Migration Law FAQs

The Administrative Review Tribunal has broad powers to review migration decisions — here's what it can look at:

• Visa Refusals: Decisions to refuse the grant of a visa.
• Visa Cancellations: Decisions to cancel an existing visa.
• Character-Related Decisions: Refusals or cancellations based on character grounds.
• Citizenship Decisions: Refusals of applications for Australian citizenship or cancellations of citizenship.

Not all decisions are reviewable; it's essential to verify whether your specific decision qualifies for review.

Here's what can happen after your ART hearing — there are several possible outcomes:

• Affirm: Agree with the original decision, leaving it unchanged.
• Vary: Modify aspects of the original decision.
• Set Aside: Overturn the original decision and substitute a new one.
• Remit: Send the matter back to the original decision-maker for reconsideration with specific instructions.

Each outcome depends on the merits of the case and the evidence presented.

The Administrative Review Tribunal (ART) is an independent body established on 14 October 2024, replacing the former Administrative Appeals Tribunal (AAT). It reviews decisions made by Australian Government departments and agencies, including those related to migration and citizenship. The ART aims to provide fair, accessible, and independent reviews of administrative decisions.

Your ability to stay in Australia during the appeal process depends on your current visa status and the type of decision under review. In some cases, you may be granted a bridging visa allowing you to remain lawfully in Australia while awaiting the ART's decision. It's essential to maintain lawful status throughout the process to avoid detention or removal.

As of 1 July 2024, the application fee for most migration decisions is $3,496. Fee reductions of 50% may be available in cases of severe financial hardship. Protection visa refusal reviews do not require an upfront fee; however, if unsuccessful, a fee of $2,151 is payable. It's advisable to check the ART's official website for the most current fee information.

If the ART upholds the original decision, you may consider:

• Judicial Review: Challenging the decision in a court on legal grounds, not on the merits.
• Ministerial Intervention: Requesting the Minister for Immigration to intervene in your case, though this is discretionary and subject to strict criteria.
• Applying for Another Visa: If eligible, submitting a new visa application.

Each option has specific requirements and implications; seeking legal advice is recommended to determine the best course of action.

While not mandatory, having legal representation can be beneficial. A migration lawyer or registered migration agent can assist with:

• Preparing and lodging the application.
• Gathering and presenting evidence.
• Advocating on your behalf during hearings.

Professional guidance can enhance the quality of your application and improve the likelihood of a favorable outcome.

The duration of the appeal process varies based on factors such as case complexity and ART caseload. Some cases may be expedited, especially those involving detention or urgent circumstances. On average, it can take several months to over a year to receive a decision. Regular communication with the ART and prompt responses to any requests can help facilitate a timely resolution.

Timeframes vary depending on the type of decision:

• General Visa Decisions: Applications must be lodged within 28 calendar days of receiving the decision.
• Detention Cases: If in immigration detention, you have 7 working days to lodge an appeal.
• Character-Related Decisions: Appeals must be filed within 9 calendar days of notification.

Strict adherence to these deadlines is crucial, as late applications are typically not accepted.

The process involves several steps:

1. Determine Eligibility: Confirm that the decision is reviewable by the ART.
2. Submit an Application: Lodge an application for review within the specified timeframe, providing necessary details and supporting documents.
3. Pay the Application Fee: A fee is required for most applications, though fee reductions may be available in cases of financial hardship.
4. Attend Hearings: The ART may conduct hearings where you can present evidence and arguments.
5. Receive a Decision: After considering all information, the ART will issue a decision, which could affirm, vary, set aside, or remit the original decision.

The process includes:

1. Filing a Notice of Appeal: Submit the appropriate form detailing grounds for appeal.
2. Preparing the Appeal Book: Compile relevant documents and transcripts.
3. Written Submissions: Outline legal arguments supporting the appeal.
4. Hearing: Present oral arguments before the court.
5. Judgment: Await the court's decision, which may affirm, vary, or overturn the original decision.

If dismissed, the original decision stands. Further options may include:

• Appealing to the High Court: Requires special leave and is granted only in limited cases involving significant legal questions.
• Ministerial Intervention: Requesting the Minister for Immigration to exercise discretionary powers, though this is rare and subject to strict criteria.

Consult your legal advisor to explore available avenues.

A Federal Court appeal in migration law involves challenging a decision made by a lower court or tribunal regarding a migration matter. The Federal Court reviews the application of law in the original decision to determine if any legal errors occurred.

The court may:

• Dismiss the appeal: Uphold the original decision.
• Allow the appeal: Set aside or vary the decision, potentially remitting the case for reconsideration.
• Order a re-hearing: Direct the lower court or tribunal to re-evaluate the case.

Individuals who are dissatisfied with a migration decision made by the Federal Circuit and Family Court of Australia (FCFCOA) or the Administrative Appeals Tribunal (AAT) may file an appeal in the Federal Court. It's essential to seek legal advice to assess the viability of an appeal.

Generally, an appeal must be filed within 28 days of the decision. Extensions may be granted in exceptional circumstances, but prompt action is crucial.

No, the Federal Court focuses on legal errors in the original decision and does not consider new evidence or reassess factual findings.

Legal professionals can:

• Assess the merits of your appeal.
• Prepare and file necessary documents.
• Develop and present legal arguments.
• Navigate complex court procedures.

Engaging experienced legal counsel enhances the likelihood of a favorable outcome.

An appeal must be based on a question of law, such as:

• Incorrect interpretation or application of legislation.
• Procedural fairness violations.
• Jurisdictional errors.

The Federal Court does not reassess facts but focuses on legal principles.

Costs include:

• Filing fees: Payable upon lodging the appeal.
• Legal representation fees: Costs for engaging lawyers.
• Potential adverse costs: If unsuccessful, you may be ordered to pay the other party's legal expenses.

It's advisable to discuss potential costs with your legal advisor.

Ministerial Intervention is a last resort — but sometimes it's the most important option available. Ministerial Intervention refers to the discretionary power of the Minister for Immigration to substitute a more favorable decision for one made by a review tribunal, such as the Administrative Appeals Tribunal (AAT), if it is deemed in the public interest. This authority is outlined in sections 351, 417, and 501J of the Migration Act 1958.

We'll always be honest with you about this. The success rate for Ministerial Intervention requests is generally low, as the Minister exercises this power sparingly and only in cases with compelling and exceptional circumstances. It's crucial to present a well-prepared submission with strong supporting evidence to enhance the chances of a favorable outcome.

This is one area where specialist legal advice genuinely makes a difference. Given the complexity and discretionary nature of the Ministerial Intervention process, obtaining legal assistance can be highly beneficial. Experienced immigration lawyers can:

• Provide guidance on eligibility and the strength of your case.
• Assist in preparing a comprehensive and persuasive submission.
• Navigate the procedural requirements effectively.

Professional advice can significantly enhance the quality of the request and potentially improve the chances of a favorable outcome.

The processing time for a Ministerial Intervention request can vary significantly, ranging from several months to over a year. Factors influencing the timeline include:

• The complexity of the case.
• The volume of requests received.
• Administrative considerations within the Department of Home Affairs.

Applicants should be prepared for potential delays and maintain regular communication with the Department.

If the Minister decides not to intervene:

• The original decision by the tribunal remains in effect.
• The applicant may be required to make arrangements to depart Australia.
• In certain situations, there may be limited avenues for further legal appeal or review.

It's advisable to seek legal advice to understand any remaining options.

The Minister evaluates whether intervening is in the public interest, considering factors such as:

• Compelling humanitarian circumstances.
• Significant new information not previously available.
• Strong, established ties to the Australian community.
• Potential contributions to Australia's society, economy, or culture.

However, the Minister is not obligated to intervene and exercises this power at their discretion.

To request Ministerial Intervention:

1. Prepare a written submission detailing the exceptional circumstances and reasons for the request.
2. Include all relevant supporting documents, such as:
• Character references.
• Medical reports.
• Evidence of community ties.
3. Send the request to the Minister for Home Affairs or the Minister for Immigration, Citizenship, and Multicultural Affairs via:
• Postal Address: PO Box 6022, Parliament House, Canberra ACT 2600
• Email: minister@homeaffairs.gov.au

Ensure that all personal details, including your name, date of birth, and any departmental reference numbers, are clearly stated at the beginning of the request.

A request for Ministerial Intervention can be made when:

• A visa application has been refused, and all avenues of appeal through the AAT have been exhausted.
• There are unique or exceptional circumstances that justify the Minister's consideration, such as:
• Compelling humanitarian grounds.
• Significant new information not previously considered.
• Strong, established ties to the Australian community.

It's important to note that the Minister is not obligated to intervene and exercises this power at their discretion.

Upon reviewing a request, the Minister may:

• Intervene Favorably: Grant a visa or provide a more favorable outcome than the tribunal's decision.
• Decline to Intervene: Decide not to take action, resulting in the original decision remaining in effect.

It's important to understand that the Minister's decision is final and typically not subject to further review.

Yes, family members can be included in a single request if they were part of the original visa application or tribunal review. Ensure that all relevant details and supporting documents for each family member are provided in the submission.