How to Appeal a Migration Decision at the Administrative Review Tribunal If the Department of Home Affairs has refused your visa application, cancelled your visa, or made another adverse migration decision, you may have the right to appeal. Since 14 October 2024, appeals are handled by the Administrative Review Tribunal (ART), which replaced the Administrative Review Tribunal (ART). This article explains how the ART works and what to expect. Understanding the Administrative Review Tribunal The ART is an independent body that reviews decisions made by Australian government agencies, including migration decisions by the Department of Home Affairs. The Migration and Refugee Division (MRD) of the ART handles migration and protection visa matters. What the ART Does The ART reviews migration decisions on the merits. This means the tribunal doesn’t just check whether the Department followed the correct procedure. Instead, the ART looks at the facts of your case again and reconsiders the decision from scratch. The ART can affirm (uphold) the original decision, vary (change) it, or set it aside (overturn it). Who Can Apply to the ART? You may be able to apply for an ART review if:
- Your visa application was refused by the Department of Home Affairs (in certain visa categories)
- Your visa was cancelled by the Department
- You applied for a protection visa (refugee or similar) and your application was refused
- You are a sponsor or nominator seeking review of a sponsorship decision Not all decisions are reviewable at the ART. The ART’s jurisdiction is limited to certain decision types. Check the ART website or seek professional advice to confirm your decision is reviewable. Time Limits for Lodging an ART Application This is critical: applications for ART review must be lodged within a specified timeframe from when you received the Department’s decision. The timeframe is stated in the Department’s decision letter and can vary. Common timeframes include:
- 7 days for some visa cancellation decisions
- 21 days for many other decisions
- Other timeframes apply depending on the decision type Missing the deadline can result in your application being rejected. If you’re close to the deadline, apply immediately or seek urgent legal advice. How to Lodge an ART Application Applications are lodged directly to the ART, not to the Department of Home Affairs. Steps:
- Complete the ART application form (available on the ART website)
- Pay the application fee (check the ART website for current amounts)
- Lodge online through the ART portal or by post to the ART office
- Include copies of relevant documents (your Department decision letter, visa application, correspondence, etc.) You can represent yourself or have a migration agent or lawyer assist you. The ART Process After you lodge your application:
- The ART acknowledges receipt and assigns your matter a reference number
- The Department of Home Affairs provides its files to the ART
- You may be asked to provide additional material or submissions
- The ART conducts a hearing (see below)
- The ART makes a decision and issues reasons Hearings Most ART matters include a hearing. Hearings can be conducted:
- In person at an ART office
- By phone
- By video conference You have the right to be heard. This means you can present your case, provide evidence, and respond to the Department’s arguments. You can bring a representative (migration agent or lawyer) to the hearing. Legal Representation You have the right to be represented by a migration agent registered with the Migration Agents’ Board of Australia (MABA) or by a lawyer. Legal representation can strengthen your case, as your representative will be familiar with the legal frameworks and evidentiary requirements. For some matters that may proceed to court review (see below), legal representation becomes especially important. Processing Times ART processing times vary depending on case complexity, workload, and whether your matter is straightforward or complex. Check the ART website for current timeframe estimates. Some matters are processed faster than others. What the ART Cannot Do The ART reviews decisions on the merits but within the legal framework. The ART cannot:
- Change legislation or policy
- Review decisions that are outside its jurisdiction
Consider matters where the court has already made a binding decision on the same issues Further Review After the ART If the ART decision is adverse to you, your options for further review are limited.
Further review may be available in: Federal Circuit and Family Court of Australia (FCFCA): For limited matters, you can request the Federal Court to review the ART’s decision on points of law only. This is not a full re-hearing of the facts; the court only looks at whether the ART applied the law correctly. Federal Court: For some matters, further appeal to the Federal Court is possible, again on points of law only. These court reviews are complex, require legal expertise, and have strict timeframes. If the ART decision is adverse, consult a lawyer immediately if you believe there are points of law to challenge. Costs ART application fees apply and are non-refundable regardless of the outcome. Legal representation costs (migration agent or lawyer fees) are your responsibility and are not reimbursed by the ART or the Department. Preparing for ART Review Gather all documentation related to your visa application and the Department’s decision. Prepare a written submission explaining why you believe the Department’s decision was wrong, including legal arguments and evidence supporting your case. Be organised and methodical in presenting your case. Getting Professional Advice ART applications are complex. The merits review process requires careful attention to legal principles, evidence, and argument. A migration agent can assist with ART applications and help you prepare submissions and attend hearings. Some matters may benefit from legal advice, particularly if further court review is a possibility. Migration Guru can advise you on whether your migration decision is reviewable at the ART and help you prepare your application and case.
Contact Migration Guru to discuss your ART review options.
Phone: +61 7 3036 3800
Email: info@migrationguru.com.au
Website: migrationguru.com.au
