Merit Review, Mandatory Cancellation and Revocation of Cancellation


Important to analyse at this point is what is the role of the Administrative Appeals Tribunal (AAT)?

Broadly speaking, if the Minister makes a decision personally there is no merit review although there is always judicial review. The Federal Circuit Court has no jurisdiction over decision made by the Minister personally, applications for judicial review have to be made to the Federal Court.

If a decision is made by a delegate then there is a right of review to the AAT (s 500(1)(b).  But even then the minister retains a residual power to overturn a decision of the AAT in favour of a former visa holder (see 501BA] (2) where the minister can revoke an AAT decision ‘in the national interest’!  Again there are still rights of judicial review against any personal decisions by the Minister.

The merit review power of the AAT against a decision of a delegate not to revoke the mandatory decision to cancel is found in s 500(1)(ba) which identifies, “decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa” as within the set of decisions the AAT can review.

But there is no merit review against the mandatory cancellation decision (see s 500 4A(c) which takes away the jurisdiction of the AAT in relation to mandatory cancellation decisions including –

(c)   a decision of a delegate of the Minister under subsection 501(3A) to cancel a visa.)

Merit review will be dealt with in more detail later.