Protection Visa Refused: Can You Appeal to the ART?

Can you appeal a protection visa refusal to the ART?

Yes. A decision to refuse a protection visa is a reviewable protection decision, and the person refused can apply to the Administrative Review Tribunal for review of it, within a short period that cannot be extended. The Administrative Review Tribunal replaced the Administrative Appeals Tribunal on 14 October 2024 and reviews these decisions in its Protection jurisdictional area.

The word appeal is not quite the right word, and the difference is worth understanding before anything is lodged. An appeal, in the ordinary sense, asks a higher body to find that the first body got it wrong. Review by the Tribunal is not that. The Tribunal considers the application again. Under section 54 of the Administrative Review Tribunal Act 2024 it may exercise all the powers and discretions conferred on the original decision maker, which means it stands in the position of the delegate and decides whether the visa should be granted, on the material before it at the time it decides. That material can include evidence the Department never saw.

It also matters that the Tribunal decides on the position as it stands when it makes its decision, not as it stood when the Department decided. Conditions in a country can change while a review is waiting to be heard. A political change, a change in how a law is enforced, or a new country information report can make a claim stronger than it was at the time of refusal, and can occasionally make it weaker. Evidence that did not exist when the application was refused is not too late.

This is why the review is not a lost cause simply because the refusal was thorough. It is also why the review is not won by pointing out that the delegate was unfair. The Tribunal is not there to grade the delegate. It is there to decide the application.

Two things follow from that, and both are practical. The first is that the review is the main event and should be prepared as such, not as a complaint about what happened at the Department. The second is that the period for applying governs everything. A person who understands the Tribunal perfectly and applies one day late has no review at all. The protection visa refusals page sets out that deadline and the immediate steps that follow a refusal.

Which protection refusals the Tribunal can review, and which follow a different path

Most protection visa refusals are reviewable protection decisions under section 338A of the Migration Act 1958, and the ordinary review path applies to them. Two categories are different, and a person who assumes the ordinary path applies to them can lose a review right while waiting.

The first category is a refusal that relies on section 5H(2), section 36(1C) or section 36(2C) of the Migration Act. Those provisions deal with exclusion from protection, on grounds such as serious reasons for considering that the person committed a serious non-political crime before entering Australia, or reasonable grounds for considering that the person is a danger to Australia's security or, having been convicted by final judgment of a particularly serious crime, is a danger to the Australian community. A refusal relying on those provisions is dealt with under section 500 of the Migration Act rather than through the ordinary protection review path. Where the person is in the migration zone, the period for applying under section 500(6B) is far shorter than the ordinary period, and sections 18 and 19 of the Administrative Review Tribunal Act do not apply, so the Tribunal cannot extend it.

The second category is a decision covered by a conclusive certificate. Where the Minister issues a conclusive certificate under section 339 of the Migration Act, the decision is not a reviewable protection decision, and under section 348(2) the Tribunal must not review it or continue to review it. These are rare, but they are absolute.

A refusal on character grounds under section 501 is a different matter again, with its own review rules and its own short deadline. The general position on refusals and their review rights is set out on the firm's visa refusals page.

The first thing to do with a refusal letter is therefore to read which provision it relies on, not only whether it says the visa was refused. The letter will state the review rights that apply and the time limit for exercising them.

Four things should be taken from the letter before anything else is done with it. The date of the decision. The date the applicant is taken to have received it, and the method by which it was sent. The provision the refusal was made under. And the review rights the letter states, including the period for applying and where the application must be made. Those four facts decide what can be done and how long there is to do it. Everything else in the refusal, including the reasoning that is hardest to read, can wait until they are settled.

Who can apply for review of a protection refusal

Only the person whose protection visa application was refused can apply for review of that decision, and they must be in the migration zone when they apply. The requirements are set out in sections 347 and 347A of the Migration Act.

This differs from general Tribunal practice in a way that catches families out. Section 17 of the Administrative Review Tribunal Act, which allows a person whose interests are affected by a decision to apply, and section 35, which allows an application to be made on a person's behalf by somebody else, do not apply to applications for review of reviewable protection decisions. A relative in Australia cannot lodge the review because the applicant is unwell, distressed or out of contact. A sponsor cannot lodge it. A friend cannot lodge it on the last day as a protective measure.

A lawyer or registered migration agent may of course act for the applicant and prepare and lodge the application on their instructions, and that is ordinary practice. What is not available is a separate right in somebody else to bring the review in their own name.

Family members who were included in the protection visa application as members of the family unit are dealt with through the decision on that application. The review is of the decision that was made, and the decision that was made covered the application as lodged.

Where the applicant is in immigration detention on the day of notification, a shorter period applies and the practical difficulties are greater, which is a reason to raise detention in the first sentence of any request for help rather than further down.

How long you have to apply, and why the clock is not the date you read the letter

The period for applying to the Tribunal for review of a protection visa refusal is short, it runs from the day the applicant is taken to have received the decision, and the Tribunal has no power to extend it. An application lodged after the period ends is not properly made, and the Tribunal has no jurisdiction to consider it. There is no discretion, no special circumstances exception, and no relief for a good reason.

The part that causes the most damage is deemed receipt. The clock does not start when the letter is opened. It starts on the day the applicant is taken to have received the notification under section 494C of the Migration Act, which depends on the method the Department used to send it. A decision sent by email to the address given on the application form is taken to have been received whether or not the inbox was checked. A person who changed their email address, or who was relying on a former representative to monitor it, can lose most of the period before knowing the decision exists.

Three consequences follow, and they are the reason this section exists.

A protection visa applicant should keep the address for service current with the Department at all times, and should tell the Department promptly when it changes. A person who has been waiting a long time for a decision should check their email, including junk folders, regularly rather than waiting to be told. And anybody who has just received a refusal should treat the date of notification as the governing fact of the matter and give it to their lawyer before anything else.

Until the period ends without an application, or the Tribunal decides the review, the visa application is not finally determined within the meaning of section 11A of the Migration Act. That status is what usually keeps a bridging visa granted with the protection visa application in effect while the review is on foot, which is why a review lodged in time protects far more than the review right itself.

What happens after a review application is lodged

Once a valid application is made, the Tribunal must review the decision, and the Department must give the Tribunal the decision and the file. Under section 352 of the Migration Act the Tribunal notifies the Secretary of the application, and the Department must provide the statement about the decision under review, setting out the findings of fact, the evidence and the reasons, along with the other documents relevant to the review. In ordinary cases that material must be given within ten working days after the Department is notified.

The Department is generally not in the room. Under section 348A of the Migration Act the Minister is a non-participating party in a review of a reviewable protection decision, which means there is no opposing advocate at the hearing cross-examining the applicant. The President or a Deputy President may order the Minister to participate where that would assist, but in the great majority of protection reviews the hearing is the applicant, their representative, the Tribunal member and an interpreter.

The hearing is the centre of the review. It is where the applicant gives evidence about their claims and answers the Tribunal's questions, and in most protection matters it is the single opportunity to address the findings that caused the refusal. Preparation for it is the same discipline as preparation for the Department interview, and the firm's page on the protection visa interview covers the ground that applies to both.

Attendance is not optional. If an applicant fails to appear at a case event and the Tribunal is satisfied that appropriate notice of the date, time and place was given, the Tribunal may dismiss the application under section 99 of the Administrative Review Tribunal Act. There is a reinstatement mechanism under section 368C of the Migration Act, but it is a remedy to be avoided rather than relied on. Withdrawing an application also ends it: under section 95 of that Act the Tribunal is taken to have dismissed an application the applicant withdraws.

Two administrative points cause more lost reviews than any argument about the law. The first is language. The review application asks what language the applicant needs, and the Tribunal can arrange an interpreter for the hearing. A person who gives evidence in English because they are embarrassed to ask for an interpreter is taking a serious risk with their own credibility, because a hesitation caused by vocabulary can read on the transcript as a hesitation caused by invention. The second is contact details. The Tribunal sends notices, including the hearing invitation, to the address given for that purpose. If an address changes, the Tribunal has to be told, in writing, at once.

New material can be given to the Tribunal, and it usually should be. Documents obtained since the refusal, a fuller statement, evidence from people who know what happened, medical or psychological evidence and current country information are all capable of being put before the Tribunal, because the Tribunal is deciding the application rather than auditing the delegate.

What the Tribunal can decide

The Tribunal can affirm the decision, vary it, set it aside and substitute a new decision, or set it aside and remit the matter for reconsideration in accordance with its directions or recommendations. Those powers come from section 105 of the Administrative Review Tribunal Act, with remittal in migration and protection matters under section 349(2) of the Migration Act.

In protection matters the favourable outcome is usually a remittal. The Tribunal finds that the applicant meets the criterion in section 36(2)(a) or section 36(2)(aa) and sends the application back to the Department to be decided again with that finding directed. The Department then assesses the criteria that remain outstanding, such as health, character and identity requirements, before the visa is granted. A remittal is a very significant step, and it is not the same thing as a grant.

An affirmed decision means the refusal stands. The Tribunal must give a written statement setting out the decision and its reasons, and must notify the applicant of the decision by giving a copy of that statement. Once made, the Tribunal's decision cannot be reopened or varied by the Tribunal, and the visa application is then finally determined.

One point is widely misunderstood. The Administrative Review Tribunal has a Guidance and Appeals Panel, which can review Tribunal decisions that may contain an error of fact or law materially affecting the decision, or that raise an issue of significance to administrative decision making. Review applicants in decisions made under the Migration Act cannot apply to have their matter heard by that panel. Only the President may refer a matter to it. It is not a second tier of appeal that a refused applicant can request.

What happens if the Tribunal affirms the refusal

Three options remain after an affirmed decision, and each of them is narrower than the review that has just been lost. The first is judicial review. The second is a request that the Minister substitute a more favourable decision. The third, which is available only rarely, is a request that the Minister lift the bar on a further protection visa application.

Judicial review goes to the Federal Circuit and Family Court of Australia. The court does not decide whether the visa should be granted and does not hear the claims again. It decides whether the decision is affected by jurisdictional error, such as identifying the wrong issue, asking the wrong question, ignoring relevant material, relying on irrelevant material, or failing to address a claim or evidence that the applicant advanced. If the court finds such an error, the ordinary result is that the decision is set aside and the matter is decided again. The time limit for applying is strict and runs from the date of the decision, and the judicial review page deals with the jurisdiction in detail.

A request to the Minister is made under section 351 of the Migration Act, which allows the Minister to substitute for a Tribunal decision another decision that is more favourable to the applicant, if the Minister thinks it is in the public interest to do so. Many published articles still describe this power as section 417. Section 417 has been repealed, and section 351 now provides the discretion for both reviewable migration decisions and reviewable protection decisions. The power is personal to the Minister and cannot be compelled.

Starting again is not an option. Under section 48A of the Migration Act, a person in the migration zone who has been refused a protection visa cannot make a further protection visa application, whatever the new grounds might be. Only the Minister can lift that bar under section 48B, using a personal power that is exercised rarely. This is the reason the Tribunal review carries the weight it does, and the reason a refusal should be assessed by a lawyer while the review period is still open rather than after it closes.

Where My Migration Lawyers fits into a protection review

My Migration Lawyers acts for people at each of these stages, and protection matters, including Subclass 866 refusals and Tribunal reviews, are a regular part of the firm's practice. The work is the same whether the first application was lodged by the applicant alone or prepared by somebody else.

On a new refusal, the firm calculates the review deadline from the date of deemed receipt, reads the decision record in full, and identifies the findings the Tribunal would have to reach differently. On a review already lodged, the work is the written submission, the evidence, the current country information and the hearing preparation, so that the applicant is answering the findings that matter rather than retelling the whole history without direction.

The most useful time to make contact is immediately after the refusal arrives, while the whole review period is still available. The least useful is in the final days of it, when the choice narrows to lodging quickly and building the case afterwards. Both are workable, and the firm takes matters in both conditions, but the first produces a better prepared review and a calmer applicant. Where the period has already ended, the position should still be put to a lawyer rather than assumed, because the date of deemed receipt is a legal question and people frequently calculate it against themselves.

Protection reviews are run at the firm by Principal Weiwei Zhang. Background on the Subclass 866 protection visa itself is on the Subclass 866 protection visa page, a general description of the firm's protection work is on the protection visa lawyers page, and a refusal can be sent for assessment through the online consultation request. If the review period is about to end, that fact belongs in the first line of the message.