The AAT’s processes vary according to the type of decision we are reviewing. The differences reflect procedural requirements set out in the Administrative Appeals Tribunal Act, Migration Act and social services legislation as well as case management approaches we have developed to deal with the broad range of decisions we review. The main features of our procedures are outlined below.
Our procedures are intended to give an applicant, and any other party to a review, a reasonable opportunity to present their case. While parties may elect to be represented or assisted by a lawyer, migration agent, advocate or other person, a significant proportion of parties represent themselves and we have designed our procedures to facilitate their participation in the review. Details of the accessibility measures we employ, including the use of interpreters, can be found in Chapter 3 Our performance.
Steps in a review
When we receive an application that meets the application requirements, we notify the decision‑maker who must then give us a copy of the decision and all of the documents they hold that are relevant to the review. In divisions other than the Migration and Refugee Division, the decision-maker must also give a copy of these documents to the applicant and any other party. In the Migration and Refugee Division, the applicant may request a copy of the documents we hold in relation to their review.
In the Migration and Refugee Division and the Social Services and Child Support Division, the decision-making agency does not take part in the review. In the other divisions, the decision-maker is an active party.
A key feature of merits review is the opportunity for the applicant and any other party to give us new information to consider in the review. At different stages of the review process, we may invite or direct a party to give us information that will be relevant to the case. The AAT also has the power to require non-parties to give us documents that are relevant to a review or attend and give evidence to the AAT.
In some types of reviews, we hold conferences or directions hearings to talk to the parties about the issues and give directions about what the parties must do and by when to progress the case. When a review involves more than one party, we usually try to help them reach an agreed outcome without the need for a hearing, while ensuring steps are taken to prepare for a hearing in the event it cannot be resolved by agreement. As well as conferences, we use other types of alternative dispute resolution processes to resolve cases by agreement, including conciliation, mediation, case appraisal and neutral evaluation. In other types of reviews, the case is listed directly for a hearing.
The hearing gives an applicant, and any other party, an opportunity to provide evidence and present arguments about the decision under review. It also allows the AAT to ensure that all issues arising in the review are addressed. A hearing is conducted by the member or members directed by the President to constitute the Tribunal for the purposes of the review. The Tribunal may be constituted by one, two or three members but most reviews are conducted by a single member. The Tribunal is not bound by the rules of evidence and aims to conduct hearings with as little formality and technicality as is appropriate in the circumstances.
Hearings are held in person, by telephone and by video-link. They are conducted in public, unless the Tribunal directs that a hearing be held in private or legislation requires a private hearing. Hearings must be held in private in refugee cases, in applications for review of Australian Security Intelligence Organisation security assessments, in all cases heard in the Social Services and Child Support Division and in some taxation cases.
Following the hearing, the Tribunal makes a decision and must give reasons for that decision. The decision and reasons may be given orally on the day or they may be given in writing at a later date.
Directions, guides and guidelines
We prepare and publish a range of policy and procedure documents, designed to help parties and their representatives understand our processes and what is expected of them during a review.
The President issues practice directions and jurisdictional guides that explain the procedures that apply for particular types of applications. Other presidential directions and guidelines deal with particular aspects of our operations such as the allocation of cases to divisions, how the Tribunal is constituted for a review and the use of expert evidence. We have also developed process models that describe the stages of our alternative dispute resolution processes. Fact sheets are prepared to provide more targeted information in relation to particular types of cases.
The full suite of practice documents and fact sheets is on the AAT website.