Has Your Visa Been Refused? If the Department of Home Affairs has refused your visa application and you believe the decision was incorrect, you may be eligible to challenge it through a merits review.
What is the ART?
In most cases, visa related appeals are heard by the Administrative Review Tribunal (ART). The ART reviews certain immigration and citizenship decisions made by the Department of Home Affairs. It is an independent body, separate from the Department of Home Affairs. This ensures a fair and objective reassessment of your case.
Applying for merits review at the ART allows you to present new evidence or information in support of your application.
Am I eligible to apply for a review of a decision?
The Administrative Review Tribunal Act 2024 (Cth) allows people affected by certain visa decisions to apply for a review by the ART. Eligibility to apply depends on the type of decision and the specific visa application.
Key eligible applicants include:
- The visa applicant if they are in Australia.
- Former visa holders their visa was cancelled.
- Sponsors or nominators for some visa categories, especially when the applicant is overseas.
- Family members (parent, spouse, child, sibling) for certain visa types lodged offshore.
- Employers for refused Standard Business Sponsorship applications.
Generally, the applicant or visa holder in Australia applies for review, while if overseas, the sponsor, nominator, or eligible family member may apply. The decision letter usually specifies who can seek review. Organisations can also apply if directly affected by the decision.
Not all refused decisions can be reviewed. Check your decision letter carefully and get legal advice early to find out if you’re eligible for review – it depends on your visa type and the decision made.
When should I lodge my application for review?
If your visa has been refused, it’s critical to be aware of the strict deadlines for lodging a review. Missing a deadline could mean losing your right to appeal altogether.
Each type of decision comes with its own specific time limit. For example, if a nomination application for a position is refused, you generally have 28 days from the date of the decision to lodge a review application. Because these deadlines are strict and cannot be extended, it’s crucial to check your decision letter carefully and seek legal advice without delay.
What can the ART decide?
It’s important to understand that the ART does not have the power to grant or refuse a visa – that authority rests solely with the Department of Home Affairs.
When reviewing your case, the ART can make one of the following decisions:
- Affirm the decision – The ART agrees with the Department’s original decision, and it remains unchanged.
- Vary the decision – The ART varies part of the original decision, changing how it applies in your case.
- Set aside the decision – The ART disagrees with the original decision and replaces it with a new one.
- Remit the decision – The ART sends the matter back to the Department of Home Affairs to reconsider, usually with specific directions or findings that must be taken into account.
Each of these outcomes can significantly impact your visa situation, so it’s important to seek legal advice to understand what’s at stake in your review.
If your review is unsuccessful, you may still have limited options for judicial review (focusing on legal errors) or Ministerial Intervention (granted in only a small number of cases).
Understanding ART Processing Times for Your Review Application
The time the ART takes to process and decide a review application can vary widely based on several factors, including:
- The type of decision under review
- The complexity of the case
- When the case is assigned to a Tribunal Member
- The applicant’s individual circumstances
Generally, cases are processed in the order they are received. However, the ART may reprioritise or reallocate cases to manage its workload efficiently.
Since the ART only began operating on 14 October 2024, replacing the former Administrative Appeals Tribunal (AAT), detailed ART processing time data is still limited. Historical AAT timelines may provide a rough guide, but ART processing times may differ.
For example, AAT visa reviews ranged from several months to multiple years. The ART has noted a high volume of applications, which may lead to delays.
Because waiting times can be lengthy, it’s important to prepare for a potentially extended process. After lodging a valid review application, you typically won’t receive further instructions until a Tribunal Member is assigned and, if applicable, a hearing date is scheduled.
Key Considerations
- Confirm that your decision is eligible for review before applying.
- Be mindful of strict timeframes and lodge your application without delay.
- Gather all relevant documents, evidence, and information carefully. A well prepared application is critical to a successful outcome.
- Engage a lawyer or registered migration agent at the earliest opportunity. Expert guidance can clarify complex issues, identify potential risks, and strengthen your case.
Final Thoughts
Successfully navigating the ART process – from confirming review eligibility and meeting strict application deadlines, to attending hearings and understanding your options after a decision – is crucial for anyone facing an unfavourable visa outcome.
Given the complexity of the ART appeal system, professional guidance can make all the difference in preparing a strong and effective application. If you need specialised advice or representation for your tribunal case, contact Migration Affairs today. Our experienced team is ready to support you every step of the way to help secure the best possible outcome for your review.
Changes to the relevant laws can occur without notice. The above information is not intended to be legal advice and is correct as of the date of writing this article.
Contact Migrations Affairs to speak with our experts for tailored advice on your circumstances and eligibility.