The ART can review certain migration decisions on their merits. It is not simply checking whether the Department made a legal error: within its jurisdiction, the Tribunal can reconsider relevant facts, evidence and law and determine the correct or preferable decision.
The decision notification should be checked immediately. In migration matters the ART may have no power to extend the statutory time limit for applying for review. Review rights, the person entitled to apply and the deadline depend on the decision.
A review should start with the refusal or cancellation reasons
Effective preparation is issue-based. The refused application, Department decision, earlier evidence, immigration history and any later material should be read together before deciding what further evidence or submissions are needed.
Typical stages of an ART matter
Jurisdiction and application
Confirm that the decision is reviewable, identify who can apply, calculate the deadline and lodge a valid application with the required decision details.
Evidence and submissions
Map each refusal or cancellation issue to the applicable criterion, evidence and explanation. New evidence may be relevant, but it should address the actual issue rather than simply increase the volume of documents.
Hearing preparation
Where a hearing is held, preparation should focus on the difficult facts, chronology, credibility issues and how the evidence relates to the legal criteria. It should not be a memorised script.
Decision and next steps
Depending on the matter and statutory power, the ART may affirm, vary, set aside or remit a decision. The practical consequences should be considered after the Tribunal outcome.
ART review is different from judicial review
The ART conducts merits review. A court, by contrast, generally asks whether a jurisdictional or legal error occurred. If the Tribunal affirms an adverse decision, the existence of a court pathway depends on whether there is an arguable legal error, not simply disagreement with the factual outcome.