Section 367F — ART must invite submissions and evidence
Text of provision
(1) The ART must, in relation to an application to be reviewed on the papers, invite the applicant to give the ART written submissions and evidence relating to the following issues (the relevant issues):
(a) if the application is for review of a decision to refuse to grant a visa:
(i) if the refusal was because the applicant did not satisfy a criterion for the visa—whether the applicant satisfies that criterion; and
(ii) if the refusal was because a provision of this Act or the regulations prevented the grant of the visa—whether that provision prevents the grant of the visa;
(b) in any case—any other issue prescribed by the regulations.
(2) A reference to the issue specified in subparagraph (1)(a)(i) as to whether the applicant satisfies a criterion for the visa:
(a) is a reference to whether the applicant satisfies the criterion generally, and not only the parts or aspects of the criterion that formed the basis of the refusal; and
(b) is not limited to the reasons referred to in the notification of the refusal.
(3) Subject to section 367G, before making a decision on the application, the ART is not required to:
(a) do anything further to put the applicant on notice of the relevant issues; or
(b) seek any further submissions, evidence or other information from the applicant in relation to the relevant issues.
Plain English
Section 367F is the core procedural protection in the paper review process. Before deciding a paper review, the ART must give the applicant a written invitation to provide submissions and evidence on:
- Whether the applicant satisfies the criteria for the visa (if refused for failure to satisfy criteria)
- Character and public interest criteria (if refusal was on those grounds)
- Any other issue relevant to the review
The applicant's response window is 28 days from notice of the invitation (Migration Regulations reg 4.20(a)).
Practical effect
The 28-day deadline is hard. Practitioners must ensure their client receives and responds to the s 367F invitation within the window. Late submissions may be rejected. All relevant evidence (qualifications, English test results, genuineness of study, financial capacity) must be submitted in writing.
The invitation must be given in writing by one of the methods in s 379A (or, if the applicant is in immigration detention, by a method appropriate to that status).