Book Extract: Judge and Jury [Updated May 2022]

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Excerpt from The Immigration Game – The Book

Judge and Jury

Your application might be handled by more than one decision-maker during the course of its processing. Whilst there maybe a number of handlers of your case, there’s only ever one ultimate decision-maker when the decision is made on your application.

There are a number of decision-makers who decide your application.

Who the decision-maker is and how many decision-makers may be involved in deciding the merits of your case depends on whether you are an applicant who makes a valid application inside Australia, outside Australia or if you arrive as a so-called boat person, usually via Ashmore reef and Christmas Island. (The Department calls these arrive by boat applicants Unauthorised Maritime Arrivals or UMAs) 

If you make a valid application onshore you can usually expect that the first decision-maker will be the Department or more precisely its delegate of the Minister inside the Department. If you receive an unfavourable decision and you have an appeal right, then the second decision-maker will be the Tribunal, or in some cases, two members of the Tribunal. If you make an application outside Australia, and you don’t have any sponsor, you can usually expect to have no appeal rights. This means that the only decision-maker you will encounter is a delegate of the Minister. 

In the case of Unauthorised Maritime Arrivals, then the first decision-maker will be a delegate of the Department and for a cohort of applicants known as “Fast Track Applicants” the second potential decision-maker if you receive an unfavourable decision, would be a member or members of the Immigration Assessment Authority (IAA). The IAA was set up specifically to conduct reviews of fast track reviewable decisions. Fast track reviewable decisions are those decisions to refuse to grant a protection visa to a fast track applicant.”

Finally, I note that in the case of an unfavourable decision on a visa made by the AAT, you will typically have an opportunity for making an application for ministerial intervention although only a very very small percentage of such applications are successful. Notably, there is no compulsion on the Minister to act upon any application made for intervention and you typically can’t appeal a decision by the minister not to intervene. 

So it is only the decision-makers above who can consider the merits of your application. What about the Courts?

The courts will not consider the merits of your application. Merits review by the courts of immigration decisions is generally impermissible. Seriously? Yes! Seriously.

What courts can review is whether or not the decision making itself is infected with any legal error. The Courts can be asked to decide whether or not these other decision-makers have done their job properly. They can be asked to determine whether or not delegates and members have acted within their powers and whether they have made a decision that is wrong in the legal sense. 

I will speak about legal or judicial error more in later chapters but for present purposes know that it is the Minister’s delegate, the Tribunal and in very limited cases, the Minister personally that are your judge and juror. 

Sometimes there is no decision-maker at all, yet you get a visa granted. For example, children born in Australia with neither parent being an Australian citizen will get the visa held by their parents at the time when they are born. Confusing if the parents do not hold the same visa

Let’s take a closer look at the Department.

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