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.