Offshore visa refusals and ART review

If a visa was applied for from outside Australia, ART review is available only in some situations, and often it is a sponsor or relative in Australia who applies rather than the applicant overseas.

A visa refused after an application made from outside Australia can be reviewed by the ART only if one of the offshore situations in section 338 of the Migration Act applies. The visa's name does not decide it. What matters is where the application was made, whether the visa could be granted in Australia, and who sponsored or nominated the applicant.

This guide describes those rules in general terms. It cannot say whether your own refusal is covered. Your decision letter has to state that, and the ART points people to it for the same reason.

Why most offshore refusals are treated differently

The main rule for refusals, section 338(2), applies to a visa that could be granted while the person is in Australia and that was applied for while in Australia. A person who applied from overseas does not meet that second part. So offshore refusals depend on other limbs of section 338.

Under section 66(3), a refusal of an offshore-only visa with no review right need not even come with written reasons. That is one reason the letter matters.

The offshore situations in section 338

Section 338(5): the visa could not be granted in Australia, and a criterion required the applicant to be sponsored or nominated by an Australian citizen, a company or partnership operating in Australia, a permanent visa holder, or a New Zealand citizen holding a special category visa.
Section 338(6): a criterion is that the applicant has been an Australian permanent resident and has a close Australian relative.
Section 338(7): a criterion is that the applicant intends to visit a close Australian relative who is a citizen or permanent resident, such as a parent, spouse, de facto partner, child, brother or sister.
Section 338(7A): a permanent visa applied for from outside Australia, where the visa can be granted either in or outside Australia.

A visitor visa refusal that does not involve the features in section 338(7) is not covered by that limb. Student, skilled and employer-sponsored refusals do come to the ART when section 338 is met, which is why the ART reports finalised reviews in those categories. Again, the test is the section, not the visa label.

Who applies for review

Section 347A sets this out. For a section 338(5) decision, the sponsor or nominator applies, not the person overseas. For section 338(6) and (7), the relative in Australia applies. For section 338(7A), the non-citizen applies and must have been in Australia when the decision was made and when applying for review.

Who can apply about sponsor and nomination decisions prescribed under section 338(9) is set by the regulations, which were not checked for this page, so those rules are not covered here.

Time limit and fee

The application must be made within 28 days after the day the applicant is notified (14 days if in immigration detention that day), and the ART has no power to extend that time. The application fee for most migration reviews is A$3,727, and for these reviews it must be paid before the deadline. A 50% reduction can be requested on financial hardship grounds; see the ART application fee explained. Fees change each 1 July, so check the ART's fees page.

For how the days are counted, see how the 28 days is counted.

Sponsors, relatives and the letter

For several of these limbs the person who applies is the sponsor or relative in Australia, not the applicant overseas. Where there is a review right, the notification letter must say who can apply and where. If the letter says there is no review right, other options may still exist, and a registered migration agent or Australian lawyer can explain them. See free and low-cost help after a visa refusal.

None of this decides whether a particular offshore refusal is covered. It is general information, not legal advice or immigration assistance, and the decision letter is where the review right and time limit, if any, are stated.