Section 501 Visa Cancellation - Revocation Submissions - ART Appeal after Revocation Request Refused

What does the ART consider in a Section 501 ART review?: The ART conducts a full de novo merits review applying Direction 110 as at the date of the ART's decision. The ART stands in the shoes of the Minister and re-weighs all primary considerations (protection of the Australian community, best interests of minor children, expectations of the Australian community) and other considerations. New evidence not before the original decision-maker is admissible. The ART may substitute its own decision for the Minister's if it concludes the cancellation should be revoked.

Jurisdiction: The Administrative Review Tribunal (ART) - Immigration and Citizenship Division - hears s 501 visa cancellation review applications under s 500 of the Migration Act 1958 (Cth). The ART replaced the former Administrative Appeals Tribunal (AAT) from 14 October 2024.

The Process at a Glance: Upon receiving the Decision Record of a revocation refusal, the practitioner immediately calculates the 9-business-day ART filing deadline and lodges an application for review via the ART Online Portal (online.aat.gov.au), paying the prescribed filing fee. The practitioner applies for a stay of removal if the client faces imminent removal. The Department provides T documents (the administrative file) within 28 days. The ART holds a case conference, then a substantive hearing applying Direction 110 de novo. The ART issues a written decision; if adverse, judicial review in the Federal Court of Australia on jurisdictional error grounds (s 476A(1)(b) Migration Act) is the next step.

Key Legislation and Case Law: Migration Act 1958 (Cth) ss 500(1)(b) (ART review right), 476A and 477A (Federal Court judicial review of the ART decision, 35-day time limit), 501 (character test), 501CA (revocation procedure); Administrative Review Tribunal Act 2024 (Cth) s 19 (non-extendable 9-day deadline for character decisions), ss 23-27 (T documents duty); Direction 110 (primary and other considerations). Key cases: Pearson v Minister for Home Affairs [2022] FCAFC 203 (an aggregate sentence was held not to be a term of imprisonment of 12 months or more for s 501(7)(c); reversed by the Migration Amendment (Aggregate Sentences) Act 2023 (Cth)).

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