ART Appeal

The ART can review many types of migration-related decision, including certain visa refusals, visa cancellations, bridging visas, family visas, partner visas, student visas, skilled migration, employer-sponsored visas, certain visitor visas, certain protection visas, sponsorship and nomination applications, and certain citizenship-related decisions. Whether you can apply for ART review depends on the type of decision, the visa subclass, where the applicant is located, the status of the sponsor or nominator, and the review rights set out in the refusal or cancellation decision.

After receiving a refusal or cancellation decision, you should first read the part of the decision record that deals with review rights. There are usually three things to confirm:

whether a right of review exists,
who is entitled to apply for review, and
the deadline by which the application must be lodged.
The person entitled to apply for review can differ between matters. For an individual visa refusal, review is usually sought by the visa applicant, whereas in an employer sponsorship or nomination refusal the review may be brought by the sponsor or employer.

An ART review is an independent re-examination of the original decision. The Tribunal re-examines the case materials, the applicable law and any new evidence, and decides whether the original decision should be affirmed, varied or remitted for reconsideration. Lodging a fresh visa application, by contrast, starts a new visa application process: you must again satisfy the visa requirements applicable at that time and take on a new application fee, processing time and the associated visa risks.

Not every migration decision can be taken to the ART for review. Whether a right of review exists must be determined by reference to the refusal, cancellation or nomination decision record, read together with the relevant visa subclass and the provisions of migration law. The decision record usually states whether review is available, which body conducts the review, the application deadline and how to apply.

In some matters the right of review depends on whether you were in Australia when the decision was made; in others it depends on whether a sponsor, nominator or family member satisfies particular conditions. Review rights and procedures can differ significantly between protection visas, character cancellations, sponsorship and nomination matters, offshore visa applications and onshore visa applications.

For applicants who are in Australia, ART review can be linked to bridging visa arrangements. After lodging an ART review application on time, some applicants may rely on a bridging visa to remain lawfully in Australia while the review is on foot. Whether a bridging visa can be obtained or maintained depends on the status of the original visa, the timing of the application, the type of decision and other visa conditions.

Visa status needs to be assessed separately. Lodging an ART review application does not always resolve work rights, travel rights or visa conditions. An applicant who has already received a refusal or cancellation decision should also confirm whether they still hold a valid visa, when any bridging visa comes into effect, whether they have work rights, and whether departing Australia would affect the review.

The ART will generally re-examine the facts, evidence and legal requirements that were involved in the original decision, and decide what outcome should be reached on review. This kind of review is known as merits review (as distinct from judicial review, which examines the lawfulness of a decision), and it focuses on reaching the correct or preferable decision on the facts of your case. Unlike a court, in many matters the ART can consider new evidence and new circumstances, rather than being confined to the material that was before the Department of Home Affairs. For example:

In a visitor visa refusal matter, the ART will usually re-examine your family ties, financial circumstances, previous travel record and genuine intention to leave Australia.
New evidence put forward at the review stage can sometimes have a significant effect on the earlier findings of fact.

After conducting its review, the ART can usually reach one of several outcomes. It may affirm the original decision, confirming that the refusal or cancellation by the Department of Home Affairs continues to stand; it may vary the original decision, reaching an outcome that is more favourable to you; or it may remit the matter to the Department, so that the Department reconsiders it in accordance with the ART’s decision or directions. In broad terms, the ART may affirm, vary or set aside the original decision, or remit it for reconsideration.

The specific outcome depends on the type of matter and the decision the ART makes. In some matters the ART can substitute its own decision for the original one; in others, the matter is remitted to the Department of Home Affairs for further processing.

Preparation for an ART review should begin with the refusal or cancellation decision record. The decision record usually explains which criteria the Department of Home Affairs considered were not met, what material it regarded as insufficient, which facts were not accepted, and whether there were concerns about integrity, character, health, the genuineness of a relationship, financial capacity or sponsorship and nomination.

In preparing for review, the issues in dispute must first be identified. For example:

An ART review generally calls for more targeted preparation of materials than the original visa application, and the quality of the evidence usually matters more than the volume. The materials must respond directly to the grounds of refusal and remain consistent with the case being advanced, so it is important that the materials are logically consistent with one another, that the timeline is clear, and that the evidence speaks directly to the reasons for refusal.

Materials commonly relied on include:

Care should be taken to avoid inconsistencies in the materials. Where a new explanation differs from the original application materials, the reason for the difference should be clearly explained and supported by material that establishes the true position.

Many ART matters may be listed for a hearing. A hearing may be held in person, by telephone or by video, depending on the type of matter and the Tribunal’s arrangements. The hearing usually focuses on the grounds of refusal or cancellation, and the applicant, sponsor, partner, employer or other witnesses may be required to answer questions.

Preparing for a hearing involves becoming familiar with the case timeline, understanding the grounds of refusal, confirming the materials already lodged, anticipating the questions that may be asked, and ensuring that you can explain the key facts clearly and consistently. For partner visa, student visa, employer sponsorship, character cancellation or complex integrity matters, the way you present at the hearing can have a significant effect on the outcome.

If the ART affirms the original decision, you may need to assess whether there is scope for judicial review. Judicial review does not re-hear the facts; it examines whether the ART’s decision involved a legal error, such as a denial of procedural fairness, the application of an incorrect legal standard, a failure to deal with a key issue according to law, or another error affecting the lawfulness of the decision.

Whether court proceedings are appropriate must be assessed by reference to the ART’s reasons for decision and the procedural record. Simple dissatisfaction with the outcome is usually not enough to establish a basis for judicial review.

In some matters, lodging a fresh visa application may be more practical than continuing to appeal. Whether reapplying is appropriate depends on whether the reasons for refusal have been resolved, whether the applicant still meets the visa requirements, whether a three-year or ten-year bar applies, whether the section 48 bar applies, whether the applicant remains in Australia, and whether a new visa pathway is available.

Some matters may also involve Ministerial Intervention, particularly after an ART review has been unsuccessful and where the case involves a special public interest, humanitarian or otherwise exceptional circumstances.

NS Legal can help clients review visa refusal, visa cancellation, and sponsorship or nomination refusal decisions, assess whether ART review rights exist, confirm the application deadlines, and develop a review strategy.

We can help prepare the review application, the evidence schedule, written submissions, personal statements, relationship materials, employer documents, materials responding to a visa cancellation, and hearing preparation. For complex matters involving PIC 4020, character concerns, visa cancellation, the genuineness of a partner relationship, a student’s genuine intention, employer sponsorship and nomination, or protection risk, we can help identify the key issues in the case and prepare more targeted review materials.