Judicial review of migration decisions
In most instances, you can seek judicial review of a decision by the Administrative Review Tribunal where there is an “error of law”.
Judicial review is the process through which Courts ensure that decisions made under the Migration Act, including by the Administrative Review Tribunal (formerly the Administrative Appeals Tribunal) and the Minister (acting personally) are made ‘according to law.’ If a decision is not made according to law, the Court will set aside the decision and send the matter back to the decision-maker to be redetermined.
Eligibility
- The Federal Circuit and Family Court of Australia (Circuit Court) reviews decisions made by the Tribunal. This includes most visa refusal and nomination refusal decisions.
- The Federal Court of Australia (Federal Court) reviews decisions made by the Minister acting personally or by the Tribunal’s General Division. These decisions usually relate to visa cancellations or refusals on ‘character grounds’ under s 501 of the Migration Act.
- In some instances only the High Court of Australia can review a migration decision, but this is rare.
Powers of the Court
- If the Court is satisfied that a decision is affected by jurisdictional error, it can make an order quashing (setting aside) the decision.
- The Court cannot substitute a decision for the decision-maker (the Court cannot grant a visa or decide not to cancel a visa). Instead, the Court will send the matter back to the decision-maker to be determined according to law.
- The Court can order that the Minister pay some of your legal costs if your application is successful.
Judicial review considerations
- Courts can only decide whether the decision was lawful. A Court cannot change a decision only because it disagrees with the conclusion reached by the decision-maker.
- A decision is unlawful if it is affected by a ‘jurisdictional error.’ The definition of ‘jurisdictional error,’ and this area of law generally, is complex.
- An error cannot be jurisdictional if it could not have affected the decision ultimately reached by the decision-maker.
Examples of jurisdictional error
- Misidentifying the issues that need to be determined when making a decision.
- Failing to take into account a mandatory consideration (or taking into account a prohibited consideration).
- Failing to take into account relevant evidence or material (or taking into account irrelevant evidence or material).
- Making a decision so unreasonable that no reasonable person could reach the same decision.