When an application is refused.

Read the letter and work out two dates: the date of the decision, and the day you are taken to have been notified of it. The second is the one the period runs from, and it is not always the day you read the email.

Then find the part of the letter that deals with review. A refusal letter has to name the criterion you did not satisfy or the provision that prevented the grant, give written reasons, and, where a review right exists, tell you that the decision can be reviewed, how long you have, who can apply and where (s.66(2)).

Bring us the letter with its envelope or the email header.

From the day you are notified, and the Act fixes that day rather than leaving it to when the letter was opened (s.494C).

• Email, fax or another electronic method: the end of the day it was transmitted.
• A document made available in an online account: the end of the day it was made available.
• Post from a place in Australia to an address in Australia: 7 working days after the date of the document.
• Post in any other case: 21 days after the date of the document.
• Handed to you, or handed to someone at your home or business address: when it was handed over.

The period is 28 days after the day of notification, or 14 days if you were in immigration detention on that day (s.347(3)).

If an authorised recipient has been named, the Department gives the document to that person, and doing so counts as giving it to you (s.494D).

So the period runs from the day it reached them. On a file that has changed hands this can quietly consume days before the client hears anything, which is why the first question on an inherited refusal is who the Department had on record as the authorised recipient.

No. The Tribunal’s general power to extend the period for applying is switched off for migration and protection decisions (s.347(5)), and the fee has to be paid as part of making the application (s.347(2)(c)).

An application that is not properly made does not give the Tribunal jurisdiction (s.348). Illness, a missed email and an agent’s error do not change any of that.

It may be, and it often is, but the sentence is worth testing before it is accepted. Review rights turn on which subsection of s.338 your decision falls under, and some of the gateways depend on facts inside your own application.

An offshore visitor refusal is the common example. There is a review right where a criterion for the visa was that you intend to visit a parent, spouse, de facto partner, child, brother or sister who is an Australian citizen or permanent resident, and the particulars of that relative are in the application. Both limbs have to be met, and it is the relative who applies, not you.

Bring the letter and the lodged application.

For an onshore visa refusal, yes, and you must be in Australia when you make the review application (s.347A(1)(a), s.347A(2)).

For an offshore refusal it depends on the gateway. Where the visa required a sponsor or a nominator, the review belongs to the sponsor or nominator, not to you. Where the gateway is a close relative in Australia, it belongs to the relative (s.347A(1)(b), (c)).

Sometimes. An offshore refusal is reviewable where the visa required a sponsor or nominator who is an Australian citizen, a permanent visa holder, an eligible New Zealand citizen, or a company or partnership operating in Australia; where a criterion was that you had been an Australian permanent resident and you have a close Australian relative; where a criterion was that you intend to visit a close relative who is a citizen or permanent resident and their particulars are in the application; and for a permanent visa applied for from outside Australia (s.338(5) to (7A)).

The Regulations then add a further list of offshore refusals that are reviewable, including the Prospective Marriage and Partner (Provisional) subclasses (reg 4.02(4)).

Where none of those fits, the refusal letter does not have to give reasons at all (s.66(3)).

No. A decision under s.140GB(2) to refuse to approve a nomination is a reviewable decision (reg 4.02(4)(d)), and the person who may apply is the person who made the nomination (reg 4.02(5)(c)). For a nomination of a position under reg 5.19 it is the person to whose nomination the decision relates (reg 4.02(5)(d)).

An application lodged in the worker’s name is not properly made, the Tribunal has no jurisdiction (s.348), and the period cannot be extended to fix it. The business has to be the review applicant.

That is a decision under s.140E and it is separately reviewable (reg 4.02(4)(a)). The person who may apply is the person to whose application the decision relates (reg 4.02(5)(a)), which is the business.

A decision to bar a sponsor or cancel a sponsorship approval under s.140M is also reviewable, and there the applicant is the person whose approval was cancelled or who was barred (reg 4.02(4)(h), (5)(g)).

Because employer sponsorship is built as separate decisions. Approving the business as a sponsor is one (s.140E). Approving the nominated job is another (s.140GB). Granting the visa is a third (s.65).

Each is made on its own criteria, each generates its own letter, and each has its own review applicant. They commonly arrive on the same day and expire on the same day, and they are not one matter.

Read them as two files with two deadlines. The nomination review belongs to the business. The visa refusal is the worker’s, and whether it is reviewable at all can depend on what is happening to the nomination.

For the temporary visas prescribed in reg 4.02(1A) – which include Subclass 482 in both its streams, 494, 407, 408 by a related route, 457, 401, 402, 416, 420, 488 and 870 – an onshore refusal is only reviewable if, when the refusal was made, the worker was identified in an approved nomination that has not ceased, or a review of the sponsorship or nomination decision was pending, or the worker was sponsored by an approved sponsor (s.338(2)(d)).

So the order and the timing of the two applications matter, and letting the nomination deadline pass can take the worker’s review right with it.

Not automatically. The Tribunal can set the nomination refusal aside and send it back, and it can order that the nomination is taken to have met a specified criterion for approval (reg 4.15(1A)). The visa application is then decided by the Department on its own criteria.

It reviews the decision on the merits, which means it decides the matter again on the material before it (s.348). It is not confined to the reasons the delegate gave.

Where it does not agree with the decision, the usual result is that it sets the decision aside and remits the matter to the Department, and it may order that a specified criterion for the visa is taken to be satisfied (s.349, reg 4.15). The Tribunal does not grant visas.

A fee is prescribed by the Regulations and is payable as part of making the application, not afterwards (s.347(2)(c), reg 4.13(1)). It rises every 1 July in line with the Consumer Price Index (reg 4.13A). The current amount is on art.gov.au.

Where the Principal Registrar considers that paying it would cause financial hardship, the fee is half (reg 4.13(4)). No fee is payable on a review of the bridging visa decisions in s.338(4). Where applications are combined, one fee covers them (reg 4.12), and the Regulations set out when a fee is refunded (reg 4.14).

Usually, but not always. A review of a decision to refuse a student visa is now dealt with on the papers by default (reg 4.18(1)), which means the case is decided on what is written rather than at a hearing.

That default drops away where the refusal turned on one of the listed public interest criteria – among them 4001, 4007, 4010, 4013, 4014 and 4020 – or on a special return criterion (reg 4.18(2)). Where a matter is on the papers, there is no hearing at which to add to what was written.

The Act sets no general period for deciding a migration review. Two periods are fixed. A review of the bridging visa decisions in s.338(4), where the applicant is in detention because of the decision, must be decided within 7 working days of the application being received (s.367, reg 4.17). The other is the 84-day rule in character matters, below.

Not within the Tribunal. The ART has a Guidance and Appeals Panel, but for decisions under the Migration Act you cannot apply to have your case referred to it. The single exception is a decision under Part 3, which deals with registered migration agents (s.500AA).

Yes, and in some cases you do not have to ask. The Tribunal publishes its own criteria on its Immigration and citizenship page, and what follows is the Tribunal’s policy rather than ours or the Act’s.

The Tribunal says it will expedite automatically where it can, with no request needed, where you are in immigration detention, where you have applied for review of a visa cancellation, or where your matter has been sent back to the Tribunal to be reconsidered.

You can ask for a review to be expedited in two situations:

• your visa was refused because you did not meet one or more criteria, and you can provide documentary evidence that objectively demonstrates the criterion or criteria are now met; or
• your review is urgent because of exceptional circumstances.

The Tribunal gives three examples of when it may be satisfied a review is urgent and it is appropriate to expedite it:

• expediting the review will result in a child under 18 being reunited with a parent, guardian or carer;
• you have had a serious accident, or have a disability or condition, and prolonging the review would cause you exceptional hardship;
• a long delay would result in the review applicant no longer being eligible for the visa applied for, even if the primary decision were set aside.

They are examples, not the whole list, and the Tribunal decides whether it is satisfied. An age limit or a time-limited criterion that will pass while the review is waiting is a reason to raise the request early.

The Tribunal sets a different route for each ground.

Where you can show you now meet a visa criterion you could not meet when the original decision was made, there is a Request to expedite decision form, used through an online services account. Without an account, the same request is made by email, following the instructions on the first page of that form. The form is on the Tribunal’s forms page.

Where the ground is exceptional circumstances, the request is made by email, setting out in writing why the case should be expedited and attaching the evidence that supports it.

Either way the request is decided on the documents attached to it.

No. Expedition is about how quickly a review that has already been made is dealt with. It has nothing to do with the period for applying, and the Tribunal states plainly on the same page that it has no power to extend the time limit to apply for a review, which is what s.347(5) provides.

The Tribunal also publishes a Migration, Protection and Character Practice Direction setting out how these reviews are run.

Then it is not a Part 5 review. A delegate’s decision under s.501, and a decision under s.501CA(4) not to revoke a mandatory cancellation, are reviewed under s.500 instead, and a section 501 decision is expressly outside Part 5 (s.500(4)).

Where the person is in the migration zone the application must be lodged within 9 days after the day they were notified, and the Tribunal has no power to extend that (s.500(6B)). It must be accompanied by the notification document and the material given with it (s.500(6C)).

A decision made personally by the Minister under section 501, and a delegate’s mandatory cancellation under s.501(3A), are not reviewable this way at all (s.500(4), s.500(4A)).

In a section 501 or section 501CA(4) review where the person is in the migration zone, if the Tribunal has not made one of the decisions listed in the Act within 84 days after the day the person was notified of the decision under review, the Tribunal is taken at the end of that period to have affirmed the decision (s.500(6L), s.500(6M)).

Evidence also has to be in early: the Tribunal cannot have regard to a document unless a copy went to the Minister at least 2 business days before the hearing, or to oral information not set out in a written statement given in the same period (s.500(6H), s.500(6J)).

Offshore, generally yes. Onshore it depends on section 48. Someone in Australia who does not hold a substantive visa and who has been refused a visa since last entering can only apply for a visa of a prescribed class (s.48).

The prescribed list is short. It includes the Partner (Temporary) and Partner (Residence) classes, protection visas, Medical Treatment (Visitor), Child (Residence), the bridging classes, Resolution of Status, Skilled-Nominated (Permanent), Skilled Work Regional (Provisional) and Skilled Employer Sponsored Regional (Provisional), among a few others (reg 2.12).

A refusal of a bridging visa, and a refusal under section 501, do not trigger the bar.

That is the bogus document and false or misleading information criterion. Where a visa was refused for failing it, the applicant and each member of the family unit cannot satisfy it on an application made in the next 3 years. Where the refusal was for failing to satisfy the Minister as to identity, the period is 10 years (Schedule 4, PIC 4020(2), 4020(2B)).

Neither period applies where the applicant was under 18 when the refused application was made. There is a waiver, and it requires compelling circumstances affecting Australia’s interests, or compassionate or compelling circumstances affecting an Australian citizen, permanent resident or eligible New Zealand citizen (PIC 4020(4)).

It applies whether or not the Department learned of the document or the information from the applicant (PIC 4020(3)).

Two criteria do this. Public interest criterion 4013 applies where a visa was previously cancelled on certain grounds, and 4014 applies where the person left Australia as an unlawful non-citizen or on a Bridging C, D or E visa. Each bars a grant within 3 years of the cancellation or the departure unless the Minister is satisfied there are compelling or compassionate circumstances of the kind the criterion describes (Schedule 4, PIC 4013, PIC 4014).

PIC 4014 does not apply where the person left within 28 days of their substantive visa ceasing, among other exceptions.

Your status is decided separately from the review. Lodging a review does not by itself keep you lawful, and the bridging visa you hold now may have been granted on terms that end when the Department’s decision was made. See our bridging visa work, and bring the grant letter for whatever bridging visa you currently hold.

There is a request for Ministerial intervention. Once the Tribunal has decided, the Minister may substitute a more favourable decision if the Minister thinks it is in the public interest (s.351).

It can only be exercised by the Minister personally (s.351(3)). There is no duty to consider exercising it, whether or not it is requested (s.351(7)). It does not pause anything or restore lawful status by itself.

We prepare and lodge these requests. What we put in one is the material that speaks to the public interest, which is not the same material that decided the visa criteria.

We answer requests for information and comment before a decision is made, we prepare and run merits review at the Administrative Review Tribunal, and we prepare Ministerial intervention requests. See refusals and ART review.

No Worries Migration is a registered migration agency and not a law firm. Where what you need is legal practice, we say so and refer you to a lawyer.