If you have received a refusal to a visa or citizenship application, you may be able to have the decision reviewed.
The avenues for review include the following:
Timing is Important
If you have received a refusal or negative finding, it is important that you seek legal advice in a timely manner. Many appeal options have strict deadlines to lodge an appeal, after which it is difficult or impossible to lodge an appeal.
Tribunals
The Administrative Review Tribunal (ART) is the organisation responsible for reviewing decisions made by the Australian government.
When a decision is being reviewed by the Tribunal one of the following results occur:
- the decision is affirmed (i.e. there are no changes)
- the decision is set aside (i.e. the decision is substituted with a new and different decision)
- the original application (visa/citizenship/sponsorship/nomination) is remitted (i.e. returned) to the Department of Home Affairs for reconsideration with recommendations by the Tribunal on additional factors to be considered
- the decision is varied
The Tribunal reviews the application afresh and may also consider new evidence or information submitted with the review application.
The ART is independent of the Department of Home Affairs and has the powers to review and reverse (set aside) the decisions made by Department of Home Affairs.
Should I submit a review to the ART for my visa/sponsorship application that was refused?
You can submit a review application only if you are entitled for review rights. The decision to lodge a review application to the ART depends on the circumstances of the visa/sponsorship refusal. Some of the common grounds for refusals include:
- Partner visas – Schedule 3 issues, failure to demonstrate genuine relationship
- Student visas – Meeting the Genuine Student (GS) requirement, lack of financial capacity
- 457, RSMS and ENS visas – Demonstrating genuine position
- Visitor visas – Meeting the Genuine Temporary Entrant (GTE) requirement
At Work Visa Lawyers we will assess the original application and supporting documents submitted and advise if the prospects for review are favourable. The Decision Record received by the applicant will also be studied in detail to identify weak areas of the original application and how we can address them in the review application.
What are my chances of success with the ART-MRD review?
The chances of obtaining a positive outcome from the Tribunal to set aside a Department of Home Affairs decision require the following:
- a thorough analysis of the refusal Decision Record
- in-depth knowledge about the visa applied and the requirements
- assessing the applicant’s circumstances and ability to address the issues highlighted by the Department of Home Affairs delegate when deciding on the refusal
In summary it should be considered whether the applicant can provide better evidence or information that will meet the visa application requirements. If the original application can be improved then the chances for success with the review will be increased.
Applicants with complicated circumstances should also note that submitting an ART review application is a pathway towards ministerial intervention. You can only request for a ministerial intervention if you have received a decision from the ART. You should be aware that the Minister only intervenes in a small amount of cases and you should have unique or exceptional circumstances before applying for a ministerial intervention.
Ministerial Intervention
The Minister of Immigration and Citizenship has powers to grant visas and change decisions made by review bodies such as the ART.
These powers are discretionary and are only exercised in limited circumstances. The power will only be exercised if it is in the public interest to do so. The Minister’s powers can often only be exercised after the ART has made a decision.
Courts – Judicial Review
If you have received a refusal in a migration matter it may be possible to have the case reviewed by the Federal Magistrates Court, the Federal Court of Australia or the High Court. Judicial review is only available in limited circumstances where there has been an error of law.
Strict time limitations apply when applying for judicial review.
Do you need help?
Our team of experienced Immigration Lawyers and Migration Agents look forward to assisting you with your Australian visa or appeal.
Based in Adelaide South Australia, we provide Australian Immigration advice to people and businesses from all over the world.
