visa status?< a person may seek to revoke the Minister’s decision to cancel their visa due to a criminal conviction.
Other common grounds of visa cancellation include:
- Providing incorrect, fraudulent or otherwise bogus information;
- Breaching visa conditions;
- Health, safety or good order of the Australian community or of an individual; and
- Breaching visa holder requirements of a business, student or employment visa.
Nevertheless, a person may have a right to appeal the decision and have their matter reviewed under merits review or judicial review.
What is Merits Review?
The Administrative Appeals Tribunals (AAT) has general authority to review decisions made by the ministers, delegates or departments of the Australian Government. However, there are specific circumstances where the AAT is not permitted to review a decision, and if the decision is reviewable, it may only be reviewed under judicial review. The AAT can perform a merits review of the decision which involves afresh findings of fact, law and policy that relate to the decision that led to the visa refusal or cancellation.
The AAT may either:
- Affirm the decision;
- Vary the decision;
- Remit the matter to the original decision-maker ; and
- Set the decision aside and substitute a new decision.
In most cases, there are strict time limits to apply for merits review in the AAT, and importantly, the AAT is not obligated to provide a further extension of time to appeal unless otherwise agreed.
After filing an application to appeal the matter in AAT, the AAT will provide a response to the person with an explanation of the process involved after filing an application.
Telephone Directions Hearing
Generally, within one (1) or two (2) weeks of the AAT receiving the person’s application they will conduct a Telephone Directions Hearing between a Member of the AAT, the person and their representative, and the Minister’s representative.
The appointed member of the AAT will discuss the person’s matter with the parties and may request further information from the parties or elect to hold another Telephone Directions Hearing.
The purpose of a Telephone Directions Hearing is to discuss the matter with a view to reach a resolution that generally favours the person who is appealing the decision prior to a hearing in the AAT.
The Hearing in the AAT
Section 33 of the Administrative Appeals Tribunal 1975 (Cth) requires the Hearing at the AAT to be held with as little formality and technicality as permitted, and to expedite the matter where possible. As such, the hearing will be conducted in a hearing room which looks similar to a court room, but with much less formal requirements.
The normal rules of evidence do not apply to the AAT, however there are applicable rules under Minister’s Direction No. 79 which will permit the parties to provide evidence and or produce witnesses to demonstrate their respective cases.
A decision may or may not be reached at the Hearing, and if a decision is not reached at the Hearing then the parties will be contacted once a decision is reached.
What is Judicial Review?
The Federal Circuit Court of Australia has original jurisdiction and the same jurisdiction as the High Court of Australia to perform judicial review on certain migration and migration matters made pursuant to the Act. The Federal Circuit Court can only review a decision if a ‘jurisdictional error’ has been made by the decision maker which relates to an error of law. Unlike merits review, judicial review does not:
- Reconsider the findings of the facts, law and policy;
- Admit new factual information (unless it is relevant to the jurisdictional error); or
- Grant a person a visa.
Rather, the purpose of judicial review is to determine whether an erroneous finding or mistaken conclusion was reached by the decision maker because of an error law.
Some common examples of errors of law include the decision maker:
- Failing to apply procedural fairness;
- Failing to take into account relevant considerations or materials;
- Taking into account irrelevant considerations or materials;
- Failure to observe the procedures required by law; or
- Exercising an improper or absent jurisdiction that they are not empowered to exercise;
Nevertheless, if the Federal Circuit Court determines that there is a jurisdictional error, your matter will be referred back to the decision maker and the Minister will be prevented from acting on the original decision.
Judicial Review in the Federal Court of Australia
The Federal Court will have original jurisdiction to perform judicial review in limited and prescribed circumstances.
Section 476A of the Act provides the Federal Court of Australia (FC) with original jurisdiction to review migration decisions only if:
- the Federal Circuit Court transfers a proceeding;
- the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal;
- the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or
- the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975 .
What is ‘Privative Clause’?
The purpose of a ‘privative clause’ in migration law is to exclude the possibility of judicial review by the courts of certain decisions.
Section 474 (1) of the Act defines a privative clause decision as:
- Final and conclusive;
- Must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
- Not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
The Act provides a broad range of decisions that could constitute a privative clause and certain decisions that are not a privative clause.
Nonetheless, because of section 75 of the Australian Constitution and as established in Plaintiff S157/2002 v Commonwealth of Australia (2003), the government cannot prevent judicial review of a jurisdictional error.
Time Limits of Judicial Review
There are strict time limits to apply for Judicial Review under the Act. It is imperative that you seek independent legal advice to file an application for judicial review within the prescribed time limit.
Other Legal Avenues
Depending on your circumstance, you may be entitled to file a complaint with another relevant government body which can be filed parallel to an application for merits or judicial review. We recommend that you act as soon as possible and contact a lawyer who can advise you on your options.
Please note that this advice is for general background information only and is not intended as a legal advice you can rely on. To obtain legal advice you can rely on you must contact a lawyer who can provide advice on your matter.