Where receiving an adverse migration decision, in some circumstances, merits review of the decision may be available with the Administrative Appeals Tribunal (AAT). Strict time-limits apply to when a merits review application must be lodged with the AAT. The decisions that are specified for review and the time-frames applicable are prescribed with the Migration Regulations 1994 (Cth).
Merits review is a de novo reassessment of a decision made by the primary decision-maker. When conducting merits review, the AAT will reassess an application by standing in the shoes of the departmental delegate and making a fresh decision by applying the law to the facts of the case.
The nature of merits review generally requires the AAT member to consider the decision under review de novo and decide on what the member considers to be the correct and preferable decision at the time of the reconsideration and based on all relevant material before them.
The AAT will not examine the original decision and discern whether a mistake was made in the findings of fact or the reasoning. The task before the AAT is to consider the material tendered in evidence and the submissions made in relation to the application and then reach a decision in accord with the Act.
During the merits review process, applicants have the opportunity to present new information and further evidence to support their application claims. The AAT may make the same decision as the Department of Home Affairs, or it may reach a different decision on the facts. In specific circumstances, the AAT may remit the application back to the Department of Home Affairs for reconsideration with specific directions to the departmental delegate.
There are strict time limitations for applying for merits review of adverse migration decisions. The specific review period will depend on the type of decision that was made, however, the notification of decision correspondence issued by the Department of Home Affairs should contain the correct prescribed period. There are strict notification requirements that departmental officers must follow set out in the Migration Act 1958 (Cth).
Lex Lawyers can provide representation in all merits review matters for migration decisions. Where an adverse decision has been received, Lex Lawyers can provide accurate and understandable advice on the prospect of success for a merits review application with the Administrative Appeals Tribunal and provide specific advice in respect to all procedural matters regarding the merits review process.
