Migration Law

This article provides information on migration law, including the recent decision by the Full Court regarding the power of the MRD to extend time limits. It also discusses the process of lodging review applications and the decisions that can be made by the AAT. The article emphasizes the importance of abiding by time limits and consulting with an immigration lawyer for assistance.

MIGRATION LAW
Migration Law
Name
Institution/Affiliation

MIGRATION LAW
On 14 December 2018, the Full Court decided in Beni v Minister for Immigration and Border
Protection [2018] FCAFC 228 that Brown was wrongly decided and that the MRD does not have
the power to extend the time limits. This is consistent with the previous position that extensions
of time cannot be granted in the MRD. The AAT will resume dealing with applications in the
MRD that appear to have been lodged outside the relevant time limit1.
MRD applicants should lodge their review applications within the relevant time limits which are
usually referred to in the letter from the Department containing the notice of the decision.
The AAT can review some, but not all, decisions about visas made under the Migration Act
19582 by the Department of Home Affairs, the Minister for Home Affairs or the Minister for
Immigration.
When it comes to Australian immigration it is essential to know what deadlines you have and
that you abide by them. The Department of Home Affairs adheres to strict time limits that apply
to all applicants. With that being said, in November 2018 the Federal Court of Australia (FCA)
set a new precedent that grants the AAT power to extend time limits for review cases. This
meant that the Australian visa appeals and migration review tribunal, on a case by case basis,
would be able to allow a refused applicant extra time to appeal the administrative decision. Less
than a month later though, the Full Court repealed the decision of the FCA and decided that
every applicant in a migration matter must apply to the Administrative Appeals Tribunal (AAT)
within the allotted time limit3.
Recently, a decision in the Federal Court of Australia found that the Administrative Appeal
Tribunal had the power to extend the time limits for applying for review see: Brown v Minister
for Home Affairs (No. 2) [2018] FCA 1787 (19 November 2018). However, that decision
appears to have been wrongly decided and on 14 December 2018, the Full Court decided in Beni
v Minister for Immigration and Border Protection [2018] FCAFC 228 that Brown was wrongly
1 Wells, Lydia. "No longer a'migration agent': Reforms to the regulation of lawyers practising in
immigration law." Brief 44, no. 9 (2017): 25.
2 Migration Act 1958
3 Obergell v. Hodges, 135 S. Ct. 1039, 576 U.S., 190 L. Ed. 2d 908 (2015).

MIGRATION LAW
decided and that the AAT does not have the power to extend the time limits. This is consistent
with the previous position that extensions of time cannot be granted in the AAT for Migration
Appeals. (Extensions of time can be granted in the Social Security Appeals Tribunal)4.
Migration and Refugee Decision applicants should lodge their review applications within the
relevant time limits which are usually referred to in the letter from the Department containing the
notice of the decision.
We highly recommend that you consult with an immigration lawyer before you place your
application decisions under review as appealing to the courts and the abiding by the time limits is
very difficult. This is because the appeal time frames vary to the individual case and court.
Below you will see a general list of the appeal time frames but you need to re-check the rules to
ensure that time frames have not changed since last updated5.
Due to individual circumstance, your appeal times may vary due to individual circumstances,
and the reasons the Australian government decided to refuse your application. Meaning that the
decision on your visa application can affect which court or tribunal you will need to apply for an
appeal to.
The AAT received a record number of applications for review in the first quarter of 2018-19.
Applicants lodged more than 15,800 new applications across all of the AAT caseload. Of this
caseload, the Migration and Refugee Division represented 84% of all applications for appeal6.
The current and projected wait time for a hearing can be up to 2 years. For visa applicants, if you
apply for an appeal you may be on a Bridging visa for up to 2 years or more depending on the
outcome of the AAT appeal, or court appeal. Therefore, appeal application processing times can
vary depending on the forum selected7.
4 RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090, 195 L. Ed. 2d 476, 579 U.S. (2016).
5 Wright, Chris F., Stephen Clibborn, Nicola Piper, and Nicole Cini. "Economic migration and Australia in
the 21st century." (2016).
6 Minister for Immigration and Border Protection v. WZARH, 256 C.L.R. 326, 2015 H.C.A. 40 (2015).

MIGRATION LAW
The backlog does not seem to be slowing down as there are not enough resources to hear the
number of visa refusal decisions being appealed. As each application is heard on a case by case
basis, actual processing times cannot be determined8.
2Bridging visas in Australia are simply transitory visas which permit you to remain in Australia
for a certain period of time. Generally, bridging visas follow the expiration of your current
substantive visa, such as a Student Visa, while waiting for an application for another substantive
visa to be processed.
Bridging visas can be granted in the following circumstances:
 Your original visa has expired and you are waiting for the application of a substantive
visa to be finalized;
 There is a court appeal on a decision about your visa that you are waiting on;
 You have requested for a Ministerial Intervention; and
 You have been an unlawful non-citizen and are making arrangements to depart Australia
voluntarily.
Bridging Visas E or BVE are generally granted to non-citizens to allow them to remain in
Australia lawfully. They are usually granted to non-citizens when they have been detected as
unlawful and to provide them with time to depart Australia voluntarily. This usually occurs when
a decision has been made to cancel a visa under section 116 of the Migration Act 19589.
7 Horner, Jed. "From exceptional to liminal subjects: reconciling tensions in the politics of tuberculosis and
migration." Journal of bioethical inquiry 13, no. 1 (2016): 65-73.
8 Teitiota v. Chief Executive of the Ministry of Business, Innovation and Employment, 2015 N.Z.S.C. 107
(2015).
9 Jacobs, Keith. Experience and representation: contemporary perspectives on migration in Australia.
Routledge, 2016.

MIGRATION LAW
Bridging Visas E are also granted as a way to remain in Australia while you make an application
for a substantive visa, wait for a decision by a court on an appeal, or wait for Ministerial
Intervention to grant you a visa. Bridging Visas E are also granted if you have applied for
a protection visa.
3This visa allows you to enter or remain in Australia on the basis of your married or de facto
relationship with your partner:
On a temporary visa (usually for a waiting period of approximately two years from the date you
applied for the visa)
On a permanent visa if, after the waiting period (if applicable), your partner relationship still
exists and you are still eligible for this visa
Your partner must provide sponsorship for you.
Note: As the partner or fiancé of an Australian citizen, Australian permanent resident or eligible
New Zealand citizen, you do not have an automatic right of permanent residence in Australia. If
you want to reside permanently in Australia you must first apply for a permanent visa and be
assessed against the legal criteria for the grant of that visa10.
If you are granted a temporary Partner visa, it is normally valid throughout the waiting period
until a decision is made on your permanent Partner visa application.
4Yes. there are very strict time limits. The time limit to lodge an application for review of a
protection (refugee) visa decision is:
 28 days if you are not in immigration detention
 7 working days if you are in immigration detention
The first day of the time period for lodging an application for review of a
protection (refugee) visa decision is the day the applicant was taken to have been
notified of the decision. This means that, in general, the first day of the time
period includes the day on which you have received notice of the decision.
10 McLeman, Robert, Jeanette Schade, and Thomas Faist, eds. Environmental migration and social
inequality. Dordrecht: Springer, 2016.

MIGRATION LAW
You can check the Department of Home Affairs decision letter to find out what the time limit
is11.
The AAT has no power to extend the time limit to lodge an application for review.
4We usually make a decision after conducting a hearing. You will receive our decision at the end
of the hearing or in writing at a later date.
We might make a decision without conducting a hearing if:
 we decide we have no jurisdiction to review the decision
 the case can be decided in your favor based on the information we have
 you do not respond to a request to give us information or comments by the date we tell
you
 you agree to us deciding the review without appearing at a hearing.
We might tell you our decision and the reasons for that decision, or just tell you our decision, at
the end of the hearing. This is called an oral decision. We will send you and the Department of
Home Affairs (the Department) a notice that sets out our decision without written reasons.
If the AAT Member tells you the reasons for the decision at the hearing and you want a written
copy of the reasons, you must ask us for them within 14 days after the oral decision was given. A
copy is sent to you and the Department12.
If the AAT Member does not tell you the reasons at the hearing, they will send you and the
Department the written reasons for the oral decision at a later date.
If we do not tell you our decision at the hearing we will send you a notice of the decision and the
written reasons.
We can make the following decisions:
11 Walsh, Robert, and Simon Haag. "Immigration: Breaking up is a hard to-do: Dual regulation of
migration lawyers set to end." LSJ: Law Society of NSW Journal 12 (2015): 74.
12 Bosworth, Mary, Alpa Parmar, and Yolanda Vázquez, eds. Race, criminal justice, and migration control:
Enforcing the boundaries of belonging. Oxford University Press, 2018.

MIGRATION LAW
 Affirm the decision: the decision is not changed
 Vary the decision: the decision is changed
 Set aside the decision and substitute a new decision: the decision is replaced with a new
decision
 Remit the decision: the matter is sent back to the Department to make a new decision.
We can also make the following decisions:
 No jurisdiction to review the decision: we cannot undertake a review because it is not a
valid application
 Confirm the decision to dismiss the application because you did not attend the hearing:
the decision is not changed.
If you are in Australia and not an Australian citizen or permanent resident, your immigration
status may change following our decision.
The Information about decisions fact sheet contains more information about happens to a
bridging visa associated with the application that was the subject of our review.
If you think our decision is wrong you can appeal to the Federal Circuit Court but only on a
question of law13.
An appeal to the Federal Circuit Court must be made within 35 days after the date of our
decision.
5 The Migration Act provides the Minister with various discretionary powers, including
substitution powers and powers to vary processes, order release from detention and cancel
visas on character grounds. Section 195A empowers the Minister to grant a visa to a person
in immigration detention (whether or not the person has applied for the visa) if the Minister
thinks that it is in the public interest to do so. In exercising the power, the Minister is not
13 GLOBAL INTERNATIONAL, LLC v. ProBALANCE, INC., Civil Action No. 3: 15-CV-0677-N (N.D. Tex.
Nov. 9, 2016).

MIGRATION LAW
bound by the usual requirements that apply to the grant of visas. The Minister may grant any
visa that the Minister considers is appropriate to that individual’s circumstances14.
Section 197AB empowers the Minister to make 'a residence determination' if the Minister
considers this is in the public interest. A residence determination provides that a person in
immigration detention may reside other than in an immigration detention center or secured
arrangements (that is, the detainees would be free to move about in the community without
being accompanied or restrained by an officer), subject to any conditions specified in that
determination. The stated purpose of the power is to enable the detention of families with
children to take place in the community under conditions that can meet their individual
circumstances15.
The discretionary powers under sections 351 and 417 have the following features:
 Having exercised these powers, the Minister must table a statement in both Houses of
Parliament setting out the decision of the relevant tribunal, the decision substituted by the
Minister, and the reasons for substituting a more favorable decision.
 When exercising them to grant a visa, the Minister is generally not restricted by the type
of substantive visa that can be granted, and does not have to be satisfied that criteria
specified in the Migration Regulations have been met.
 They are non-compellable and non-reviewable. That is, the Minister does not have a duty
to exercise the discretionary power, and a court cannot order the Minister to use the
discretionary power to consider an applicant's case.
 They may only be used to intervene in a matter where the Minister believes it is in the
public interest to do so.
A request for Ministerial intervention of itself will have no effect on the removal provisions
of the Migration Act. Section 198 of that Act requires the removal of unlawful non-citizens
(whether or not they are also detainees) who are not either holding or applying for a visa. A
14 Lester, Eve. Making Migration Law: The Foreigner, Sovereignty, and the Case of Australia. Cambridge
University Press, 2018.
15 M68/2015 v. Minister for Immigration and Border Protection, 2016 H.C.A. 1 (2016).

MIGRATION LAW
request for the Minister to exercise one of the public interest powers such as section 351 or
417 is not regarded as an application for a visa and unless the request leads to the grant of a
visa, such a request has no effect on the removal provisions16.
DIMIA advised that the automatic assessment by DIMIA of returned or referred review
authority decisions is generally completed within 28 days of the case files being returned to
the department. However. the time taken to resolve requests for intervention made by
individuals17:
can vary significantly depending on the complexity of the issues raised, the completeness of
the information and argument provided in support of the intervention, and the number and
spacing of submissions and correspondence being provided in support of the case. Where a
case has been referred to the Minister, the issue of possible Ministerial intervention remains
open until such time as the Minister considers whether or not to use her power in a particular
case.
In conclusion the committee recommends that all applicants for the exercise of Ministerial
discretion should be eligible for visas that attract work rights, up to the time of the outcome of
their first application. Children who are seeking asylum should have access to social security and
health care throughout the processing period of any applications for Ministerial discretion and all
asylum seekers should have access to health care at least until the outcome of a first application
for Ministerial discretion.
16 CPCF v. Minister for Immigration and Border Protection, 2015 H.C.A. 1 (2015).
17 Luis Ischiu v. Gomez Garcia, 274 F. Supp. 3d 339 (D. Md. 2017).

MIGRATION LAW
Bibliography
Journal Article
Wells, Lydia. "No longer a'migration agent': Reforms to the regulation of lawyers practising in
immigration law." Brief 44, no. 9 (2017): 25.
Wright, Chris F., Stephen Clibborn, Nicola Piper, and Nicole Cini. "Economic migration and
Australia in the 21st century." (2016).
Horner, Jed. "From exceptional to liminal subjects: reconciling tensions in the politics of
tuberculosis and migration." Journal of bioethical inquiry 13, no. 1 (2016): 65-73.
Jacobs, Keith. Experience and representation: contemporary perspectives on migration in
Australia. Routledge, 2016.
McLeman, Robert, Jeanette Schade, and Thomas Faist, eds. Environmental migration and social
inequality. Dordrecht: Springer, 2016.
Walsh, Robert, and Simon Haag. "Immigration: Breaking up is a hard to-do: Dual regulation of
migration lawyers set to end." LSJ: Law Society of NSW Journal 12 (2015): 74.
Bosworth, Mary, Alpa Parmar, and Yolanda Vázquez, eds. Race, criminal justice, and migration
control: Enforcing the boundaries of belonging. Oxford University Press, 2018.
Lester, Eve. Making Migration Law: The Foreigner, Sovereignty, and the Case of Australia.
Cambridge University Press, 2018.
Case Laws
Obergell v. Hodges, 135 S. Ct. 1039, 576 U.S., 190 L. Ed. 2d 908 (2015).
RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090, 195 L. Ed. 2d 476, 579 U.S. (2016).
CPCF v. Minister for Immigration and Border Protection, 2015 H.C.A. 1 (2015).

MIGRATION LAW
M68/2015 v. Minister for Immigration and Border Protection, 2016 H.C.A. 1 (2016).
Minister for Immigration and Border Protection v. WZARH, 256 C.L.R. 326, 2015 H.C.A. 40
(2015).
GLOBAL INTERNATIONAL, LLC v. ProBALANCE, INC., Civil Action No. 3: 15-CV-0677-N
(N.D. Tex. Nov. 9, 2016).
Luis Ischiu v. Gomez Garcia, 274 F. Supp. 3d 339 (D. Md. 2017).
Teitiota v. Chief Executive of the Ministry of Business, Innovation and Employment, 2015
N.Z.S.C. 107 (2015).
Legislation
Migration Act 1958.