If you disagree with a visa refusal decision, you may be able to apply for a “merits review” of that decision to the Migration and Refugee (M&R) Division of the Administrative Review Tribunal (ART).
This article will take you through an in-depth explanation of how to appeal your visa refusal and navigate the ART process.
Note: In October 2024, the ART replaced the former Administrative Appeals Tribunal (AAT). All matters before the former-AAT have been moved to the ART.
Why are visas refused?
Visa refusals can be stressful and challenging. Understanding the most common reasons for refusals and the impact of changing immigration policies can help you avoid a refusal.
There are a range of reasons why a visa application might be refused, some of the most common being:
- failure to meet the eligibility criteria;
- insufficient documentation;
- concerns about the authenticity of the provided documents or information; or
- health or character issues.
Additionally, regular changes to immigration policies and regulations can adversely impact visa decisions, making it essential to stay informed about the latest changes.
When a visa is refused, the Department of Home Affairs will provide documentation outlining the reasons for refusal (e.g., notification of refusal decision, and the refusal decision record). If your visa is refused, you should consider:
- Your current immigration status;
- Your ability to apply for other visas; and/or
- Whether you can appeal the decision.
What is the role of the Administrative Review Tribunal (ART)?
The ART is an independent tribunal that reviews decisions made by the Australian Government. Relevantly, the M&R division of the ART reviews decisions made by the Department of Home Affairs related to visa applications. The ART has the power to review matters related to most (but not all) visa applications. For example, the ART cannot review decisions on fast-track humanitarian visas.
Notably, the ART are not bound by the decision made by the Department of Home Affairs and reconsider each case on its own merits. The ART aims to provide a fair and impartial review process and considers all evidence and circumstances relevant to your case.
How long do I have to lodge an appeal?
It is important to note that most refusal decisions must be appealed within a specified timeframe. This timeframe varies depending on the type of refusal. The decision letter sent by the Department of Home Affairs will include the time limit that applies to you.
The ART cannot accept applications lodged outside of this time limit, making it critical that you submit your appeal within the relevant timeframe.
How much does it cost to appeal to the ART?
Most ART applications require an upfront application fee. Currently, this is $3,496 – the most current fee can be found here.
Applicants experiencing financial hardship may be eligible for a 50% fee reduction (though need to first pay the full fee, then request a refund on this basis).
If your appeal is successful, you will be refunded 50% of the application fee you paid (50% of either the full fee, or 50% of the reduced fee).
Review of a Protection visa decision does not require payment of an upfront application fee. However, if you are unsuccessful, a fee of $2,151 will be payable.
You may also need to factor in the costs of a legal representative if you want assistance with your application.
If you withdraw your review application, a refund of the fee is only paid in very limited circumstances.
How long does it take to have a hearing scheduled at the ART?
Unfortunately, statistics on the processing times for ART applications are not yet available. However, the former AAT published statistics, which can be used as a guideline.
Processing times for AAT applications varied significantly, taking anywhere from several months to years.
A selection of processing times is outlined in the table below (for reviews finalised between 1 April 2024 and 30 September 2024):
Case category |
50% of cases finalised within (days) |
95% of cases finalised within (days) |
|
Bridging |
11 |
385 |
|
Partner |
1,280 |
1,883 |
|
Student (refusals only) |
327 |
757 |
|
Temporary work |
144 |
1,106 |
|
Visitor |
410 |
490 |
|
Protection |
1,776 |
2,249 |
Do I need legal assistance for an ART hearing?
While working with a legal professional is not a requirement, the ART process is high stakes and can be a complex process. As such, engaging an experienced legal professional can help ensure that your case is presented as effectively as possible.
Some of the key tasks that a lawyer or migration agent can assist with include:
- Assessing your prospects: One of the first steps in an ART appeal is understanding your prospects of success. A legal professional can provide a realistic assessment of your prospects by reviewing the reasons for the original decision, the available evidence, and the potential for presenting new information. This assessment may assist you to make an informed decision about whether to proceed with an appeal.
- Assisting with evidence and documentation: Another benefit of engaging legal representation is that they can assist with collecting and preparing necessary evidence in support of your appeal. This might include preparing Statutory Declarations, obtaining expert opinions, or working with witnesses to prepare statements.
- Preparing compelling grounds of appeal: Legal professionals have experience addressing the reasons for a refusal, and can ensure that each point is thoroughly addressed. They will be able to ensure the strongest aspects of your claim are emphasised, and help address any potential weaknesses in your case.
What can I expect at an ART hearing?
If you have applied for a review of your visa refusal with the ART, you are likely anxious and unsure about what to expect at your hearing. Generally speaking, an ART hearing is less formal than court proceedings. There will also be ample opportunity for you to provide evidence regarding your case.
Once your hearing is scheduled, you will receive an invitation stating the date, time, and location of your hearing. This invitation will provide a deadline for responding and submitting documents.
Other important information you need to know is outlined below.
Where are ART hearings held?
Hearings may be conducted:
- In person;
- By video conference; or
- By telephone.
The invitation letter will specify where your hearing is to be held.
How long is an ART hearing?
The length of your ART hearing will vary depending on the complexity of your case. Some hearings are short, while others may require several hearings over multiple days.
The invitation letter will provide an estimate of your hearing duration.
Who will be at my ART hearing?
Generally, the following people will be at your hearing:
- The ART Member. This is the person who questions you and decides your case;
- A hearing attendant, who will handle the formalities;
- An interpreter (if required); and
- Your legal representative (if you appoint one).
In some cases, you might also have:
- Witnesses relevant to your case. You must notify the ART in advance if you want to have witnesses at your hearing; and
- A support person. Again, you must notify the ART in advance if you want to have a support person at your hearing.
What do I need to take with me to my hearing?
It is recommended that you take the following with you to your hearing:
- The invitation letter;
- Photo ID; and
- Any other additional documents you wish to provide that has not already been submitted.
What happens at the hearing?
If the hearing is in person, you should arrive at least 15 minutes early and confirm your identity with your photo ID.
The hearing attendant will then ask you if you wish to take an oath or affirmation before collecting the Member to formally begin the hearing.
Once the Member enters, they will:
- Clarify the ART’s role;
- Explain the purpose of the interpreter (if relevant); and
- Outline the legal issues.
You will then be asked questions about your case. This is your opportunity to provide any information you want the ART to consider.
When will I receive a decision?
Most ART decisions take weeks or months to be issued after the hearing. A decision with reasoning will be provided in writing by email.
In some cases, decisions are given orally at the end of the hearing. However, this is uncommon.
When the ART reviews a decision, they can either affirm, vary, set aside or remit the decision. If the ART:
- Affirms the decision, it means the Department of Home Affairs’ decision remains unchanged;
- Varies the decision, it means the decision is altered in a specific way;
- Sets aside the decision, it means the ART agrees the original decision was wrong and sets it aside; or
- Remits the decision, it means the decision is sent back to the Department of Home Affairs typically with certain instructions that must be followed by the Department.
What happens after the decision?
Generally, if the decision you receive is positive, the decision record will state that the ART will ‘remit’ your application to the Department. The Department will then continue to process your visa application. You may be required to provide further information or documents, such undergoing health examinations or providing updated police clearance certificates.
If the decision is not in your favour, the Tribunal will typically “affirm” the decision. You may have the option to appeal the decision to the Federal Circuit and Family Court of Australia (FCFCA) if there is “jurisdictional error” (see article about this here).
It is essential that you obtain legal advice as soon as possible if you wish to appeal the decision.
Do you require assistance?
Understanding visa refusals and the ART appeal process is important, such that seeking professional legal advice can have a significant impact on the outcome of your case.
Our team at Hannan Tew has extensive experience with Tribunal applications. If you require assistance with an ART review, or have any other immigration related queries, get in touch with our experienced team. Contact us by email at [email protected] or by phone at +61 3 9016 0484.
