The first thing to consider when appealing a decision made by an administrative body to the Administrative Appeals Tribunal (“AAT”) is whether the AAT has jurisdiction to review the decision.
The AAT does not have the power to review any decision. The AAT can only review decisions where an Act, regulation or other legislative instrument states that the decision can be reviewed by the AAT.
A recent decision by the AAT found that a decision by the Secretary for the Department of Education under section 202(4A) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) to cancel the Applicant’s Child Care Benefit Approval was considered within the jurisdiction of the AAT. This decision illustrates a broad interpretation of the matters that are considered within the jurisdiction of the AAT.
Before going to the AAT
The first type of review that should be considered if you are not happy with a decision made by an administrative body is an internal review. For example, if you were not happy with a decision made by a government department there may be an avenue to have your decision reviewed by the government department before moving forward to the AAT on appeal.
Appeals to the AAT
There are two ways that an appeal can be made to the AAT. The first is through a merits review. A merits review is a reconsideration of your application where the person reviewing the matter still uses the same legislation and framework but looks at the application from the beginning.
This type of review allows the administrator to look at the situation freshly and consider the matter from the beginning. The possible outcomes of a merits review can include the reviewing body agreeing with the original decision, setting aside the decision and making a different decision, varying the decision or sending the matter back to the government department with specific directions.
The other type of review is called judicial review. This examines whether the decision maker made an error in their application of the law. It is important to note that with judicial review the administrator will only consider whether the decision was made according to law and due process. A good example of a situation where a judicial review would be appropriate is where the decision maker has taken into account irrelevant considerations or not considered prescribed relevant considerations when making the decision.
Freedom of information request
It is important to consider making a freedom of information request under the Freedom of Information Act 1982 (Cth) to obtain documents that are on file for your matter. Unless the document is a conditionally exempt or exempt then you have the right to access them. This can be helpful to understand the reasons for the decision and therefore better argue the merits of your case.
Depending on the type of decision you would like to have reviewed there are strict time limits that may apply. For example, following a letter from an administrative body outlining their reasons for the decision there is usually a time limit of 28 days from the date of the letter to apply to the AAT for review.
Please note that any information included in this article is general information only and does not constitute legal advice. Please contact us to discuss your particular circumstances and the review avenues available to you.