Judicial Review | Teleo Immigration

Judicial Review

Judicial review of migration decisions in Australia is a legal process that enables individuals and businesses to challenge decisions made by authorised decision-makers, such as the Administrative Appeals Tribunal (AAT) or lower courts. This process is conducted by federal courts, which evaluate the legality of the decision, specifically looking for any "jurisdictional errors."

The court's role is to ensure that decisions comply with the law, proper legal procedures are followed, and the correct application of the law is maintained. Importantly, the court does not assess the merits of the application or decide whether a visa should be granted.

Grounds for Judicial Review: Jurisdictional Error

To be successful in a judicial review application, it must be demonstrated that a jurisdictional error occurred in the original decision. The following are examples of jurisdictional errors:

Failure to Apply the Correct Legal Principles: If the decision-maker did not apply the appropriate legal standards or visa criteria required by law.
Procedural Fairness: If the applicant was not given a fair opportunity to understand or respond to adverse information used in the decision, particularly if this information came from an external source.
Non-Existent Evidence or Circumstances: If the decision was based on evidence or circumstances that do not exist, also known as a "jurisdictional fact."
Unreasonable Decisions: If the decision was irrational or illogical. Decisions based on factual disagreements, credibility assessments, or the weight of evidence are generally not considered jurisdictional errors.

Application Process:

To initiate a judicial review, you must file an application and supporting documents within 35 days of the migration decision date. This timeline applies even if a written copy of the decision is not available, though extensions can be requested. There are associated fees, but exemptions ar e possible for those who cannot afford them. Legal advice is strongly recommended before proceeding with an application.

Possible Outcomes:

If a court finds a jurisdictional error in the decision, it can rule the decision invalid and return the case to the original decision-maker, such as the AAT, for reconsideration. In certain cases, the court can also prevent the Minister of Immigration from enforcing the original decision. This could include halting actions like deportation or visa cancellation.
Federal Circuit Court: Most immigration appeals are filed here, particularly when challenging decisions made by the AAT that affirmed a decision by the Department of Home Affairs. If jurisdictional error is found, the court can quash the decision and order the AAT to make a new decision without the error.

Federal Court of Australia: Appeals to this court are less common but are necessary in cases where the Minister or Assistant Minister for Immigration has made a personal decision. Appeals can also be made against decisions of the Federal Circuit Court if jurisdictional or legal errors are perceived.

Interested in challenging your migration decision? Book a consultation with our lawyers for specialised guidance.

Judicial Review