What ART merits review gives you, and your right to be heard

If your visa was refused, ART merits review is usually the most important second chance you have, and it works quite differently from a court case. The Administrative Review Tribunal does not ask whether the original decision was legally wrong. It decides the case again itself, on the evidence before it, and reaches what it considers the correct or preferable outcome. The most common reason an applicant loses a review that could have succeeded is a failure to deal squarely with the issue the Tribunal was concerned about.

What ART merits review decides

The Administrative Review Tribunal replaced the Administrative Appeals Tribunal in 2024. For most visa refusals and many nomination and sponsorship decisions, the Tribunal conducts merits review: it stands in the shoes of the delegate of the Minister and remakes the decision from the beginning.

Two consequences follow. You can put fresh evidence before the Tribunal that the Department of Home Affairs never saw. A partner visa applicant who could not gather enough relationship evidence in time, or a skilled applicant whose skills assessment arrived late, can often cure the gap at review. The Tribunal is also not bound by the reasons the Department gave. It can affirm a refusal for a different reason from the one in the original decision, provided it gives you a fair chance to respond to that new reason.

The Tribunal’s role and current procedures are set out on its own site at art.gov.au. The governing framework sits in the Migration Act 1958 and the Administrative Review Tribunal Act 2024.

The core principle: a fair chance to address the decisive issue

The strongest protection you have at review is procedural fairness. If the Tribunal is going to decide your case against you on a particular issue, you must first be given a real opportunity to deal with that issue.

The High Court settled the point in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. Where a tribunal’s decision turns on specific issues, the applicant must be given a chance to address those issues. General awareness that credibility or evidence is in play is not enough. If the Tribunal forms a concern about a specific matter and decides the case on it without raising it, the applicant has been denied the fair hearing the law requires.

The principle shapes preparation. Identify what the Tribunal is likely to treat as the dispositive question, and make sure everything you need to say about it is on the record.

What “the issues” means

For a partner visa refusal, the decisive issue is usually whether the relationship is genuine and continuing. For an employer nomination, it is often whether the position is genuine and the tasks match the nominated occupation. For a general skilled visa, it may be the validity of a skills assessment or whether points were correctly claimed at the right time.

The Tribunal will often flag these concerns in a hearing invitation, a written request for comment, or its questions at the hearing. Each of those signals shows what the Tribunal cares about. A question asked three times is the issue the case will be decided on.

Why silence at the hearing is dangerous

Because merits review is a fresh decision, the Tribunal builds its findings from what you provide. If it invites comment on adverse information and receives none, it is generally entitled to proceed on that information as it stands.

The risk is greater for applicants who expect the Tribunal to read the whole file sympathetically and fill gaps in their favour. It will not. If a bank statement contradicts a claim about shared finances, or a document is inconsistent with a work history, the explanation has to be given before the decision, in writing or at the hearing. Once the decision is made, the options narrow sharply.

New information and the duty to comment

Where the Tribunal holds information that would be the reason, or part of the reason, for affirming the refusal, it will usually put that information to you and invite a response within a set period. This opportunity is often decisive.

Respond in full, in writing, and on time. Answer the specific concern rather than restating the general case. If the information is wrong, say why and provide the correct document. If it is right but there is an innocent explanation, give it clearly. A late or partial response can be fatal, and the Tribunal is not obliged to chase you for more.

Fairness protects the process, not the outcome

A perfectly fair hearing can still end in a refusal, and that refusal will usually stand.

The courts have been clear that the discretion exercised in migration decisions is wide. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, the Full Federal Court held that a decision is not legally unreasonable merely because another decision-maker might have reached a different view. Disagreement with the Tribunal’s assessment of the evidence is generally no basis for a court to overturn the decision. Judicial review corrects legal error. The Tribunal is where a case is decided on the facts.

One boundary cannot be argued past. The statutory time limits for lodging a review application are strict, and the courts have treated limits of this kind as jurisdictional: the Tribunal cannot extend them, however sympathetic the circumstances. A missed deadline usually means no review at all, so diarise it the moment a refusal arrives.

Practical steps before your ART hearing

Start by reading the original decision closely and listing every reason the delegate gave. Then consider what the Tribunal is likely to be concerned about, including matters the Department did not raise.

Gather evidence that speaks directly to those concerns, and organise it so the Tribunal can find each point quickly. Prepare to answer the difficult questions, because avoidance reads as evasion. If English is not your first language, arrange an interpreter through the Tribunal in advance. If the issues are technical, such as occupation coding, the market salary rate or a Schedule 3 waiver, take advice before the hearing.

Our team acts for applicants at merits review across partner, skilled and employer sponsored matters, identifying the decisive issue early and building the record the Tribunal needs. To discuss a refusal and your review options, contact us through our skilled visas, employer sponsored visas or partner visas pages.

General information only, current at the date shown. It is not legal advice on your situation. To get advice on your matter, book a consultation.