Migration Review Mechanism - Cases

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Migration Review Mechanism
Name
Date

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Introduction:
Migration Review Mechanisms refer to process based on examining the regulatory
framework that ensures compliance with migration law in Australia. It spells out the outstanding
reasons leading to refusal or cancellation of visas depending on merits and judicial review of
decisions and ministerial discretion. In this unit, several topics covered include. Advocacy legal
research and reasoning, merits, judicial and ministerial discretion, alternative review
mechanisms, role of ombudsman and the role of senate and independent inquiries.
The Migration and citizenship legislation provide for a review process carried out by Department
of Home Affairs. The Immigration Assessment Authority (IAA) and Administration Appeals
Tribunal (AAT), do merits review on migration matters while judicial review is done in courts1.
The review of visa application of immigrants is acceptable only if there is an Australian sponsor,
nominator or a close relative (Part 4 of the Migration Regulations Act), provides procedural
matters for review.
QUESTIONS.
A
Stella can have the decision of the visa refusal made by the Department of Home Affairs
reviewed by Administrative Appeals Tribunal (AAT), or under Migration Act 1954 or the
Australian Citizen Act 2007, section 52 relating to Australian citizenship and decision to refusal
or cancellation of visa under section 500 clause1(c). AAT would consider the review because the
applicant had stated that she had come to visit a partner, Terry, who is an Australian. According
1 Rodger G. Fernandez, Murray Gerkens, Janelle Kenny, Sherene Ozyurek, Dominic Yau. 218. Australian
Immigration Companion. New York: LexisNexis Butterworths.

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to {Regulation 4.23-25}, Stella had a right to review the application as the act gives her merit
review rights if it is done before seven days after notification on visa cancellation2.
B
According to tThe Migration Act 1958, Migration Regulations and the Administrative
Appeals Tribunal (AAT) Act, prescribe 9 days within which one can lodge a review at the
Migration Tribunal. These bodies have no discretion for these time limit hass to be adhered to
but notwaived or deviated in any way. Applicants write review letter on the decision totions must
be received at the relevant review authority within the acceptable time limit. But when decision
has been made by the Minister or has issued conclusion certificates as stated under
sections.338(1)(a), 411(2)(b), 473(1)(c) there is no right to appeal3. It also applies to refusal of
grant to protection visa to ‘fast-track applicants.
For Stella’s case, she requires to be aware of time limits upon decliningrefusal to grant a
visitor visa which can’t be issued byould not be granted inside Australian government as stated
in section 338(7), where thean applicant shouldis be an Australian citizen or a permanent
resident whose particulars are included in the application. This requires 70 days of notification.
Another rule she should be aware of is, refusal or cancellation of to grant a visa which could be
granted in Australia where application was done in Australia and the personapplicant is not in
immigration detention category. The affected personapplicant appeals within a duration of 21
days [R4.10(1)(a)] or 28 days’ notification- [R4.31(2)(b)4.
C
2 Sukhera, Fozail N. 2019. Australian Visa Guide: Handbook on Winning Australian Visa Applications.
London: FAEZ Family Trus.
3 Freckelton, Alan. 2015. Administrative Decision-Making in Australian Migration Law. Canberra: ANU
Press.
4 policy, Unintended Consequences: The impact of migration law and. 2016. Unintended Consequences:
The impact of migration law and policy. Canberra: vANU Press.

4
According to Australian Migration Act 1958 Terry could be the visa review applicant if she
acted as a sponsor, a citizen or even as a permanent resident in Australia. The Australian
migrationMigration Act 1958, states that the review applications lodged with the AAT should be
assessedexamined by a case officer of the Tribunal’s official, who checks assesses and
verifiesthe validity of the decision review applications and c decidesheck whether the application
is made within time and whether the decision is to be reviewed hence forwards it before
thecomes under the Tribunal’s jurisdiction. The case officer shouldthen compiles the file notes
before and passing the casees to the Tribunal for review. Visas granted offshore where the person
has been sponsored (section.338 sub-section (5), and R4 section.02 s. s(4)(1) and (1a) by an
Australian citizen, a permanent residence, an eligible New Zealand citizen, an Australian
company or a business partner, are reviewable under above clauses. .
AlsoIf a person was an Australian citizen living overseasian permanent resident and has can
applied for a resident return visa from offshore, butthey he/she is requirare advised to mention
relatives, a sponsor or submit identification documents to support and particulars of whom were
mentioned on the visa application form. The application is reviewable if the number of points
allocated to an applicant has led to the visa application placed in a ‘pool’ in a points tested visa
application, resulting to an application being placed in the ’pool” but not yet refused could be
where the person was sponsored by an Australian citizen, permanent resident or eligible New
Zealand citizen [s.338(8)]5. The refusal, cancellation, or barring of a visa because of one’s
character, may at some instances, be declined due to the mode of sponsorship or nomination
under a business sponsorship, under ENS/RSMS or a Labor Agreement, lodged by the country’s
business organizations will allow reviewing s.338(9) and R4(02). Also, offshore visa application
5 Rodger G. Fernandez, Murray Gerkens, Janelle Kenny, Sherene Ozyurek, Dominic Yau. 218. Australian
Immigration Companion. New York: LexisNexis Butterworths.

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(sections 457 and 489), the requirement of security in relation to granting a visa and to vary a
term of approval of a business sponsorship6.
D
Stella could request for the intervention of the Minister inquest the Minister to intervene in her
case through by writing to him a letter addressed to: The Minister for Immigration and Border
Protection, Parliament House, ‘Canberra’ ACT 2600, mentioning clearly 2600, setting out the
reasons as to why she should remain in Australia7. With Terry being an Australian citizen
sponsor partner, Stella has the mandatehe qualification to apply for a partner visa in the country.
BeforeFrom 14th of September 2009,, changes were introduced to allow certain partners to
lodge a partner visa application in Australia was not allowed by the government as. Before, they
were prohibited by law tobarred from doing such applications under section 48 of the Migration
Act 1958.
E.
The Minister for Immigration, under Migration Act 1958, have the power he/she might
consider exercising or to personally intervene into the matter being reviewed. The Minister might
consider the matter as for ‘public interest’ henceand substitute a more favorable decision where
an applicant has appealed to a merits review authorities suchy like the AAT, and again the
review body has upheld an important issue tothe primary decision of a delegate8upon. The
Minister may act in favor of the applicant, but and the Act requirtherefore submites him to
6 University, Victoria. 2020. Merits Review and Ministerial intervention; Immigration Law. Melbourne:
Victoria University.
7 Australia. 1979. Acts of the Parliament, Commonwealth of Australia. Canberra, Australia: Commonwealth
Government Printer.
8 (Australia), Group of Eight. 2011. Strategic Review of the Student Visa Program 2011. Melbourne: ERIC
Clearinghouse, 2011

6
submit before both houses of parliament the decision taken and the reasons to both houses of
parliament. Migration Regulation Act 1958, addresses that do provide that if a person hasd
sought Ministerial intervention before under sections; 351, 417, 501j and 48B of the migration
Act, he/she will no longer be eligible for the grant of another bridging E visa, but can make
another application by not requesting the same favor9.
F
As Stella’s migration agent, I would have to exercise my professional code of conduct as a
government official in exhibiting several obligations.If you happen to act as Stella’s migration
agent, what are your obligations, if any, under the Code of Conduct?10
As a registered migration agent in Australia, I would assist Stella by providing sound advice
and also help her prepare visa application. I would ensure that her documentation is up to
standard as required by Migration Act 1958 (Cth){1}. Australian Immigration Assessment
Authority and give honest opinion on her eligibility hence monitoring her progress of
application. Henceforth, I would liaise with the government on her behalf and represent her in
the Ddepartment of Hhome Aaffairs to prowess the development of her visa.
9 n.d. Australian Visa Guide: Handbook on Winning Australian Visa Applications.
10 J., Whitlam. 2001. Australian Current Law: Reporter, Volume 2. Southwales: Butterworths.
John Vrachnas, Mirko Bagaric, Penny Dimopoulos, Athula Pathinayake. 2011. Migration and Refugee Law:.
Cambridge, England: Cambridge University Press,

7
References.
(Australia), Group of Eight. 2011. Strategic Review of the Student Visa Program 2011.
Melbourne: ERIC Clearinghouse, 2011.
Australia. 1979. Acts of the Parliament, Commonwealth of Australia. Canberra, Australia:
Commonwealth Government Printer.
n.d. Australian Visa Guide: Handbook on Winning Australian Visa Applications.
Freckelton, Alan. 2015. Administrative Decision-Making in Australian Migration Law.
Canberra: ANU Press.
J., Whitlam. 2001. Australian Current Law: Reporter, Volume 2. Southwales: Butterworths.
John Vrachnas, Mirko Bagaric, Penny Dimopoulos, Athula Pathinayake. 2011. Migration and
Refugee Law:. Cambridge, England: Cambridge University Press,.
policy, Unintended Consequences: The impact of migration law and. 2016. Unintended
Consequences: The impact of migration law and policy. Canberra: vANU Press.
Rodger G. Fernandez, Murray Gerkens, Janelle Kenny, Sherene Ozyurek, Dominic Yau. 218.
Australian Immigration Companion. New York: LexisNexis Butterworths.

8
Sukhera, Fozail N. 2019. Australian Visa Guide: Handbook on Winning Australian Visa
Applications. London: FAEZ Family Trus.
University, Victoria. 2020. Merits Review and Ministerial intervention; Immigration Law.
Melbourne: Victoria University.