The Administrative Review Tribunal (ART) provides independent merits review of many Australian migration and visa decisions made by the Department of Home Affairs. If a visa application has been refused or a visa has been cancelled, an eligible person may be able to ask the ART to review that decision.
An ART review is not simply an appeal asking the Tribunal to reconsider the same documents. It is an opportunity to examine the decision, address the reasons for refusal or cancellation, provide relevant additional evidence where permitted, and present a properly structured case against the applicable migration law and visa criteria.
1. What Is the Administrative Review Tribunal?
The Administrative Review Tribunal commenced on 14 October 2024, replacing the former Administrative Appeals Tribunal (AAT).
In migration matters, the ART can review certain decisions concerning:
- visa refusals;
- visa cancellations;
- sponsorship and nomination decisions;
- Protection visa decisions;
- character-related decisions where merits review is available; and
- other reviewable migration decisions.
Not every Departmental decision can be reviewed by the ART. Review rights depend on the particular decision, the Migration Act and Regulations, the applicant’s circumstances and, in some cases, where the applicant or visa applicant was located at relevant times.
2. What Does “Merits Review” Mean?
The ART conducts merits review.
This means the Tribunal considers the relevant facts, evidence and law and determines the correct or preferable decision within its statutory jurisdiction.
Depending on the matter and applicable legislation, the ART may:
- affirm the original decision;
- vary the decision;
- set aside the decision and substitute another decision; or
- remit the matter for reconsideration in accordance with its decision or directions.
This is fundamentally different from judicial review by a court.
3. Who Can Apply for ART Review?
The person entitled to apply for review is not necessarily always the visa applicant.
Depending on the type of decision, review rights may belong to:
- the visa applicant;
- a sponsor;
- a nominator;
- another person prescribed by the migration legislation; or
- another eligible party affected by the decision.
The Department’s decision notification will generally contain information about whether the decision is reviewable and who may apply.
4. Strict Time Limits Apply
One of the most important aspects of ART review is the application deadline.
Migration review applications are subject to strict statutory time limits. The applicable deadline varies according to the type of decision and circumstances.
A person receiving a refusal or cancellation should therefore immediately identify:
Date of notification → ART review right → person entitled to apply → review deadline.
Missing the statutory deadline can result in the loss of merits review rights. Applicants should not assume that the ART can simply extend a migration review deadline.
5. Reviewing the Department’s Decision
Before preparing the ART case, the Department’s decision should be analysed carefully.
The review should identify:
- the precise reason for refusal or cancellation;
- visa criteria considered by the Department;
- factual findings made by the decision-maker;
- evidence accepted or rejected;
- credibility concerns;
- inconsistencies;
- missing evidence;
- applicable Public Interest Criteria;
- legal provisions relied upon; and
- issues that need to be resolved before the Tribunal.
The ART strategy should be directed towards overcoming the actual reasons for the adverse decision.
6. Can New Evidence Be Provided?
An important feature of merits review is that relevant additional or updated evidence may be considered, subject to the legislation and procedural framework applying to the particular matter.
Depending on the case, this might include:
- updated relationship evidence;
- additional financial documents;
- employment evidence;
- further evidence of qualifications or experience;
- medical evidence;
- character and rehabilitation evidence;
- statutory declarations;
- witness evidence;
- updated country information;
- evidence addressing inconsistencies; or
- evidence of relevant changes in circumstances.
An ART application should therefore not automatically consist of simply uploading the same evidence previously provided to Home Affairs.
7. Written Submissions
A properly prepared written submission can help the Tribunal understand:
- the background of the matter;
- the Department’s decision;
- the issues requiring determination;
- the relevant legislative requirements;
- the applicant’s evidence;
- how the evidence addresses the reasons for refusal;
- any relevant changed circumstances; and
- why the applicable criteria are now satisfied or why the decision should otherwise be changed.
Submissions should be supported by evidence and directed to the relevant statutory criteria.
8. ART Hearings
Depending on the case, the Tribunal may invite the applicant to attend a hearing.
The hearing provides an opportunity for the Tribunal Member to ask questions, clarify evidence and explore matters relevant to the review.
Questions may concern:
- information in the original visa application;
- statements made to Home Affairs;
- documents submitted;
- inconsistencies;
- relationship circumstances;
- employment;
- finances;
- immigration history;
- character;
- reasons for previous conduct; or
- other matters relevant to the visa criteria.
Applicants should prepare carefully but should not rehearse artificial or predetermined answers. Evidence should be truthful, direct and consistent with the documentary record.
9. Witnesses
Witness evidence can be valuable in appropriate ART cases.
Potential witnesses may include:
- spouse or partner;
- family members;
- employers;
- colleagues;
- sponsors;
- nominators;
- friends;
- community members; or
- professionals with relevant knowledge.
The value of a witness depends on whether that person can provide evidence relevant to an issue the Tribunal must determine.
Simply providing numerous witnesses is not necessarily better than providing a smaller number of credible and relevant witnesses.
10. Partner Visa Reviews
Partner visa refusals commonly involve issues such as:
- whether the relationship is genuine and continuing;
- financial aspects of the relationship;
- nature of the household;
- social aspects;
- nature of the parties’ commitment;
- periods of separation;
- inconsistent statements;
- previous relationships;
- sponsorship issues; or
- other statutory requirements.
A strong ART case should address the Department’s specific concerns and provide updated evidence demonstrating the development and continuity of the relationship where relevant.
11. Visitor Visa Reviews
Where ART review is available for a Visitor visa refusal, issues can include whether the applicant genuinely intends to stay temporarily in Australia and whether the relevant visa criteria are satisfied.
Evidence may address:
- employment;
- business;
- financial circumstances;
- family responsibilities;
- property or other commitments;
- purpose and duration of travel;
- previous travel history;
- funding arrangements; and
- incentives to return to the home country.
The submission should directly address the concerns identified by the original decision-maker.
12. Student Visa Reviews
Student visa reviews can involve matters such as:
- Genuine Student requirements;
- previous study history;
- course progression;
- relevance of the proposed course;
- financial capacity;
- immigration history;
- English-language requirements;
- enrolment;
- visa compliance; and
- other applicable criteria.
Updated evidence should be considered carefully because circumstances can change significantly during the review period.
13. Employer-Sponsored and Nomination Reviews
Employer-sponsored matters can involve both visa and sponsorship or nomination issues.
Depending on the decision, the Tribunal may need to consider matters including:
- genuineness of the nominated position;
- business operations;
- employment arrangements;
- occupation requirements;
- qualifications and experience;
- salary and employment conditions;
- sponsorship obligations; and
- other criteria applying to the relevant pathway.
The interaction between the employer’s matter and the worker’s visa application should be assessed carefully.
14. Protection Visa Reviews
Protection matters require a particularly detailed approach.
The Tribunal may need to assess:
- credibility;
- past harm;
- fear of persecution;
- Refugee Convention grounds;
- complementary protection;
- country information;
- state protection;
- relocation;
- inconsistencies;
- delay in claiming protection;
- previous travel or visa applications; and
- changes in the applicant’s country of origin.
Detailed personal statements, reliable country information and careful preparation for questioning can be critical.
15. Character Reviews
Some character-related decisions can be reviewed by the ART.
These matters may involve:
- criminal history;
- seriousness of offending;
- risk of reoffending;
- rehabilitation;
- protection of the Australian community;
- family violence;
- Australian citizen children;
- family ties;
- length of residence in Australia;
- international obligations; and
- other considerations under the applicable Ministerial Direction.
Character matters can also operate under shorter and particularly strict procedural timeframes, so immediate assessment is important.
16. Bridging Visas During ART Review
For applicants already in Australia, the Bridging visa position should be reviewed following a Departmental refusal.
Relevant questions include:
- which Bridging visa is held;
- whether it is currently in effect;
- whether a valid ART application affects its operation;
- work rights;
- Condition 8101;
- travel rights;
- whether a Bridging Visa B is required for travel; and
- when the Bridging visa may cease.
An ART application and a Bridging visa are separate legal processes and should both be managed carefully.
17. What Decisions Can the ART Make?
Depending on the statutory power under review, the Tribunal may make outcomes including:
Affirm – the Department’s decision remains unchanged.
Vary – the Tribunal changes the decision in a manner permitted by law.
Set aside – the original decision is set aside and another decision may be substituted.
Remit – the matter is returned to the Department for reconsideration, usually with findings or directions relevant to the outstanding criteria.
A successful ART outcome does not always mean that the Tribunal itself immediately grants the visa. In some cases, the matter is returned to Home Affairs for further processing.
18. If the ART Review Is Unsuccessful
An unsuccessful ART decision does not automatically mean that another appeal is available.
Potential next steps depend on the circumstances and may include:
- judicial review where there may be a reviewable legal error;
- another visa application where legally available;
- assessment of section 48 restrictions;
- Bridging visa arrangements;
- departure from Australia;
- ministerial intervention where available and appropriate; or
- another immigration pathway.
Each option must be assessed against the applicable legislation.
19. ART Review vs Judicial Review
The distinction is important:
ART – Merits Review
The Tribunal can reconsider relevant facts, evidence and law within its jurisdiction and determine the correct or preferable decision.
Court – Judicial Review
A court generally examines whether the administrative decision was affected by a jurisdictional or other reviewable legal error. It does not simply reconsider whether the visa should have been granted.
Court proceedings require legal representation or specialist legal advice where appropriate.
20. How Melton Migration Can Assist
At Melton Migration, we assist clients with eligible migration matters before the Administrative Review Tribunal, including:
- reviewing Departmental refusal and cancellation decisions;
- assessing ART review rights and deadlines;
- lodging ART review applications;
- obtaining and reviewing relevant immigration records;
- identifying the key issues in dispute;
- developing an evidence strategy;
- preparing detailed written submissions;
- preparing statutory declarations;
- organising additional supporting evidence;
- preparing applicants for Tribunal hearings;
- preparing relevant witnesses;
- assisting with responses to Tribunal requests;
- Partner, Visitor and Student visa reviews;
- Skilled and employer-sponsored matters;
- Protection visa reviews;
- character-related matters where review rights exist; and
- assessing options following an ART decision.
At Melton Migration, our approach is to treat an ART review as a fresh opportunity to properly analyse and present the case, rather than simply repeating the original visa application. We focus on the Department’s reasons for refusal or cancellation, identify evidentiary weaknesses, prepare relevant additional evidence and present the case against the applicable migration criteria.
Time is critical. If you receive a visa refusal or cancellation decision, the decision letter and review rights should be examined promptly because strict ART application deadlines may apply.
Disclaimer: This information is general in nature and does not constitute legal or immigration advice. Not every visa refusal or cancellation is reviewable by the Administrative Review Tribunal. Review rights, eligibility, application deadlines and available remedies depend on the particular decision and individual circumstances.