If you have received a negative decision on an immigration application, either at the initial stage or the merits review stage (including from the Administrative Appeals Tribunal or Immigration Assessment Authority), you may be able to appeal that decision to the courts through a process known as judicial review.
In considering making such an application, applicants should be aware that judicial review by the courts does not involve an assessment of the facts or merits of the original decision, and it is a remedy of last resort. To assist you in deciding whether this is an avenue you should pursue, in this article we answer a number of common questions relating to the process.
What is judicial review?
Judicial review is the process in administrative law by which judges oversee the exercise of government decision-making powers. It allows a court to review a migration decision made by a government official or executive body to ensure the decision has been made according to law – that it is legal, reasonable, and just.
The courts consider whether the original decision-maker has made a jurisdictional error. In doing so, they will assess, amongst other things, whether the decision-maker:
- had the power or jurisdiction to make the decision;
- obeyed all aspects of the law in making the decision; and
- considered everything that was legally relevant.
Can I get a visa through judicial review?
No. The process of judicial review doesn’t involve a consideration of the facts or merits of a migration case, but rather it determines whether the case was properly assessed by the original decision-maker, and the decision made in accordance with the law.
However, the courts can overturn a migration decision in which a jurisdictional error has been made. If they do so, they usually send the case back to the original decision-maker and order them to reassess the case on its merits. The courts generally do not decide if a visa should be granted or cancelled.
What are the grounds for judicial review in an immigration case?
There are several common grounds for challenging migration decisions in judicial review cases. These include, but are not limited to, the following.
This refers to:
- the right to a fair hearing before a decision-maker, including the right to know the case against you and be provided with an opportunity to respond; and
- the rule against bias (actual or apparent).
The courts will examine factors including whether the decision-maker followed the rules, acted fairly, and gave you the opportunity to answer any adverse information against you.
Error of law
The courts will examine whether the decision-maker made a legal mistake in reaching their decision. For example, if they misunderstood the law, or applied it incorrectly. A decision does not involve an error of law unless the decision would have been different had the error not been made.
Relevant and irrelevant considerations
The courts will examine whether there was a failure by the decision-maker to take into account something that was relevant to the decision, or if they improperly took into account something that was irrelevant to the decision.
When should I apply for judicial review?
If your immigration application has been refused and you believe there may have been an error by the decision-maker, you should contact an expert immigration lawyer as soon as you are notified of the decision. You may be able to appeal the decision to the Federal Circuit Court, Federal Court, or High Court of Australia. Alternatively, you may have other rights of review, such as merits review by the Administrative Appeals Tribunal or Immigration Assessment Authority.
Strict time limits apply for filing a judicial review case in the courts. If you receive a negative migration decision, you should seek advice immediately, to ensure you do not miss any important deadlines.
How long does judicial review take?
Judicial review processes in Australia can take many years. Applicants should not expect a speedy resolution of their immigration issues through judicial review. Obtaining advice from an expert immigration lawyer can help identify whether other options may be available to you to resolve your immigration status in Australia.
If your immigration application has been refused, seeking judicial review of the decision can be a complex and confusing process. Engaging expert lawyers to advise you is key to ensuring the best possible outcome.
CMN has a team of experienced immigration lawyers who, together with the firm’s panel of prominent barristers from around Australia, can guide you through the process. For advice or representation on your immigration matter, please contact our team on 1300 123 529, or via email at firstname.lastname@example.org.