Australian Government: Migration Review Tribunal and Refugee Review Tribunal

Part 3: The role of the Tribunals

The Migration Review Tribunal (the MRT) and the Refugee Review Tribunal (the RRT) are statutory bodies which provide a final independent merits review of visa and visa-related decisions made by the Minister for Immigration and Citizenship (the Minister) or by officers of the Department of Immigration and Citizenship (DIAC), acting as delegates of the Minister.

The Tribunals are established under the Migration Act 1958 (the Migration Act). The Tribunals’ jurisdictions, powers and procedures are set out in the Migration Act and in the Migration Regulations 1994 (the Migration Regulations). The Tribunals comprise Members (appointed by the Governor-General under the Migration Act for fixed terms) and staff (appointed under the Migration Act and employed under the Public Service Act 1999).

The MRT reviews a wide range of decisions in relation to visas other than protection visas. The RRT reviews decisions in relation to protection visas.

A visa is required by anyone who is not an Australian citizen and who wishes to travel to, and remain in, Australia. The Migration Act and the Migration Regulations set out the criteria for visas. There are usually criteria specific to a visa, as well as general criteria including health and character criteria.

A visa may be refused if a decision-maker is not satisfied that a person meets the criteria for a visa. A visa may be cancelled if for example it was obtained by making false statements, or if the visa holder is not abiding by the conditions of the visa.

The Tribunals are required to provide a mechanism of review that is fair, just, economical, informal and quick.

Merits review

Merits review is an administrative reconsideration of a case. The principal objective of merits review is to ensure that the correct or preferable decision is reached in the particular case. The decision and reasons of a merits review body should also improve the general quality and consistency of decision-making, and enhance openness and accountability of an area of government decision-making.

The Tribunals make decisions within the same legislative and policy framework as the primary decision-maker, and may exercise all of the powers and discretions conferred on the primary decision-maker, in addition to the Tribunals’ specific powers.

The Tribunals reconsider each case in light of all the relevant facts, the law and Government policy and may substitute a new decision in place of the primary decision.

The Tribunals have the power to affirm a primary decision, vary a primary decision, set aside a primary decision and substitute a new decision, or remit (return) a matter to DIAC for reconsideration with specific directions. For example, a matter may be ‘remitted’ if a Member is satisfied that a visa applicant meets one or more of the requirements for the visa. DIAC may then need to undertake further processing in relation to other requirements for the visa.

Applying for review

The Migration Act and the Migration Regulations specify which decisions the Tribunals can review, who may seek review of a decision, how an application for review must be made, the time limits within which applications for review must be lodged, and whether an application fee is payable. The rules vary depending on the type of matter.

The Tribunals cannot accept an application for review lodged outside the relevant time limit or which has been lodged by a person who is not entitled to apply for review. Depending on the decision under review, the person applying for review must be the visa applicant, the former visa holder, the sponsor or a close relative.

The time limits for lodging an application to the MRT vary from 2 working days for some immigration detention cases to 7 working days for cancellation decisions and other immigration detention cases, 21 calendar days for other cases where the visa applicant is in Australia, and 70 calendar days for cases where the visa applicant is outside Australia. A fee of $1,400 is payable for all MRT applications other than for the review of decisions to refuse to grant or to cancel a bridging visa in relation to a person in immigration detention. Payment of the fee may be waived if payment would cause severe financial hardship.

The time limits for lodging an application to the RRT are 7 working days for persons in immigration detention, and 28 calendar days for all other cases. There is no application fee when applying to the RRT, but a $1,400 fee becomes payable if the Tribunal affirms the primary decision.

The MRT and RRT application forms contain detailed information about lodging an application for review, who can apply for review, and the time limits. These are available from the Tribunals’ website (links below) or from the Tribunals’ registries.

Form M1 is the general MRT application form. Form M2 is the MRT application form for persons in immigration detention. Form R1 is the RRT application form.

The conduct of reviews

The Tribunals are usually constituted by a single Member. The Tribunals’ procedures are designed to provide a review process which is fair and just, and to ensure that an applicant can fully put his or her case to the Tribunal.

An applicant is entitled to:

Unless a favourable decision can be made on the papers, an applicant is normally invited to a hearing. The hearing is an opportunity for the applicant to appear before the Tribunal to give oral evidence and present arguments on the issues arising in the review. The applicant may arrange for other persons to attend the hearing to give evidence, and may be accompanied to the hearing by a friend, relative or other support person.

Hearings are usually held in person at the Tribunals’ offices, but may be held in other places or through video or telephone links. The Migration Act requires that proceedings of the MRT be generally open to the public. The Migration Act requires that all proceedings of the RRT are held in private. An interpreter is engaged if a person is not sufficiently proficient in English.

The Tribunals’ hearings are inquisitorial and the Member takes an active role in asking questions of the persons appearing before the Tribunal.

An applicant may appoint a representative to assist with his or her case. A representative can forward written submissions and written evidence to the Tribunals, contact the Tribunals on the applicant’s behalf, and may accompany the applicant to any meeting or hearing arranged by the Tribunals. At a hearing, the Member may consider it appropriate in the circumstances of a particular case to permit a representative to present arguments or submissions or to make comments on specific matters. With very limited exceptions, only a registered migration agent may provide immigration assistance.

The Minister or DIAC is not represented in proceedings, but DIAC may provide written submissions.

A significant proportion of applicants are not represented and the Tribunals’ procedures, and the information available for applicants, are aimed at assisting applicants who proceed without representation.

The Member may in some cases make an oral decision at the end of a hearing. In all cases, there is a requirement to provide a written decision statement, setting out findings and reasons.

The MRT and the RRT are required to publish decisions that are considered to be of ‘particular interest’. The requirement to publish decisions is subject to certain restrictions. The identity of applicants and relatives cannot be disclosed when publishing RRT decisions, and a Member may decide that publication of an MRT decision is to be restricted on public interest grounds. Where a restriction applies, the decision to be published is edited so as not to contain the information which cannot be published. Published decisions are available on the AustLII website at www.austlii.edu.au.

Decision-making

Members are required to conduct an independent review and to reach an independent decision on the case. A Member must apply the correct law, have due regard to policy where relevant, and is bound by relevant court decisions. A decision made by a Member in one case does not bind Members in other cases. However, consistency is highly desirable and it is generally expected that a decision in a particular case would be consistent with other decisions in like matters.

Members need to maintain knowledge of changes in relevant legislation, country information, case law and policy, and regularly attend and participate in professional development activities, conferences, training courses and peer discussions. The Tribunals place a high priority on the collection, analysis and sharing of information across the organisation, primarily through the Tribunals’ intranet, the delivery of professional development and training, and through promoting discussion of issues between Members at national and local levels.

The Legal Services Section provides Members with relevant, current and authoritative information, and updates, organises and indexes holdings of information for maximum accessibility. Legal officers provide oral and written advice to Members on case specific and migration, refugee and administrative law issues.

The Research and Information Section provides Members with relevant, current and authoritative country and general information. Research officers respond to queries from Members, and also update, organise and index holdings of information for maximum accessibility by Members in their decision-making. Generally, all country and general information used in decision-making must be able to be cited and made publicly available.

Members have access to a wide range of information available in the Tribunals’ library, to Government, intergovernmental and non-government sources of country information; and to specialist journals and international newswire services. All Members have electronic access to a range of external and internal information products, including:

Matters reviewed by the MRT

The MRT can review decisions relating to a wide range of visas. Reviewable decisions include decisions to refuse to grant visas, to cancel visas, to refuse to approve sponsors, and to refuse to approve a nominated position or business activity.

Bridging visas are granted to provide temporary lawful status to non-citizens in Australia, for example, while a temporary entrant is awaiting the outcome of an application for permanent residence. Visitor visas are granted to tourists and to persons visiting relatives in Australia. Student visas are granted to persons enrolled at schools, colleges and universities in Australia. Temporary business visas are granted for four years to persons whose proposed employment or business activities will contribute to the creation or maintenance of employment within Australia; the expansion of Australian trade; an improvement in links with international markets; and/or greater competitiveness in the economy.

Permanent business visas are granted to successful business people, who obtain a substantial ownership interest in a new or existing business in Australia and actively participate in that business at a senior management level. Skilled visas are granted to persons in skilled occupations who have the education, skills and employability to contribute to the Australian economy.

Partner visas are granted to partners of Australian citizens or permanent residents. Family visas are granted to children, parents, remaining relatives (persons who have limited family contacts other than relatives living in Australia), aged dependent relatives (elderly overseas relatives who have been financially supported by a close Australian relative for a reasonable period) and carers (persons who are able and willing to provide assistance needed by a relative in Australia).

Matters reviewed by the RRT

The RRT reviews decisions to refuse to grant or to cancel protection visas within Australia. The review of these decisions usually involves a consideration of whether or not the applicant is a person to whom Australia has protection obligations. This includes consideration of whether he or she is a ‘refugee’ within the meaning of the 1951 United Nations Convention Relating to the Status of Refugees (as amended by the 1967 UN Protocol Relating to the Status of Refugees) (the Convention).

The Convention was drafted between 1948 and 1951 with the principal aim of creating a regime to cope with the large numbers of people who had been displaced by the Second World War. The original definition only permitted a person to be declared a refugee as a result of events occurring in Europe before 1 January 1951. However, the 1967 UN Protocol Relating to the Status of Refugees (the Protocol) removed the time and geographical limitation in the Convention’s definition of a refugee. The Convention now extends to all persons who are refugees because of events occurring at any time in any place. Australia became a signatory to the Refugees Convention in 1954 and to the Protocol in 1973.

The term ‘refugee’ is defined in Chapter 1, Article 1 of the Convention. In particular, Article 1A(2) of the Convention, as amended by the Protocol, defines a refugee as a person who:

...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it...

Other provisions of the Convention may be relevant to an assessment of the entitlement to a protection visa. For example, there are provisions which deal with circumstances in which a person may either cease to be a refugee or be excluded from the benefits of refugee status.

A number of provisions of the Migration Act expressly qualify certain aspects of the Convention. These provisions focus principally on the concepts of persecution and the nature and seriousness of certain crimes relevant to the determination of whether Australia has protection obligations to an asylum seeker. Many aspects of the Convention, however, are not specifically defined by the legislation and must be interpreted in accordance with established legal principles.

Vision, purpose and values

The Tribunals exist to provide an independent and final merits review of decisions using a mechanism of review that is fair, just, economical, informal and quick. Members and staff are conscious of the role of the Tribunals and the importance of treating those with whom we deal with courtesy, respect and dignity.

The Tribunals’ Plan, Member Code of Conduct, Service Charter and Interpreters’ Handbook promote and uphold these values. All of these documents are available on the Tribunals’ website. Staff are also bound by the Australian Public Service Values and Code of Conduct, as set out in the Public Service Act.