+61 402 448 449 paul.hense@henselaw.com.au

Decisions by officers of the Department of Home Affairs and even the Minister for Home Affairs personally (in character cases for instance), are ultimately reviewable by the Australian Federal Court system, including the High Court. .

Except where the Minister personally exercises a decision to cancel a person’s visa or refuse an application on character grounds under s501 of the Migration Act, in the first instance a body called the Administrative Appeals Tribunal will examine, afresh, a person’s circumstances. That is, review Tribunals examine all the facts and law of the case.

I will examine the workings of the Administrative Appeals Tribunal, in both its Migration/Refugee Division and its General Division, in a further article.

In the late 1990’s the Australian Government tried to restrict a person’s ability to have a Tribunal or Ministerial decision reviewed by the Federal Court system. This approach was rejected by the High Court in the case S157/2002. The High Court said that serious legal errors by the then Migration or Review Review Tribunal can amount to what is called jurisdictional error. Such an error means that the Tribunal exceeded its authority in deciding the application, with the result the decision was only purportedly made but was in fact invalid. In that circumstance, the application needed to be decided by the Tribunal again (with a different Tribunal Member presiding).

The High Court has recently said that a jurisdictional error is, amongst other things, a serious legal error made by a Tribunal or Minister. If there are other grounds for refusing an applicant’s case, a legal error will not be a jurisdictional error (meaning that the applicant will not get relief).

As you can see, it is not every sort of mistake by the Administrative Appeals Tribunal or Minister which can be successfully reviewed by the Courts. Only jurisdictional errors provide a remedy. If a person is successful in litigation before a Court, the relevant Judge will remit or send back the case to the Tribunal or Minister. The person’s matter must then be decided according to law. A Judge cannot make a recommendation that a visa be granted, or not cancelled.

A Migration Agent cannot assist a person in a Court matter. Only a legally qualified person can do this, such as a solicitor or barrister. A person can be self represented, meaning there is no adviser to assist the person. This is not preferable of course, as Court matters are complex and there are strict procedures which must be followed. However, a person is entitled to present their own case, if a person cannot afford professional assistance.

Typical mistakes by the Administrative Appeals Tribunal or the Minister which can be reviewed are: where the decision maker does not take into account a relevant consideration (such as important submission points, a key aspect of a person’s case), where an irrelevant consideration is taken into account by a decision maker, where the rules of procedural fairness are not followed (where an important document is not given to a client (unless there is a statutory exemption)).

There is a different financial aspect to Court reviews than before a Tribunal. These reviews are in a “costs jurisdiction”, which means that if the person going to Court loses the case, the Minister’s legal fees (the Minister defends the Tribunal) must be paid (there are Court Rules governing this). Equally, if a person is successful in Court, the Minister must pay the person’s legal expenses (what the Minister is obliged to pay is usually less than what a person’s legal expenses are).

Potential litigants should note that if unsuccessful, the Department will not grant a visa (apart from a bridging visa) without any outstanding legal fees of the Minister paid. However, as proceedings in Court may involve a person’s last chance of obtaining a visa, there may well be “nothing to lose” if there are reasonable merits in the case.