Immigration Assessment Authority (IAA)
Overview
The Immigration Assessment Authority (IAA) is established under Part 7AA of the Migration Act 1958 (Cth). It reviews certain protection visa decisions involving fast-track applicants — a defined cohort of persons who arrived in Australia by sea without authorisation between 13 August 2012 and 1 January 2014 and who were taken to have made a protection visa application. The IAA is not a general merits review body and is distinct from the Administrative Review Tribunal (ART), which reviews most other visa decisions. The IAA operates under a limited review framework: it reviews decisions on the papers, generally without a hearing, and may not accept new information from an applicant except in limited circumstances prescribed by the Act.
The IAA was created by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 as part of the framework for processing persons in the "asylum legacy caseload" — those who had arrived by sea without authorisation and whose protection claims had not been finally determined.
Legal basis
- Section 473CA — establishment of the IAA as a separate division of the Department of Home Affairs
- Section 473CB — referral of fast-track reviewable decisions to the IAA; referral is automatic (the applicant does not need to apply)
- Section 473CC — the IAA's review powers: may affirm the decision or remit with or without directions
- Section 473DA — the IAA must review on the papers; it is not required to hold a hearing and generally does not
- Section 473DB — the IAA may make a decision it considers correct or preferable based on the material before it
- Section 473DC — the limited information rule: the IAA may only consider new information if it satisfies the "exceptional circumstances" test — that is, the information was not before the original decision-maker, the applicant had no reasonable opportunity to present it, and the information is credible and directly relevant to the issue
- Section 473DD — procedure for obtaining new information if the exceptional circumstances threshold is met
- Section 473GB — the Minister may give the IAA a certificate (known as a "national interest" certificate) that removes a matter from the IAA's jurisdiction
- Section 5(1) — definition of "fast-track applicant" and "fast-track reviewable decision"
Source: Migration Act 1958 (Cth), Part 7AA (ss 473CA–473JC). Current version at legislation.gov.au.
How it works
Who the IAA reviews
The IAA's jurisdiction is confined to fast-track applicants. A fast-track applicant is defined in s 5(1) of the Migration Act as a person who:
- Is an unauthorised maritime arrival (UMA) who entered Australia at an excised offshore place or was taken to have entered Australia by sea without a visa; and
- Arrived between 13 August 2012 and 1 January 2014 (the relevant period); and
- Was taken to have applied for a protection visa under the legacy caseload provisions
This is a closed, fixed cohort — persons who arrived outside this window are not fast-track applicants and their protection decisions are reviewed by the ART, not the IAA.
The fast-track review pathway
When the Department of Home Affairs refuses a protection visa application (typically a Temporary Protection Visa — subclass 785, or a Safe Haven Enterprise Visa — subclass 790) made by a fast-track applicant, the decision is automatically referred to the IAA under s 473CB. The applicant does not lodge a separate review application or pay a fee.
The IAA reviews the decision on the basis of the material that was before the original decision-maker. No hearing is held unless the IAA decides one is necessary — which is uncommon. The IAA may:
- Affirm the decision (protection visa remains refused)
- Remit the matter to the Department, with or without written directions
The limited information rule
One of the defining features of the IAA is the limited information rule in s 473DC. The applicant cannot simply submit new evidence to the IAA as they could in a standard ART review. New information may only be considered if the IAA is satisfied that:
- The information was not before the original decision-maker; and
- The applicant had no reasonable opportunity to provide it to the decision-maker before the decision was made; and
- The information is credible; and
- The information is directly relevant to the issue in the review
All four criteria must be satisfied. The threshold is high and has been the subject of significant Federal Court litigation.
The Ministerial certificate power
Section 473GB gives the Minister a personal, non-compellable power to issue a certificate stating that it would be contrary to the national interest for the IAA to review a particular decision. If such a certificate is issued, the matter is removed from IAA jurisdiction entirely. This power is used rarely and in exceptional national security or foreign policy circumstances.
Judicial review
IAA decisions are reviewable by the Federal Court of Australia and the Federal Circuit and Family Court of Australia on jurisdictional error grounds. The IAA is not protected from judicial review by an ouster clause. The courts have found jurisdictional errors in IAA decisions on grounds including denial of procedural fairness (despite the limited information rule) and failure to consider relevant material.
Distinction from the ART
| Feature | IAA | ART (Migration Division) |
|---|---|---|
| Who may seek review | Fast-track applicants only (defined cohort) | Visa applicants and holders generally |
| How review is initiated | Automatic referral — no application by applicant | Applicant lodges application and pays fee |
| Hearing | Reviewed on the papers; hearing uncommon | Hearing generally held; applicant may attend and give evidence |
| New evidence | Only in exceptional circumstances (s 473DC) | Generally admissible |
| Fee | None | Payable on lodgement |
| Ministerial intervention | s 473GB certificate removes matter from IAA | s 351 substitution power (Minister may substitute a more favourable decision) |