Part 3-The role of the TribunalsContents
The Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) are statutory bodies providing a final, independent merits review of visa and visa-related decisions made by the Minister for Immigration and Citizenship or by officers of the Department of Immigration and Citizenship, acting as delegates of the Minister. The Tribunals are established under the Migration Act 1958. The Tribunals' jurisdictions, powers and procedures are set out in the Migration Act and the Migration Regulations 1994. The Tribunals comprise Members (appointed by the Governor-General under the Migration Act for fixed terms) and staff (appointed under the Migration Act and employed under the Public Service Act 1999). All Members and staff are cross-appointed to both Tribunals and the Tribunals operate as a single agency for the purposes of the Financial Management and Accountability Act 1997. The MRT reviews a wide range of decisions in relation to visas other than protection visas. The RRT reviews decisions in relation to protection visas. A visa is required by anyone who is not an Australian citizen and who wishes to travel to, or remain in, Australia. The Migration Act and the Migration Regulations set out the criteria for visas. There are usually criteria specific to a visa, as well as general criteria such as those relating to health and character. A visa may be refused if a decision-maker is not satisfied that a person covered by the application meets the criteria for the visa. A visa may be cancelled if, for example, it was obtained by making false statements or if the visa holder has not abided by the conditions of the visa. The Tribunals are required to provide a mechanism of review that is fair, just, economical, informal and quick. Merits reviewMerits review is an administrative reconsideration of a case. The principal objective of merits review is to ensure that the correct or preferable decision is reached on the facts before the review body. The decision and reasons of the review body should also improve the general quality and consistency of decision making, and enhance openness and accountability of the particular area of government decision making. The Tribunals make 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, in addition to the Tribunals' specific powers. The Tribunals reconsider each case in light of the facts before them, the law and Government policy (to the extent that it is not inconsistent with the law). The Tribunals have the power to affirm the primary decision, vary the primary decision, set aside the primary decision and substitute a new decision, or remit (return) a matter to the Department for reconsideration with specific directions. For example, a matter may be 'remitted' if a Member is satisfied that a visa applicant meets one or more of the requirements for the visa. The Department may then need to undertake further processing in relation to other requirements for the visa. Applying for reviewThe Migration Act and the Migration Regulations specify which decisions the Tribunals can review, who may seek a review, how an application for review must be made, the time limits within which applications for review must be lodged and whether an application fee is payable. The rules vary depending on the type of matter. The Tribunals cannot accept an application for review which has been lodged outside the relevant time limit or which has been lodged by a person who is not entitled to apply for review. Depending on the decision under review, the person applying for review must be the visa applicant, the former visa holder, the sponsor or a close relative. The time limits for lodging an application to the MRT vary from 2 working days for some immigration detention cases to 7 working days for cancellation decisions and other immigration detention cases, 21 calendar days for other cases where the visa applicant is in Australia, and 70 calendar days for cases where the visa applicant is outside Australia. A fee of $1,400 is payable for all MRT applications other than for the review of decisions to refuse to grant or to cancel a bridging visa in relation to a person in immigration detention. Payment of the fee may be waived if payment would cause severe financial hardship. The time limits for lodging an application to the RRT are 7 working days for persons in immigration detention, and 28 calendar days for all other cases. There is no application fee when applying to the RRT, but a $1,400 fee becomes payable if the Tribunal affirms the primary decision. The MRT and RRT application forms contain detailed information about lodging an application for review, who can apply for review and the time limits. These are available from the Tribunals' website or from the Tribunals' registries. Form M1 is the general MRT application form. Form M2 is the MRT application form for persons in immigration detention. Form R1 is the RRT application form.
The conduct of reviewsRRT reviews are conducted by a single Member. MRT reviews are usually constituted by a single Member. The Tribunals' procedures are designed to provide a review process which is fair and just, and to ensure that an applicant can fully put his or her case. An applicant is entitled to:
Unless a favourable decision can be made on the papers, an applicant must be invited to a hearing. The hearing is an opportunity for the applicant to appear before the Tribunal to give oral evidence and present arguments on the issues arising in the review. The applicant may arrange for other persons to attend the hearing to give evidence and may be accompanied to the hearing by a friend, relative or other support person. Hearings are usually held in person at the Tribunals' offices, but may be held in other places or through video or telephone links. The Migration Act requires that proceedings of the MRT be generally open to the public. The Migration Act requires all proceedings of the RRT to be held in private. An interpreter is engaged if a person is not sufficiently proficient in English. Hearings are inquisitorial in nature and the Member takes an active role in asking questions of the persons appearing before the Tribunal. An applicant may appoint a representative to assist with his or her case. A representative can forward written submissions and written evidence to the Tribunals, contact the Tribunals on the applicant's behalf and may accompany the applicant to any meeting or hearing arranged by the Tribunals. At a hearing, the Member will ordinarily invite a representative to present arguments or submissions or to make comments on specific matters. With very limited exceptions, only a registered migration agent may provide immigration assistance. The Minister or the Department is not represented in Tribunal proceedings, but the Department may provide written submissions. A significant proportion of applicants are not represented and the Tribunals' procedures, and the information available for applicants, are aimed at assisting applicants who proceed without representation. The Member may in some cases make an oral decision at the end of a hearing. In all cases, the Member is required to provide a written decision statement, setting out findings and reasons. The MRT and the RRT are required to publish decisions that are considered to be of 'particular interest'.
Decision makingMembers are required to conduct an independent review and to reach an independent decision on the case. A Member must apply the correct law and is bound by relevant court decisions. A decision made by a Member in one case does not bind Members in other cases. However, consistency is highly desirable and it is generally expected that a decision in a particular case would be consistent with other lawful decisions in like matters. Members need to maintain knowledge of changes in relevant legislation, country information, case law and policy, and regularly attend and participate in professional development activities, conferences, training courses and peer discussions. The Tribunals place a high priority on the sharing of information across the organisation, primarily through the Tribunals' intranet, the delivery of professional development and training and promoting discussion of issues between Members at national and local levels. The Legal Services Section provides Members with relevant, current and authoritative legal information, and updates, organises and indexes holdings of information for maximum accessibility. Legal officers are available to provide oral and written advice to Members on case specific and migration, refugee and administrative law issues. The Research and Information Section provides Members with relevant, current and authoritative country and general information. Research officers respond to queries from Members, and also update, organise and index holdings of information for maximum accessibility. Generally, all country and general information used in decision making must be able to be cited and made publicly available. An important resource is information provided by overseas missions of the Department of Foreign Affairs Members have access to a wide range of information available in the Tribunals' library, to Government, intergovernmental and non-government sources of country information; and to specialist journals and international newswire services. All Members have electronic access to a range of external and internal information products, including:
Matters reviewed by the MRTThe MRT can review decisions relating to a wide range of visas. Reviewable decisions include decisions to refuse to grant visas, to cancel visas, to refuse to approve sponsors, and to refuse to approve a nominated position or business activity. Bridging visas are granted to provide temporary lawful status to non-citizens in Australia, for example while a temporary entrant is awaiting the outcome of an application for permanent residence. Visitor visas are granted to tourists and to persons visiting relatives in Australia. Student visas are granted to persons enrolled at schools, colleges and universities in Australia. Temporary business visas are granted for four years to persons whose proposed employment or business activities will contribute to the creation or maintenance of employment within Australia, the expansion of Australian trade, an improvement in links with international markets and/or greater competitiveness in the economy. Permanent business visas are granted to successful business people who obtain a substantial ownership interest in a new or existing business in Australia and actively participate in that business at a senior management level. Skilled visas are granted to persons in skilled occupations who have the education, skills and employability to contribute to the Australian economy. Partner visas are granted to partners of Australian citizens or permanent residents. Family visas are granted to children, parents, remaining relatives (persons who have limited family contacts other than relatives living in Australia), aged dependent relatives (elderly overseas relatives who have been financially supported by a close Australian relative for a reasonable period) and carers (persons who are able and willing to provide assistance needed by a relative in Australia). 
A typical hearing room. The Tribunals conducted 5,049 hearings during the year. Matters reviewed by the RRTThe RRT reviews decisions made within Australia to refuse to grant or to cancel protection visas. The review of these decisions usually involves a consideration of whether or not the applicant is a person to whom Australia has protection obligations. This involves consideration of whether he or she is a 'refugee' within the meaning of the 1951 United Nations Convention Relating to the Status of Refugees (as amended by the 1967 UN Protocol Relating to the Status of Refugees) (the Convention). The Convention was drafted between 1948 and 1951 with the principal aim of creating a regime to cope with the large numbers of people who had been displaced by the Second World War. The original definition permitted a person to be declared a refugee as a result of events occurring in Europe before 1 January 1951. However, the 1967 UN Protocol Relating to the Status of Refugees (the Protocol) removed the time and geographical limitation in the Convention's definition of a refugee. The Convention now extends to all persons who are refugees because of events occurring at any time in any place. Australia became a signatory to the Refugees Convention in 1954 and to the Protocol in 1973. The term 'refugee' is defined in Chapter 1, Article 1 of the Convention. In particular, Article 1A(2) of the Convention, as amended by the Protocol, defines a refugee as a person who:
Other provisions of the Convention may be relevant to an assessment of the entitlement to a protection visa. A number of provisions of the Migration Act expressly qualify certain aspects of the Convention. These provisions focus principally on the concepts of persecution and the nature and seriousness of certain crimes relevant to the determination of whether Australia has protection obligations to an asylum seeker. Many aspects of the Convention, however, are not specifically defined by the legislation and must be interpreted in accordance with established legal principles. Vision, purpose and valuesThe Tribunals provide an independent and final merits review of decisions. The review must be fair, just, economical, informal and quick. We seek to treat all those with whom we deal with courtesy, respect and dignity. The Tribunals' Plan, Member Code of Conduct, Service Charter and Interpreters' Handbook promote these values. All of these documents are available on the Tribunals' website. Staff are also bound by the Australian Public Service Values and Code of Conduct, as set out in the Public Service Act. Membership as at 30 June 2008
Staff Organisational Chart as at 30 June 2008
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