Challenging a Visa Refusal in Australia: Internal Review, Administrative Review and the Tribunal Step

This guide explains what review options may be available after Home Affairs refuses a visa and why each option has a different scope. The first step is to read the decision letter: it identifies whether the Administrative Review Tribunal (ART) can review the decision, whether you are entitled to apply and the applicable deadline. ART review and judicial review by the Federal Circuit and Family Court of Australia (Division 2) are different processes.

Start with the Home Affairs decision letter

The decision letter from the Department of Home Affairs should be your starting point. It will tell you whether ART can review the decision and whether you are a person who can apply for that review. The applicable time limit depends on the type of decision and whether the person is in immigration detention, so the letter must be checked rather than assuming a standard deadline.

There is no single, general Home Affairs internal review process for every visa refusal. If the decision letter identifies an internal reconsideration path, follow the route and deadline stated in that letter. If it does not identify one, do not assume an internal review exists. Where ART can review the decision and you are entitled to apply, the next step is an ART review.

Keep the decision letter and a copy of the decision. ART asks applicants for the decision date, a copy of the decision and the reasons they believe the decision was wrong.

Check what ART can and cannot review

ART identifies the following broad categories of reviewable decisions:

• a decision to refuse or cancel different types of migration visas under the Migration Act 1958;
• a protection (refugee) visa refusal or cancellation;
• a character-related visa refusal or cancellation;
• an Australian citizenship refusal or cancellation;
• a nomination refusal; and
• a sponsorship decision.

The Migration Act 1958 and Migration Regulations 1994 specify which decisions ART can review. Protection and character-related visa matters, and a business visa cancellation under section 134 of the Migration Act, are dealt with through separate ART information pages. The Home Affairs decision letter remains the starting point for confirming the available route.

ART cannot review:

• a decision to cancel a visa made personally by the Minister for Home Affairs or the Minister for Immigration; or
• a decision if the person is not entitled to apply for a review.

For character-related visa matters, ART also cannot review a section 501 or 501CA decision made personally by the Minister. A mandatory cancellation under section 501(3A) must first be referred to the Department for revocation.

ART provides an online application route requiring a valid email address and information about the decision. Applicants can add material after lodging the application, receive automatic acknowledgement and view what has been submitted. If the online route is unavailable, the relevant form is M1 for a person not in immigration detention, M2 for a person in immigration detention or B1 for the specified Subclass 070 Bridging (Removal Pending) condition-related decisions.

An application must include the applicant’s name, postal address, telephone number and email, together with the decision date, decision copy and reasons for seeking review. If the decision copy is unavailable, the application must provide the department’s name, a short description of the decision and the decision date. It must also provide one of the applicant’s date of birth, country of birth, nationality or passport information. A person can represent themselves or obtain assistance to represent them.

Meet the strict ART review time limits

ART describes its review application periods as very strict:

• Expedited review: The application must be lodged within 9 days after the person is notified of the decision. ART has no power to extend this time limit.
• Non-expedited review: The application must normally be lodged within 28 days after notification. An extension of that time limit can be requested.

ART identifies protection visa matters, decisions made offshore and matters remitted to the Tribunal by a court as non-expedited reviews. The Home Affairs decision letter should be used to confirm which period applies.

Request an extension for a non-expedited review

An extension cannot extend the 9-day deadline for an expedited review. It is available for a non-expedited review.

When applying online, the applicant can include the extension of time form with the review application. ART forwards the extension request to the Department of Home Affairs. The Department then has 14 days to tell ART if it does not agree to the extension.

If the Department does not object, ART will generally decide the extension request without holding a hearing. If the Department objects, ART will usually hold a hearing, which may take place by telephone or in person. ART will only commence the review if it agrees to extend the time limit.

Pay the ART application fee

The application fee for a review of most migration decisions is $3,727 AUD. The fee must be paid when the application is lodged. If it is not paid, ART will not begin the review. If the fee remains unpaid within 6 weeks after the application is submitted, the application may be dismissed.

The stated fee-free situations are:

• a bridging visa decision that has resulted in the person being placed in immigration detention; and
• a refusal to issue a Subclass 070 (Bridging (Removal Pending)) visa where no prescribed conditions were attached.

Because the $3,727 fee applies to most migration decisions rather than every possible review, the current amount should be confirmed on the official ART fees page before lodging an application.

Understand judicial review in Division 2

The Federal Circuit and Family Court of Australia (Division 2), referred to as the Court, can review some decisions made under the Migration Act 1958. This is judicial review, not a merits review of the visa application.

The Court may review a decision only to determine whether the decision-maker made a jurisdictional error. It does not consider the merits of the visa application or decide whether the applicant should or should not have been granted a visa.

The Court cannot:

• reconsider the facts and reasons for the visa application;
• take new factual information into account unless it is relevant to whether the decision-maker made a jurisdictional error; or
• grant a visa.

If the Court finds a jurisdictional error, it can refer the case back to the decision-maker and prevent the Minister from acting on the decision.

Judicial review has its own filing deadline. An Originating Application - Migration Act must be filed within 35 days of the date of the migration decision, although the Court may extend that time. The application must identify the person preparing it and specify the jurisdictional error said to have been made.

This is general legal information, not advice on your particular situation. A qualified lawyer should assess the decision letter, available review rights and deadlines in the individual circumstances.