Ask Department to Reverse Decision
There is no power in the Migration Act to revisit or remake a decision, even if a mistake has been made. In fact, s69 prevents officers from doing so. In most circumstances, remaking a decision is an unlawful exercise of power. In this context, a “decision” means the “final” decision to grant, refuse to grant or cancel a visa. Such a decision is made from the instant the decision is committed to paper or electronic record, with the exception of automatic visa cancellation under s137J.
There is, however, a line of reasoning by the High Court that allows the department to revisit a decision in certain circumstances where a court would grant relief on the basis that it was affected by "jurisdictional error". As a general guide, jurisdictional error occurs if a decision maker does not correctly exercise their powers and responsibilities. This is a complex and evolving area of law, discussed in more detail below.
[extracted from PAMS]
JURISDICTIONAL ERROR
Jurisdictional error is a type of legal error. As a general guide, jurisdictional error occurs if a decision maker does not correctly exercise their powers and responsibilities. However, the courts’ view of what constitutes jurisdictional error is constantly evolving. As four examples, the courts have found jurisdictional error in situations where the delegate:
l had no power to make the decision in the first place
l failed to provide the person who is the subject of the decision with procedural fairness (whether under a statutory code of procedure or under the common law)
l took into account irrelevant consideration
l applied an agency policy inflexibly and failed to consider whether to exercise a discretion given by legislation.
To properly exercise their jurisdiction, delegates must at least:
l ensure that they have the power to make the decision; and
l correctly understand and apply the legislative test that must be applied to that case; and
l identify all the elements of that test and consider only material that is relevant to those elements; and
l afford the person procedural fairness; and
l ensure that each decision in the process is not biased; and
l ensure that each decision in the process would be reasonable to the average impartial observer.
[extracted from PAMS]
FUNCTIONS OF AAT – WHERE THERE IS NO JURISDICTIONAL ERROR
The AAT reviews a decision “on the merits”. This means that we take a fresh look at the facts, law and policy relating to the decision and arrive at our own decision. The AAT must make the legally correct decision or, where there can be more than one correct decision, the preferable decision.
The AAT has the power to:
l affirm a decision
l vary a decision
l set aside a decision and substitute a new decision, or
l remit a decision to the decision-maker for reconsideration.
Their aim is to provide a review process that:
l is accessible,
l is fair, just, economical, informal and quick,
l is proportionate to the importance and complexity of the matter, and
l promotes public trust and confidence in the decision-making of the Tribunal.
[extracted from AAT]
THE HIGH COURT DECISION
The leading case for correction of administrative errors is Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 67 ALD 615; 187 ALR 117; [2002] HCA 11; BC200200801 (“Bhardwaj”).
In Bhardwaj, the Migration Review Tribunal (MRT) notified its decision to the applicant. However, the applicant’s solicitors had forwarded a request to the MRT to adjourn a hearing because the applicant was ill. The adjournment request was not drawn to the Member’s attention at the time he made the decision. The MRT re-opened the decision, held a hearing and made a decision favorable to the applicant. The court held that s 33(1) of the Acts Interpretation Act 1901 (Cth) was the source of power for the MRT to re-open its decision. Section 33(1) provides:
Where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.
Although the legislation was designed to ensure finality in decision-making, the majority of the High Court was of the view that the interests of good administration were in favor of permitting a power of self-correction when there was no express prohibition against doing so. This ensured that the Tribunals and courts would not be burdened with cases that could easily be rectified at the primary level.
A request to vacate a primary decision should be made to a senior manager and set out clearly and concisely the factual and legal issues as well as the relevant case law. However, it must be pointed out that senior managers at DHA cannot legally direct a case officer to reach a particular decision. All that they can do is to clarify any policy guidance and legal issues.
It should be noted that all requests for vacation are referred to the DHA’s Legal Branch in Canberra and can take up to four weeks to be considered. This means that it is highly advisable for a review application to be lodged to protect the client’s position or simply re-lodge where this recourse is available.