What is Judicial Review? How does it work?

If your visa application is unsuccessful, sometimes you can appeal to the Administrative Appeals Tribunal. This is not always permitted. What are the judicial review options?

Sometimes the matter must be reviewed by the Federal Circuit Court without first appealing to the AAT. This is a judicial review.

Or, if the appeal to the AAT was unsuccessful, there might be grounds for the application to be considered for judicial review.

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.

What is Judicial Review?

Judicial review is about considering an error of law.

A Judge will not consider the merits of your case. The Judge cannot decide whether you should or should not be granted a visa.

The Court will only consider if there has been a 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 (the Tribunal or the Department of Home Affairs).  The Court 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. If you are facing complicated issues within Australian migration law, it is best to seek legal advice. The issues can often be incredibly complex, and you will need experts to guide you. Do not delay. Appeals and judicial reviews are time-sensitive.

What is the Judicial Review process?

You can apply to the Court for a review if you think there has been an error of law. It is best to seek legal advice before submitting your application. There are time-limits that apply, so it is best to act quickly and find legal representation. MSM Legal have a team of lawyers and Registered Migration Agents ready to help you today.

First, you must complete an application and an affidavit. These, and any other supporting documents, should be filed with the Court. Your lawyer can assist with this process.

Then you must arrange for a sealed copy of the application (and other documents)  to be served to the Minister and the Tribunal. You can serve the documents to the Minister through the Department of Home Affairs office in any capital city.

Next, the Court sets a time and date for your hearing.

A number of things might happen on the first court date. The Court will normally set any hearing dates, order a stay or temporary orders for the duration of the case, and allow for the filing of any additional documents.

At the hearing, the Court will give you a chance to address the issues in your case. If you have a lawyer, they will speak on your behalf. The Minister is normally represented by a lawyer.

Sometimes, the decision is announced at the end of the final hearing. Otherwise, the Court will notify you of the date it will announce its decision.

You can request an interpreter to translate for you in court. You must note this on your application form.

The judicial review process can be complicated. The issues of law are often intricate and difficult. MSM Legal has had great success in representing clients during each stage of the judicial review process. Let us assist you throughout the process.

What can the Court decide?

The Federal Court cannot decide if a visa should be granted or not. The Court cannot decide if a visa should or should not be cancelled.

The Court does not consider the merits of your case. The Court can only consider if there has been an error of law.

If the Court decides that there has been a jurisdictional error (an error of law), then it can:

  • Refer the case back to the original decision-maker (the AAT or the Department), or
  • Prevent the Minister from acting on the decision.

The Court cannot grant a visa. The Court cannot reconsider the facts of the case.

Some examples of jurisdictional errors are outlined below. It would be an error of law if the decision-maker:

  • Failed to adopt a fair process when making the decision;
  • Identified the wrong issue;
  • Ignored materials that the decision-maker was required to consider;
  • Incorrectly interpreted or applied the law; or
  • Made a decision for which there was no evidence.

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.

For most people, the process of applying for an Australian visa can be straightforward. Registered migration agents can assist with visa applications. They can also lodge appeals to the Administrative Appeals Tribunal (AAT).

However, when a case enters the Court system for an application for judicial review, only a lawyer is able to provide advice and representation. Migration related judicial review applications are a highly specialised area of administrative law. New judgments are being handed down almost daily.

At MSM Legal we have highly experienced immigration lawyers and Registered Migration Agents who are very active in this area and can guide you through this complex process.