Decisions to refuse to grant, or to cancel, a protection visa are generally reviewable by the MRD-AAT. This is an independent administrative tribunal which has the power to look at the claim from scratch. This is known as ‘merits review’.
Merits review by the MRD-AAT involves the reconsideration of a case by a Tribunal Member, who takes into account the law, facts and government policy as they stand at the present time to determine afresh whether Australia has protection obligations to an asylum seeker. In reconsidering a case, the Member effectively ‘stands in the shoes’ of the primary decision-maker (an immigration official). The Member is bound by the same legal framework as the primary decision-maker and exercises the same powers and discretions conferred on the primary decision-maker. However, the Member is not limited to the material and evidence before the primary decision-maker: the Member considers all of the evidence available, including any additional evidence from the applicant and information from other sources (such as information about conditions in the applicant’s country of origin, which might have changed since the original decision was made). The MRD-AAT may affirm the original decision, vary it, set it aside and substitute a new decision, or return a matter to the Department for reconsideration, with specific directions or recommendations.
The aim of merits review is to ensure that the ‘correct or preferable’ decision is reached in a particular case. In this sense, it can be distinguished from judicial review (by a court), which is concerned only with the very limited question whether a decision was affected by jurisdictional error. Judicial review does not permit reconsideration of the merits of the case, both because the merits are irrelevant to the issue of whether there has been a jurisdictional error and because the judiciary has not been given the task of determining an outcome on the merits.
Although the MRD-AAT can make a decision favourable to an applicant without a hearing, in practice the it generally conducts a hearing. In 2013–14, the Refugee Review Tribunal made only one per cent of its decisions without a hearing. The process is ‘inquisitorial’ rather than ‘adversarial’, in that the Member identifies the relevant issues, asks questions directly of the applicant, and can initiate investigations or inquiries to supplement the evidence.
Some classes of asylum seekers do not have the right to merits review by the MRD-AAT. In addition to irregular arrivals subject to the new ‘fast tracking’ process (see our ‘Fast tracking’ factsheet), exceptions include cases where the decision-maker believes the asylum seeker poses a security risk; where the decision-maker believes the asylum seeker has committed a war crime, a crime against humanity or peace, a serious non-political crime, or acts contrary to the principles of the United Nations; where the Minister has made a decision to cancel a visa personally; where the decision concerns an asylum seeker not within Australia at the time the decision was made; and where the Minister has issued a conclusive certificate on the grounds of national interest which prevents the decision from being reviewed.
In July 2015, the Refugee Review Tribunal was merged with the Administrative Appeals Tribunal to create the Migration and Refugee Division of the Tribunal (MRD-AAT) (see our legislative brief on the Tribunals Amalgamation Bill 2014).