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Further Information for Representatives of Non-Citizens in Australia seeking review of a decision under section 501 of the Migration Act

This information sheet is for lawyers and migration agents representing a non-citizen in Australia who is the subject of a decision by a Delegate of the Minister for Immigration and Multicultural Affairs under section 501 of the Migration Act 1958. It sets out the requirements for making an application for review to the Administrative Appeals Tribunal (AAT) and outlines how the AAT will deal with the application.

Note: A strict time limit applies to the finalisation of an application for review of a decision under section 501 of the Migration Act 1958 . The AAT must make a decision on the application within 12 WEEKS after the day on which the person was notified of the decision or the AAT will be taken to have affirmed the decision under review.

 

MAKING AN APPLICATION TO THE AAT

What is the time limit for making an application to the AAT?

If the 9th day after notification is a Saturday, Sunday or Public Holiday, the person can lodge an application on the next working day.

Note: The AAT has no power to extend time for making an application for review.

What documents must accompany the application for review?

An application for review must be accompanied by, or by a copy of, the following documents:

• the notice under section 501G(1) of the Migration Act 1958 notifying the person of the decision; and

• one of the sets of documents given to the person at the time the person was notified of the decision.

Is an application fee payable?

The full fee for making an application is $777. However, a reduced fee of $100 is payable instead of the full fee if:

• the person is in prison or in immigration detention;

• the person holds a card issued by the Department of Families, Housing, Community Services and Indigenous Affairs or the Department of Veterans' Affairs that certifies entitlement to a Commonwealth health concession; or

• the person has been granted legal aid.

The AAT can also order that a reduced fee of $100 is payable if payment of the full fee would cause financial hardship to the person. Application forms and explanatory material are available from the AAT.

 

WHAT HAPPENS NEXT?

The AAT will send a letter acknowledging receipt of the application within 2 working days of lodgement. The AAT will notify the Department of Immigration and Citizenship that an application has been made.

The AAT will hold a Telephone Directions Hearing approximately 3 weeks after receiving the application. Three weeks have been allowed because the Department has 14 days after being notified that an application has been made to lodge with the AAT any relevant documents containing information that is not to be disclosed to the applicant. The AAT will not hold any preliminary conferences.

What are the arrangements for the Telephone Directions Hearing?

The date and time of the Telephone Directions Hearing is set out in the letter acknowledging receipt of the application. The Member of the AAT will telephone you and an advocate from the Department of Immigration and Citizenship at the appointed time.

Please ensure that you provide the AAT with the telephone number that the Member will call to reach you for the Telephone Directions Hearing.

If you believe it would be beneficial to have the applicant involved in the Telephone Directions Hearing but the applicant is in prison or immigration detention, you can contact the AAT and request that the applicant participate in the Telephone Directions Hearing. The AAT will arrange to include the applicant in the conference call but you must provide the number the AAT will need to call to reach the applicant.

What if the applicant requires an interpreter?

If the applicant needs an interpreter at any stage of the application, the AAT will arrange and pay for an interpreter. If you have not already told us that the applicant needs an interpreter, please contact the AAT and let us know the language that the applicant speaks.

 

TELEPHONE DIRECTIONS HEARING

The purpose of the Telephone Directions Hearing is to allow the AAT and the parties to discuss the issues in the application, to explore prospects for settlement and to plan the further progress of the application.

It is important that you have with you the set of documents that the Department gave to the applicant when the applicant was notified of the decision. The Member of the AAT will talk about what is in these documents.

The following issues may be raised at the Telephone Directions Hearing:

• the adequacy of the material before the AAT and any further information the AAT may require to consider the merits of the case;

• any further information the parties intend to provide to the AAT;

• whether the AAT will hold a Hearing or determine the application on the papers;

• the effect of the provisions of the Migration Act 1958 that require disclosure of material that supports the applicant's case before a Hearing;

• the witnesses each party intends to call at a Hearing;

• any requests to have the evidence of a witness taken by telephone or video;

• any requests for a confidentiality order under section 35 of the Administrative Appeals Tribunal Act 1975;

• the date by which the AAT must give its decision.

Any directions that the Member makes at the Telephone Directions Hearing will be recorded in writing and a copy will provided to each party. If necessary, the Member may list a further Telephone Directions Hearing.

 

HEARING

When will the Hearing be?

If there is a Hearing, it will take place on the day and at the time set out in the letter sent acknowledging receipt of the application.

If you have any difficulties with the dates for the Hearing, you should write to the AAT as soon as possible setting out why the dates are unsuitable and request alternative dates. The AAT will consider the request to change the dates and advise you whether your request has been granted.

What do you need to do to prepare for the Hearing?

The Migration Act 1958 contains special rules relating to the disclosure of material that supports an applicant's case prior to any Hearing. You must follow these rules if you want the AAT to take this material into account when it makes its decision.

Note: Business day is defined to mean a day that is not a Saturday, a Sunday, a public holiday in the Australian Capital Territory or a public holiday in the State or Territory in which the application has been lodged.

You can fax any written statements or documents to the Director of Litigation, Department of Immigration and Citizenship on (02) 6264 1401. Alternatively, you can send the documents to the following address:

Director of Litigation
Legal Branch
Department of Immigration and Citizenship
PO Box 25
BELCONNEN ACT 2616

Please fax or send copies of anything you send to the Department to the AAT. 

What are the arrangements for the Hearing?

If the applicant is in prison or immigration detention at the time of the Hearing, the AAT will arrange for the applicant to be brought to the AAT's premises for the Hearing.

Where evidence is to be given either by telephone or video link, you will need to make all necessary arrangements with the witness and provide the AAT with details of the witness, location, telephone numbers and the date, time and estimated duration of their evidence. You will be liable for the costs of the telephone or video link subject to the discretion of the Member to waive the charges. If no specific direction as to waiver is obtained, you can apply to the Registrar or District Registrar to waive the charges on the ground of financial hardship.

Will the Hearing be in public?

Hearings are generally held in public. However, if the AAT considers there are good reasons for doing so, all or part of the Hearing can be held in private or only certain people will be permitted to be in the room at a Hearing. You should raise this at the Telephone Directions Hearing or make a request in writing.

 

THE AAT'S DECISION

The AAT will give its decision either at the end of the Hearing or reserve its decision and publish it a later date. If the AAT reserves its decision, the AAT will contact you when the decision is ready. You can come and collect the decision or the AAT will send it to you.

The AAT's decision is a public document once it has been published. If you have concerns about any of the information that may appear in the reasons for decision being publicly available, you can request under section 35 of the Administrative Appeals Tribunal Act 1975 that the AAT prohibit or restrict publication of:

• the name of the applicant or any witnesses; or

• evidence given before the AAT or matters contained in documents lodged with, or received in evidence by, the AAT.

The AAT will make such a direction if it considers there are good reasons for doing so. Any request for such a direction under section 35 should be made at the Hearing.

 

FURTHER INFORMATION

If you would like further information on any aspect of the AAT's procedures for dealing with applications for review of a decision under section 501 of the Migration Act 1958, please contact the AAT office in your State or Territory.