Last updated 30 September 2024

Merits and/or judicial review are generally available in relation to a migration decision. From 14 October 2024, the Administrative Review Tribunal (ART) will replace the Administrative Appeals Tribunal and Immigration Assessment Authority as the merits review body for visa refusals and cancellations, and citizenship refusals.

The ART’s legislated objective is to provide an independent review mechanism that:

(a) is fair and just

(b) ensures that applications to the tribunal are resolved as quickly and with as little formality and expense as a proper consideration of the matters before the tribunal permits

(c) is accessible and responsive to the diverse needs of parties to proceedings

(d) improves the transparency and quality of government decision making

(e) promotes public trust and confidence in the tribunal.

Where the ART has jurisdiction, it will decide the application exercising the same powers and discretions as the Minister for Immigration, Citizenship and Multicultural Affairs’s (minister) delegate. It will consider the legal validity of the order and also any policies that it considers appropriate. The ART is not bound by the policies used by the minister, but it is bound by any directions made by the Minister under s 499 of the Migration Act 1958 (Cth) (Migration Act).

Different practice directions apply, depending on the type of decision and reflect differences in the mode of hearing. Visa refusals on the basis of character where the applicant is not in Australia (s 501 Migration Act, and ss 36(1C) or 36(2C) Migration Act), business visa refusals and deportation decisions fall under the Administrative Review Tribunal (Common Procedures) Practice Direction 2024. Other visa refusals, including protection visas, and expedited character decisions made under ss 501 and 501CA where the applicant is in Australia are covered by the Administrative Review Tribunal (Migration, Protection and Character) Practice Direction 2024.

Migration and protection merits review

Applications

Generally, applicants who are in Australia and receive a visa refusal decision have standing to apply to the ART. If the applicant is overseas, they do not have standing but if their sponsor is in Australia, the sponsor can apply for a review of the refusal decision.

An application for review must be lodged on the approved form and with the prescribed fee. Applications can be lodged online, by hand, post or fax. For protection decisions, the fee does not need to be paid up front but it becomes payable within seven days if the tribunal affirms the decision of the delegate. For migration decisions, part of the fee can be waived if an applicant can show severe financial hardship.

The time limits for lodging an application for review are set out in the Migration Act (s 347(3)). These are strict deadlines that cannot be extended so calculating the correct notification date and corresponding deadline is crucial. Generally, if the decision is sent by email, it is deemed to have been received on the same day. If it is sent by post within Australia, seven days is the deemed date of notification. If the decision is sent from or to overseas, 21 days is allowed for notification. From that point, the time frames are:

  • seven working days if the applicant is in detention
  • 28 days for most migration and protection decisions where the applicant is in Australia
  • 70 days where the applicant is outside Australia.

However, shorter time limits may apply. It is important to carefully check the notification letter and respond promptly. People in detention who are refused a bridging visa, the time limit for lodging a review application is two working days. Prisoners have nine days to seek review of an automatic cancellation of a visa on character grounds. Time limits shorter that 28 days can also apply to those not in immigration detention.

Conduct of reviews

Hearings

Migration and protection reviews must generally include an oral hearing. Applicants can ask the tribunal to hear from witnesses and provide new evidence and, in the case of protection applicants, new or reframed protection claims. These hearings are uncontested and the member stands in the shoes of the original decision maker and considers the matter de novo. Applicants are provided with a written decision and reasons, but the tribunal is not required to publish those reasons.

The President of the ART can, acting on their own initiative, refer a migration or protection matter to the Guidance and Appeals Panel (GAP) but applicants cannot request a referral.

Processing Times for Review Decisions

Where a person is in immigration detention because of the refusal or cancellation of a bridging visa and lodges an application for review in relation to that refusal or cancellation, the ART must make its decision within seven working days unless, with the applicant’s agreement, this period is extended.

Other types of migration decisions and protection decisions do not have mandated timeframes and, under the AAT, stretched to several years for most visas. This is one of the issues the ART structure is intended to address.

Minister’s power to substitute a more favourable decision following merits review

Even after the ART has delivered its decision, the minister retains a power to substitute a more favourable decision if they believe it is in the public interest to do so. This power is non-delegable, non-compellable and non-reviewable. The minister must table a statement regarding each case in parliament. Seeking ministerial discretion is a complex process and it is difficult to succeed.