AAT review

 
 

Section 336M   Simplified outline of this Part 

[s336M inserted and amended by TAA 2015 with effect on and from 01/07/2015 - LEGEND note]

This Part provides for the review of Part 5-reviewable decisions by the Administrative Appeals Tribunal in its Migration and Refugee Division.

Part 5-reviewable decisions relate to the grant or cancellation of visas in some circumstances. They do not include decisions relating to protection visas or temporary safe haven visas, or decisions in relation to which the Minister has given a conclusive certificate.

Part 7-reviewable decisions (which generally relate to protection visas) are reviewable in accordance with Part 7 by the Administrative Appeals Tribunal in its Migration and Refugee Division.

Some other decisions under this Act may be reviewed by the Administrative Appeals Tribunal in its General Division, including the following:

(a)    some decisions to cancel business visas;

(b)    some decisions relating to migration agents;

(c)    some decisions relating to deportation, protection visas and the refusal or cancellation of visas on character grounds.

Fast track reviewable decisions are reviewable by the Immigration Assessment Authority under Part 7AA of this Act.  These are decisions to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012. 

 

S.338 of the Migration Act identifies which decisions are reviewable by the Administrative Appeals Tribunal:

Section 338      Definition of Part 5 – Reviewable Decision

     

[338] (1)       A decision is a Part 5-reviewable decision if this section so provides, unless:

(a)      the Minister has issued a conclusive certificate under section 339 in relation to the decision; or

(b)      the decision is a Part 7-reviewable decision; or

(c)      the decision is to refuse to grant, or to cancel, a temporary safe haven visa.

            (d)        the decision is a fast track decision

 

S5 - fast track decision means a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa:

(a)    because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or

(b)    relying on:

(i)    subsection 5H(2); or

(ii)    subsection 36(1B) or (1C); or

(iii)    paragraph 36(2C)(a) or (b).

Note:    Some decisions made in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision are reviewable by the Administrative Appeals Tribunal in accordance with section 500.

 

What is Part 5-reviewable

Time Limits

S 347 requirements

[338] (2)      A decision (other than a decision covered by subsection (4) or made under s 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision  if:

 

(a) the visa could be granted while the non-citizen is in the migration zone; and

(b)      the non-citizen made the application for the visa while in the migration zone; and

(c) the decision was not made when the non-citizen:

(i)      was in immigration clearance; or

(ii) had been refused immigration clearance and had not subsequently been immigration cleared; and

(d) where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind…   prescribed for the purposes of this paragraph:

(i)      the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

(ii)      an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

Reg 4.10

(a)      if the Part 5-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act — starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received;

 

Reg 4.02

(1A)   For s 338(2)(d) of the Act, the following visas are prescribed:

(a)Subclass 401 (Temporary Work (Long Stay Activity)) visa;

(aa)Subclass 402 (Training and Research) visa;

(ab) a Subclass 411 (Exchange) visa;

(b) a Subclass 415 (Foreign Government Agency) visa;

(c)Subclass 416 (Special Program) visa;

(d)Subclass 419 (Visiting Academic) visa;

(e) Subclass 420 (Entertainment) visa;

(f) Subclass 421 (Sport) visa;

(g)Subclass 423 (Media and Film Staff) visa;

(h) a Subclass 427 (Domestic Worker (Temporary) - Executive) visa;

(i)Subclass 428 (Religious Worker) visa;

(j)Subclass 442 (Occupational Trainee) visa;

(k)Subclass 457 (Temporary Work (Skilled)) visa;

(l)Subclass 488 (Superyacht Crew) visa.

By S 347(2)(a) the applicant must be the visa applicant &

(3) is physically present in the migration zone when the application for review is made.

 

[338] (3)      A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is an MRT-reviewable decision unless the decision:

(a)      is covered by subsection (4); or

(b)      is made at a time when the non-citizen was in immigration clearance; or

(c)      was made under subsection 133A or 133C, subsection 134(1), (3A) or (4) or section 501.

[s133A, s133C relates to the minister’s personal power to cancel visa on s109 and s116 grounds. S 134 relates to permanent business visas and s 501 is about cancellations on character grounds]

Reg 4.10(1)

(b)      if the Part 5-reviewable decision is mentioned in ss 338(3) or (3A).. starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received

By S 347(2)(a) the applicant must be the visa applicant &

(3) is physically present in the migration zone when the application for review is made.

 

[338] (3A) - automatic cancellation of student visas which can no longer occur

 

 

[338] (4)      The following decisions are Part 5-reviewable decisions:

(a) a decision to refuse to grant  a bridging visa to a non-citizen who is in immigration detention because of that refusal;

(b) a decision of a delegate of the Minister to cancel a bridging visa held by a non-citizen who is in immigration detention because of that cancellation.

Reg [4.10] (2) However, the period in which an application by a detainee for review of a Part 5-reviewable decision must be given to the Tribunal:

(a)in the case of an application for review of a decision of a kind mentioned in s 338(4) of the Act — starts when the detainee receives notice of the decision and ends at the end of 2 working days after the day on which the notice is received;

 

By S 347(2)(a) the applicant must be the visa applicant &

(3) is physically present in the migration zone when the application for review is made.

 

[338] (5)      A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

(a)      the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

(b) the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:

(i)      an Australian citizen; or

(ii)      a company that operates in the migration zone; or

(iii)      a partnership that operates in the migration zone; or

(iv)      the holder of a permanent visa; or

(v)a NZ citizen who holds a special category visa.

Reg 4.10(1)

(c)      if the Part 5-reviewable decision is mentioned in ss 338(5), (6), (7) or (8) of the Act — starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received;

 

[338] (6) A decision to refuse to grant a non-citizen a visa is an Part 5-reviewable decision if:

(a)      the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

(b)      a criterion for the grant of the visa is that the non-citizen has been an Australian permanent resident; and

(c)      a parent, spouse, de facto partner, child, brother or sister of the non-citizen is an Australian citizen or an Australian permanent resident.

Reg 4.10(1)

(c)      if the Part 5-reviewable decision is mentioned in ss 338(5), (6), (7) or (8) of the Act — starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received;

 

[338] (7)      A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

(a)      the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

(b)      a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen; and

(c)      particulars of the relative concerned are included in the application.

Reg 4.10(1)

(c)      if the Part 5-reviewable decision is mentioned in ss 338(5), (6), (7) or (8) of the Act — starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received;

 

[338] (7A) A decision to refuse to grant a non-citizen a permanent visa is an Part 5-reviewable decision if:

(a)      the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and

(b)      the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.

Reg 4.10

(a)      if the Part 5-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act — starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received;

S 347(3A)       If the primary decision was covered by s 338(7A), an application for review may only be made by a non-citizen who:

(a)was physically present in the migration zone at the time when the decision was made; and

(b)is physically present in the migration zone when the application for review is made.

[338] (8)      A decision, under section 93, as to the assessed score of an applicant for a visa is a Part 5-reviewable decision[1] if:

(a)      the visa is a visa that could not be granted while the applicant is in the migration zone; and

(b)      the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by:

(i)      an Australian citizen; or

(ii)      the holder of a permanent visa; or

(iii)      a NZ citizen who holds a special category visa; and

(c)      the Minister has not refused to grant the visa.

Reg 4.10(1)

(c)      if the Part 5-reviewable decision is mentioned in ss 338(5), (6), (7) or (8) of the Act — starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received;

 

[338] (9)      A decision that is prescribed for the purposes of this subsection is a Part 5-reviewable decision.

Reg 4.02(4) For s 338(9) of the Act, each of the following decisions is a Part 5-reviewable decision:

(a)a decision under s 140E(1) of the Act to refuse a person's application for approval as a sponsor in relation to one or more classes of sponsor;

[(b) & (c) omitted]

(d) a decision under s 140GB(2) of the Act to refuse to approve a nomination;

(e) a decision under Reg 5.19 to refuse an application for approval of the nomination of a position;

(f)      a decision that:

(i)      relates to requiring a security; and

(ii)      relates to the refusal to grant a visa, being a visa for which the Minister is to have regard to a criterion to the effect that if an authorised officer has required a security for compliance with any conditions that the officer has indicated to the applicant will be imposed on the visa if it is granted, the security has been lodged;

[(g) omitted]

(h) a decision under s 140M of the Act to take 1 or more actions to cancel a sponsor's approval or to bar a sponsor;

[(i) omitted]

(j)      a decision to refuse to grant a Subclass 173 (Contributory Parent (Temporary)) visa to a contributory parent newborn child;

(k)a decision to refuse to grant a Subclass 884  (Contributory Aged Parent (Temporary)) visa to a contributory parent newborn child;

(l)      a decision to refuse to grant a Subclass 457 (Temporary Work (Skilled)) visa to a non-citizen if:

(i)      the non-citizen is outside Australia at the time of application; and

(ii)the non-citizen was sponsored or nominated, as required by a criterion for the grant of the visa, by:

(A)      an Australian citizen; or

(B)      a company that operates in the migration zone; or

(C)      a partnership that operates in the migration zone; or

(D)      the holder of a permanent visa: or

(E) a NZ citizen who holds a special category visa;

(la)      a decision to refuse to grant a Subclass 489 (Skilled— Regional (Provisional)) visa to a non-citizen if:

(i)      the non-citizen is outside Australia at the time of application; and

(ii) the non-citizen was sponsored or nominated, as required by a criterion for the grant of the visa, by:

(A)      an Australian citizen; or

(B)a company that operates in the migration zone; or

(C)a partnership that operates in the migration zone; or

(D)      the holder of a permanent visa; or

(E)a NZ citizen who holds a special category visa;

(m) a decision under Reg 1.20AA(2) to refuse to approve a person or an organisation as a sponsor of a temporary visa applicant;

(n)      a decision under subsection 140GA(2) of the Act not to vary a term specified in an approval.

Reg 4.10(1)

 

(d)      if the Part 5-reviewable decision is prescribed under subsection 338(9) of the Act — starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.

 

Reg4.02(4A) For Reg 4.02(4) paragraph (4)(a), the decision is not a Part 5-reviewable decision if the decision relates to a person:

(a)      whose application for approval as an approved sponsor in relation to the standard business sponsor class has been refused; and

(b)      in making the decision, the Minister did not consider the criteria at paragraphs 2.59(d) and (e).

[Reg 2.59(d) & (e) concern the training benchmarks]

Note: The Minister is required to consider the criteria at Reg 2.59(d) & (e) only if the applicant is lawfully operating a business in Australia.

 

Reg 4.02 (4B)      For Reg 4.02 (4)(d) & (h), the decision is not a Part 5-reviewable decision:

(a)      if the decision relates to a person who is:

(i)      a standard business sponsor; or

(ii)      a former standard business sponsor; and

(b)      either:

(i)      in making the decision under subsection 140E(1) of the Act (whether to approve the person as a standard business sponsor), the Minister did not consider the criteria at paragraphs 2.59(d) and (e); or

(ii)      in making the decision under subsection 140GA(2) of the Act (whether to vary the terms of approval), the Minister did not consider the criteria at paragraphs 2.68(e) and (f) [ie  the training benchmarks].

 

Note: The Minister is required to consider the criteria at Reg 2.59(d) & and (e) or Reg 2.68(e) & (f) only if the applicant is lawfully operating a business in Australia.

 

[Note: similar requirements as above for Reg 4.02 (4)(n)]

 

 

 

Note the additional limitation found in Reg 4.02(5) which defines who may make the application for review to the MRT (Reg 4.02(4) is set out in the left column immediately above):

 

Reg [4.02] (5)      For paragraph 347(2)(d) of the Act, an application for review of a decision mentioned in Reg 4.02(4) may only be made by:

(a)      in the case of a decision mentioned in paragraph (4)(a) — a person to whose application the decision relates;

[(b) omitted]

(c) in the case of a decision mentioned in Reg 4.02(4)(d) — the approved sponsor who made the nomination;

(d)      in the case of a decision mentioned in Reg 4.02 (4)(e) — the employer to whose nomination of a position the decision relates;

(e)      in the case of a decision to which Reg 4.02 (4)(f) applies — the non-citizen in relation to whom the decision is made;

[(f) omitted]

(g)      in the case of a decision mentioned in Reg 4.02 (4)(h) — the person whose approval is cancelled or who has been barred;

(h)      in the case of a decision to which Reg 4.02 (4)(j) applies — the sponsor of the contributory parent newborn child;

(i)      in the case of a decision to which Reg 4.02 (4)(k) applies — the applicant;

[(j) omitted]

(k)      in the case of a decision to which Reg 4.02 (4)(l) relates — the sponsor or nominator;

(ka)      in the case of a decision to which Reg 4.02 (4)(la) relates — the sponsor or nominator;

(l)      in the case of a decision to which Reg 4.02 (4)(m) applies — the person or organisation to whose approval the decision relates;

(m)      in the case of a decision to which Reg 4.02 (4)(n) applies — the approved sponsor who applied for a variation of the term.

 

[1] Of course if the skilled visa application is lodged on-shore then the review rights would be covered by s 338(2).

Barbara Davidson