Understanding the Difference Between the Courts and the Administrative Review Tribunal (ART)

Learn how the ART and the courts review government decisions in Australia, and understand which path is best for your situation.

When you challenge a decision made by a government department like the Department of Home Affairs, many people assume they must go to court. However, in Australia, there are two primary ways to review government decisions: the Administrative Review Tribunal (ART) and the Courts. While both can review decisions made by government agencies, they serve very different purposes and have different approaches.

Let's break down how these two bodies work and how they differ so that you can make informed decisions about the best path to take when challenging a decision.

What is the Administrative Review Tribunal (ART)?

The ART (formerly known as the Administrative Appeals Tribunal or AAT) is responsible for merits review of decisions made by government departments, including the Department of Home Affairs. Merits review means the ART looks at the decision afresh—it does not focus on whether the decision-maker followed the law but instead considers the facts, the law, and any new evidence. The ART’s goal is to determine the right outcome based on all available information.

Comparison of ART and Courts decision review process

• Affirm the decision: Agree with the original decision and leave it unchanged.
• Vary the decision: Modify the original decision.
• Set aside the decision: Reject the original decision and make a new one.
• Remit the decision: Send the matter back to the original decision-maker, like the Department of Home Affairs, for reconsideration.

Tip: If you’re unhappy with the ART’s decision, you can appeal to the courts for a judicial review, which focuses on the legal aspects of the decision.This means the court will examine whether the decision was made lawfully, rather than reconsidering the facts of your case. It’s important to seek professional legal advice before proceeding, as court processes can be more complex, time-consuming, and costly compared to a tribunal review. For example, if your visa application was refused by the ART because they misapplied the law or failed to consider key evidence, a judicial review in court may give you the opportunity to have that decision overturned and sent back for reconsideration.

How Do the Courts Review Decisions?

Unlike the ART’s approach, the courts conduct judicial review, which is concerned only with the legality of the decision-making process. Courts do not reassess whether the decision itself was right or wrong; they focus on whether the decision was made according to the law.

If the court finds that the decision was not made legally—for example, if the law was misapplied or the process was flawed—it may send the case back to the ART for reconsideration. However, the court does not change the decision directly; it ensures that the right legal principles are followed. The ART, upon receiving the case again, must review the matter in line with the court’s guidance, applying the law correctly and fairly. This maintains integrity and protects individuals’ rights.

If the court finds the decision-making process was legal, it will dismiss the application, meaning the original decision stands.This outcome shows that the court did not identify any mistake in the way the law was applied or the process was carried out. In such circumstances, the tribunal’s decision remains binding and enforceable. For example, if you challenged a visa refusal and the court determined that the ART followed correct procedures, your visa refusal would still remain valid.

It’s important to understand that a dismissal doesn’t necessarily mean your case lacked merit—it simply means no legal error was found. At this stage, you may wish to explore other options such as applying for a fresh visa (if eligible), requesting Ministerial Intervention in exceptional cases, or seeking professional advice to identify any alternative pathways for remaining in Australia. These steps can help you move forward even after a court dismissal.

Key Differences Between ART and the Courts

Aspect	ART (Administrative Review Tribunal)	Courts
Type of Review	Merits review (reassesses the decision from scratch)	Judicial review (checks if the law was applied correctly)
Focus	The rightness of the decision based on facts and evidence	The legality of the decision-making process
Outcome	Can affirm, vary, set aside, or remit the decision	Can remit the case or dismiss the application
New Evidence	Can consider new evidence and facts	Does not consider new evidence, focuses on the law
Purpose	Ensures fairness and accountability in government decisions	Ensures decisions are made according to the law

Why Are Both the ART and Courts Important?

Both the ART and the courts play vital roles in ensuring government decisions are fair and follow the law. The ART offers a flexible, accessible review process where decisions can be re-evaluated with fresh evidence. On the other hand, the courts act as a safeguard, making sure that all decisions are legally sound and that no one, not even government bodies, is above the law.

When Should You Seek ART Review or Court Action?

• Choose the ART: If you believe the original decision by the Department of Home Affairs was incorrect, and you have new evidence or facts that could change the outcome.
• Choose the Courts: If you believe the decision-making process itself was flawed, such as the Department of Home Affairs or the ART misapplying the law.

Get Legal Guidance from Bansal Lawyers

Both the ART and judicial review processes are vital to ensure administrative decisions are fair, transparent, and compliant with the law. The ART focuses on reviewing the merits of a decision, while judicial review ensures that the decision follows legal principles. If you are uncertain about which path to take, consulting a qualified legal professional can provide clarity and improve your chances of a favorable outcome.

At Bansal Lawyers, we have the experience to help you navigate both the ART and court systems. Whether you’re challenging a decision by the Department of Home Affairs or need advice on how to appeal, we’re here to help. Contact Bansal Lawyers today for a consultation.