The Administrative Review Tribunal (Migration, Protection, and Character) – Key Questions and Answers.
As an immigration lawyer with years of experience in navigating the complex web of migration laws, I am frequently asked about the new Administrative Review Tribunal (ART) which commenced operation on Monday, 14 October 2024, replacing the Administrative Appeals Tribunal (AAT). The new Practice Direction from ART introduces new procedural frameworks for reviewing migration, protection, and character decisions. Below are the 14 most commonly asked questions on this topic, along with answers designed to clarify how the new ART process works.
1. What is the Administrative Review Tribunal (ART), and how does it differ from the previous AAT?
The ART replaces the Administrative Appeals Tribunal (AAT) and handles the same types of cases, including migration, protection, and character decisions. The main difference is the ART’s focus on streamlined procedures and stricter timelines, particularly in character-related cases. This tribunal is tasked with making independent, merits-based decisions on a variety of matters, with its migration, protection, and character division serving as one of the most crucial arms.
2. What types of migration decisions can be reviewed by the ART?
Under the Migration Act 1958, the ART can review decisions related to visa refusals, visa cancellations, protection visas, and specific character-related decisions under sections 501 and 501CA of the Migration Act. However, not all decisions are reviewable. For example, refusals based on sections 5H(2), 36(1C), or 36(2C) of the Act are excluded from review.Â
3. What is the process for applying for a review of a migration decision?
To apply for a review of a migration decision, you must submit an application either online through the ART’s website or by email or post. The application must include all required information, relevant documents, and the prescribed fee. If you are in immigration detention, you have 7 days to apply after being notified of the decision; otherwise, you have 28 days.
4. What happens if my application is not lodged within the required timeframe?
The ART adheres to strict deadlines for filing applications. If your application is lodged late, the ART does not have the authority to extend the timeframe. Failure to file on time will result in the Tribunal being unable to consider your case, regardless of the circumstances.Â
5. Can I include my family members in my review application?
Yes, you can include family members if they are involved in the same type of visa refusal decision. You must notify the Tribunal within 14 days of lodging your application if family members should be included in a joint review. Likewise, you should inform the Tribunal if circumstances change, such as a birth, death, or change in spousal status.
6. Can I appoint a representative to handle my case with the ART?
Yes, you can appoint a registered migration agent or an Australian legal practitioner to represent you. It’s essential to notify the ART of who will be representing you and provide both your contact details and your representative’s information. If your representative ceases to act for you, they must notify the Tribunal.
7. What is an expedited decision request, and how do I qualify for one?
An expedited decision request can be made if you can provide documentary evidence that shows you now meet the criteria for which your visa was initially refused. The ART allows expedited processing for cases where it is clear the applicant now satisfies the relevant visa criteria. You must submit a written submission alongside the documentary evidence explaining why a hearing is unnecessary
8. What are the fees associated with applying for a review at the ART?
The fees depend on the type of decision being reviewed. Please see the fees on its website. However, in cases of financial hardship, you may apply for a fee reduction, but at least 50% of the fee must be paid before the application deadline. Fee reductions are assessed on a case-by-case basis, and the ART provides forms for both the review application and the fee reduction request on its website.
9. Can I expedite the review process?
Yes, under certain conditions. If an applicant can provide evidence that the refusal grounds no longer apply (e.g., meeting a visa criterion that previously wasn’t met), they may request an expedited review. This request must include supporting documents and be made using the appropriate ART form.
10. Does the Minister for Home Affairs participate in all ART proceedings?
No, the Minister typically does not participate in the majority of migration and protection reviews unless specifically ordered by the ART President. However, the Minister actively participates in expedited character decisions
11. What happens if the ART doesn’t make a decision within the specified timeframe for an expedited character review?
If the ART fails to issue a decision within 84 days of the applicant being notified of the original decision, the decision is automatically deemed affirmed. This strict deadline underscores the urgency attached to these reviews.
12. What obligations does the Department of Home Affairs have in ART proceedings?
The Department must provide the ART with all relevant documents in a timely manner. The Department must also comply with the ART’s requests for information during the review process.
13. Can I access the materials the Department has provided to the ART?
Yes, applicants have the right to request access to any written materials submitted to the ART by the Department. This request should be made as early as possible to avoid delays during the review.
14. What if my review application is found invalid by the ART?
If your application is deemed invalid, the ART may invite you to provide submissions explaining why the application should be considered valid. The ART will make a final determination on the validity and notify you of the outcome.
A Call to Action: Why Legal Representation Matters
Navigating the complexities of the Administrative Review Tribunal’s new processes can be overwhelming, especially with strict deadlines and the procedural nuances involved in expedited character reviews. As an immigration lawyer with a deep understanding of both the Migration Act 1958 and the ART Practice Direction 2024, I am here to guide you through every step of the process. Whether you’re applying for a review or seeking to expedite your case, having professional legal assistance is crucial to maximizing your chances of success.
If you need advice or representation, reach out today for a consultation. Don’t leave your future to chance—ensure that you’re in the best position to succeed at the ART.
