Judicial review of migration decisions

My main area of practice is in seeking judicial review of migration decisions (colloquially known as appeals to the Federal Court or appealing visa decisions). Seeking judicial review of a migration decision is necessary when the applicant or former visa holder runs out of merits review options. If you need to seek judicial review of a migration decision or want to lodge an appeal in the Federal Court, please get in touch as soon as possible as strict time limits apply.

Normally, if the Department of Immigration makes an adverse migration decision, the aggrieved party can apply for merits review to the Administrative Appeals Tribunal (AAT). The main exceptions to this are where the Minister for Immigration makes the decision personally or where the decision to refuse a protection visa is referred automatically to the Immigration Assessment Authority (IAA). If the AAT reviews the decision and agrees with the Department, then the next step is judicial review.

For visa applicants and former visa holders who have had their visas cancelled under s 116 of the Migration Act 1958 or s 109 of the Migration Act 1958, an application for judicial review must be made to the Federal Circuit Court of Australia. For applicants who have had their visas refused or cancelled under s 501, an application for judicial review must be made to the Federal Court of Australia. The above is not an exhaustive list of the types of decisions which can be made under the Migration Act. In any case, the time limit is 35 days from the date on which the AAT made its decision.

The most difficult part of judicial review is identifying grounds of review. This is a highly technical task and is something that the vast majority of lawyers would struggle to do. It is almost impossible for a self-represented litigant to draft sensible grounds of review. At its most basic, a ground of review must allege jurisdictional error on the part of the decision-maker (which is usually the AAT, although sometimes it can be the Minister personally or the IAA) and it must identify the reason why the decision-maker made that error. Common reasons why decision-makers make jurisdictional errors are: failure to take into account relevant considerations, illogicality, unreasonableness, denial of procedural fairness or misunderstanding the statutory provisions governing the review.

Once an application for judicial review is filed in the correct Court, the first thing that the Court will do is list it for a directions hearing or a case management conference. At this hearing/conference, the Court will make procedural orders for how the matter is to be dealt with and will normally list the matter for final hearing.

If you need to apply for judicial review, please get in touch for an obligation free phone call.