Judicial Review
Judicial review is the process by which the Federal Court examines whether a migration decision was made lawfully. It is available where there has been a legal error in the decision-making process.
Overview
Judicial review is the process by which the Federal Court or Federal Circuit and Family Court examines whether a migration decision was made lawfully. Unlike merits review at the ART, judicial review does not reconsider the facts of your case — it examines whether there was a legal error in how the decision was made.
Judicial review is typically pursued after an unfavourable decision at the Administrative Review Tribunal, though in some cases it may be the only avenue of review available. It is a technical area of law that requires careful analysis of the decision and the legal grounds for challenge.
If successful, judicial review can result in the matter being sent back to the decision-maker for reconsideration according to law.
Grounds for Judicial Review
Judicial review is available only where there has been a legal error in the decision-making process. The courts examine whether the decision-maker:
Jurisdictional error
The most common ground for judicial review in migration matters is jurisdictional error. This occurs when a decision-maker acts beyond their legal power, fails to properly exercise their power, or makes an error that affects their jurisdiction to make the decision.
Failure to consider relevant matters
A decision may be affected by legal error if the decision-maker failed to take into account a consideration that they were legally required to consider.
Taking into account irrelevant matters
Similarly, a decision may be affected if the decision-maker took into account considerations that were not relevant to the decision they were required to make.
Procedural fairness
Decision-makers must afford procedural fairness to applicants. This includes providing an opportunity to respond to adverse information and making decisions without bias.
Unreasonableness
In some cases, a decision may be challenged on the basis that it was legally unreasonable — that is, no reasonable decision-maker could have reached that conclusion on the available material.
Identifying legal error requires careful analysis of the decision, the Tribunal's reasons, and the applicable law.
The Court Process
Judicial review proceedings in migration matters are conducted in the Federal Circuit and Family Court or the Federal Court.
Filing an application
An application for judicial review must be filed within strict time limits. The time limit is generally 35 days from the date of the Tribunal decision, though this may vary.
Grounds and submissions
Your application must identify the legal grounds on which you seek review. Written submissions setting out your arguments in detail are required.
Hearing
The matter will be listed for hearing before a judge. At the hearing, your legal representative will make oral submissions on your behalf and respond to any questions from the court.
Judgment
The court will deliver a judgment either at the end of the hearing or at a later date. If the court finds legal error, it may set aside the decision and remit the matter back to the Tribunal for reconsideration.
Time Limits
Strict time limits apply to judicial review applications. Missing the deadline may result in losing your right to seek review.
Standard time limit
The time limit for filing an application for judicial review is generally 35 days from the date of the Tribunal decision. This is a statutory time limit that the courts have limited power to extend.
Extensions of time
While the court has some discretion to extend time in certain circumstances, extensions are not granted as a matter of course. You must demonstrate a satisfactory explanation for the delay and that there is merit in your case.
Acting promptly
It is essential to seek legal advice as soon as you receive an unfavourable Tribunal decision. Delay can prejudice your ability to seek judicial review.
Costs and Risks
Judicial review proceedings involve costs and risks that you should understand before proceeding.
Legal costs
Court proceedings require significant legal work, including analysis of the decision, research, preparation of submissions, and appearance at hearing. Legal costs will depend on the complexity of your case.
Court fees
Filing fees are payable to the court. Fee exemptions or reductions may be available in certain circumstances.
Adverse costs
If your application is unsuccessful, you may be ordered to pay a contribution towards the other party's legal costs. The extent of any costs order depends on the circumstances.
Assessment of prospects
Before proceeding, it is important to obtain an honest assessment of your prospects of success. Judicial review is not a rehearing of the facts — you must demonstrate legal error.
How We Can Assist
Judicial review is a specialised area requiring expertise in both migration law and court procedure.
Our services include:
- Reviewing Tribunal decisions to identify potential legal errors
- Advising on prospects of success and the risks involved
- Filing applications for judicial review within the required time limits
- Preparing detailed written submissions
- Appearing on your behalf at court hearings
- Advising on the outcome and any further options
If you have received an unfavourable Tribunal decision, contact us promptly for advice on whether judicial review may be an option in your case.
Frequently Asked Questions
Merits review (at the ART) reconsiders the facts of your case and can substitute a new decision. Judicial review examines whether there was a legal error in how the decision was made — it does not reconsider the facts or make a new decision on the merits.
The time limit is generally 35 days from the date of the Tribunal decision. This is a strict statutory time limit, and the courts have limited power to extend it. Seek advice immediately after an unfavourable Tribunal decision.
If the court finds legal error, it will typically set aside the Tribunal decision and remit the matter back to the Tribunal for reconsideration according to law. The court does not make a new decision on your visa application.
In many cases, you may be able to remain in Australia on a bridging visa while court proceedings are pending. However, this depends on your circumstances, and you should seek advice about your visa status.
Judicial review involves legal costs and court filing fees. If unsuccessful, you may also be ordered to pay a contribution to the other party's costs. We provide clear advice on costs before you decide to proceed.