Merits Review Overview

Merits review of immigration decisions has been available since 1982 through the Immigration Review Panel. That panel was created by executive action and was replaced by the legislatively established Immigration Review Tribunal (the IRT) in 1989, later renamed the Migration Review Tribunal (the MRT) on 1 July 1999, to become part of the Administrative Appeals Tribunal (AAT) on 1 July 2015. The former Refugee Review Tribunal (RRT) established in 1993 also merged with the AAT on 1 July 2015 in its Migration and Refugee Division, and reviews decisions in relation to applications for refugee status and refugee protection visas. In addition, the Immigration Assessment Authority (IAA) was created in April 2015, as a separate office within the Refugee Review Tribunal (RRT), which from 1 July 2015 also became an independent authority within the AAT. Limited appeals lie from both the AAT to the Federal Court.

The former Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT), now form part of the AAT, which has primary jurisdiction to provide merits review of specified decisions made under the Migration Act and Regulations. The Administrative Appeals Tribunal (AAT) reviews migration decisions on their merits. The tribunals’ task is to make the “correct and preferable” decision in the particular case before it. This is a much wider task than that of a judicial review court, which is concerned only with whether a legal error occurred in the making of the decision under review.

In contrast, merits review is concerned with remaking the decision under review (‘standing in the same shoes’), not with correcting errors made by the original decision maker.

Merits review tribunals decide all questions of fact and discretion for themselves. They can consider any evidence that will help them come to the correct and preferable decision, including evidence that the applicant failed to put before the original decision maker. In light of that new evidence, they can substitute their own findings of fact-even if the original decision maker’s findings were “correct” on the basis of the evidence available at the time.

Further, even if the tribunal does not identify any errors of fact (or law) in the original decision, they may substitute their own judgment of how any discretion should be exercised in order to come to the preferable decision. The tribunals can also form their own views as to the desirability of applying departmental policy in a particular case.

These tribunals’ factual and discretionary decisions are subject to judicial review in the Federal and High Courts. However, the general principle that a judicial review court cannot substitute its decision for that under review applies. If a factual or discretionary decision is found to be infected by legal error, the court will remit the decision back to the relevant tribunal to be redecided. Therefore, in practice the merits review tribunals have the final say in the migration decision-making process on questions of fact and discretion, including how any relevant policy should be applied in the exercise of a discretion.

In order to determine the correct and preferable decision in a particular case, the tribunals will often be required to also decide questions of law (especially to interpret provisions of the Act and Regulations). However, constitutional (separation of powers) principles limit the extent to which the tribunals can be given the power to make binding determinations of legal principles without Parliament having invalidly conferred the judicial power of the Commonwealth on them. However, these precise limits remain unclear.

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