TRIBUNAL REVIEW

Merits Review (ART)

The Administrative Review Tribunal independently reassesses certain migration decisions. It considers the applicable law and evidence to determine the correct or preferable outcome. Where permitted, further evidence can address issues identified in the original refusal or cancellation.

Which decisions can be reviewed?

Review may be available for visa refusals and cancellations, employer nomination or sponsorship decisions, protection decisions and certain character decisions. The right depends on the decision, who made it, the applicant’s location and who is entitled to apply. Some offshore decisions require an eligible sponsor or other person to apply. Personal ministerial decisions and other excluded decisions require a different assessment.

Deadlines and preparation

Check the decision letter and how and when it was notified immediately. Many migration and protection lodgement deadlines cannot be extended. Expedited character reviews can have a nine-day deadline and special procedural requirements. Do not assume a general deadline applies to your matter.

Our immigration lawyers review the Department’s reasons and file, identify disputed criteria, organise evidence and prepare submissions. Where a hearing is available, we help you prepare to answer questions and explain relevant inconsistencies. Some cases are decided on written material, so an oral hearing is not guaranteed.

Possible outcomes

Depending on its statutory powers, the ART may affirm, vary or set aside the decision, substitute another decision, or send the matter back for reconsideration with directions. A favourable remittal may still leave other visa criteria for the Department to assess. A review application does not guarantee a visa grant.

ART review eligibility and application guidance

COURT REVIEW

Judicial Review

Judicial review examines whether a migration decision was made lawfully. It generally requires an arguable jurisdictional error. Disagreement with the result, or a wish to present a stronger factual case, does not by itself establish a court ground.

What kinds of errors matter?

Potential grounds can include a legally unfair process, applying the wrong legal test, failing to consider material the law required the decision-maker to consider, or legal unreasonableness. An error must satisfy the relevant legal requirements, including materiality where required. We assess the reasons, record and applicable authorities before recommending litigation.

The right court and filing period

Many first-instance migration challenges fall within the Federal Circuit and Family Court of Australia (Division 2). Certain matters, including some character and personal ministerial decisions, fall within the Federal Court’s original jurisdiction. We identify the appropriate court for the particular decision.

In the usual migration judicial review pathway, the filing period is 35 days from the date of the decision. A court may extend time, but an extension requires justification and is discretionary. Do not calculate the period solely from when you read or received the reasons, or rely on an extension being granted.

What can the court do?

If a review succeeds, the court may set aside the unlawful decision and return the matter for lawful reconsideration. It does not grant the visa or conduct a fresh merits assessment. New factual material generally matters only if relevant to the alleged legal error.

Representation and costs

We advise on grounds and prospects, prepare court documents and submissions, and arrange counsel where appropriate. Filing and hearing fees, professional fees and possible adverse costs need consideration. An unsuccessful or discontinued case may lead to an order to pay the other party’s legal costs.

Court judicial review guidance · Federal Court migration guide