Visa Options After a Refusal
A visa refusal is not always the end of the road. Depending on the decision, you may be able to have it reviewed in one of three ways:
Merits review by the Administrative Review Tribunal (ART), formerly the Administrative Appeals Tribunal (AAT).
Judicial review in the Federal Circuit and Family Court or the Federal Court.
Ministerial intervention, where the Minister personally substitutes a more favourable decision.
Each pathway has strict deadlines, and some cannot be extended at all. The most important step after a refusal is to work out quickly which option applies to you.
Merits review at the ART (formerly the AAT)
The ART replaced the AAT on 14 October 2024. It can look at your case afresh and decide whether the visa should have been granted, including on new evidence. Merits review sits under Part 5 of the Migration Act 1958 (Cth).
Is your decision reviewable? Section 338 sets out which refusals can go to the ART. Broadly, a refusal is reviewable if:
you applied while in Australia, for a visa that can be granted in Australia, and the decision was not made while you were in immigration clearance; or
you applied from outside Australia but were sponsored or nominated by an Australian citizen, permanent resident or eligible business, or you are a former permanent resident with close family in Australia.
Your refusal letter will normally say whether you have ART review rights and the deadline that applies. Some decisions cannot be reviewed, for example where the Minister has issued a conclusive certificate.
Time limits. Under section 347, most applicants have 28 days from being notified of the decision. The period is much shorter if you are in immigration detention. Crucially, the ART cannot extend these deadlines for migration decisions. Miss the deadline and merits review is lost.
What happens at the ART
An application must be lodged in the approved form, with the prescribed fee, within the time limit. The ART must then review the decision unless a conclusive certificate has been issued.
Migration reviews usually involve an oral hearing. You can give evidence, call witnesses and provide documents that were not before the Department. This is often the key advantage of merits review. A refusal based on missing or weak evidence can sometimes be fixed at this stage.
The ART's general powers come from section 105 of the Administrative Review Tribunal Act 2024 (Cth). For migration decisions they are modified by section 349 of the Migration Act. After the review, the ART can:
affirm the refusal;
vary the decision;
set aside the decision and substitute a new one; or
for prescribed matters only, set aside the decision and send it back to the Department to reconsider. This must follow orders or recommendations the regulations permit (Migration Act s 349(2)).
The ART Act's general power to remit, in s 105(c)(ii), does not apply to migration decisions (Migration Act s 349(1)). Remittal is therefore only available where the regulations allow it.
If you held a bridging visa linked to your application, it will usually stay in effect while the review is underway. Waiting times at the ART can be long, so you may remain in Australia for some time while your case is decided.
Judicial review in the federal courts
Judicial review asks a different question from merits review. The court does not decide whether you should get the visa. It decides whether the decision was made lawfully. You must show jurisdictional error, such as a denial of procedural fairness, a misunderstanding of the law, or a failure to consider something the decision-maker was required to consider.
Which court? Most migration judicial review starts in the Federal Circuit and Family Court of Australia (Division 2) under section 476. That court cannot hear a challenge to a primary Department decision that could have gone to the ART. You generally need to go through merits review first. Character-based decisions made personally by the Minister go to the Federal Court instead, under section 476A.
Time limit. You must apply within 35 days of the date of the decision (section 477). Unlike the ART, the court can extend time if satisfied it is in the interests of the administration of justice. You need to apply in writing and explain why. Do not rely on getting an extension.
If the court finds an error, it usually sends the matter back to be decided again according to law.
Appeals and costs
If you lose in the Federal Circuit and Family Court, you may be able to appeal to the Federal Court. From there, you can seek special leave to appeal to the High Court. Each step has its own short deadline.
Judicial review also carries a costs risk. An unsuccessful applicant is usually ordered to pay the Minister's legal costs, which can be substantial. Before filing, get an honest assessment of whether there is a genuine jurisdictional error. Disagreeing with the outcome is not enough.
Ministerial intervention
If the ART affirms the refusal, section 351 lets the Minister personally substitute a more favourable decision where that is in the public interest. The Minister is not bound by some of the usual visa criteria when doing so. This makes intervention a last resort for cases with strong humanitarian or compassionate features.
There are important limits:
The Minister has no duty to consider your request, and you cannot compel them to.
The power can only be used after a tribunal decision, not straight after a Department refusal.
Any decision to intervene is reported to Parliament, without identifying you.
A similar power under section 501J applies to protection visa decisions reviewed by the ART.
In practice, the Minister only considers cases referred under published guidelines. These generally require unique or exceptional circumstances, such as strong compassionate factors, serious harm to an Australian family member, or circumstances the visa criteria did not anticipate. A request should be detailed, well evidenced and focused on why your case stands out. Intervention should be treated as a possibility, not a plan.
Which pathway is right for you?
The pathways are not interchangeable, and the order matters.
If the Department refused your visa and you have ART review rights, merits review is almost always the first step. It is the only option that lets a fresh decision-maker weigh new evidence, and the courts generally will not hear your case until you have used it.
If the ART has affirmed the refusal, consider whether the Tribunal made a legal error. If it did, judicial review may be available. If it did not, but your circumstances are exceptional, ministerial intervention may be worth exploring.
If you have no ART review rights, for example because you applied offshore without an eligible sponsor, judicial review of the Department's decision may be the only legal challenge available. Making a fresh application may also be an option.
A refusal can also affect your ability to lodge further applications while you remain in Australia. Get advice before lodging anything new.
Deadlines at a glance
Merits review at the ART (formerly the AAT). You generally have 28 days from being notified of the decision, or less if you are in immigration detention. The ART cannot extend this deadline.
Judicial review. You must apply to the Federal Circuit and Family Court (Division 2) within 35 days of the decision. Some character decisions go to the Federal Court instead. The court can extend time, but only in limited circumstances.
Ministerial intervention. There is no fixed deadline, but a request can only be made after a tribunal decision. The Minister is not obliged to consider it.
Always check the time limit stated in your refusal letter, as it depends on the type of decision and your circumstances.
What to do if your visa has been refused
Find the date you were notified. The ART deadline runs from notification, and the deemed date can differ from the day you opened the letter.
Check the letter for review rights. It will usually say whether you can apply to the ART and by when.
Get advice immediately. With an ART deadline that cannot be extended, days matter.
Gather your evidence. Merits review lets you address the reasons for refusal with new material, so start collecting it now.
Talk to us
O'Haire Legal helps clients across northern and regional Victoria, including Bendigo, Swan Hill, Echuca and Shepparton, challenge visa refusals at the ART and in the federal courts. ART hearings can often be held by video, so you may not need to travel to Melbourne. Call (03) 7064 0341 or email home@ohairelegal.com.au as soon as you receive your decision.
This article is general information only and is current as at October 2026. It is not legal advice. Migration law changes frequently and time limits depend on the type of decision, so seek advice about your circumstances before acting.
