The Administrative Review Tribunal (ART) is one of several bodies charged with the responsibility for reviewing migration decisions (refer to the tab titled “Appeals for an overview of the Migration Appeals System“).
The ART is what is called a “merits review Tribunal.” This means that the Tribunal considers the merits of the case and makes its own decision on the application without having regard to the earlier decision. In other words, it is not an appeal process but a means whereby the application is reconsidered as if it were a new application. Accordingly, the review body may ask for further information to be provided and will normally conduct a hearing to obtain verbal evidence from the review applicant and any supporting witnesses.
It is important to remember that the Tribunal is bound by the same laws as the original decision maker and when conducting a review application, it is necessary to be able to demonstrate to the Tribunal the legal arguments upon which it is argued that the visa should have been granted.
The bulk of visa reviews are undertaken by the ART, which essentially has the jurisdiction to review decisions where there has been a refusal to grant a visa, where there has been a decision to cancel a visa in circumstances where the former visa holder is in Australia, Business Sponsorships and Nominations and some points test issues.
Once the Tribunal has considered all the supporting material and (usually) held a hearing, it can decide to confirm the original decision or to overturn it. Although the Tribunal normally does conduct a hearing, it is possible for a decision to be made without the need for a hearing if the Tribunal believes that, on the basis of the written evidence before it, it is possible to make a decision in favour of the visa applicant.
In most cases, even though the Tribunal may find in favour of the visa applicant, it is still not possible to grant the visa because other processing requirements are yet to be resolved – the most obvious example being medical and character requirements. In these cases, the Tribunal overturns the original decision and remit the application back to the Department with the direction that the contested visa criteria have been met and that processing should continue.
The law provides that applications to the ART must be lodged within strictly defined time limits. These time limits can vary according to the nature of the decision, where the application for review has been made, and where the applicant is. If an application is lodged out of time, the review cannot proceed, and it is not possible to obtain an extension on the time limit.
When the application for review is lodged, it must be accompanied by a fee. If the application is ultimately successful, this fee is refunded.
The ART is independent of the Department of Immigration and Border Protection (DIBP) and the Migration Act provides that it is to provide a review mechanism that is fair, just, economical, informal, and quick. The Tribunal is not bound by technicalities, legal formalities, or the rules of evidence, and it must act according to substantial justice and the merits of the case. While the law provides that the Tribunal can be flexible in its approach to dealing with matters, it still must follow the provisions of the Migration Act and Regulations as previously stated.
People who make application to the ART may be represented, and although proceedings are not run like a court case would be, the Tribunal members generally let the representative make submissions on behalf of their client after the applicant has provided evidence.
