Key Takeaways
- A protection visa success rate is not a single number. The Department and the Administrative Review Tribunal count different things at different stages, and a refused applicant should look at what changes at review rather than at a national average.
- Review of a protection visa refusal is a fresh decision on the merits. The Tribunal decides the claims again on the evidence in front of it on the day, which can include new evidence and new explanations.
- The deadline to apply for review is short and strictly applied. An application lodged late cannot be accepted, and that loss happens before anyone looks at the claims.
- A large share of reviews end without a decision on the merits because the applicant does not attend or does not respond. Those outcomes still count against the published protection visa success rate.
- If the Tribunal affirms the refusal, section 48A of the Migration Act 1958 generally prevents another protection visa application in Australia, so the review is usually the last full hearing of the claims.
What is the protection visa success rate after a refusal?
There is no protection visa success rate that tells a refused applicant their chances, because the published figures measure groups of cases, not the strength of one claim. What a refused applicant can measure is what the review will look at, and what can still be improved before the hearing.
Most people who search for a protection visa success rate have just received a refusal, or expect one. The question behind the search is practical. Is it worth applying for review, and is it worth paying a lawyer to run it?
The honest answer starts with how review works. A refusal of a Subclass 866 protection visa by the Department of Home Affairs can usually be reviewed by the Administrative Review Tribunal. The Tribunal does not check whether the Department made a mistake. It decides the claims again, from the beginning, on the material in front of it at the time of its decision.
That changes the meaning of any protection visa success rate. The Department's refusal is not a starting point that the applicant must argue their way out of. It is a record of how one decision maker saw the claims on the evidence they had. The Tribunal may see the same claims differently, particularly where the evidence, the explanations or the legal argument are stronger at review.
Published figures from the Department and the Tribunal are discussed in our article on protection visa success rates in Australia. Those figures are useful context. They are not a forecast. This article deals with the question that matters after a refusal: what decides the outcome at the Tribunal, and what the applicant can still control.
Why the protection visa success rate at the Department is not the rate at the Tribunal
The protection visa success rate at the Department and the protection visa success rate at the Tribunal are different measures, because the two bodies decide different groups of cases at different times and for different reasons.
The Department decides every valid application that reaches a decision. That includes strong claims, weak claims and claims that were never properly made. The Tribunal decides only the refused cases that are brought to it in time. The Tribunal's caseload is therefore already filtered once.
The two stages also record outcomes differently. At the Department, an application is granted or refused. At the Tribunal, a review can be set aside, affirmed, withdrawn or dismissed. A review that is dismissed because the applicant did not attend is counted in the Tribunal's figures, even though the Tribunal never decided whether the person was a refugee.
What this means for a refused applicant
A refused applicant should not compare a Department grant figure with a Tribunal set aside figure and draw a conclusion. The protection visa success rate that matters is the likely outcome of this claim, on this evidence, before this Tribunal. That depends on the reasons for refusal and on whether those reasons can be answered.
Reading the refusal decision first
The single most useful document for a refused applicant is the Department's decision record. It sets out the findings, the evidence relied on and the reasons. Most refusals turn on a small number of findings, such as credibility, relocation or state protection. Those findings tell you where the review will be won or lost. Our page on protection visa refusals explains what to do in the first days after a refusal.
What changes when a refusal goes to the Administrative Review Tribunal
At the Administrative Review Tribunal, a new decision maker hears the claims, usually at a hearing, and decides them on all the material before the Tribunal on the day of the decision.
This is the main reason the protection visa success rate at review cannot be read from the Department's figures. Several things change at once.
A different decision maker
The Tribunal member is independent of the Department. They are not bound by the Department's findings. They form their own view of credibility, the country information and the legal test in section 36 of the Migration Act.
A hearing
The Tribunal usually invites the applicant to a hearing to give evidence and present arguments. For many applicants this is the first time a decision maker has asked detailed questions about the claims in an extended session. How the applicant gives that evidence often decides the review.
A current decision
The Tribunal decides the case on the facts at the time of its decision. Changes in the home country since the refusal, new documents and new witnesses can all be considered. Our guide to the protection visa ART hearing explains the hearing itself.
The same legal test
What does not change is the law. The Tribunal applies the refugee criterion in section 36(2)(a), complementary protection in section 36(2)(aa) and the other criteria for a Subclass 866 visa. A review is not a second chance to argue a claim that falls outside the test. It is a second decision on a claim that falls within it.
Which protection refusals can be reviewed by the Tribunal?
Most refusals of an onshore Subclass 866 protection visa by the Department can be reviewed by the Administrative Review Tribunal, but not every protection decision carries the same review right, and the decision letter states which path applies.
Before anyone thinks about a protection visa success rate at review, the first question is whether review is available at all, and who can apply for it.
Refusals on the protection criterion
A refusal because the Department was not satisfied that the applicant is a refugee, or that complementary protection applies, is the most common protection refusal. It is generally reviewable by the Tribunal on the merits.
Refusals on character, security or identity grounds
Some protection refusals are made on other grounds, such as character under section 501, the security criterion, or the identity provisions in sections 91W and 91WA. The review path for these decisions can differ. Some are reviewed by a different part of the Tribunal or through a different process, and some are not reviewable on the merits at all. The decision letter must be read carefully, and advice should be obtained immediately.
Who can apply
The review application must be made by the person who was refused, and the applicant generally must be in Australia when the review application is made. Family members included in the application are covered by the review of the main applicant's refusal. Our Subclass 866 refusal and ART guide deals with these threshold questions in more detail.
Can new evidence change the protection visa success rate at review?
Yes. The Tribunal can consider new evidence and new explanations that were not before the Department, and in many reviews that new material decides the outcome.
This is where the protection visa success rate for an individual case can move the most. A refusal on credibility grounds is often a refusal because an explanation was missing. A refusal on relocation grounds is often a refusal because the evidence about other parts of the country was thin. Both can be addressed at review.
Evidence that answers the reasons for refusal
The most valuable new evidence is evidence aimed directly at the findings in the decision record. If the Department found that the applicant could live safely in another city, the review evidence should deal with that city. If the Department found that an event did not happen, the review evidence should go to that event. Our article on evidence in a protection visa application explains what types of evidence carry weight.
Written submissions
A written submission before the hearing sets out the legal test, the findings the applicant says are wrong, and the evidence that answers them. It gives the Tribunal member a clear map of the case. Without one, the member must work out the arguments from the file.
New claims raised late
New claims can be raised at review. But a claim raised for the first time at the Tribunal will be tested for why it was not raised before. Some reasons are strong, such as trauma, fear, shame or a change in circumstances. The reason must be explained. A new claim with no explanation for the delay can damage the credibility of the whole case and lower the protection visa success rate for that review.
Country information
Country information is independent evidence about conditions in the applicant's home country. The Department and the Tribunal rely heavily on it. Current, specific and reliable country information that supports the claim can outweigh general reports relied on in the refusal.
The review deadline: why many reviews are lost before the hearing
The deadline to apply for review of a protection visa refusal is short and strictly applied, and a review application lodged outside it cannot proceed at all.
No protection visa success rate helps an applicant who misses the deadline. The claim is not heard. The refusal stands.
When the time starts to run
The time runs from when the applicant is taken to have been notified of the decision, not from when they read it. A decision sent to an email address or an ImmiAccount the applicant no longer checks can start the clock without the applicant knowing. That is why contact details in the application must be accurate and monitored.
What to do on the day of refusal
On the day a refusal arrives, the applicant should confirm the date of notification, calculate the deadline, and obtain advice. A review application can be lodged first and the evidence prepared afterwards. It is far better to lodge in time and prepare than to prepare and lodge late. Our guide to appealing a protection visa refusal to the ART explains who can apply and how.
What drives the protection visa success rate at an ART hearing
The protection visa success rate at an ART hearing is driven by three things: whether the Tribunal accepts the applicant's account, whether the account meets the legal test, and whether the risk is answered by relocation or state protection.
Credibility
Credibility is the central issue in most protection reviews. The Tribunal compares the applicant's evidence at the hearing with the application, the statement of claims, the Department interview and any earlier visa applications. Differences are put to the applicant. The applicant then has to explain them.
Genuine applicants often give inconsistent evidence. Memory is affected by trauma, time and interpretation. The Tribunal is entitled to take that into account, but it needs to hear the explanation clearly. An applicant who has reviewed their own earlier statements and understands where the differences lie is far better placed than one who hears about them for the first time at the hearing.
Meeting the legal test
An accepted account must still meet section 36. For a refugee claim, the harm must be serious, it must be for a Convention reason, and the fear must be well founded in all areas of the country. For complementary protection, there must be a real risk of significant harm, personal to the applicant. Our page on complementary protection explains that second test.
Relocation and state protection
Many refusals are affirmed because the Tribunal finds the applicant could relocate within their country, or could obtain protection from the authorities. These findings are made even where the Tribunal accepts that the harm happened. A review that does not deal directly with relocation and state protection leaves the most common grounds for refusal unanswered, and the protection visa success rate for that review falls sharply.
Particular kinds of claim
Some claims raise their own evidential issues. Claims based on sexual orientation or gender identity are one example. The Tribunal must approach them with care, and the applicant's own account is often the main evidence. Our page on LGBTI protection visas deals with those claims. Claims based on religious belief or conversion raise similar issues, discussed on our page on religious persecution protection visas.
Why reviews are lost without being decided on the merits
A significant share of protection reviews end without any finding on whether the applicant is a refugee, because the applicant does not attend the hearing, does not respond to the Tribunal, or withdraws.
These outcomes are counted in the published figures. They pull down the published protection visa success rate at the Tribunal. But they say nothing about the strength of the claims involved. They are lost for procedural reasons.
Failing to attend
If the applicant does not attend a scheduled hearing, the Tribunal can proceed without them or dismiss the review. Either way, the applicant loses the opportunity to give evidence. The options afterwards are limited and time-critical.
Failing to respond to the Tribunal
The Tribunal may write to the applicant to invite comment on information it proposes to rely on, or to ask for documents. These invitations have deadlines. A missed invitation can mean the Tribunal decides against the applicant on information the applicant never answered.
Losing contact
Many applicants move house, change phone numbers or stop checking email during a long review. The Tribunal will use the contact details it holds. A represented applicant has an additional safeguard, because the Tribunal writes to the representative.
Does legal representation change the protection visa success rate at review?
No published figure shows a protection visa success rate for represented applicants that can be applied to an individual case, and no lawyer can promise an outcome. What representation changes is how the case is prepared and presented, and whether procedural losses are avoided.
The difference is practical rather than statistical. A review turns on the reasons for refusal, the evidence that answers them, and the way the applicant gives evidence at the hearing. Each of those is affected by preparation.
Identifying what the review must answer
A lawyer reads the decision record and identifies the findings that decided the refusal. The review is then built around those findings rather than around a general retelling of the claims.
Preparing the applicant to give evidence
A hearing is a long and detailed examination of the applicant's account. Preparation does not mean rehearsing answers. It means the applicant understands the process, knows what they said before, and is ready to explain differences truthfully. Our guide to preparing for a protection visa ART hearing explains that preparation.
Avoiding procedural losses
Missed deadlines, missed invitations and missed hearings account for a large share of lost reviews. A represented applicant has a second person watching every deadline and every letter.
Choosing whether to act
Some applicants lodge the review themselves and seek help later. That is possible, but the earlier the preparation starts, the more can be done. Our article on when you need a protection visa lawyer discusses the point at which legal help makes the most difference.
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What happens if the Tribunal sets aside the refusal
If the Tribunal sets aside the refusal, it usually sends the application back to the Department with a direction that the applicant meets the protection criterion, and the Department then completes the remaining checks before the visa can be granted.
A set aside decision is the result every applicant is looking for when they search for a protection visa success rate. But it is not yet a visa. The remaining criteria for a Subclass 866 visa still have to be met. These include health examinations, character and security checks, and identity. Our page on the Subclass 866 protection visa sets out those criteria.
The applicant should respond promptly to any request the Department makes after remittal. The applicant should also remain in Australia, because the visa must be granted while the applicant is in Australia.
Once granted, the Subclass 866 visa is a permanent visa. The holder can live, work and study in Australia and include eligible family members, subject to the rules for family members.
What happens if the Tribunal affirms the refusal
If the Tribunal affirms the refusal, the refusal stands, and the applicant is generally barred by section 48A of the Migration Act from making another protection visa application while in Australia.
This is why a protection visa success rate at review should be taken seriously. For most applicants, the Tribunal hearing is the last full hearing of the claims.
Judicial review
An applicant may apply to the Federal Circuit and Family Court of Australia for judicial review. The court does not decide whether the applicant is a refugee. It decides whether the Tribunal made a legal error of a particular kind, called jurisdictional error. The time limit is also short and strict. Judicial review does not re-run the facts, so it is not another way to improve the protection visa success rate on the merits. Our page on judicial review explains when that path is available.
Ministerial intervention
The Minister has a personal power under section 351 of the Migration Act to substitute a more favourable decision after the Tribunal has decided. The power is non-compellable. The Minister does not have to consider a request, and requests are granted rarely. It sits outside any published protection visa success rate and is not a substitute for a well-run review.
Bridging visa and departure
Once the review is finally determined, the bridging visa connected to the application will generally end after a short period. Applicants in that position need advice on their status before the bridging visa ends.
How My Migration Lawyers acts on a refused protection visa
My Migration Lawyers acts for people whose protection visa has been refused and who want the strongest possible review, and the firm handles many matters of exactly this type, including complex refusals on credibility, relocation and state protection grounds.
The firm is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers regularly acts in Tribunal reviews where the Department has refused the claims on the papers, where the applicant was unrepresented at the first stage, or where important evidence was never put forward.
What the firm does first
The firm confirms the date of notification and the review deadline, and ensures the review application is lodged in time. It then reads the decision record and identifies the findings the review must answer. This is the point at which the realistic protection visa success rate for the individual case can be assessed.
What the firm does before the hearing
My Migration Lawyers works with the client to review their earlier statements and identify any inconsistencies. The firm helps the client set out any further account in their own words, which the client reviews and corrects. The client decides which claims are advanced. The firm then gathers supporting evidence and country information, and prepares written submissions addressed to the legal test and to the reasons for refusal.
At the hearing and after
The firm prepares the client for the hearing, attends with the client and makes submissions to the Tribunal. It responds to any invitation to comment on adverse information within the deadline. If the Tribunal affirms the refusal, the firm advises on judicial review and the other options that remain.
When to contact the firm
The right time to seek advice is the day the refusal arrives. The deadline cannot be extended, and the work that improves a protection visa success rate at review takes time.
Book a consultation with My Migration Lawyers through our online booking page. If your deadline is close, you can also call 1300 040 300. You can also read more about our protection visa lawyers.
Frequently Asked Questions
My protection visa was refused. Is it worth applying to the ART?
It depends on the reasons for refusal and whether they can be answered. The Tribunal decides the claims again on the evidence before it at the time of its decision, so a refusal based on missing explanations, thin evidence or weak country information can often be addressed at review. A refusal based on claims that fall outside the legal test is harder to overcome. Because the review is usually the last full hearing of the claims, the decision record should be assessed before the deadline passes.
Does the protection visa success rate at the Tribunal include people who did not attend?
Yes. The Tribunal's published outcomes include reviews that were dismissed or decided because the applicant did not attend or did not respond. Those reviews were not decided on the strength of the claims. This is one reason a published protection visa success rate is a poor guide to the outcome of an individual review where the applicant attends, gives evidence and deals with the reasons for refusal.
Can I give the Tribunal documents I did not give the Department?
Yes. The Tribunal can consider new documents, new witnesses and new country information. The most useful new evidence is aimed directly at the findings in the Department's decision. If the evidence raises a new claim, the Tribunal will want to know why the claim was not raised earlier, so the reason should be explained clearly in the review material.
Can I apply for another protection visa if the Tribunal affirms the refusal?
Generally no, while you remain in Australia. Section 48A of the Migration Act prevents a person who has been refused a protection visa from making another protection visa application in Australia. The Minister has a personal power to allow a further application, but it is used rarely. Judicial review and ministerial intervention may be available in limited circumstances, and each has strict requirements.
What happens to my bridging visa while the review is running?
A bridging visa granted with the protection visa application generally continues while a review applied for in time is being decided. It usually ends a short time after the review is finally determined. Applicants should keep their contact details up to date with the Tribunal and the Department, and obtain advice on their status well before the review ends.
Weiwei Zhang is the Principal Lawyer and Managing Director of My Migration Lawyers. My Migration Lawyers is one of Australia's leading immigration law firms, dedicated exclusively to Australian immigration law. The firm represents individuals, families and businesses across all areas of migration law, with particular expertise in complex immigration matters, Partner Visas, Protection Visas, corporate migration, visa refusals, Administrative Review Tribunal reviews, judicial reviews and visa cancellations.
