Role of the Administrative Review Tribunal (ART) in Migration Cases
Receiving a visa refusal or cancellation letter can be distressing, particularly when your job, studies, relationship or family life in Australia depends on the outcome. Many of these decisions can be reviewed by the ART. The difficult part is that the deadlines are short, they are calculated in a technical way, and in most migration cases they cannot be extended.
If you live in Hornsby or nearby suburbs such as Waitara, Asquith, Wahroonga, Thornleigh or Pennant Hills and you have received a visa refusal or cancellation, you can book a consultation with Caspian Legal on 02 7264 3200 before your review deadline passes.
This article explains Commonwealth migration law, which applies across Australia, including NSW. It covers the ART’s role in reviewing migration and protection decisions under the Migration Act 1958 (Cth) and the Administrative Review Tribunal Act 2024 (Cth). It does not cover citizenship decisions or other types of ART review.
What is the role of the ART in migration cases?
The ART’s role is to give an independent second look at certain decisions made under the Migration Act. If a valid application for review is made on time, the ART must review the decision (Migration Act, section 348). If the application is not properly made, for example because it is late, the ART has no power to review it.
The ART was established by the Administrative Review Tribunal Act 2024 (Cth) and began operating on 14 October 2024, replacing the AAT. Part 5 of the Migration Act contains special rules for migration and protection reviews. In several places these rules override the general ART Act procedures, which is why migration reviews have stricter time limits than many other ART matters.
The ART is separate from the Department of Home Affairs. Migration and protection hearings are not run like a court case between two opposing lawyers. The Tribunal Member usually leads the questioning, and the Migration Act provides that a person giving evidence is not entitled to examine or cross-examine other witnesses (section 366D).
What do the key terms mean?
| Term | Plain English meaning |
| Merits review | A fresh look at the whole decision, including the facts and evidence, to decide whether it should stand. This is what the ART does. |
| Judicial review | A court process that checks whether a decision was made lawfully. The court does not decide whether you should get the visa. It looks for legal error (called jurisdictional error). |
| Reviewable migration decision | A decision the Migration Act says the ART can review, listed in section 338 (for example, many onshore visa refusals and cancellations). |
| Reviewable protection decision | A protection visa decision the ART can review, listed in section 338A. |
| Notified | The date you are legally taken to have received the decision. It may be earlier than the day you actually read it. |
| Affirm | The ART agrees with the original decision, so it stays in place. |
| Set aside and substitute | The ART replaces the original decision with its own decision. |
| Remit | The ART sends the matter back to Home Affairs to decide again, usually with a direction (for example, that you meet a particular criterion). |
| Section 359A letter | A letter from the ART inviting you to comment on information that could be the reason, or part of the reason, for affirming the decision. It has a response deadline. |
| Bridging visa | A temporary visa that can keep you lawful in Australia while an application or review is being decided, depending on your circumstances. |
| Ministerial intervention | A personal power of the Immigration Minister to substitute a more favourable decision in the public interest. The Minister does not have to consider a request. |
Which migration decisions can the ART review?
Not every migration decision can be reviewed. The Migration Act sets out which decisions are reviewable and who can apply (sections 338, 338A and 347A). Your decision letter from Home Affairs will usually state whether you have review rights, the time limit, who can apply and where to apply. Read it carefully, because the answer depends on the type of visa, where you were when you applied and who is seeking review.
| Type of decision | Can the ART usually review it? | Practical notes |
| Refusal of a visa applied for in Australia (for example, partner, student, skilled or temporary work visas) | Often yes | Review rights depend on the visa and the circumstances at the time of application. Check the decision letter. |
| Refusal of some visas applied for outside Australia | In some cases | Where review is available, the Australian sponsor, nominator or relative is often the person who must apply. |
| Visa cancellation (for example, under section 116) | Often yes | Usually where the visa holder was in Australia when the visa was cancelled. |
| Sponsorship or nomination refusals | Some are reviewable | The sponsor or nominator is usually the applicant for review. |
| Protection visa refusal or cancellation | Generally yes | Separate procedures and fee rules apply. The applicant’s identity is protected. |
| Character decisions under section 501 or 501CA made by a delegate | Some are reviewable | A 9 day time limit applies where the person is in Australia. Decisions made personally by the Minister are generally not reviewable by the ART. |
| Decisions covered by a conclusive certificate (section 339) | No | The ART must not review these decisions. |
How long do I have to apply to the ART?
Time limits are the most important part of any ART migration review. For migration and protection decisions, the ART cannot extend the time to apply (Migration Act, section 347(5)). If you are late, even by one day, the ART will generally have no power to review the decision.
| Situation | Time limit | Can it be extended? | Authority |
| Most migration and protection decisions, where you are not in immigration detention | 28 days after the day you are notified | No | Migration Act s 347(3)(b), (5) |
| You were in immigration detention on the day you were notified | 14 days after the day you are notified | No | Migration Act s 347(3)(a), (5) |
| Character decisions under s 501 or s 501CA, where you are in Australia | 9 days after you receive the decision and documents | No | Migration Act s 500(6B); ART fact sheet |
| Court challenge to an ART decision (judicial review) | 35 days from the date of the ART decision | The court may extend time | Migration Act s 477; FCFCOA guidance |
The clock starts from when you are taken to have been notified, which is not always the day you read the letter. Under section 494C of the Migration Act, a decision sent by email is taken to be received at the end of the day it was sent. A decision posted within Australia is taken to be received 7 working days after the date of the document. Other rules can apply to other methods of delivery and to documents sent by the ART itself.
Some older guides refer to 7 working days for people in detention. The Migration Act now provides 14 days. Always check the current law and your decision letter rather than relying on older material.
For most migration reviews, the ART application fee (or 50% of the fee together with a request for a fee reduction) must also be paid by the application deadline. Leaving the fee until later can put the application at risk.
How is ART review different from Home Affairs and the courts?
| Feature | Home Affairs (original decision) | ART (merits review) | Court (judicial review) |
| Main question | Do you meet the visa criteria? | Should the decision stand, based on all the evidence now before the ART? | Was the decision made lawfully? |
| New evidence | Yes, while the application is being processed | Generally yes, with special rules for new claims or evidence in protection reviews (s 367A) | Very limited. The court does not re-decide the facts. |
| Can it grant or restore the visa? | Yes | It can substitute a new decision or remit the matter to Home Affairs | No. If legal error is found, the matter usually goes back to the ART. |
| Time limit to start | Not applicable | 28 days, 14 days or 9 days depending on the decision | 35 days, which the court may extend |
What decisions can the ART make?
When the ART decides a review, it can do one of the following (Administrative Review Tribunal Act 2024, section 105; Migration Act, section 349).
| ART outcome | What it means | Practical effect |
| Affirm | The original decision stays in place. | Any bridging visa linked to the application or cancellation may cease. Get advice promptly about your status and options. |
| Vary | The ART changes part of the original decision. | The varied decision takes effect as the decision under review. |
| Set aside and substitute | The ART replaces the original decision with its own decision. | Home Affairs acts to give effect to the ART’s decision. |
| Set aside and remit | The ART sends the matter back to Home Affairs to reconsider, often with a direction. | Home Affairs continues processing. A related bridging visa generally remains in effect while this happens. |
A review can also end without a decision on the merits, for example if the application was not validly made or, in some cases, if you do not attend a scheduled hearing.
How does an ART migration review work, step by step?
- Read the decision letter carefully. Note the date of the letter, how it was sent, the type of decision, who can apply for review and the stated deadline.
- Get advice quickly. Only certain people can give immigration assistance, including a registered migration agent or an Australian lawyer who holds a practising certificate.
- Lodge the application on time. The ART recommends applying online where possible. Pay the fee, or 50% of the fee with a fee reduction request, by the deadline.
- The ART obtains the Department’s file. You can ask for access to the written material the Department gave the ART (Migration Act, section 362A).
- Prepare your evidence and written submissions. Focus on each reason given for the refusal or cancellation and provide evidence that deals with it.
- Respond to any ART letters on time. If the ART sends you a section 359A letter or asks for information, reply by the date given. If you do not, the ART may be able to decide the review without taking further action.
- Attend the hearing. Hearings may be held in person or, in some cases, by video or telephone. You will be asked to take an oath or affirmation, the Member will ask questions and you can present evidence. An interpreter can be requested.
- Receive the decision. The ART gives a written decision and reasons. Many migration decisions are published, usually on AustLII, while the identity of protection applicants is protected.
- Act promptly after the decision. If the decision is not in your favour, time limits for further steps start running immediately.
What documents should I prepare for an ART migration review?
Gather these documents as early as possible. Bringing them to your first appointment allows your lawyer to check the deadline and identify gaps quickly.
- The Home Affairs decision letter and statement of reasons, plus the email or envelope showing when and how it was sent.
- A copy of your visa application and every document you lodged with it.
- ImmiAccount correspondence, including any requests for information and your responses.
- Your passport and current visa or bridging visa details (a VEVO check is useful).
- Evidence addressing each refusal reason, such as relationship evidence, English test results, skills assessments, employment records, financial documents, or health and character documents.
- Statements from you and any witnesses who may support your case.
- Any new evidence that has come into existence since the decision was made.
- Details of any previous visa refusals, cancellations or ART applications.
- For sponsored visas, the sponsorship and nomination documents and related correspondence.
- For character matters, court outcomes, criminal history records, rehabilitation evidence and references.
When you book, you can ask us for our ART review document checklist so you can prepare before your appointment.
How much does it cost to apply to the ART?
The ART application fee for migration reviews is set by the Migration Regulations 1994 (Cth), regulation 4.13, and is indexed each 1 July. A 50% reduction may be granted if paying the full fee would cause financial hardship. For protection reviews, the fee is generally payable only if the review is not successful. Character reviews under section 501 attract the standard ART fee, with a reduced fee available in some circumstances.
Because fees change each financial year, check the current amount on the ART fees page before you apply. Caspian Legal will explain our own professional fees to you in writing before any work begins.
What should I not do after a visa refusal or cancellation?
- Do not wait until the last day to act. Online systems, payment problems and missing documents can cause delays.
- Do not assume the deadline runs from the day you opened the email or letter.
- Do not ignore letters from the ART or miss a response date.
- Do not lodge a new visa application without advice. After a refusal or cancellation, restrictions such as section 48 of the Migration Act can limit which visas you can apply for in Australia.
- Do not provide false or misleading information or documents. This can lead to refusal and, for many visas, further consequences under Public Interest Criterion 4020.
- Do not travel overseas without advice. Leaving Australia can affect your bridging visa and, in some cases, your review.
- Do not breach your visa conditions, including work or study conditions, while the review is underway.
- Do not rely on unregistered or unqualified advisers. Check that your adviser is a registered migration agent or an Australian lawyer with a practising certificate.
What are the common myths and mistakes about ART migration reviews?
| Myth or mistake | What the law actually says |
| The ART only checks whether Home Affairs made a mistake. | The ART conducts merits review. It considers the case afresh on the evidence before it. |
| If I am late, I can ask the ART for more time. | For migration and protection decisions, the ART cannot extend the time to apply (s 347(5)). |
| The deadline runs from when I read the email. | Deemed notification rules apply. An email is generally taken to be received at the end of the day it was sent (s 494C(5)). |
| The ART can only look at what I gave Home Affairs. | The ART can generally consider new information, although special rules apply to new claims or evidence in protection reviews. |
| If the ART refuses, a court will rehear my case. | Judicial review is limited to legal error. The court does not decide whether you should be granted the visa. |
| Ministerial intervention is an automatic next step. | The Minister’s powers are personal and non-compellable. The Minister does not have to consider a request. |
| Paying half the fee is always enough. | A 50% payment must be paired with a fee reduction request, and the ART decides whether to grant the reduction. |
What happens if the ART affirms the decision?
If the ART affirms the refusal or cancellation, you may have some further options. Each has strict rules and limits.
Judicial review in the Federal Circuit and Family Court of Australia
You may be able to apply to the Federal Circuit and Family Court of Australia (Division 2) for judicial review. The court can only consider whether the ART made a jurisdictional error. An application must be filed within 35 days of the date of the ART’s decision, although the court may extend time in some cases (Migration Act, section 477). If you are unsuccessful, you may be ordered to pay the Minister’s legal costs.
Ministerial intervention
The Minister has personal powers under sections 351 and 501J of the Migration Act to substitute a more favourable decision after an ART decision if the Minister thinks it is in the public interest. These powers are non-compellable, which means the Minister does not have to consider your request, and requests are assessed against published Ministerial Instructions. Ministerial intervention should not be treated as a guaranteed backup plan.
Other steps
You may also need advice about your bridging visa status, whether any other visa is available to you, and arrangements if you need to depart Australia. The right path depends on your individual circumstances.
Migration lawyer in Hornsby: how Caspian Legal can help
Caspian Legal Pty Ltd has assisted clients since 2015 and is based at Suite 1, 22-28 Edgeworth David Avenue, Hornsby NSW 2077. We assist clients in Hornsby and surrounding Upper North Shore suburbs, including Waitara, Asquith, Wahroonga, Normanhurst, Thornleigh, Pennant Hills, Berowra and Mount Colah. We also help clients across Sydney by phone and video.
We assist with ART reviews of visa refusals and cancellations, including preparing applications, evidence and submissions and representing clients at ART hearings. Our Principal Solicitor also speaks Persian (Farsi), which some clients find helpful when explaining their circumstances.
What happens in your first consultation?
- We review your decision letter and confirm the review deadline.
- We check whether the decision is reviewable and who should apply.
- We look at the reasons for the decision and the evidence that may help address them.
- We explain your options, including any alternatives to ART review.
- We outline the next steps, the likely timeline and our fees.
Please bring your decision letter and as many documents from the checklist above as you can.
Frequently asked questions
Is the ART the same as the AAT?
No. The ART replaced the AAT on 14 October 2024. Migration and protection reviews that were previously handled by the AAT are now handled by the ART.
Can the ART extend my deadline if I miss it?
No. For migration and protection decisions, the Migration Act prevents the ART from extending the time to apply. This is why getting advice early matters.
Do I have to attend the ART hearing?
If you are invited to a hearing, you should attend. If you do not, the ART may decide the review without hearing from you or the review may end. If you cannot attend on the listed date, contact the ART as early as possible.
Can I stay in Australia while the ART reviews my case?
This depends on your visa status. Many applicants hold a bridging visa while the review is underway, but this is not automatic in every case. Check your status on VEVO and get advice before making travel or work decisions.
Can I give the ART new evidence?
Generally yes. New evidence is often important in migration reviews. In protection reviews, special rules apply to new claims or evidence raised for the first time at review, so advice is especially important.
How long does an ART migration review take?
Timeframes vary depending on the type of case and the ART’s workload. No one can promise a decision date. The ART publishes information about its processing on its website.
Do I need a lawyer for an ART review?
You can represent yourself. However, the law limits who can give immigration assistance, and ART reviews involve strict deadlines and technical visa criteria. A migration lawyer can help you understand the issues and prepare your evidence.
Speak with a migration lawyer in Hornsby before your deadline
If you or a family member has received a visa refusal or cancellation, time limits may apply from the day you are notified. Contact Caspian Legal to discuss your options before taking the next step.
- Phone: 02 7264 3200
- Address: Suite 1, 22-28 Edgeworth David Avenue, Hornsby NSW 2077
- Website and enquiries: caspianlegal.com.au
- Already a client? You can share your feedback on our Google review page.
About the reviewer
This article was reviewed by Ryan Lasaki, Principal Solicitor, Caspian Legal Pty Ltd. Ryan assists clients with migration matters, including ART reviews of visa refusals and cancellations. The article reflects the law and procedure as at 25 September 2026.
Disclaimer
This article is general information only and is not legal advice. It does not take into account your personal circumstances. Migration law, ART procedures and fees change regularly. You should obtain legal advice about your situation before taking or not taking any action. Past outcomes do not guarantee future results.
Sources
- Migration Act 1958 (Cth), full text (AustLII, primary source): austlii.edu.au
- Migration Act 1958 (Cth) s 347, application for ART review and time limits (AustLII, primary source): s 347
- Migration Act 1958 (Cth) s 348, ART must review properly made applications (AustLII, primary source): s 348
- Migration Act 1958 (Cth) s 347A, who can apply for ART review (AustLII, primary source): s 347A
- Administrative Review Tribunal Act 2024 (Cth), including s 105 (Federal Register of Legislation, primary source): legislation.gov.au
- Rana v Minister for Immigration and Border Protection [2014] FCA 1233, applying s 494C(5) deemed receipt by email (Federal Court, case law): judgments.fedcourt.gov.au
- ART, Migration, Protection and Character Practice Direction 2024 (official): art.gov.au
- ART, Apply for a review of a migration decision (official): art.gov.au
- ART, Fees (official): art.gov.au/help-and-resources/fees
- ART, Expedited review of decisions under s 501 or 501CA fact sheet (official): art.gov.au
- ART, Information about decisions fact sheet MR25 (official): art.gov.au
- Federal Circuit and Family Court of Australia, Review of Migration Decisions (official): fcfcoa.gov.au
- Department of Home Affairs, Ministerial intervention, sections 351 and 501J (official): immi.homeaffairs.gov.au
