Appealing a Character-Based Visa Refusal: Merits Review vs. Judicial Review

A character-based visa refusal under Section 501 of the Migration Act 1958 is one of the most serious outcomes a non-citizen can face, with consequences that extend across family life, employment, and long-term settlement in Australia. This refers to the refusal of a visa application on character grounds. For individuals who receive a character-based decision, understanding the difference between appeal rights, review pathways, and strict time limits is essential. This article explains the two main mechanisms for challenging a visa refusal being merits review and judicial review and helps readers understand which option is available in their situation. It is written for those seeking clarity after a visa refusal and wanting to understand their rights and the steps ahead, starting with the refusal letter that outlines the decision and available review options.

Understanding the Grounds for Refusal or Cancellation

A character-based adverse decision arises when a person fails the character test under Section 501 of the Migration Act 1958, and the decision to refuse or cancel a person's visa is made on character grounds. These administrative decisions may be made either by:

• A delegate of the Minister for Home Affairs at the Department of Home Affairs, or
• The Minister for Home Affairs personally.

The identity of the decision-maker is critical because it determines which review or appeal pathways are available. While administrative decisions by Department of Home Affairs delegates generally allow merits review, personal decisions by the Minister to refuse or cancel visas restrict the applicant to judicial review only. The Minister has broad discretionary power under the Migration Act to refuse or cancel a person's visa, including visa cancellation on character grounds. Visa cancellation decisions are administrative decisions and can be made if the Minister is satisfied that the person does not pass the character test.

Merits Review at the Administrative Review Tribunal (ART)

When a character-based refusal or cancellation is made by a Minister’s delegate, the affected person can usually seek merits review at the Administrative Review Tribunal (ART). A Merits review means that the Tribunal “stands in the shoes” of the original decision-maker and conducts a fresh review of the facts, evidence, and circumstances to reach the correct or preferable decision. This is a key difference from judicial review, which only examines the legality of the original decision.

The ART may review decisions related to various visa applications, including partner visas and protection visas. Specifically, the ART can review:

• A delegate’s refusal to revoke a mandatory cancellation; or
• The original refusal or cancellation made under discretionary powers.

During the merit review process, applicants can submit new documents, such as bank statements, and provide further information to support their case. This may be particularly important for strengthening a partner visa application or providing evidence for a protection visa. The Tribunal can consider new evidence, updated circumstances, and submissions that were not before the original decision-maker.

An application fee is required to lodge an appeal with the ART. While not mandatory, seeking legal assistance can be valuable in preparing submissions and navigating the review process.

Key Considerations in Merits Review

When reviewing a migration decision on character grounds, the ART is bound by the applicable Ministerial Direction, such as Direction No. 90 or No. 110. In conducting its review, the ART must consider all relevant considerations as set out in the Ministerial Directions. These directions provide the framework for assessing whether the visa should be refused or reinstated.

Primary relevant considerations for migration decisions involving character grounds typically include:

• Protection of the Australian community, including the risk of reoffending and the seriousness of past criminal behaviour.
• Nature and extent of the criminal offending, including patterns of conduct and rehabilitation efforts.
• Best interests of minor children in Australia who may be affected by the migration decision.

Other relevant considerations include:

• The strength, nature and duration of the applicant’s ties to Australia.
• International non-refoulement obligations.
• The impact on Australian business interests or community members, where relevant.

These relevant considerations guide the ART’s holistic assessment of whether the migration decision to refuse or cancel a visa should be affirmed or overturned.

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Judicial Review in the Federal Courts

Where the Minister makes a character-based decision personally, or where the ART affirms a delegate’s decision, the affected person may seek judicial review in the Federal Court, the Federal Circuit Court, the Federal Circuit and Family Court, or the Family Court. These courts share the same jurisdiction in relation to judicial review of migration decisions. The High Court also has original jurisdiction in certain migration matters, and the Federal Court's original jurisdiction is set out in specific legislation. To challenge a migration decision in court, a judicial review application must be filed.

Judicial review is strictly limited: the Court does not reassess facts or weigh evidence. Instead, the Court examines only the lawfulness of the decision-making process, specifically whether a legal error or legal mistake occurred, not whether the outcome was “correct” or fair. Unlike merits review, judicial review lies in its focus on legal errors rather than factual reconsideration. This differs sharply from merits review, where the Tribunal reconsiders the case from the ground up.

Establishing Jurisdictional Error

To succeed in judicial review, an applicant must identify a jurisdictional error, meaning the decision-maker acted outside the limits of their legal power.

Examples include:

• Procedural fairness failures, such as actual or apprehended bias, or failing to give the applicant an opportunity to respond to adverse material.
• Failure to consider mandatory matters, such as the requirements of the relevant Ministerial Direction.
• The decision maker failed to consider relevant considerations required by law.
• Breach of natural justice, such as denying the applicant a fair hearing, which can also constitute jurisdictional error.

Establishing jurisdictional error is legally technical and requires careful analysis of the decision record, statutory framework and governing case law.

Consequences of a Successful Judicial Review

If the Federal Court finds jurisdictional error, it will typically:

• Set aside (quash) the unlawful administrative decision; and
• Remit the matter to the original decision-maker or the ART for re-determination according to law.

The Court does not review decisions on their merits; it only determines whether the administrative decision was lawful. The Court cannot grant a visa or substitute its own decision. Instead, judicial review restores the applicant’s right to a lawful reconsideration – often creating a crucial second chance to present their case.

How Australian Migration Lawyers Can Help

Both registered migration agents and lawyers can assist clients with merits review and judicial review challenges. Australian Migration Lawyers offer services such as:

• Conducting a legal audit to identify potential jurisdictional error;
• Preparing and filing Federal Court appeals and related court documents;
• Drafting detailed submissions for ART review;
• Representing clients in Tribunal hearings and Federal Court proceedings; and
• Providing strategic, evidence-based advice on character-related migration issues.

It is strongly recommended that applicants obtain legal advice before proceeding with an appeal or review. Individuals in immigration detention should seek urgent legal assistance.

If you have received a character-based visa refusal or need urgent advice on appeal rights, contact our Australian migration lawyers team today for immediate assistance.

Frequently Asked Questions (FAQ)

1. Can all character-based visa refusals be appealed?

Most decisions made by delegates can be appealed to the ART, but decisions made personally by the Minister can only be challenged by judicial review in the Federal Court.

2. What is the main difference between merits review and judicial review?

Merits review reassesses all facts, evidence and circumstances, while judicial review looks only at whether the decision was legally valid.

3. What is a jurisdictional error?

A jurisdictional error arises when a decision-maker acts outside their legal authority – for example, by failing to consider a mandatory factor or denying procedural fairness.

4. Do I automatically get my visa back if I win judicial review?

No. The Court cannot grant a visa. A successful outcome simply requires the matter to be reconsidered lawfully.

5. How long do I have to lodge an appeal or review?

Strict time limits apply and vary depending on the type of decision and the review body involved. Immediate legal advice is strongly recommended.