Missed Your ART Appeal Deadline or Facing a Non-Reviewable Visa Decision? Here’s What You Can Do Next

Missed Your ART Appeal Deadline or Facing a Non-Reviewable Visa Decision? Here’s What You Can Do Next

As an immigration lawyer in Australia, I frequently encounter clients who have missed the Administrative Review Tribunal (ART) appeal deadline or face a non-reviewable visa decision. As of 14 October 2024, the AAT will be replaced by the ART, so references in this article will reflect this change. Here, we’ll explore your legal options, including judicial review and reapplying for a visa.

1. Judicial review in Australia

If your visa decision is non-reviewable by the ART, or you’ve missed the appeal deadline, your next step might be judicial review. Judicial review examines whether the decision was made lawfully, under Section 75(v) of the Constitution, which grants the High Court jurisdiction to review decisions made by the Department of Home Affairs. It does not reconsider the merits of your visa but checks whether the law was applied correctly.

Practice Tip: Judicial review is complex and costly. Consulting an immigration lawyer is essential to determine if you have strong legal grounds.

2. Real-life example: Novak Djokovic’s Visa cancellation and judicial review

In 2022, tennis player Novak Djokovic faced a visa cancellation upon arriving in Australia for the Australian Open. His visa was cancelled by a delegate of the Minister for Home Affairs under Section 116(1)(e)(i) of the Migration Act, which allows cancellation if the person poses a community risk. After successfully overturning the first cancellation in the Federal Circuit and Family Court of Australia, Djokovic’s visa was cancelled again by the Minister for Immigration under Section 133C(3), citing concerns over his influence on public health sentiment.

Djokovic’s legal team sought judicial review in the Federal Court of Australia. The court upheld the Minister’s decision, focusing on whether the decision-making process was lawful, not whether the cancellation was fair.

Why the Case Ended Up in the Federal Court of Australia: Djokovic’s second visa cancellation was directly carried out by the Minister for Immigration under special discretionary powers (Section 133C(3)), which bypassed the Federal Circuit and Family Court of Australia and went straight to the Federal Court for judicial review. The Federal Court was tasked with determining whether the Minister acted within his legal powers, especially given the national and international importance of the case .

Key Takeaway: The Djokovic case demonstrates that judicial review is focused on legal errors, not the fairness of the visa decision.

3. Filing for judicial review

To apply for judicial review, you must file an application in the High Court under the High Court Rules 2004. The court reviews whether the Department’s decision was lawful. If the case is referred, it may be handled by the Federal Circuit and Family Court of Australia under Section 44 of the Judiciary Act 1903 (Cth).

Practice Tip: Judicial review can take months or years. A fresh visa application may be faster and more affordable.

4. Missed your ART appeal deadline?

If you miss the ART appeal deadline, your only options are judicial review or reapplying for a visa. A new application is often quicker and simpler than pursuing judicial review, especially if your circumstances have changed since the original refusal.

Practice Tip: Consider whether a new visa application might be more effective than a lengthy legal process.

5. Reapplying for a Visa After refusal

If your visa refusal is non-reviewable or you missed the appeal deadline, you can file a fresh visa application. This can be a better option if:

• Minor issues in the original application can now be corrected.
• Your circumstances have changed.
• Judicial review is expected to be long and costly. 
  
  

Practice Tip: If you’re on a bridging visa, your reapplication options might be limited. Immediate legal advice is essential to understand your options.

Next step

When facing a non-reviewable visa decision or missed ART appeal deadline, it’s crucial to explore your options quickly. Judicial review can be a solution when the decision was legally flawed, but often a fresh visa application is quicker and more cost-effective. Always seek legal advice promptly to avoid missing crucial deadlines.

If you’re dealing with a non-reviewable visa decision or missed your ART appeal deadline, book a consultation today.