Appeals, Merits Review & Ministerial Intervention
Merits Review
Receiving news from the Department of Home Affairs that your visa has been refused or cancelled can be devastating. However, there is usually a chance that you can apply to the ART for a review of this decision. This may sound like a daunting process, but we can make it a pleasant experience that is easy to follow and understand.
A merits review is a reassessment of a decision made by a primary decision-maker (in this case, the Department of Home Affairs). When the ART conducts a merits review, it will reassess the application by stepping in the shoes of the Department of Home Affairs and make a fresh decision by applying the law to the facts of the case.
The ART may make the same decision as the Department, or it may make a different decision. Alternately, it may remit (return) the application to the Department of Home Affairs for reconsideration with specific directions.
When you apply for merits review at the ART, you will have the opportunity to present new information or evidence to support your application.
There are time limitations for applying for merits review of a negative decision, usually the application for merits review must be made within 21 days.
We will be able to take the most challenging part of this process off your hands by:
- lodging a review application at the ART on your behalf
- preparing a submission and supporting documents for your appeal
- appearing at an ART hearing with you
Judicial Review
If you have received an adverse decision from the ART, you may be able to appeal the decision to the Federal Circuit and Family Court or Federal Court of Australia (the Court).
The Court only reviews a decision in order to determine if a “jurisdictional error” has been made by the ART. This means the Court determines if the decision of the ART has been made according to law.
Examples of jurisdictional errors by the decision-maker include:
- not adopting a fair process in making the decision (i.e. failing to afford you “procedural fairness”)
- identifying a wrong issue.
- ignoring relevant facts, claims, considerations or materials the decision-maker was required to look at.
- relying on considerations or materials the decision-maker should not have looked at.
- incorrectly interpreting or applying the law.
- reaching a decision that is unreasonable in the legal sense.
- making a decision for which there was no evidence, or that was not reasonably open on the materials before it.
- being biased in the course of their decision, or making a decision in a manner that would cause a reasonable, fair minded lay observer to perceive the decision as being biased.
If your appeal to the Court is successful, your case will be remitted back to the ART with directions that it be heard again according to law. Only the Department of Home Affairs can grant you a visa, so you must also be successful in your subsequent ART hearing for you to potentially have a visa refusal overturned or a visa cancellation set aside. Importantly, the Court cannot:
- reconsider the facts and reasons for your visa application.
- take new factual information into account (unless it is relevant to a question of whether the decision maker made a jurisdictional error).
- grant you a visa.
There are strict time limits that apply if you wish to appeal a decision of the ART to the Court. You will have 35 days from the date you were informed of your ART decision to appeal. This can be extended in limited circumstances.
If you lodge an appeal to the Court, you will not automatically be granted a new Bridging Visa. You must apply for a new Bridging Visa and should do so within 28 days of the ART’s decision if you want to ensure the most beneficial Bridging Visa is granted to you.
Ministerial Intervention
If you have been refused a visa, or had a visa cancelled, by the Department of Home Affairs, and subsequently appealed the adverse decision to the ART’s, whom also came to an adverse decision, you may want to consider lodging a Request for Ministerial Intervention with the Minister of Immigration.
The Minister may consider letting you stay in Australia if certain unique or exceptional circumstances apply to you. Generally, the Minister will only consider one application for Ministerial Intervention from an applicant. It is therefore vital for an applicant to include all relevant evidence and submissions with their request.
If you are applying for Ministerial Intervention you must be lawfully residing in Australia. If your visa has expired it is important that you legalise your status in Australia which may require a Bridging Visa E application.
It is strongly recommended that you obtain our advice and representation so we can maximise your chances of success with the Minister.
Our team of friendly, professional and experienced lawyers are here to help you whenever you need. Contact us today for assistance with your matter or as a sounding board for your questions and concerns. We are sure to provide you with accurate, informative and relevant information to help you navigate this tricky process.
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