This part (questions 31 to 40) covers what happens after a visa is refused or cancelled: the review and appeal options. Since 14 October 2024, the Administrative Review Tribunal (ART) has replaced the Administrative Appeals Tribunal (AAT) and conducts merits review of most migration decisions. If you disagree with the Tribunal's decision, you may be able to apply to a court for judicial review. The two are quite different, and both the choice between them and the time limits need careful handling.
Administrative Review Tribunal (ART)
31. What is the Administrative Review Tribunal?
The ART was established under the Administrative Review Tribunal Act 2024 (Cth) and began operating on 14 October 2024, replacing the AAT and the former Immigration Assessment Authority (IAA). It conducts independent merits review of government decisions, looking again at the facts and the law to decide whether the original decision was the correct and preferable one.
32. Can I apply to the ART for review of a visa refusal?
It depends on the type of decision and where the applicant is. Generally, refusals of visa applications lodged in Australia, and some offshore applications (such as family visas that require an Australian sponsor), can be reviewed; some visa types have no review right. The decision letter will say whether there is a review right, who can apply and the deadline. Deadlines are usually short and in most cases cannot be extended, so act as soon as you receive the decision.
33. How does an ART hearing work?
The Tribunal usually reviews the file first and then invites the applicant to a hearing, in person or by video, with an interpreter if needed. The Tribunal member will ask about the applicant's circumstances, and the applicant can make submissions, provide evidence and call witnesses. A lawyer or registered migration agent can represent you, but you must answer the member's questions yourself.
34. Can I provide new evidence at the ART?
Generally, yes. The Tribunal decides the case on the circumstances at the time of its decision, so you can provide new information that has arisen since the original decision, or fill gaps in the original application. Provide new evidence before the hearing as the Tribunal directs, and make sure it relates directly to the issues in dispute.
35. How is ART review different from a court appeal?
The ART looks at whether the decision itself was correct, and can make fresh findings of fact and a new decision. Judicial review by a court looks only at whether the decision was legally valid; the court will not reassess the facts or grant the visa itself. If the court finds a legal error, it usually sends the case back to the Tribunal to be decided again.
Judicial review
36. What is judicial review?
Judicial review is a court process that examines whether an administrative decision was made according to law. For migration decisions, an application generally must be made to the Federal Circuit and Family Court of Australia (Division 2) under section 476 of the Migration Act 1958 (Cth). It usually must be filed within 35 days of the decision, and the court can extend the time if the requirements are met.
37. Can I appeal straight to the Federal Court?
Generally, no. The Migration Act 1958 limits the Federal Court's original jurisdiction over most migration decisions. Cases usually start in the Federal Circuit and Family Court; a party unhappy with that judgment can appeal to the Federal Court, and then to the High Court with special leave.
38. What is jurisdictional error?
Jurisdictional error occurs when a decision-maker goes beyond the power the law gives them, for example by misunderstanding the law, failing to consider a mandatory matter, denying procedural fairness or making a legally unreasonable decision. A court will set aside a decision only if jurisdictional error is shown. Simply disagreeing with the findings of fact is usually not a ground for judicial review.
Visa status and assessing your prospects
39. Can I stay in Australia during a review or appeal?
If you held a bridging visa linked to your visa application, it usually continues during the review and for a period after the decision. Judicial review is more complicated, and some people need to apply for a new bridging visa. Check your visa status at each stage so you don't become an unlawful non-citizen.
40. How do I assess my prospects on review or appeal?
We do not predict the outcome of any case. An assessment considers the reasons for refusal, what new evidence can be provided, the relevant legal tests and the procedural record. Some cases are better suited to a new visa application, or to ministerial intervention if review fails. An objective legal assessment helps you make a decision that makes sense in terms of cost and time.
How we help
Two of our lawyers are Accredited Specialists in Immigration Law (Law Institute of Victoria). We can review a refusal or cancellation decision, confirm your review rights and deadlines, prepare ART submissions and evidence, represent you at the hearing and, where appropriate, run judicial review proceedings. For more information, see Australian immigration law services.
Chua Tan Associates has practised in Melbourne since 1990, acting for clients in Australia and overseas in English, Mandarin and Cantonese. For a confidential consultation, call +61 3 9602 3988 or email chuatan@tpg.com.au. This article is general information only and is not legal advice.
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