Review of decision to refuse a visa

There are certain minimum requirements that determine whether you will be able to seek a review of a decision by the Department of Home Affairs to refuse your visa application. All the requirements are not listed here but the two most important ones are as below:

1. The application for the visa that has been refused, was made while you were in Australia and it is a type of visa that could have been granted while you remain in Australia
2. You were overseas at the time you made the application for the visa that has been refused, but that visa has a formal sponsorship requirement, and your sponsor is an Australian citizen, permanent resident or eligible New Zealand citizen.

The refusal decision will be reviewed by the Administrative Review Tribunal (ART) which is a body independent from the Department of Home Affairs. The ART will examine the merits of your full case and not just the reason for which Home Affairs refused your visa. In doing so, the ART applies the same migration law and policy that was applied by Home Affairs when the refusal decision was made. As the requirements for most visas are split in two categories i.e. ‘requirements that apply at the time of application’ and ‘requirements that apply at the time of decision’, the ART process will also consider requirements in that order, however, the date of decision effectively becomes the date the ART decides your case.  

This approach has some advantages and disadvantages. For example, if your visa was refused because you did not meet a requirement that applied ‘at the time of application’ then the ART may also reach the same conclusion because the time of application for the visa cannot be changed. However, if the visa was refused because you did not meet a requirement that applied ‘at the time of decision’, but you were able to meet that requirement by the time the ART assesses your case, then you may receive a favourable outcome. 

If the ART decision is in your favour, the ART will send your matter back to Home Affairs to ‘vacate’ its original decision and re-consider your case again in light of the findings made by the ART.

As the ART will examine your case in full and from the start, the supporting documents needed for the ART process will need to be similar to the supporting documents attached to the original application. Care should be taken to replace any expired documents with fresh one because the time of decision will change to when the ART makes its decision so all the documents such as police clearances, English tests etc. must be current.

Commonly, additional documents may be required to support any arguments you are presenting to the ART as to why Home Affairs should not have refused your application.

As at 1 July 2024, the ART fees for merits reviews are as below:

• migration decisions – A$ 3,496
• protection decisions – A$ 2,151

The ART will also refund 50% of your fee if it makes a decision in your favour i.e. it concludes that the Department of Home Affairs decision was incorrect.