Not all unsuccessful applications can be heard by a Tribunal. Sometimes it is necessary to head straight to a judicial review process. Other times, there are grounds to pursue judicial review after an unsuccessful Tribunal outcome.
An application to the Federal Circuit Court must be filed within 35 days of the migration decision. However, an extension of time can be granted in certain circumstances.
A Judge will not consider the merits of your case, or decide whether you should or should not be granted a visa. The Court will only consider if there has been jurisdictional error. That is, was there an error of law in the decision-making process? If the Court finds that jurisdictional error has occurred, it has the authority to refer your application back to the preceding decision-maker (Tribunal or Department of Home Affairs), and it can prevent the Minister from acting on the decision.
Appealing to the Court generally means appointing a Solicitor and a Barrister to represent you at Court. Generally, the Solicitor will choose the Barrister for you. The issues can often be incredibly complex and you should seek advice as soon as possible.
If you are successful, the Court will order that the Minister reimburse you for your legal costs (to a certain level). However, if you are unsuccessful, you will need to cover not only your own legal costs but also the legal costs of the Minister.
At MSM Legal, our team of lawyers we can assist and advise you on all aspects of the judicial review process. We have significant experience in the area of judicial review applications and a number of cases that have become precedent cases for migration decisions. Contact us now for considered advice about your judicial review options.