Immigration Right

So what immigration rights are there? A visa application will only receive a favourable decision if the applicant meets all the criteria of the particular visa. Because these criteria are contained in laws (the Migration Act and Migration Regulations), the Department of immigration has not discretion to grant a visa for a person who fails to meet the criteria for the particular visa. The Department's decision-maker does have some discretion where there are interpretations of concepts, e.g. "exceptional appointment, exceptional circumstances", and in the exercise of this discretion the decision-maker relies on the policy documentation.

 

However, immigration rights are found in the provision that if a visa applicant meets all the criteria (and quotas and capping are observed) the visa must be granted.

 

The system is further restricted by the legislation appointing a Department decision-maker, a delegate of the Minister for Immigration. Therefore, the decision made by the decision-maker is the decision of the Minister.

Immigration rights are also found in the legislation providing for the review and appeal concerning a refused visa. The law provides that a visa application for a prescribed list of visas, who is refused, has the right of a review or appeal. Generally, the reviewable decisions are those whose visas have some connection to Australia, e.g. visas sponsored by Australians. The Migration Review Tribunal, the Administrative Appeals Tribunal, the Federal Court of Australia and the High Court of Australia are the fora for reviews and appeals. In some instances, it is appropriate to make application for intervention by the Minister for Immigration.

Immigration rights, as the Australian system itself, are ruled by strict legislation and policy. To determine whether an applicant has particular rights in a particular situation, it is essential to consider closely the migration law, policy and practice.