Once a fast track reviewable decision has been referred to the IAA for the review, the IAA must conduct a review that is efficient, quick, free of bias and consistent with the procedural requirements set out in the Migration Act 1958.
Review ‘on the papers’
The IAA undertakes a limited form of merits review of matters referred to it. Generally, it conducts reviews ‘on the papers’. This means that with limited exceptions, it can only consider that material that was before the Department of Home Affairs (the Department) when it made its decision. There is no hearing.
A referred applicant can provide the IAA with a written submission as to he or she disagrees with the Department’s decision or identifying any claim or matter that was presented to the Department that it overlooked. For more information on making submissions see Practice Direction 1: Practice Direction for Applicants, Representatives and Authorised Recipients
While the IAA has no duty to do so, it may get, request or accept any new information that was not before the Department. The IAA may request new information be given to it in writing or at an interview.
However, the IAA may only consider such information when making its decision if there are exceptional circumstances to justify considering the information. If a referred applicant gives the IAA new information, the IAA can also only consider that information if he or she can show that the new information:
- was not, and could not, have been provided to the Department before it made its decision to refuse the protection visa, or
- is credible personal information which was not previously known and, had been known, may have affected how the applicant’s protection claims were considered by the Department.
In limited circumstances, the IAA may invite a referred applicant to comment on new information it has received that would the reasons or part of the reasons for affirming the Department’s decision. A referred applicant may be asked to do so at an interview or in writing.
For more information on providing new information or comments on new information, see Practice Direction 1: Practice Direction for Applicants, Representatives and Authorised Recipients.
In limited cases, a referred applicant may be invited to attend an interview to give specified new information or to comment on new information that may be adverse to his or her case. If invited to an interview, the IAA will provide an interpreter if one is required. Applicants will need to advise the IAA if interpreting assistance will be required for an interview.
Completing the review
The review process is expected to take 6 weeks to complete, or longer if new material is to be considered.
Once the IAA has considered the material provided to it by the Department, and any new material is able to consider, it will make a decision.
The IAA can:
- affirm the fast track reviewable decision to refuse the referred applicant a protection visa, or
- remit the matter to the Department for reconsideration with directions, including that the referred applicant is a refugee within the meaning of subsection 5(1) of the Migration Act 1958.
The IAA has no power to grant a protection visa.