February 2020 The Review includes news about the AAT and summaries of a selection of our published decisions. Previous issues of The Review are available on our website. TYPES OF DECISIONS WE REVIEWEach year, the Administrative Appeals Tribunal (AAT) receives thousands of applications for review. In the 2018–19 financial year, for example, we received just over 60,000 applications. Interestingly, during the same period, we were unable to review 15 per cent of the applications received because they did not meet the requirements for a valid application. This is because the AAT does not have a broad power to review all government decisions. In fact, we can only review a decision where the legislation the decision was made under explicitly provides for the mechanism of an AAT review. This is the case in more than 400 Commonwealth Acts. The AAT’s most commonly reviewed decisions are about:
We also review a wide range of other decisions, including decisions about aged care, bankruptcy, childcare services, civil aviation, freedom of information, paid parental leave, passports and unpaid employment entitlements. Decisions made under certain Norfolk Island laws (including decisions about building, land valuation and planning) are also reviewable by the AAT. For more information about the types of decisions classified as ‘no jurisdiction’, see our Annual Report. We also maintain a list of decisions made under Commonwealth Laws and Norfolk Island Laws that may be reviewable by us. MISLEADING INFORMATION IN VISA APPLICATIONSIn the last edition of The Review we looked at how the AAT reviews student visa refusal decisions. In this edition, we will look at the way the AAT must apply a part of the law called the Public Interest Criterion (PIC) 4020 when reviewing visa decisions. PIC 4020 is a requirement considered by decision makers for the granting of most visas. PIC 4020(1) requires that visa applicants do not give bogus documents or false or misleading information in relation to their visa applications or a recent visa grant. PIC 4020(2) requires that visa applicants and their family members have not been refused a visa on the basis of PIC 4020(1) in the period starting three years before the visa application and ending when the decision on the visa is made. PIC 4020(2A) requires visa applicants to satisfy the decision maker as to their identity. PIC 4020(2B) requires that visa applicants and their family members have not been refused a visa on the basis of PIC 4020(2A) in the period starting ten years before the visa application and ending when the decision on the visa is made. When reviewing a decision to refuse a visa on the basis that the applicant does not satisfy PIC 4020, the AAT needs to first consider whether the requirements for this criterion have been met. In cases where the requirements have not been met, the AAT then needs to decide whether there are grounds to waive those requirements. PIC 4020(1) and (2) can be waived if there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa. PIC 4020(2A) and (2B) cannot be waived. For more information, please read our PIC 4020 fact sheet. 1713412 (Migration) [2019] AATA 5275 (22 November 2019) The AAT remitted the matter to the Department of Home Affairs for reconsideration citing compassionate or compelling reasons to waive requirements that visa applicants do not give bogus documents or information that is false or misleading. Deng (Migration) [2019] AATA 2174 (5 March 2019) In this matter, the AAT found the applicant had provided bogus documents with their student visa application and so affirmed the decision that the applicant did not meet the Public Interest Criterion 4020 (PIC 4020). Our staff produce decision summaries for a selection of AAT decisions that have been published in full on the AustLII website. We use these summaries to offer an insight into our decision-making processes and to demonstrate the diversity of our work. For the complete facts and reasons, please view the full written decisions on AustLII. View our recent decision summaries below. Migration and RefugeeAyalew (Migration) [2019] AATA 4035 (16 September 2019) The applicants were unable to satisfy the AAT that they intended to comply with all the conditions of a visitor (Sponsor Family) visa. The AAT affirmed the decision not to grant the visas. Henriques De Oliveira (Migration) [2019] AATA 5143 (20 November 2019) In this matter, the applicants did not meet the requirements for a Subclass 457 temporary business entry visa due to amendments to the temporary work Subclass 457 visa program. The AAT affirmed the Department’s decision. Krishna Kant Pty Ltd ATF The Trustee for the DNP Trust (Migration) [2019] AATA 304 (15 January 2019) The applicant sought a review to approve the nomination of a position in Australia. The AAT was satisfied that there was a genuine need for the paid employee and that they met the requirements for approval of the nominated position. Jamshaad (Migration) [2020] AATA 96 (22 January 2020) The applicant was a three-year old with significant disabilities and care needs. The AAT set aside the decision under review and remitted it to the Department of Home affairs for reconsideration. GeneralRao and Minister for Home Affairs (Citizenship) [2019] AATA 4475 (5 November 2019) The applicant sought an extension of time on their citizen application. The AAT found the applicant did not meet the general residence requirements and therefore would likely not have succeeded on a full merits-based hearing. Koka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 5289 (10 December 2019) The applicant sought a review of a refusal of his application to become a citizen by descent. The decision was remitted for reconsideration with the direction that his eligibility stemmed from an adopted parent being an Australian citizen. Social Services and Child SupportTerry and Child Support Registrar (Child support) [2019] AATA 2532 The applicant sought an extension of time for an AAT first review of a decision regarding child support payments for school fees. The AAT considered the extension of time unfair to other applicants and refused the application. The AAT Bulletin is a weekly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Taxation & Commercial and Veterans’ Appeals Divisions. The Bulletin also regularly includes a sample of decisions recently published in the AAT’s Migration & Refugee Division and Social Services & Child Support Division. What do you think? Write to us at Communications@aat.gov.au to provide editorial suggestions and feedback. |