Merits review is an administrative reconsideration of a case. A merits review body makes decisions within the same legislative framework as the primary decision maker, and may exercise all the powers and discretions conferred on the primary decision maker.
We have the power under the Migration Act 1958 to:
- affirm (not change) the primary decision
- vary the primary decision
- set aside the primary decision and substitute a new decision
- remit (return) a matter to Department of Immigration and Border Protection for reconsideration with specific directions.
The Migration Act 1958 and the Migration Regulations 1994 specify the decisions that we can review, who may seek review of a decision, how an application for review must be made, the time limits within which applications for review must be lodged, and the application fee payable. These rules may vary depending on the type of decision and whether a person is in immigration detention. We have no power to make exceptions.