Can the tribunal send my visa refusal back to the department for another look?

The situation

I am currently living in Melbourne, Victoria, and I am feeling quite stressed about my residency status. Back in January, I applied for a specific subclass visa to stay in Australia permanently, but I received a formal refusal letter from the Department of Home Affairs on 14 March. I believe the officer made a mistake regarding my employment history and the labour I have contributed to my local community over the last three years. I have already lodged an application for a review with the Administrative Review Tribunal because I don't agree with their conclusion. My hearing is scheduled for late next month, but I am confused about what can actually happen during that meeting. If the tribunal members realise that the original decision was totally wrong, do they have the power to actually cancel that refusal and just tell the Department to redo the whole assessment based on new instructions? Or are they stuck only being able to say 'yes' or 'no' to my application without being able to send the paperwork back to the original decision-maker for a second chance?

Detailed Analysis

Regarding your specific situation in Melbourne, the ART is not limited to just saying 'yes' or 'no' to your application. If the tribunal members determine that the original decision made on 14 March was incorrect, they have specific powers to handle the error.

Under the law, the ART can "set aside the decision; and (b) remit the matter for reconsideration in accordance with such orders or recommendations of the ART as are permitted by the regulations"^[1]. To 'set aside' a decision means to cancel the legal effect of the original refusal. To 'remit' a matter means to send it back to the original decision-maker (the Department of Home Affairs) to be looked at again, often with specific instructions on how to handle it^[1].

This means that if the tribunal finds that your employment history or community contributions were wrongly assessed, they can effectively wipe the slate clean and order the Department to redo the assessment correctly. This is a specific power granted to the ART for reviewable migration decisions^[1].

It is important to note that while the ART has these powers, the specific way they order the Department to 'redo' the assessment is governed by regulations. Additionally, some specific types of decisions, such as those involving a 'conclusive certificate' from the Minister, may limit the ART's ability to review the matter^[2]. However, based on your description of a standard subclass visa refusal, the power to remit the matter appears to be available to the tribunal.

Statutory Citations

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