Summary
- Visa applicants whose applications have been refused may apply to the Administrative Review Tribunal (ART) for an independent merits review of the decision.
- Eligibility, strict 28-day time limits, and proper preparation are critical to a successful ART review application.
- If the ART upholds the refusal, applicants may appeal to the Federal Circuit and Family Court or Federal Court of Australia, but only on grounds of legal error.
- This article is a plain-English guide to the ART merits review process for visa applicants and business owners operating in Australia.
- Content is attributed to LegalVision, a commercial law firm that specialises in advising clients on Australian immigration and visa law.
Tips for Businesses
Act immediately upon receiving a visa refusal letter — the 28-day review deadline cannot be extended. Confirm your merits review rights, complete the correct ART application form, and gather all relevant documents early. If your visa supports your workforce or operations, seek legal representation promptly to protect your business interests.
If your visa application has been refused, you may be able to have your decision reviewed by the Administrative Review Tribunal (ART). This gives you the opportunity to have an independent, third-party body review and reconsider your case afresh. This article will set out the key steps you should take if you intend to apply to the ART.
What Is the ART?
The ART is a body that conducts independent reviews of government decisions, including migration decisions. The ART formally replaced the Administrative Appeals Tribunal (AAT) on 14 October 2024. The ART will step into the shoes of the original decision-maker and take a fresh look at the case. They will then arrive at their own decision. This is known as a merit review process.
The ART has power in relation to a reviewable decision in accordance with section 338 of the Migration Act. The ART can:
- affirm a decision;
- vary a decision;
- set aside a decision and substitute a new decision;
- Remit a decision back to the original decision-maker for reconsideration; or
- dismiss the application if you fail to appear at the hearing.
If you intend to apply to the ART, you should take the following six steps.
1. Confirm that your have merits review rights
Not everyone has the right to merits review, because not every migration decision is considered a ‘reviewable migration decision.’ Usually, if you have merits review rights to the ART, it will be outlined in the migration decision letter (in relation to your refused visa application). Typically, those who applied for their visa application in Australia and that visa can be granted while the applicant is onshore, will have rights to merits review.
Generally, the ART will be able to review your decision if
- you are outside of Australia, but have a sponsor or nominator;
- you are outside of Australia, but was formerly a permanent resident and have close Australian family;
- the refusal or cancellation occurred while you are in Australia;
- you are outside Australia but, for a partner visa, were initially granted a prospective marriage visa; and
- you are outside of Australia but are intending to visit a close Australian family member (spouse, de facto, child or sibling).
The ART has power to review decisions where a visa has been refused or cancelled based on not satisfying the character requirements. This process is conducted in the ART’s General Division and the Minister’s representative’s will be in attendance.
Decisions to refuse or cancel a person’s visa where the Minister has personally exercised its power are not reviewable by the ART. If you have a refusal or cancellation in such circumstances, your only legal option is to appeal in the Federal Court of Australia. Your decision letter will explain whether your decision can be reviewed.
The decision letter will also set out who can apply for review. This person could be:
- yourself;
- the formal visa holder;
- a sponsor or nominator; or
- a close relative of an applicant.
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2. Ensure You Are Within the Time Limit
The decision letter that DOHA has sent you will specify how long you have to lodge an application for review with the ART. The time limit is usually 28 days from the date you are notified of the decision.
This time frame cannot be extended, and applications made outside the time limit are rarely accepted. Therefore, if you intend to apply to the ART, it is essential to act as soon as you receive the decision letter.
3. Complete and Lodge an Application
To apply to the ART for merits review, you must complete an ‘Application for Review’ form, which you can download from the ART website. If you are in immigration detention, there is a separate application form that you will have to fill out.
The best way to lodge your application is online through the ART website. You can also submit your application:
- by post;
- through fax;
- in person; or
- by email.
In most cases, you will also need to pay an application fee when lodging your application. This fee may be partially refunded if your merits review is successful.
4. Prepare for the Hearing
Once you have filed your application, you will receive a letter from the ART confirming that they have received your application. The ART will then inform the DOHA of your application for review and request a copy of any relevant documents for your case.
After your case has been allocated to an ART member and they have reviewed your documents, they may then:
- invite you to attend a hearing;
- ask you to provide further information; or
- ask you to comment or respond to information.
If the ART has invited you to a hearing, you should start preparing by:
- reading and collating all the relevant documents for your case;
- providing any new information that you would like the ART to consider; and
- preparing any arguments that you want to present.
It is very helpful to seek advice and representation from a migration agent or lawyer during this process. A migration agent and lawyer will manage your application for review and work closely with you to present the most persuasive case possible.
5. Attend the Hearing
The letter sent by the ART will confirm the date, time, and location of your hearing. In most cases, you will need to attend the hearing at one of the ART offices or online arrangements can be made.
The parties present at the hearing will usually be:
- yourself;
- your legal representative (if any); and
- the ART member.
You may also request to have an interpreter or support person if required.
At the hearing, you will have the opportunity to present your case in front of an ART member. The process of the hearing will vary depending on the decision under review. However, it will usually involve the following stages:
- the ART member will briefly discuss the issues that they must decide on;
- you will be asked to give evidence and answer questions;
- you will be asked to provide a summary of your arguments.
Most ART hearings take between one and three hours, but it can take longer than this depending on the complexity of your matter. If you do not attend the hearing, the ART may dismiss your application or make a decision without contacting you.
6. Review the ART’s Decision
The ART member may announce their decision at the end of the hearing. However, in most cases, they will send you a written statement of their verdict once they have made their decision after the hearing. The time it takes for the ART to make a decision varies between each case.
The ART has a range of powers when reviewing government decisions. In migration reviews, they will usually either:
- agree with the DOHA and uphold the original decision; or
- disagree with the DOHA and send your matter back to reconsider your application again in accordance with their recommendations.
It is essential to read the ART’s written statement of their decision and reasons for the decision carefully. The ART will notify the DOHA of their decision, who will then be responsible for implementing it.
If you think the ART’s decision is wrong, you may be able to appeal the decision to the Federal Circuit and Family Court or Federal Court of Australia. However, the courts will only consider your case if there has been a legal error in the decision.
Key Takeaways
Appealing your visa refusal or cancellation to the ART gives you the opportunity to have an independent body review your case and make their own decision. If you intend to apply to the ART, you should ensure that you:
- are eligible to apply;
- are within the time limit;
- complete and lodge the relevant application;
- prepare for the hearing;
- attend the hearing; and
- review the ART’s decision.
LegalVision provides ongoing legal support for businesses through our fixed-fee legal membership. Our experienced immigration lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 1300 544 755 or visit our membership page.
Frequently Asked Questions
You, the formal visa holder, a sponsor or nominator, or a close relative of an applicant can apply for review.
No. The 28-day time limit from your decision notification cannot be extended, so you must act immediately upon receiving your decision letter.
The ART may dismiss your application or make a decision without contacting you if you fail to attend.
Yes. You can appeal to the Federal Circuit and Family Court or Federal Court of Australia, but only if a legal error occurred in the decision.
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