Protection Visa Refusal ART Review

Protection Visa Refusal ART Review: What to Do in the First Days

A Protection Visa refusal ART review is an application to the Administrative Review Tribunal to review the Department of Home Affairs decision to refuse your Subclass 866 Protection visa, and it must be lodged within a short time limit that the Tribunal cannot extend. The days between receiving the refusal and lodging the Protection Visa refusal ART review are the most dangerous days in the whole protection process. Decisions made in those days, or not made, can close the case permanently.

In those first days, four things matter. You must identify the exact date you were notified, because the time limit runs from that date. You must read the decision record and understand why the visa was refused. You must understand what the refusal does to your bridging visa and your lawful status. You must then lodge the review application correctly, from inside Australia, before the time limit ends.

This article deals only with that first stage, from the moment the refusal arrives until the Protection Visa refusal ART review application is lodged. For the wider context of the visa itself, see our Subclass 866 Protection visa page and our definitive guide to the protection visa in Australia.

What Does a Protection Visa Refusal Letter Contain?

A protection visa refusal letter tells you that the visa has been refused, why it was refused, that you have review rights with the Administrative Review Tribunal, and the time limit for applying. The Department of Home Affairs states that the refusal notification letter will set out these matters. The letter is the starting point for every Protection Visa refusal ART review.

Section 66 of the Migration Act 1958 governs what a refusal notice must contain. If the visa was refused because you did not satisfy a criterion, the notice must specify that criterion. If a provision of the Act or Regulations prevented the grant, the notice must specify that provision. The notice must also give written reasons why the criterion was not met or the provision applied, other than non-disclosable information.

In practice, the Department meets these requirements with two documents:

• The refusal notification letter. This is the covering letter. It states the decision, the review rights and the time limit. It usually identifies who may apply for review and where the application can be made.
• The decision record. This is the attached statement of the officer's reasons. It sets out the claims, the evidence, the findings of fact and the officer's conclusion on each legal test.

Keep both documents together. The review application should be accompanied by a copy of the notification of the decision, and the decision record is the document every later step of the Protection Visa refusal ART review will be built around. If you cannot find the decision record, raise it immediately.

When Are You Notified of a Protection Visa Refusal?

You are notified on the day the law says you are taken to have received the refusal, which is not always the day you actually read it. This is the point most people misunderstand, and it decides whether a Protection Visa refusal ART review can be made at all.

Section 494B of the Migration Act 1958 sets out the methods the Department can use to give you a document. Section 494C then sets out when you are taken to have received it. The main rules are these:

• By email or other electronic means. You are taken to have received the document at the end of the day on which it was transmitted. It does not matter whether you opened the email that day.
• By post to an address in Australia. You are taken to have received the document a set number of working days after the date of the document. The period runs from the date printed on the letter, not from the day it reached your letterbox.
• By hand. You are taken to have received the document when it is handed to you.

Section 494C also deals with errors in the method of giving the document. If the Department makes a mistake in sending the notice but you still receive it, you are generally taken to have received it at the time the Act sets, unless you can show that you actually received it later.

Authorised recipients and representatives

If you appointed an authorised recipient, or a migration agent or lawyer who receives correspondence for you, the refusal will be sent to that person. The Department's forms state that you will be taken to have received any documents sent to that person as if they had been sent to you. A representative who receives the letter and does not pass it on does not stop the time limit running. If someone else was receiving your mail from the Department, contact them the day you learn of the refusal. Our guide to Form 956 and Form 956A explains how these appointments work.

Why the email address on file matters

Most refusals are sent to the last email address given to the Department for receiving documents. Check every email account you have given the Department, including spam folders, and check your ImmiAccount.

How to Read the Protection Visa Decision Record

The decision record explains which facts the officer accepted, which facts the officer rejected, and why those findings led to refusal. Reading it carefully is the first real work in a Protection Visa refusal ART review, because the Tribunal will look at the same claims again and you need to know exactly where the case failed.

Read the decision record at least twice. First find the conclusion on each legal test. Then list every finding made against you and the reason given for it.

The claims as the officer understood them

The record usually begins with a summary of your claims. Check that summary against what you actually said in your application, your statement and your interview. If the officer misunderstood a claim, left one out, or recorded something you did not say, note it so it can be corrected before the Tribunal.

Credibility findings

Many protection visa refusals turn on credibility. The officer may find that your account was inconsistent, lacked detail, changed over time or conflicted with other information. List each inconsistency the officer relied on. For each one, identify whether it is a genuine inconsistency, a translation problem, a misunderstanding by the officer, or a point you can explain with evidence. Our guide to evidence in a protection visa application explains what tends to carry weight.

Findings on the legal tests

The officer will state whether you meet the refugee test in section 36(2)(a) and the complementary protection test in section 36(2)(aa). A refusal can accept that something happened to you and still find that the legal test is not met. For example, the officer may accept past harm but find that there is no real chance or real risk of harm in the future, or that you could relocate safely within your country, or that your government could protect you. These are different problems and they need different responses. See our page on complementary protection for how the second test operates.

Country information and identity findings

The officer will usually rely on country information about conditions in your home country. Note which reports were cited and what the officer took from them. Check also whether the refusal relied on identity, nationality or document issues under sections 91W or 91WA. Identity findings are handled differently from findings about your claims, and they must be identified early.

What Happens to Your Bridging Visa After a Protection Visa Refusal?

Your bridging visa does not end on the day of the refusal, but for most bridging visas granted with a protection visa application the countdown to its end starts on the date of the refusal decision, not on the date you were notified. This difference is important in every Protection Visa refusal ART review, because the two clocks do not start on the same day.

For bridging visas granted on or after 19 November 2016, the Migration Regulations 1994 set cessation events by reference to the decision itself. The Department's guidelines confirm that, where the associated application is refused, the bridging visa ceases a fixed period after the refusal decision. Bridging visas granted before 19 November 2016 follow older rules linked to notification.

The position changes when a review application is made:

• If you apply for review in time while you still hold the bridging visa, you continue to hold that bridging visa while the Tribunal deals with the review. It then ceases a fixed period after the Tribunal's decision, unless the Tribunal sends the case back to the Department for reconsideration.
• If you do not apply for review, the bridging visa ceases a fixed period after the refusal decision. You then have no lawful right to remain unless you hold another visa.
• If the review application is not validly made, the bridging visa ceases a fixed period after the Tribunal determines that the application was not properly made.

The Department's Subclass 866 page states that you do not have a lawful right to stay in Australia once your application has been finally determined, you are not owed protection, and you hold no other visa. Under section 11A of the Act, an application is finally determined when it is no longer subject to review by the Tribunal, including where no review application is made in time.

The conditions on your bridging visa also matter. Work rights, study rights and travel rules depend on the conditions attached to the particular visa you hold. Check your current conditions in VEVO rather than relying on what you held earlier. Our guides to bridging visas in Australia and the Bridging A visa explain the classes and conditions.

Why Section 48A Makes the ART Review the Main Remaining Path

Section 48A of the Migration Act 1958 generally prevents a person whose protection visa application has been refused from making a further protection visa application while they remain in the migration zone. That is why the Protection Visa refusal ART review is usually the main remaining path within the ordinary process.

The bar applies where a protection visa application was refused, or a protection visa was cancelled, since the person last entered Australia. It is not avoided by lodging a new application with new claims, by relying on a different ground, or by using a different form. A second application made while the bar applies is not a valid application. Only the Minister can lift the bar, personally, in the public interest, and the Minister is not required to consider doing so.

After refusal, the Department will not consider a fresh protection application from you in Australia. The Tribunal is the body that can look at your protection claims again on their merits, and it can do so only if a valid Protection Visa refusal ART review application is lodged in time.

Merits review is a genuine second consideration. The Tribunal takes a fresh look at the facts, the law and the policy, and makes its own decision. Unless the legislation says otherwise, the Tribunal considers the material before it at the time of the review, which can include information that was not before the Department. Our article on appealing a protection visa refusal to the ART explains which refusals the Tribunal can review.

There are narrow exceptions to review rights. Some refusals made on character or security grounds follow a different path, and a decision made while the applicant is not physically present in Australia is not a reviewable protection decision. The refusal letter will state whether you have review rights. If it says you have none, obtain advice on that letter the same day.

Should You Apply for a Protection Visa Refusal ART Review?

Yes. In most cases you should seek review if you still fear harm on return and your refusal letter gives you review rights. A Protection Visa refusal ART review is usually the only way to have your protection claims considered again on their merits in Australia, and once the time limit passes that opportunity is lost.

The decision still deserves proper thought. Deciding whether to seek review means answering some honest questions:

• Do you still fear returning? If your fear is genuine, review is the process designed for your situation.
• What exactly did the officer find? A refusal based on a misunderstood claim, missing evidence or a translation problem is very different from a refusal based on a clear finding that the legal test is not met.
• Is there evidence that can answer the findings? New documents, witness statements, medical or psychological reports and current country information can all be relevant at the Tribunal.
• Are there identity or credibility problems? These do not disappear at review and must be addressed.
• Are there family members affected by the decision? Their position must be checked at the same time as yours.

A refusal is not proof that your claim was weak. It is proof that the officer was not satisfied on the material before them. Many refusals rest on findings that can be tested again before the Tribunal with better evidence and a clearer account. Our article on how a lawyer can assess a protection visa refusal sets out what that assessment involves.

What review cannot do is change the law. If your fear relates to harm that does not meet either legal test, the Tribunal cannot grant the visa simply because your circumstances are difficult. A Protection Visa refusal ART review is strongest when it is aimed precisely at the findings that led to refusal.

What to Do Immediately After a Protection Visa Refusal

The first steps after a protection visa refusal are to secure every document, identify the exact deadline, stay in Australia and obtain advice without delay. Each step protects your ability to lodge a valid Protection Visa refusal ART review.

Secure the documents

Save the refusal notification letter and the decision record in more than one place. Download them from ImmiAccount and from your email. Gather your copy of the application, your statement of claims, any documents you lodged, any letters from the Department inviting you to comment, and any record or notes of your interview. If you do not have a copy of your own application, it can be requested from the Department. After a review application is lodged, section 362A of the Act also entitles you to request access to the material the Department gave to the Tribunal. The Tribunal's practice direction states that this request should be made as soon as practicable.

Identify the deadline

Work out the day you were notified, using the rules in section 494C, and then the last day for lodging. Write it down. The time limit for a Protection Visa refusal ART review is short and strictly applied. The Department's merits review guidelines state that the time to apply for review of a reviewable protection decision cannot be extended, and that an application made late is not properly made. A different and shorter time limit applies if you were in immigration detention on the day you were notified.

Do not travel

Do not leave Australia. Under section 347A of the Act, an application for review of a reviewable protection decision may only be made by the person who is the subject of the decision, and only while that person is physically present in Australia. Leaving also generally ends a bridging visa, and clause 866.411 of the Migration Regulations 1994 requires you to be in Australia when the visa is granted.

Keep your details current

Make sure the Department and, later, the Tribunal have your current address and email. Changes of circumstances are notified to the Department on Form 1022.

How to Lodge a Protection Visa Refusal ART Review Application

You lodge a Protection Visa refusal ART review by completing the Administrative Review Tribunal's electronic application form on its website, from inside Australia, before the time limit ends. The online form gives the clearest record of when the application was made.

The Tribunal's practice direction for migration and protection matters allows an application for review of a reviewable protection decision to be made by the electronic form on the Tribunal website, by a paper form posted, delivered or emailed to the Tribunal, or by a letter that contains the information the Act requires. The Administrative Review Tribunal publishes its current application methods. Whichever method is used, the application must be received in time.

What the application must include

Section 347(2) of the Migration Act 1958 requires the application to include prescribed information and to be accompanied by prescribed documents. For a reviewable protection decision, those requirements are in regulation 4.31 of the Migration Regulations 1994. In practice, the key items are:

• A copy of the notification of the decision. If you have the refusal letter, the application must be accompanied by a copy of it.
• Your personal details. These include your full name, your address and your contact details.
• Details of the decision. If you do not have a copy of the notification, the application must identify the decision, including its date if you know it.
• The applicant's own application. Under section 347A, only the person who is the subject of the decision may apply for review of a reviewable protection decision. Where family members were refused as part of the same decision, check that each person's review is properly covered.

Include the decision record if you have it. You do not need to set out your whole case in the form. The Protection Visa refusal ART review application starts the review. The detailed submissions, statements and evidence usually follow once the review is under way.

Representation

You may lodge the Protection Visa refusal ART review yourself, or a lawyer or registered migration agent may assist you. If a representative acts for you, make sure the Tribunal has their details and yours. Our page on protection visa refusals explains how we act at this stage.

Confirm that the application was received

Keep the confirmation the Tribunal issues when the application is lodged. Save the case number. A Protection Visa refusal ART review that is lodged but cannot later be proven to have been lodged in time creates an avoidable dispute.

Mistakes to Avoid Before the Protection Visa Refusal ART Review Is Lodged

The most serious mistakes in the first days after refusal are missing the deadline, making new statements that contradict your earlier account, and leaving Australia. Each of these can end a Protection Visa refusal ART review before it begins or damage it permanently.

• Missing the deadline. The time limit cannot be extended. An application made even slightly late is not properly made and the Tribunal cannot consider it. Do not wait to gather evidence before lodging. Lodge first, then build the case.
• Calculating from the wrong date. The time limit runs from the day you are taken to have received the notice under section 494C, not from the day you opened it. Calculate from the deemed date and lodge well before the last day.
• Making new, inconsistent statements. Some applicants respond to a refusal with emails, posts or new statements that change their account. The Tribunal will compare everything you say with what you said before. Any new explanation should be considered, accurate and consistent with the evidence.
• Changing your claims to fit the refusal. Answering a finding by altering what happened is dangerous and dishonest. The Tribunal reviews your own account. If something in your earlier account was wrong or incomplete, the correct course is to explain that honestly and with evidence.
• Leaving Australia. Departure prevents a valid review application being made, generally ends the bridging visa and prevents grant of the visa.
• Ignoring a representative's silence. If your correspondence was going to a representative or authorised recipient, do not assume they will act. Contact them and confirm what was received and when.

What Happens After the Protection Visa Refusal ART Review Is Lodged?

After the application is lodged, the Tribunal notifies the Department, the Department sends the Tribunal its file, and the Tribunal later invites you to a hearing. At that point the review moves from the lodgement stage to the preparation stage.

Under section 352 of the Act, the Tribunal must notify the Secretary of the application, and the Department must then provide the Tribunal with the documents relevant to the decision. The Minister is generally a non-participating party in reviews of reviewable protection decisions, so the Department does not usually appear at the hearing. The Tribunal can affirm the refusal, set it aside and substitute a new decision, or remit the matter to the Department with a direction that you meet specified criteria.

If you do not appear at a hearing after being properly notified, the Tribunal can dismiss the application. Section 368C of the Act allows an application for reinstatement to be made within a short time after notice of the dismissal. The preparation that follows lodgement is covered in our articles on the protection visa ART hearing, on preparing for the ART hearing with a lawyer and in our Subclass 866 refusal ART guide. The statutory provisions are in the Migration Act 1958.

How My Migration Lawyers Helps With a Protection Visa Refusal ART Review

My Migration Lawyers acts in many Subclass 866 matters at the refusal stage and regularly handles complex cases, including refusals based on credibility findings, identity issues, delayed applications and claims the Department misunderstood. When a client comes to us with a Protection Visa refusal ART review, the first priority is the deadline, and the second is understanding exactly why the visa was refused.

Our work in the first days after a refusal follows a set path:

• Confirming the deadline. We identify how and when the refusal was sent, apply the deemed receipt rules, and fix the last day for lodgement.
• Checking status and review rights. We confirm that the decision is reviewable, check the bridging visa position, and check whether family members were included in the decision.
• Lodging the application. We prepare and lodge the Protection Visa refusal ART review application with the Tribunal and keep the proof of lodgement.
• Analysing the decision record. We go through each finding the officer made and identify which findings can be answered with evidence, explanation or country information.
• Taking your account. We take your own account and present it in the form the law requires. Your statement is your own evidence. You review it, correct it and approve it, and you decide which claims are advanced.
• Obtaining the file. We request the material the Department gave the Tribunal so that nothing in the file comes as a surprise.

The practice is led by Principal Lawyer Weiwei Zhang, who acts in protection visa refusals for clients across Australia. Consultations are held by video, so you can speak with us wherever you live. Our protection visa lawyers page and our visa refusals page explain how we act in these matters. If the refusal has only just arrived, our guide to urgent immigration lawyer advice explains what to have ready.

If you have received a protection visa refusal, the time to act is now, not at the end of the review period. Book a consultation with My Migration Lawyers about your Protection Visa refusal ART review today, or call us on 1300 040 300.