Legislative Status
The Administrative Review Tribunal and Other Legislation Amendment Act 2026 (Cth) was passed by the Australian Parliament in February 2026 and has received Royal Assent. It is therefore an Act on the Commonwealth statute book.
However, the amendments relevant to student visa refusal reviews, including the requirement that such reviews be determined "on the papers", are not yet in force.
The Act provides that these provisions will commence on a date to be fixed by Proclamation, or automatically six months after Royal Assent if not proclaimed earlier.
Until commencement occurs, existing review procedures under the Migration Act 1958 (Cth) and the Administrative Review Tribunal Act 2024 (Cth) continue to apply.
Why This Reform Matters
For applicants and practitioners, the shift means the written record becomes the primary vehicle to present facts, evidence and argument. Where applicants previously relied on an oral hearing to explain credibility or documentary inconsistencies, those opportunities will be significantly reduced for student visa refusal reviews, making comprehensive, tightly-structured written submissions and full evidentiary bundles essential.
What the Act Changes: Legal Mechanics and Scope
Statutory Amendment: Paper-Only Decision Power
The Act amends the Administrative Review Tribunal Act 2024 and the Migration Act 1958 to expand the ART's statutory power to determine matters without holding an oral hearing and to prescribe specific categories that must be decided on the papers. The legislative drafting explicitly identifies reviews of decisions to refuse to grant a student visa as falling within that category and authorises regulations to prescribe further temporary visa classes (refusals or cancellations) for paper-only review. This is a mandatory direction as to those identified visa categories, not merely permissive.
Tribunal Procedures Authorised and Refined
The amendment also provides the ART with clearer statutory authority to publish Practice Directions that regulate statement-of-issues formats, e-bundle requirements, timeframes for filing additional documents, and the ability to request further written material. The Tribunal's updated Common Procedures Practice Direction (effective 2 March 2026) sets out the practical mechanics practitioners must follow when lodging matters that will be dealt with on the papers.
Regulations and Extension to Other Visa Classes
While student visa refusal reviews are specified in the Act, the Executive may extend the paper-only requirement by regulation to other temporary visas. That list will be set out in delegated instruments published in the Federal Register of Legislation; practitioners must monitor that register for any additions.
Commencement: When the New Rules Operate
The Act received Royal Assent in February 2026 (authorised text registered on 10 February 2026). The Act's commencement is either: (a) a date fixed by proclamation; or (b) if not proclaimed earlier, automatically six months after Royal Assent. That places the latest automatic commencement around 10 August 2026 (unless the Government proclaims an earlier start date). Until commencement, the pre-existing ART and Migration Act procedures remain in force.
Tribunal Operational Guidance Issued so Far
The ART has proactively revised its Practice Directions (Common Procedures; Migration, Protection and Character reviews; Expert Evidence, etc.) and published news items to explain how the Tribunal will treat temporary visa refusal reviews under the new regime. The Practice Direction emphasises: (i) the required format for Statements of Facts, Issues and Contentions; (ii) e-bundle formatting (single paginated PDF, indexed exhibits); (iii) translation and translator affidavit requirements; and (iv) the Tribunal's ability to request further documents, all of which are essential to an effective paper-only application.
Practical Consequences: Evidence, Advocacy and Strategic Implications
The Evidentiary Imperative
Practitioners should assume the Tribunal will treat the initial filed materials as the applicant's primary version of events. Affidavits, contemporaneous documents, certified translations and expert material should therefore be compiled and organised at or very shortly after lodgement.
Credibility and GTE (Genuine Temporary Entrant) Cases
Cases turning on credibility, GTE assessments, or disputed documentary authenticity previously benefited from oral evidence and face-to-face evaluation. In a paper-only regime, credibility must be established through documentation (chronologies, contemporaneous communications, objective corroboration) and careful written submissions that pre-empt adverse indicators.
Procedural Fairness and Litigation Risk
The removal of routine hearings increases focus on the adequacy of procedural fairness in a paper process. While judicial review remains focused on error of law and jurisdictional error rather than merits, insufficient opportunity to be heard (or failure to consider material evidence) could give rise to judicial review claims. Expect focused litigation challenging particular decisions where evidence or credibility could not be properly tested.
Case Triage and Backlog Effects
The Government's stated objective is to reduce delays and backlog for suitable matters by triaging cases that can be fairly determined from the papers. The likely net effect is faster resolution for straightforward cases but continued extended timeframes for complex matters that will require further directions, interlocutory requests, or exceptional hearings.
Litigation Outlook and Likely Judicial Themes
Early test cases will likely focus on:
- Whether the Tribunal afforded a fair opportunity to present written material (and whether that opportunity was meaningful).
- Whether the Tribunal's refusal to permit an oral hearing (in exceptional cases where credibility is central) constituted denial of natural justice.
- Whether regulations (if used to expand categories) were properly enacted and reasonable in scope.
Practitioners should prepare to preserve a clean procedural record (directions, requests, responses), and to identify arguable jurisdictional or procedural fairness errors early for potential Federal Court intervention.
Practitioner Checklist: Draft, File, and Preserve
Use the following as a standard operating checklist for student visa ART applications under the paper-only regime:
- Index and paginated e-bundle (single PDF): produce a TOC and paginate exhibits. (ART Practice Direction requirements.)
- Statement of Facts, Issues and Contentions: numbered paragraphs, cross-referenced to exhibits. (Use the Practice Direction format.)
- Affidavit(s) and witness statements: signed, dated and addressing each adverse finding. Where English is not the applicant's first language, consider sworn translation affidavits.
- Contemporaneous documentary proof: bank statements, COE and offer letters, emails, employer letters, travel history, sponsor documents and any corroborating evidence for GTE.
- Expert reports where necessary: e.g., medical or academic expert evidence (comply with Expert Evidence Practice Direction).
- Application for oral hearing (exceptional cases): if you consider an oral hearing essential, file an early written application explaining with particularity why written material cannot fairly resolve the issues. Be prepared to show the likely injustice if refused.
- Record-keeping for judicial review: preserve all Tribunal directions, emails and requests; consider contemporaneous notes of any telephone or registrar interactions. These records are necessary if a judicial review arises.
Timeline and Monitoring
- Royal Assent and registration: the Act was registered in February 2026.
- ART Practice Directions effective: updated Practice Directions were released and set to apply from 2 March 2026. Practitioners must adopt the new formats immediately for matters lodged after that date.
- Commencement and proclamation: check the Federal Register of Legislation and the Commonwealth Gazette for the proclamation; the Act will commence on the proclaimed date or automatically six months after Royal Assent (latest automatic date approximately 10 August 2026).
- Regulations: monitor the Federal Register for any regulations prescribing additional temporary visa classes for paper-only review.
Policy Context and Stakeholder Response
The Attorney-General's media release positions the reform as a measured efficiency step to reduce backlog while retaining fairness safeguards, stating that applicants will still be able to meaningfully present their case in writing. Stakeholders (legal aid organisations, refugee and migration advocacy groups and some law societies) have flagged concerns about the removal of hearings for some categories and urged caution and close monitoring of practical impacts on procedural fairness. Expect submissions and commentary to continue as the regime beds in practice.