Refusals · After the ART
Judicial review after the ART: the 35-day limit, jurisdictional error and what the court can and cannot do
When the Administrative Review Tribunal affirms a visa refusal or cancellation, there is no further review on the merits. What remains is judicial review in the Federal Circuit and Family Court, a narrow legal check of whether the decision was lawfully made. It has a strict 35-day deadline, it cannot grant a visa, and losing usually means paying the Department's costs, so the decision whether to go to court needs to be made quickly and carefully.
By Keshab Chapagain, registered migration agent (MARN 1576536) since 2015 · WIDEN, Sydney · Reviewed November 2026
Keshab Chapagain · MARN 1576536 · Registered since 2015 - Court
- Federal Circuit and Family Court (Division 2)
- Deadline
- 35 days from the decision (s 477)
- Test
- Jurisdictional error, not the merits
- If successful
- Sent back to be decided again
- Cannot
- Grant a visa or rehear the facts
- Costs
- Loser generally pays the other side
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About the CPD →MARN 1576536 · Checked against the Federal Circuit and Family Court and the Migration Act on 8 November 2026
Merits review is over
The ART is the last body that looks at whether you should be granted the visa. Once it has made its decision, no court reconsiders the facts, the evidence or the merits of the application. The Federal Circuit and Family Court of Australia (Division 2) can review decisions under the Migration Act made by the Minister, the ART and the former Immigration Assessment Authority, but only to decide whether the decision was made lawfully.
Jurisdictional error
The court can only intervene if it finds a jurisdictional error: in broad terms, that the decision maker did not follow the procedure the law requires or did not apply the law correctly, in a way that affected the decision. Disagreeing with how the ART weighed the evidence, or having new evidence that would have helped, is generally not enough. Your application has to identify the error, and the court can require you to show an arguable case early on and dismiss the application without a full hearing if you cannot. Because the law in this area is technical, the court itself says you should get legal advice before filing.
The 35-day deadline
Under section 477 of the Migration Act, the application must be filed within 35 days of the date of the migration decision. The court can extend that period, but the request must be made in the application with an explanation of the delay, and the court considers, among other things, whether the proposed case has merit; an extension refused by the Federal Circuit and Family Court generally cannot be appealed. In practice the 35 days start running from the ART decision, so the time to decide is short.
What the court can and cannot do
- Can: send the case back to the decision maker to be decided again according to law, and stop the Minister acting on the unlawful decision.
- Cannot: grant a visa, reconsider the facts and reasons for the application, or take in new facts except where they bear on whether there was a jurisdictional error.
A win therefore means another decision, usually by the ART, not a visa.
Filing, fees and costs
The application, with an affidavit setting out the relevant facts and a copy of the decision and reasons, is filed with the court and served on the Minister and usually the Tribunal; the Minister has 28 days from service to respond. There is a filing fee and a fee for the final hearing, which may not apply to some concession card holders or people in financial hardship. You must attend hearings unless excused. The court's own guidance is that the unsuccessful party generally pays the successful party's legal costs, so a dismissed application will probably mean paying the Department's costs, with a reduced proportion if you discontinue before a hearing.
Other options to weigh
Judicial review is one option among several. Depending on the case, it may be worth looking at a request for ministerial intervention, another visa you can still apply for given any section 48 bar, or arranging to depart lawfully. Your bridging visa position also needs checking, because the end of the ART stage can change it. Court proceedings themselves need a lawyer; a registered migration agent can review the decision, the deadline and the other visa options with you.
Get the ART decision reviewed quickly
A consultation reviews the ART decision and its reasons, confirms the deadline, and sets out the options, including when to involve a lawyer for court and whether ministerial intervention or another visa is worth pursuing.
Book a consultation — A$330 inc. GST, credited
General information only, current at 8 November 2026; not legal advice on your own case. Federal Circuit and Family Court of Australia, Review of Migration Decisions (Division 2); Migration Act 1958 s 477. WIDEN is a migration agency, not a law firm, and does not appear in court. Outcomes depend on the court and the decision makers; no registered migration agent can guarantee a result (Code of Conduct, Migration Agents Regulations). Keshab Chapagain, MARN 1576536.
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Keshab Chapagain, registered migration agent (MARN 1576536), reads your situation with you and tells you which route fits, what it costs and what happens next.
Video consultation. A$330 inc. GST for 30 minutes, credited in full if you go ahead. Advice on your own case is given in the consultation, and you leave it with a clear plan in writing.
What you get
- 30 minutes (A$330) or 60 minutes (A$550) by video with a registered migration agent, Keshab Chapagain, MARN 1576536.
- A written summary of your options and next steps after the session.
- What to bring: The decision letter with its date, the application as lodged, and anything the Department sent before deciding.
- Prefer no call? The written pathway check is done in writing, A$550.
Book a refusal and review consultation — A$330 inc. GST, credited In writing, no call — A$550
Need 60 minutes, or bringing a partner, employer or documents to go through? Extended consultation, A$550 inc. GST.
MARN 1576536 · practising since 2015 · contact details
Questions we get asked first
Can I appeal an ART migration decision?
Not on the merits. The next step is judicial review in the Federal Circuit and Family Court of Australia (Division 2), which can only decide whether the decision involved a jurisdictional error, such as not following the required procedure or misapplying the law. It does not reconsider whether you should get the visa.
How long do I have to apply for judicial review?
35 days from the date of the migration decision under s 477 of the Migration Act. The court can extend the time, but you must ask for the extension in your application and explain the delay, and the court looks at, among other things, whether the case has merit.
If I win, does the court grant my visa?
No. The court cannot grant a visa or take new facts into account except on whether there was a jurisdictional error. If it finds one, it can send the matter back to the decision maker, usually the ART, to decide again according to law.
What if I lose?
The court says the unsuccessful party generally pays the successful party's legal costs, so if your application is dismissed you will probably have to pay the Department's costs. Discontinuing before a hearing generally means paying a smaller proportion.
What does the consultation cost?
A$330 inc. GST for 30 minutes by video with Keshab Chapagain (MARN 1576536), credited in full if you engage WIDEN. After an ART decision the session reviews the decision and its reasons, checks the deadline, and sets out the options, including when to involve a lawyer for court proceedings and whether ministerial intervention or another visa is worth looking at.
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