Overview

In Australia, depending on your visa type, some visa refusals can be reviewed by the Administrative Review Tribunal (ART), which has locations across the country.

The Tribunal can reconsider your application and may overturn the refusal, potentially remitting the application back to the Department of Home Affairs for reconsideration. This process allows for a fresh assessment of your circumstances and supporting evidence. 

Time Limits

You must lodge your application within strict deadlines, usually 21–28 days from the date of refusal, depending on whether you are applying onshore or offshore. These time limits are very strict - if you lodge outside the prescribed timeframe, your appeal is unlikely to be accepted, unless there are exceptional circumstances. It is highly recommended that you seek advice immediately after a refusal to ensure you meet the deadlines and understand your available options.

If you are onshore, missing this deadline may mean you must make arrangements to leave Australia or risk overstaying your visa. However, in some cases, you may be eligible for other avenues, such as applying for Ministerial intervention or exploring alternative visa pathways. Acting promptly can preserve your rights and provide the best chance of a positive outcome.

Overview
Judicial review is a legal process in the Federal Circuit and Family Court of Australia (FCFCOA) that challenges the lawfulness of a visa refusal, rather than the merits of the decision itself. This process focuses on whether the decision was made correctly under the law, rather than whether the outcome was the best one.

When It Applies
Judicial review is generally used when there is an error of law, procedural unfairness, or jurisdictional error in the original decision. It is not a second chance to present your case; rather, it assesses whether the decision-making process was legally valid.

Time Limits
Applications for judicial review are strictly time-sensitive and usually must be filed within 35 days of the refusal. Prompt legal advice is essential to ensure deadlines are met and the review is lodged correctly.

Overview
In exceptional circumstances, the Minister for Immigration may personally intervene to grant a visa despite a refusal.  Ministerial intervention is a rare remedy, used only in cases where there are compelling or compassionate circumstances.

Eligibility
This power can generally be sought after the ART has affirmed the refusal and there are no further merits review avenues available, although not contingent on pursuing judicial review in the FCFCOA. Applications are considered on a case-by-case basis. Factors such as the applicant’s personal hardship, family circumstances, or contributions to the community may be relevant.

Process
There is no guarantee of success, and applications must be carefully prepared with strong supporting evidence. Ministerial intervention is generally considered once all other review avenues have been exhausted.

Overview
If an appeal or review is unsuccessful, you may still have the option to reapply for the same visa or a different visa category.

Considerations

• Ensure that any new application addresses the reasons for the previous refusal.
• Provide new or updated evidence that strengthens your case.
• Confirm that you meet all eligibility requirements before lodging a new application.

Timing
Reapplying should be done promptly, especially if your current visa is expiring, to avoid overstaying. Legal guidance can help determine the best pathway and ensure that your application is structured for success.

At Tern Legal, we guide clients through every stage of the appeals and reviews process, ensuring you understand your options and meet all strict deadlines. We provide practical, tailored advice on ART applications, judicial review in the FCFCOA, Ministerial intervention requests, and reapplying after refusal.

Our Principal Solicitor has extensive experience in litigation, including appearing before tribunals and courts such as the Supreme Court of NSW, ART, and the FCFCOA. This experience includes in-depth research and analysis of relevant case law, precedents, and legal principles, ensuring that every argument is supported by the strongest possible legal foundation. This means you benefit from expert advocacy, strategic guidance, and a thorough understanding of procedural and legal requirements, increasing the likelihood of a successful outcome.

It is important to note that while registered migration agents can assist with preparing visa applications and submissions to the Department of Home Affairs or the Tribunal, they cannot appear in court, including the FCFCOA. As a migration lawyer, our team can represent you in all judicial review matters, ensuring your case is properly argued before a judge when legal expertise is required.

With Tern Legal, you gain a partner experienced in both migration law and litigation, providing confidence that your appeal or review is in capable hands.