February 2021
The Review includes news about the AAT and summaries of a selection of our published decisions.
This month we take a look at the options members of the public have to attend hearings and also examine what happens when the AAT remits a decision back to a department or agency.
Previous issues of The Review are available on our website.
Members of the public attending hearings
Like courts and tribunals around the world, the AAT has adapted to continue to provide access to its essential services over the past year. We have focused on progressing cases and have made a range of adjustments to support parties while there is an impact of COVID-19 on services. In addition to accessibility, our commitment to transparency also remains important. We have adjusted our approach to help members of the public observe our hearings, where possible, even when those hearings are being held by phone or video conference.
There are many useful resources on the AAT website about members of the public attending AAT hearings. This includes detail about:
- The hearings that are usually public
- What to do if you want to attend a public hearing that is listed for phone or video
- Where to send a request to attend a hearing, including if you work in the media
- What we expect of you, as an observer of a public hearing that is being undertaken by phone or video conference.
The AAT strives to ensure that we can perform our functions and deliver our services safely throughout the pandemic while aligning with local requirements in each of our offices. Stay up to date with our regularly revised COVID-19 arrangements.
Last month, we focused on what happens when a decision handed down by the AAT is sent back, or remitted to the Tribunal, after a party has appealed it to a higher court.
In this issue, we explore remittal decisions with a focus on the AAT’s power to remit matters back to the original decision-maker for further consideration.
In AAT divisions other than the Migration and Refugee Division (MRD), the Administrative Appeals Tribunal Act 1975 (the AAT Act) grants members of the Tribunal the power, at any stage of a review, to remit a decision to the agency or department who made it for reconsideration.
When a member decides to remit a decision back to the original decision-maker, they may point out the area of law or policy that should be re-examined.
Ultimately, the AAT’s role is to put itself in the shoes of the original decision-maker. This means members review decisions afresh with reference to the same laws and policies.
For reviews in the MRD, where the review is of a decision to refuse to grant a visa, the Migration Act 1958 gives the Tribunal the power to remit a matter to the relevant department for reconsideration in accordance with such directions or recommendations as are permitted by the Migration Regulations 1994 (the Regulations). Generally, permissible directions under the Regulations are that the applicant is taken to have satisfied a specified criterion or criteria for the grant of the visa.
Below are three examples of recent migration decisions that the AAT remitted back to the original decision-maker where the member provides their guidance and reasoning:
Conti (Migration) [2020] AATA 4706
The AAT needed to decide if the applicant and sponsor were genuine in providing companionship and emotional support to each other and if they saw their relationship as long-term.
Juma (Migration) [2020] AATA 4573
Did the AAT find that this Kenyan hairdresser was likely to overstay her visitor visa to Australia?
Thota (Migration) [2020] AATA 4222
More than 28 days had passed since this applicant's last substantive visa expired. Is he still eligible to apply for a partner visa during this time?
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.
Compensation
Kingshott and Trident LNG Shipping Services (Compensation) [2020] AATA 4848
In this decision, the AAT had to decide if a seafarer's illness resulted from second-hand smoke he was exposed to while at sea in his 60s or was the result of a lifelong addiction.
Citizenship
Dev and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4479
In this decision, the AAT had to decide if a husband’s character satisfied the requirements for Australian citizenship.
Migration
Bayah (Migration) [2020] AATA 4876
In this decision, the AAT had to decide if a couple are genuine spousal partners.
Ghelichkhani (Migration) [2020] AATA 4572
Is a pensioner from Iran genuine in her desire to visit her family in Australia, or is she likely to stay longer than her visa allows?
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.
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