ART Appeals — Visa Refusal and Cancellation Review

Where a visa has been refused or cancelled, immediate action is required. The time limits for applying to the Tribunal are prescribed by legislation and, in most cases, cannot be extended in any circumstances. A missed deadline ordinarily ends review rights permanently.

The Administrative Review Tribunal (ART) commenced on 14 October 2024, replacing the Administrative Appeals Tribunal. It conducts merits review: it stands in the position of the original decision-maker and makes the correct or preferable decision on the evidence before it. The Tribunal is not bound by the delegate’s view of the facts or of the law, which is why properly prepared applications succeed notwithstanding a firm departmental refusal.

# Refusal of most temporary and permanent visas where the applicant was in Australia at the time the application was made.

# Cancellation of most visas.

# Refusal or cancellation of a business sponsorship, and refusal of a nomination. The sponsoring business is the party entitled toapply.

# Refusal of sponsored family visitor and certain family visa applications, where the sponsor may be the applicant for review.

# Certain citizenship decisions.

The decision record issued by the Department states whether the decision is reviewable and identifies the person entitled to apply. Some decisions are not reviewable by the Tribunal, including decisions made personally by the Minister and certain mandatory cancellations on character grounds.

Time limits are prescribed by the Migration Regulations and vary according to the type of decision, commonly falling between 7 and 28 days from notification. Two matters cause particular difficulty:

1. Time runs from the deemed date of notification, not from the date the decision record is read. Where a decision is transmitted electronically, notification is generally taken to have occurred on the day of transmission.

2. The Tribunal has no discretion to accept a late application in most migration matters.

The applicable deadline is stated in the decision record and should be acted upon on the day it is received.

The fee that applies is determined by the date on which the fee is paid, not the date the application is lodged.

# Affirm the decision, so that the refusal or cancellation stands.

# Vary the decision.

# Set aside the decision and substitute a new decision.

Remit the matter to the Department with directions. This is the most common favourable outcome, returning the application for reconsideration on the basis directed by the Tribunal.

Where the Tribunal affirms the decision, the remaining options may include judicial review in the Federal Circuit and Family Court, which is subject to its own strict deadline and is confined to legal error rather than the merits, or a request for inisterial Intervention under sections 351 or 417 of the Migration Act 1958.

# Assessing whether review is available, and whether review is preferable to a fresh and better-prepared application.

# Lodging within the statutory deadline and securing the applicant’s bridging visa position so that lawful status is maintained while the matter is on foot.

# Preparing written submissions that address the delegate’s stated reasons, rather than restating the original application.

# Assembling new evidence, statutory declarations and witness statements, and preparing the applicant for hearing.