Migration Appeals & Tribunal Reviews

AAT Merits Review Process and Strategy

The Administrative Appeals Tribunal review process begins with the lodgement of a review application within the statutory time limit. Once the application is accepted, the Department provides the Tribunal with all relevant documents (known as the "G-documents" or "section 37 documents"), which form the evidentiary foundation of the review. The applicant may also submit additional documents, witness statements, legal submissions, and expert reports to support their case. The Tribunal may convene a directions hearing or case conference to identify the key issues, set a timetable for evidence exchange, and explore the possibility of resolution without a formal hearing. The substantive hearing is conducted before a Tribunal Member, who hears oral evidence from the applicant and any witnesses, receives submissions from both parties, and may ask questions to clarify factual or legal issues. The Member must apply the correct law to the findings of fact and can make a fresh decision on the merits of the case. Following the hearing, the Member prepares written reasons for decision, which may affirm, vary, set aside, or remit the original decision. The decision is binding on the parties, though limited appeal rights may exist to the Federal Court on questions of law. Our team provides comprehensive representation at each stage of the AAT review, from application lodgement through to hearing preparation and post-hearing submissions, ensuring the strongest possible case is presented.

Judicial Review in Federal Courts

Judicial review provides a pathway to challenge migration decisions in the Federal Circuit and Family Court of Australia or the Federal Court of Australia on legal error grounds. Unlike merits review, judicial review does not involve a re-examination of the factual merits of the case but rather examines whether the original decision-maker or the AAT made a legal error in reaching their decision. Grounds for judicial review include jurisdictional error (such as the decision-maker failing to consider a relevant matter, considering an irrelevant matter, or acting beyond their powers), denial of procedural fairness (including failure to afford natural justice or failure to apply the correct legal test), and errors of law in interpreting or applying the Migration Act or Migration Regulations. The Federal Circuit and Family Court is the primary court for migration judicial review applications, with appeals lying to the Federal Court and, in limited circumstances, to the High Court of Australia. Time limits for lodging judicial review applications are strict — typically 35 days from the date of the AAT decision for migration matters. Judicial review applications require a detailed understanding of administrative law principles and migration law jurisprudence. Our team prepares comprehensive judicial review applications, including detailed grounds of review, supporting affidavits, and written submissions identifying the legal errors in the decision under challenge.

Ministerial Intervention — Sections 351 and 417

The Minister for Home Affairs and Immigration has a personal, non-compellable power to intervene in migration decisions where it is in the public interest to do so. Under section 351 of the Migration Act, the Minister may substitute a more favourable decision for a merits review decision of the AAT, and under section 417, the Minister may substitute a more favourable decision for a decision of the AAT in refugee and humanitarian matters. The ministerial intervention power is intended to be exercised only in exceptional circumstances involving compelling, compassionate, or humanitarian considerations. The Department has established guidelines for ministerial intervention requests, requiring applicants to demonstrate that their case falls within specified categories, such as cases involving Australia's international obligations, compelling circumstances affecting a minor child, circumstances of extreme hardship or irreparable harm, or cases where unique or exceptional circumstances exist. Ministerial intervention requests must be submitted through a formal process with comprehensive supporting evidence. The Minister receives hundreds of intervention requests each month, and only a small percentage are ultimately referred to the Minister for consideration. Our team provides strategic advice on the prospects of ministerial intervention, prepares comprehensive intervention submissions, and advises on the evidentiary requirements for demonstrating exceptional circumstances.

Character Cancellations Under Section 501

Section 501 of the Migration Act 1958 provides a framework for the refusal or cancellation of visas on character grounds. The Department may refuse to grant a visa or cancel an existing visa if the applicant does not pass the character test and the decision-maker reasonably suspects that the person does not pass the character test. The character test considers whether a person has a substantial criminal record (including sentences of 12 months or more), has been acquitted on grounds of unsoundness of mind, has been subject to a range of other legislative regimes, or there is a risk that the person would engage in criminal conduct, harass or harm others, vilify a segment of the community, or be a risk to national security. Persons who have been sentenced to death or imprisonment for life also fail the character test. Visa cancellation decisions under section 501 are subject to merits review at the AAT and judicial review in the Federal Courts. The direction under section 499 known as Direction 99 provides detailed guidance on how decision-makers should exercise their discretion in character cancellation matters, including primary considerations such as the protection of the Australian community, the nature and seriousness of the conduct, the risk of re-offending, expectations of the Australian community, and the best interests of minor children in Australia, as well as other considerations including the impact on family members, hardship to the visa holder, and any rehabilitation already achieved. Our team provides comprehensive representation in character cancellation matters, from initial responses to notices of intention to consider cancellation, through to AAT review and ministerial intervention requests.

Migration Appeals & Tribunal Reviews FAQs (Queensland Law)