Starting on 14 October 2024, a new era in appealing your visa refusal will begin in Australia with the launch of the Administrative Review Tribunal (ART). The ART will replace the Administrative Appeals Tribunal (AAT) and introduce changes to the review process, impacting how migration, citizenship, and protection visa decisions are managed. In this article, we break down what the new ART means for applicants and what changes to expect.
A new review framework: Equal time to apply for all Applicants
One of the key changes under the new ART is the standardisation of the timeframe for lodging review applications, regardless of whether the applicant is inside or outside of Australia.
If you are in immigration detention on the day you receive your decision, you have 7 days from the day of notification to lodge an application.
For all other applicants (whether in Australia or outside of Australia), the timeframe is now 28 days after the day of notification.
This change means that applicants inside Australia now have more time to apply, while those outside Australia have less time compared to the previous rules. This aims to simplify and standardize the process, making it easier to understand and comply with.
Transition from the AAT to the ART: What happens to current Applications?
If you already have a pending application with the AAT, here’s what you need to know:
The AAT’s online services will be unavailable from 11.59 PM (AEDT) on Friday, 11 October 2024, until 7.00 AM (AEDT) on Monday 14 October 2024.
All applications that are lodged online before this shutdown will be automatically transferred to the new ART.
If you have incomplete applications in the AAT’s system that are not submitted before the shutdown, these will be deleted.
During the shutdown period, you can still lodge review applications by email.
The Tribunal’s Power to Dismiss Applications
The ART has the authority to dismiss certain applications at any time if it believes they meet the following criteria:
Frivolous, Vexatious, or Misconceived: If the Tribunal deems an application to be lacking seriousness or legal basis.
No Reasonable Prospects of Success: Applications that have little to no chance of success may be dismissed early on.
Abuse of Process: The ART can reject applications that are seen as a misuse of the system.
Furthermore, if an application is dismissed under these grounds, the Tribunal can order that the applicant must obtain special permission before lodging any subsequent applications of a similar kind. It is unclear how this new law will work in practice.
Changes to Membership: Legal Practitioners Only
Unlike the previous AAT structure, the ART’s decision-making members must be legal practitioners. This shift ensures that all reviewers have formal legal training, which is expected to bring more consistency and legal rigor to the decision-making process.
Expanded Rights for Migration Review Applicants
One of the most significant changes brought by the ART is the abolition of the Immigration Assessment Authority (IAA). This change means that people who arrived in Australia as “unauthorised maritime arrivals” will now have the same review rights as other migration review applicants. Under the ART, these applicants:
Have the right to a hearing.
Can provide new evidence in support of their cases.
This reform aims to create a fairer review system where all migration applicants are treated equally, regardless of their mode of arrival.
Section 37 Citizenship Decisions Now Reviewable
The ART will also have the power to review decisions under Section 37 of the Migration Act, which involve a refusal to issue a notice stating that a person is an Australian citizen at a particular time. This new reviewability is significant for individuals who have faced issues with proving their citizenship status and will allow them to seek redress through the Tribunal.
Private Hearings for Protection Visa Decisions
The ART introduces a new provision which mandates that hearings related to reviewable protection decisions must be held in private. This change is designed to protect the privacy and confidentiality of applicants in sensitive protection visa cases, ensuring a safer environment for those seeking asylum or other forms of protection.
Introduction of Alternative Dispute Resolution (ADR)
A positive change under the ART is the opportunity for applicants to engage in Alternative Dispute Resolution (ADR) processes. ADR allows for disputes to be resolved more informally and collaboratively, potentially avoiding a full Tribunal hearing. This option can lead to faster and less adversarial outcomes for applicants.
Code of Conduct and Performance Standards for Members
The ART President must establish a Code of Conduct and Performance Standards for its non-judicial members. This measure is designed to maintain high professional standards and accountability within the Tribunal. Importantly, a serious breach of the code can result in the termination of a non-judicial member’s appointment. By setting these standards, the ART aims to uphold the integrity and quality of its decision-making processes.
Conclusion: What to Expect from the ART
There are some positive changes with the new Administrative Review Tribunal and there are some changes for which it is still unclear what the affect will be on applicants.
For those navigating the new Tribunal, understanding the changes and ensuring compliance with new procedures will be essential. If you have any questions or need assistance, you can book a FREE initial consultation with us here.
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