Judicial Review of Migration Cases

Reviewing the Decision of the Administrative Review Tribunal (ART) or Lower Court

Judicial Review of migration decisions is an option available to individuals and businesses through the Federal Courts. This process allows the court to examine the lawfulness of a migration decision made by an authorised decision-maker, which is most commonly the Administrative Review Tribunal (ART) (formerly the Administrative Appeals Tribunal (AAT)).

Grounds for Judicial Review – Jurisdictional Error

For a Judicial Review application to be successful, the court must determine that a jurisdictional error occurred in the decision-making process.

What Is Considered Jurisdictional Error?

A decision may be affected by jurisdictional error if:

• The decision-maker applied incorrect legal principles or misinterpreted visa criteria.
• The Tribunal failed to consider mandatory legal factors or relied on irrelevant considerations.
• Procedural fairness was denied, such as when an applicant was not given the chance to respond to adverse information used in the decision-making process.
• The decision was based on non-existent evidence, or the circumstance under which the decision was made did not exist (also known as a jurisdictional fact).
• The decision was irrational or illogical, making it legally unreasonable.

What Outcomes Are Available from Judicial Review?

If jurisdictional error is found, the court has the power to:

• Declare the decision void (quash the original decision).
• Order the matter to be reconsidered by the original decision-maker with specific legal directions.

If the Federal Circuit Court (FCC) decision is unsatisfactory, an appeal may be lodged with the Federal Court of Australia (FCA) and, in rare cases, to the High Court of Australia (HCA).

Do I Appeal to the Federal Circuit Court (FCC) or the Federal Court of Australia (FCA)?

Federal Circuit Court (FCC)

• Most immigration appeals involve cases where the Administrative Appeals Tribunal (AAT) has affirmed the Department’s refusal or cancellation.
• Applicants may appeal to the FCC if they believe the AAT made a jurisdictional error.
• If successful, the FCC can quash the AAT’s decision and order it to be reconsidered without the jurisdictional error.

Federal Court of Australia (FCA)

• Appeals to the FCA are required when the Minister or Assistant Minister for Immigration personally makes a decision to refuse, cancel, or not intervene in a case.
• Appeals may also be filed when a Federal Circuit Court judge’s decision is believed to be affected by jurisdictional or legal error.

How Global Vision Migration Can Help

If you believe your migration decision was affected by jurisdictional error, our experienced team at Global Vision Migration can assist with:

• Assessing the merits of your case with expert legal advice.
• Preparing and lodging your appeal within strict legal time limits.
• Collaborating with barristers to develop strong legal arguments.
• Representing you in court hearings to challenge the decision.

Strict Time Limits Apply – Act Now

Judicial Review cases are subject to strict deadlines. If you are considering an appeal, seek legal advice immediately.