Merits Review

Unfortunately, there are some visa applications that may initially be unsuccessful at the Department of Home Affairs for various reasons, or a visa may be cancelled. If that happens, an applicant will have the right to apply to the Migration and Refugee Division (MR Division) of the Administrative Appeals Tribunal (formerly the Migration Review Tribunal and the Refugee Review Tribunal) for a merits review of the refusal or cancellation decision.

The function of the MR Division of the AAT is to conduct a fresh review of the entire application. It assesses the application or cancellation process afresh and takes into consideration any new information that is presented to them to determine what the correct outcome is, or should have been, at the time the AAT made its decision. Unlike a court proceeding, the Department of Home Affairs is not a party to the review in the MR Division of the AAT.

In cases involving a visa refusal or a visa cancellation on character grounds under s.501 of the Migration Act, any merits review will be in the General Division of the Administrative Appeals Tribunal. The Department of Home Affairs will be a party to these review proceedings.

Judicial Review

Once a person receives a negative decision of Migration and citizenship cases from the merits review tribunals, he/she needs to review the case and decide whether to follow a judicial review path or Ministerial Intervention.

In the judicial review process, the courts do not undertake an examination of the facts of a case or the merits of a case; the courts’ role is to determine whether or not the relevant law was interpreted and applied correctly by the decision maker.