If you are awaiting merits review at the Administrative Review Tribunal (ART), important changes commenced on 18 May 2026 that will greatly alter the decision-making process.
Overview of the changes
- Paper-only reviews for certain temporary visas: When a particular type of visa becomes prescribed in the Migration Regulations, the ART must review and decide matter relating to those visas on the papers, with no hearing;
- No visa types are prescribed yet. As of 18 May 2026, the Migration Regulations do not prescribe anything, but the government can alter this at any time;
- Permanent and protection visas are not affected;
- Written submissions will be more important than ever. If a particular visa type becomes prescribed, a review applicant’s written submissions and supporting evidence may be their only chance to present their arguments;
- Not responding to the ART when documents are requested can be fatal. Failure to respond to a written invitation can result in mandatory dismissal.
Background: What does “on the papers” mean?
When a matter is decided “on the papers”, it means the ART reviews and decides the case with the documents at hand. In a standard matter, this might consist of a copy of the original application, the Department of Home Affairs’ file, and any new written submissions and evidence provided.
When the issue to be re-considered is something objective (eg. the applicant failed to provide the Department with a police clearance, which has since become available), the ART already has the ability to deal with it quickly and make a decision without a hearing. Our blog on expedited ART matters covers this in more detail.
For matters that are more complex or involve the assessment of a subjective requirement, you would be invited to attend a hearing to speak directly with an ART member about your situation – either in person or by video. Having the applicant present in a hearing may bring substance that is otherwise difficult to convey in documents alone; such as the person’s authenticity and reliability, or the impact of an unfavourable decision.
What changed on 18 May 2026?: In legal terms
On 5 February 2026, Parliament passed the ‘Administrative Review Tribunal and Other Legislation Amendment Bill 2025’.
It has since come into effect on 18 May 2026 by virtue of the ‘Administrative Review Tribunal and Other Legislation Amendment Commencement Proclamation 2026’, which amends parts of:
- the Migration Act 1958 (Cth) (Migration Act); and
- the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
Broadly:
- The ART Act now gives the Tribunal broader powers to decide review applications on the papers when the issues are straightforward and can be resolved from written material alone;
- The Migration Act has been significantly amended with the addition of Division 4A; new procedures which requires the ART to decide certain matters entirely on the papers.
I. Amendments to the ART Act
Two new subsections have been added into section 106 of the ART Act, which is generally the section dealing with the holding of hearings. These new subsections expand the circumstances in which the ART can decide a matter without a hearing:
| New subsection | What it does |
| s 106(6) |
Permits the Tribunal to make a decision without a hearing if:
|
| s 106(7) | Provides that subsection (6) does not apply unless the Tribunal has given the participating parties a reasonable opportunity to make submissions in relation to the Tribunal making a decision without holding a hearing, and the Tribunal has taken into account any submissions received. |
These provisions give the ART a broader discretion than it previously had to resolve particularly straightforward matters – those involving clear objective criteria or uncomplicated facts – based on the written record alone.
Critically, though, subsection 106(7) clarifies that section 106(6) is not to be used as a ‘shortcut’ to finalise matters. The ART must still give applicants the chance to make written submissions, and must genuinely consider those submissions if it is to proceed to a decision without a hearing.
II. Amendments to the Migration Act
The more significant change is the insertion of Division 4A into the Migration Act. Division 4A creates a self-contained review procedure for what the Migration Act calls “applications to be reviewed on the papers.” A very brief explanation on what each of the sections in Division 4A are is as follows:
|
New section |
What it does |
| s 367C |
Defines an application to be “reviewed on the papers” as one which:
It also sets out the circumstances in which an application is not an application to be reviewed on the papers. |
| s 367D | Notes that certain provisions of the ART Act do not apply to matters which are to be decided on the papers. |
| s 367E | Notes the natural justice hearing rule for applications to be reviewed on the papers. |
| s 367F |
Requires the ART to invite the applicant to give written submissions and evidence in relation to certain issues relevant to the review. But goes on to note that the ART is not required to do anything further (subject to s 367G below), to put the applicant on notice of relevant issues or to seek further information. |
| s 367G | Requires the ART to notify applicants of information that it considers relevant, that would be the reason or part of the reason for affirming the decision, and of which the applicant may not be aware, and to invite a response. |
| s 367H | Sets out the requirements for invitations issued under s 367F and 367G. |
| s 367M | Compels the ART to dismiss a matter if the applicant does not respond to an invitation under s 367F within the response period. |
| s 367N |
Sets out the procedure for the ART making its decision on a paper-based review, based on the written record. |
Which visas are affected?
Section 367C of Division 4A described above clearly notes that this new regime can only affect temporary visas that are prescribed by the Migration Regulations.
At time of writing, no temporary visa types have been prescribed under the Regulations. In other words, Division 4A currently does not apply to anyone.
Legal practitioners, migration agents, and self-represented applicants should be keeping an eye out for legislative instruments that amend the Regulations, which would consequently bring certain visa subclasses within scope of Division 4A, and compelling the ART to decide those matter on the papers.
Why were these changes made?
These reforms have stemmed from recommendations contained in the Rapid Review into the Exploitation of Australia’s Visa System (or the ‘Nixon Review’), which called for measures to improve review efficiency and reduce incentives for non-genuine applicants.
The ART replaced the Administrative Appeals Tribunal (AAT) in October 2024, but backlogs and long waiting times persisted. The purported aim of these amendments to the ART Act and Migration Act is to resolve straightforward cases faster, get genuine applicants faster outcomes, and free up time and resources for complex matters (like protection visas).
What about permanent visas and protection visas?
These changes will not apply to any permanent visa or protection visa matters.
Section 367C of the Migration Act refers to temporary visas only, and clarifies in the ‘notes’ that protection matters cannot be reviewed on the papers.
Keep in mind, though, that the ART’s broader discretion under s 106 of the ART Act applies generally. So, a paper-based decision remains possible in straightforward cases for all visa types.
Practical tips
Again, while the legislative framework is now in place for the ART to decide temporary visas on the papers, the Migration Regulations do not yet specify which visas it affects.
In any case, when a particular visa subclass does fall within scope:
- Treat written submissions with the highest importance, as it may be your only chance to present your case;
- Gather evidence early so that it is readily available when the ART requests it;
- Do not ignore ART correspondence and note the deadline to respond. If a response is not received, the ART is compelled to dismiss the matter.
Our team at Hannan Tew has extensive experience with ART reviews. If you require assistance with an ART review, contact us at [email protected] or +61 3 9016 0484.
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