Last updated 30 September 2024

Review rights for a refusal or cancellation under s 501 of the Migration Act 1958 (Cth) (Migration Act) depend on whether the decision was made by an officer in the Department of Home Affairs (Home Affairs) or personally by the Minister for Immigration, Citizenship and Multicultural Affairs (minister).

If the cancellation decision is made personally by the minister, there is no right of appeal to any merits review body such as the Administrative Review Tribunal (ART), and the person must be detained until removed or granted a visa (or if they are unable to be removed in the reasonably foreseeable future they will be granted a bridging visa R with heavy restrictions on their liberty). The only appeal is to the Federal Court of Australia for judicial review (see the Complaints against Government – Judicial Review chapter).

If the cancellation decision is made by a Home Affairs delegate, an application for review may be available to the ART. An onshore applicant has only nine days from the date of notification to seek review (s 500(6B) Migration Act). Any onshore application to the ART must be accompanied by one of the sets of documents given to the applicant as notice of the decision to cancel the visa. The minister is then obliged to lodge with the ART all the relevant documents (including non-disclosable information) within 14 days. A hearing cannot be held until at least 14 days after the minister is notified of the application to the ART. The ART itself has the power to direct the minister to provide missing documents.

During any hearing, the ART must not take into account any information presented orally by or for an onshore applicant unless it was set out in a written statement given to the minister at least two working days prior to the hearing (s 500(6H) Migration Act), nor any document unless it was given to the minister at least two working days prior to the hearing (s 500(6J) Migration Act). The Minister, however, can keep providing information to the ART up to the hearing date (s 500(6J) Migration Act). Finally, the ART must make a decision within 84 days of the day the onshore applicant was notified of the delegate’s decision (s 500(6L) Migration Act) or the ART is deemed to have affirmed the primary decision (i.e. the person is deemed to have lost their case).

The minister’s power to overrule character decisions

If an officer in Home Affairs or the ART decides not to cancel or refuse a visa on character grounds, the minister can personally override that decision if they reasonably suspect that the person does not pass the character test, and the person does not satisfy the minister that they do pass it, and the minister is satisfied that the refusal or cancellation is in the public interest (s 501A Migration Act). Like the minister’s other personal public interest powers in the Migration Act, such decisions are not reviewable by the ART, non-compellable and largely not amenable to judicial review.

Section 501B of the Migration Act allows for the minister to override decisions of an officer of Home Affairs. In the reverse, when the officer has decided to refuse or cancel a visa on character grounds, the minister can also override that decision within the same limits as s 501A of the Migration Act.