Protection Visa Subclass 866 Administrative Review Tribunal review

How Does the Tribunal Decide a Protection Visa Subclass 866 Administrative Review Tribunal Review?

The Administrative Review Tribunal decides a Protection Visa Subclass 866 Administrative Review Tribunal review by making its own fresh decision on the evidence before it at the time of the review. It does not simply check whether the Department made a mistake. A Protection Visa Subclass 866 Administrative Review Tribunal review is a new consideration of the whole case. The Tribunal member looks again at the facts, the law and the policy, and decides whether the applicant meets the criteria for the visa.

The member is not bound by the Department's findings on credibility. The member can accept evidence the Department rejected. The member can also reject evidence the Department accepted. New documents, new witness evidence and new country information can all be considered. The Tribunal applies the same legal tests as the Department: the refugee test in section 36(2)(a) of the Migration Act 1958 and the complementary protection test in section 36(2)(aa).

At the end of a Protection Visa Subclass 866 Administrative Review Tribunal review, the Tribunal must make a formal decision. It can affirm the refusal. It can set the refusal aside and substitute a new decision. It can set the refusal aside and remit the matter to the Department with a direction. Each outcome leads somewhere different, and each is explained later in this article.

This article explains how the Tribunal reaches that decision. It does not repeat the steps for lodging an application. For the wider picture, see our Subclass 866 Protection visa page and our complete guide to the protection visa in Australia.

What Is Merits Review in a Protection Visa Subclass 866 Administrative Review Tribunal Review?

Merits review means an independent body reconsiders the facts, the evidence and the law and decides for itself what the correct or preferable decision is. The Department's own procedural instruction on merits review describes it this way. It states that the Tribunal takes a fresh look at the relevant facts, law and policy and arrives at its own decision.

Section 54 of the Administrative Review Tribunal Act 2024 gives the Tribunal all the powers and discretions of the original decision maker. The Department describes this as the Tribunal standing in the shoes of the delegate. In a Protection Visa Subclass 866 Administrative Review Tribunal review, the member therefore has the same power to grant or refuse that the Department had, subject to the specific rules that apply to protection decisions.

Why the decision is made on the evidence at the time of review

The Tribunal considers the material presented at the time of the review, not only the material the Department had. The Department's guidance states that, unless legislation provides otherwise, this includes new information that was not available when the original decision was made.

This matters in two ways. First, the applicant can put forward evidence that was missing from the Department's file. Second, the Tribunal assesses the risk of harm as it stands at the date of its own decision. If conditions in the applicant's country have changed since the refusal, the Tribunal considers the current conditions. That can help an applicant. It can also hurt an applicant, if conditions have improved.

How the Tribunal differs from a court

The Tribunal can remake the decision on the facts. A court reviewing a migration decision looks only at whether the decision was lawful and cannot remake it on the facts. A Protection Visa Subclass 866 Administrative Review Tribunal review is usually the only opportunity to have the facts of a protection claim decided again by an independent decision maker.

Why the Tribunal matters so much in protection cases

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 Australia. Only the Minister can lift that bar, personally. For most applicants, the Protection Visa Subclass 866 Administrative Review Tribunal review is therefore the last full hearing of their claims within the ordinary process. Our page on protection visa refusals explains why the refusal stage and the review stage must be treated as one strategy.

Which Protection Visa Decisions Can the Administrative Review Tribunal Review?

The Tribunal can review a decision to refuse to grant a protection visa if it is a "reviewable protection decision" under section 338A of the Migration Act 1958. Section 347 provides that an application may be made to the Tribunal for review of a reviewable protection decision. Most Subclass 866 refusals made by the Department fall within this definition.

The Tribunal conducts these reviews in its Protection jurisdictional area. The Department's guidance confirms that the fast track system and the Immigration Assessment Authority were abolished when the Tribunal commenced on 14 October 2024. As a result, most protection visa applicants are now entitled to merits review by the Tribunal.

Who can apply for a Protection Visa Subclass 866 Administrative Review Tribunal review

Under section 347A(4), only the non-citizen who is the subject of the decision can apply for review of a reviewable protection decision. Under section 347A(5), that person must be physically present in the migration zone when the review application is made. A relative or friend cannot apply on the applicant's behalf. The applicant can, however, appoint a lawyer to prepare and lodge the application.

Protection decisions the Tribunal cannot review

Some protection decisions are not reviewable protection decisions. These include:

• Refusals relying on certain character and security provisions. A refusal relying on section 5H(2), 36(1C) or 36(2C)(a) or (b) is not reviewed under Part 5. Some of these decisions are reviewed in a different part of the Tribunal under section 500 instead.
• Refusals relying on section 36(1B). A refusal based on an adverse security assessment is not reviewable by the Tribunal.
• Decisions covered by a conclusive certificate. If the Minister issues a conclusive certificate under section 339, the decision is not reviewable.
• Decisions made while the applicant is outside Australia. A decision made in relation to a non-citizen who is not physically present in the migration zone when the decision is made is not a reviewable protection decision.

A finding that a protection visa application was invalid is also not a refusal and cannot be reviewed. The refusal letter states whether review is available and sets out the time limit. The time limit is short and strictly applied. Our guides on appealing a protection visa refusal to the ART and the Subclass 866 refusal and ART guide explain the lodgement stage.

How the Tribunal Assesses Credibility in a Protection Visa Subclass 866 Administrative Review Tribunal Review

The Tribunal member assesses the applicant's credibility afresh and is not bound by the Department's credibility findings. In most refused protection cases, credibility is the central issue. The Department may have found that the applicant's account was inconsistent, vague or implausible. In a Protection Visa Subclass 866 Administrative Review Tribunal review, the member forms their own view after hearing the applicant.

What the member examines

The member usually questions the applicant directly at the hearing. The member compares the oral evidence with the protection visa application, the statement of claims, the Department's interview record and any earlier visa applications. Dates, places, names and the sequence of events are tested. Travel records and identity documents are compared with the account. The member also considers whether the account is consistent with independent country information.

The Department's own Protection Visa Processing Guidelines set out principles that are useful for understanding how credibility is weighed. They state that an inability to give a precisely accurate or consistent account of past events should not lead to automatic rejection of a claim. They warn against joining a series of minor inconsistencies together to avoid accepting a claim. They also state that demeanour is generally an unreliable indicator of credibility.

Mitigating circumstances

The same guidelines recognise that trauma, the passage of time, interpretation difficulties and the stress of questioning can affect how a person gives evidence. Traumatic experiences can affect memory, the order in which events are recalled and the timing of an application. These matters can explain inconsistencies, but only if they are raised and supported. A Protection Visa Subclass 866 Administrative Review Tribunal review is the place to explain, with evidence, why an inconsistency the Department relied on does not mean the account is untrue.

The benefit of the doubt

There is no rule that a claim must be supported by documents before it can be accepted. The Department's guidelines state that an applicant is not entitled to have claims accepted simply because they could be true. However, where the applicant's account is generally coherent and plausible, is not contrary to country information, and the applicant has made a genuine effort to substantiate it, the benefit of the doubt may be given. General credibility comes first. Where general credibility is accepted, specific unverifiable details are more likely to be accepted too.

Why the refusal reasons shape the hearing

The Department's decision record sets out why the claims were not accepted. The Department must give the Tribunal the documents relating to the decision. The applicant is entitled under section 362A of the Migration Act 1958 to request access to the written material the Department gave the Tribunal. That file shows exactly what the member will read. Preparing for a Protection Visa Subclass 866 Administrative Review Tribunal review without reviewing the file and the refusal reasons line by line is a serious risk. Our guides on the protection visa ART hearing and on preparing for the ART hearing explain the hearing itself.

How the Tribunal Uses Country Information

The Tribunal uses country information to decide whether the harm the applicant fears is real and whether it would occur if the applicant returned. Country information is independent material about conditions in the applicant's country. It includes government reports, reports by United Nations bodies and human rights organisations, and reputable news reporting.

DFAT Country Information Reports

The Department of Foreign Affairs and Trade prepares Country Information Reports for protection status determination purposes. Ministerial Direction No. 84, made under section 499 of the Migration Act 1958, requires a decision maker to take such a report into account, where relevant, if it is available. The Department's policy statement on section 499 directions confirms that a direction can bind decision makers at both the primary and the merits review level. The direction does not stop the decision maker from considering other relevant, more recent information.

Weighing competing information

Country information often conflicts. One report may describe a risk as widespread. Another may describe it as rare. A careful decision maker weighs each source, considers how recent and reliable it is, and explains why one source is preferred. Old reports that no longer reflect conditions carry less weight. In a Protection Visa Subclass 866 Administrative Review Tribunal review, the applicant can put forward current country information that addresses the specific risk the applicant faces, not only general conditions.

When there is no information

A lack of reporting on an event does not prove the event did not happen. The Department's guidance on country of origin information states that decision makers must consider the level of reporting, media restrictions and censorship in the country. Where a country has little independent reporting, silence in the sources is weak evidence against a claim. Our article on evidence in a protection visa application explains which kinds of material tend to carry weight.

Can You Raise New Claims or New Evidence at the Tribunal?

Yes. The Tribunal can consider new claims and new evidence, because it decides the case on the material before it at the time of the review. A Protection Visa Subclass 866 Administrative Review Tribunal review is not limited to the evidence that was in the Department's file.

New evidence

New evidence can include documents obtained from the home country after the refusal, statements from witnesses, medical or psychological reports, evidence of activities in Australia and updated country information. Evidence that directly answers a reason for refusal is the most useful.

New claims

An applicant may raise a claim at the Tribunal that was not raised before the Department. This happens where circumstances have changed, where the applicant did not understand what was relevant, or where the applicant felt unable to disclose a sensitive matter earlier. Because section 48A generally prevents a second application, a Protection Visa Subclass 866 Administrative Review Tribunal review is often the only forum in which a new claim can be heard.

How late claims are assessed

A claim raised for the first time at review will be examined closely. The member will ask why it was not raised earlier. The Department's guidelines state that delay should not be the only reason for rejecting a claim, and that the reasons for delay should be explored. They also recognise that people with claims based on sexual orientation or gender identity may delay raising them because the claims are sensitive. A clear, honest and consistent explanation for the timing is essential. Our article on whether delay affects a Subclass 866 claim explains how delay is weighed.

The applicant decides which claims are advanced. A lawyer's role is to present the applicant's own account and evidence in the form the law requires, not to add claims the applicant has not made.

The Refugee and Complementary Protection Tests at Review

The Tribunal applies the same two protection tests the Department applied, and it must consider both where the claims raise them. A Protection Visa Subclass 866 Administrative Review Tribunal review does not use a lower or different standard.

The refugee test

Under section 36(2)(a), the applicant must be a refugee as defined in section 5H. Section 5J explains a well-founded fear of persecution. There must be a real chance of persecution for one or more of five reasons: race, religion, nationality, membership of a particular social group, or political opinion. The persecution must involve serious harm and systematic and discriminatory conduct. The real chance must relate to all areas of the country. Claims based on religious persecution and on sexual orientation or gender identity are commonly assessed under this test.

The complementary protection test

If the refugee test is not met, the Tribunal considers section 36(2)(aa). The applicant must show substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk of significant harm. Section 36(2B) provides that there is taken not to be a real risk where the applicant could reasonably relocate within the country, could obtain protection from an authority of the country, or faces a risk faced by the population generally and not personally. The Department's Complementary Protection Guidelines state that relocation under the complementary protection test is assessed differently from relocation under the refugee test. Findings made under one test cannot simply be adopted for the other. See our page on complementary protection.

Family members

A member of the same family unit as a person who meets either test can also meet the criteria under section 36(2)(b) or (c). Where family members were refused together, each of them should check that they are properly included in the review.

What Decisions Can the Tribunal Make in a Protection Visa Subclass 866 Administrative Review Tribunal Review?

The Tribunal can affirm the refusal, vary it, set it aside and substitute a new decision, or set it aside and remit the matter to the Department with a direction. These powers come from section 105 of the Administrative Review Tribunal Act 2024, read with section 349(2) of the Migration Act 1958 and regulation 4.33 of the Migration Regulations 1994. The Tribunal must give a written statement of its decision and its reasons under section 368 of the Migration Act.

Affirm the decision

If the Tribunal affirms the decision, the refusal stands. The Tribunal has decided that the applicant does not meet the criteria for the visa on the evidence before it. The protection visa application is then finally determined.

Set aside and substitute a new decision

If the Tribunal sets aside the refusal and substitutes a new decision, the Tribunal's decision replaces the Department's decision. The Department's guidance states that the Tribunal's decision supersedes the primary decision, is taken to be a decision of the Minister, and must be implemented unless it is quashed by a court.

Set aside and remit with a direction

The Tribunal can remit a protection decision to the Department only in the prescribed matters set out in regulation 4.33. The permitted directions include that the applicant is a refugee within the meaning of section 5H(1), that the applicant meets the complementary protection criterion, that section 36(3) does not apply, that the grant of the visa is not prevented by sections 91W, 91WA or 91WB, or that the applicant is taken to have satisfied specified criteria. In a Protection Visa Subclass 866 Administrative Review Tribunal review, a remittal usually means the Tribunal has found in the applicant's favour on the protection question, while leaving other criteria to the Department.

Regulation 4.33 also lists directions the Tribunal cannot give. It cannot direct that the applicant satisfies the criterion in section 36(1C), and it cannot make directions on the serious crime and security exclusions.

Vary the decision

The Tribunal also has a power to vary a decision, but in a protection visa refusal the practical choice is between affirming, substituting and remitting.

Dismissal without a decision on the merits

A Protection Visa Subclass 866 Administrative Review Tribunal review can also end without a decision on the merits. Under section 99 of the Administrative Review Tribunal Act 2024, the Tribunal may dismiss the application if the applicant fails to appear at a hearing after receiving proper notice. It may also dismiss an application that is not pursued, or that it finds has no reasonable prospects of success. Under section 368C of the Migration Act, the applicant can apply for reinstatement of a dismissed application, but the time limit is short and strictly applied. If no reinstatement application is made in time, the Tribunal must confirm the dismissal.

What Happens After Each Tribunal Decision?

What happens next depends entirely on which decision the Tribunal makes. The Tribunal must notify the applicant of its decision by giving a copy of its written statement under section 368A.

After the refusal is affirmed

The protection visa application is finally determined under section 11A of the Migration Act. The Tribunal's decision cannot be reopened or varied. The bridging visa linked to the application will generally cease, and the applicant must take advice promptly about their lawful status. Because section 48A generally prevents another protection visa application, the remaining options are narrow. Section 351 allows the Minister, personally, to substitute a more favourable decision where the Minister considers it is in the public interest. Our page on visa refusals outlines the wider options after a refusal.

After the refusal is set aside and remitted

The application goes back to the Department. It is no longer finally determined. The Department's guidance states that a delegate is bound by the Tribunal's direction that a criterion is met, even if new information later suggests otherwise. The delegate must still assess the criteria not covered by the direction. These typically include health, character, security and identity. The applicant must remain in Australia, because clause 866.411 of the Migration Regulations 1994 requires the applicant to be in Australia when the visa is granted.

After a substituted decision

The Tribunal's decision takes effect in place of the refusal and must be implemented by the Department. The applicant should again remain in Australia and respond promptly to any Department request.

Bridging visa during the review

While a Protection Visa Subclass 866 Administrative Review Tribunal review is pending, the application is not finally determined. A bridging visa granted in association with the application generally continues during merits review. Our guide to bridging visas in Australia explains the different bridging visas.

The Limits of the Tribunal's Role

The Tribunal can only decide the application that was refused, using the powers the original decision maker had. It cannot grant a different visa, and it cannot waive a legal criterion the Department could not waive.

In a Protection Visa Subclass 866 Administrative Review Tribunal review, the Department is generally not an active party. Under section 348A of the Migration Act, the Minister is a non-participating party to reviews of reviewable protection decisions, unless ordered to take part. The review is not a contest between two lawyers. It is an inquiry by the member, and the applicant carries the responsibility, under section 5AAA, to specify the particulars of their claim and provide sufficient evidence to establish it.

The Tribunal is also not a court. It does not rule on whether the Department acted unlawfully as such. Its task is to reach the correct or preferable decision on the facts and the law. Once it has decided, it cannot reopen its own decision. Applicants for review of a protection decision under the Migration Act cannot themselves apply to have the decision reconsidered by the Tribunal's Guidance and Appeals Panel.

Finally, the Tribunal cannot fix a claim the applicant is not willing to make. It decides the claims presented and the claims clearly raised by the material. That is why preparation of the written submissions and evidence before the hearing matters so much. See our guide on what to expect at an ART review after a refusal and the Administrative Review Tribunal's immigration and citizenship information.

How My Migration Lawyers Acts in a Protection Visa Subclass 866 Administrative Review Tribunal Review

My Migration Lawyers acts in many Protection Visa Subclass 866 Administrative Review Tribunal review matters and regularly handles complex cases. These include refusals based on adverse credibility findings, claims first raised at review, relocation and state protection findings, and applicants with identity document issues. We are capable of preparing a review from the refusal letter through to the Tribunal's decision.

Our work on a Protection Visa Subclass 866 Administrative Review Tribunal review is practical and specific:

• Analysing the refusal. We read the decision record and identify each finding the Department relied on, including each credibility finding.
• Obtaining the file. We request the material the Department gave the Tribunal, so that we know exactly what the member will read.
• Taking the client's account. We take the client's own account and present it in the form the law requires. The statement is the client's own evidence. The client reviews it, corrects it and approves it, and the client decides which claims are advanced.
• Answering the refusal reasons with evidence. We gather documents, witness evidence and current country information that respond directly to the reasons for refusal.
• Written submissions. We prepare submissions that apply the refugee test and the complementary protection test to the evidence, including section 36(2B).
• Hearing preparation and attendance. We prepare the client for questioning and attend the hearing with them.

The practice is led by Principal Lawyer Weiwei Zhang. Consultations are held by video, so clients can speak with us wherever they live in Australia. Our protection visa lawyers page sets out how we act in these matters.

The time limit for a Protection Visa Subclass 866 Administrative Review Tribunal review is short and strictly applied, so advice should be obtained as soon as the refusal letter arrives. Book a consultation with My Migration Lawyers, or call us on 1300 040 300.