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Judicial Review - Immigration Matters

What is Judicial Review?

 

Let's say that a case officer (also known as 'Delegate') of the  Department of Home Affairs has refused your visa or citizenship application. But you believe that the decision to refuse your visa or citizenship application is not fair or correct. In that case, you may be able to challenge the Delegate's decision either before a Tribunal or a Court. When a decision is challenged before a Tribunal, it is called a 'Merits Review'. When a court looks at that decision and its legality, that is called 'Judicial Review'. Currently, there are two bodies that conduct Merits Reviews of migration-related decisions: (1) the Administrative Appeals Tribunal ('AAT'), and (2) the Immigration Assessment Authority ('IAA').

 

In simple terms, a Tribunal has broad powers to look at the contentious decision. Courts can only review such a decision if the applicant can show that the Delegate's or the Tribunal's decision is affected by a 'Jurisdictional Error'. 

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Appeal Against A Tribunal's Decision

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If, for example, the IAA or the AAT agrees with the original decision of the Delegate and decides against you, you can file an appeal against the tribunal's decision in the Federal Circuit & Family Court of Australia or in the Federal Court of Australia. But, again, in order to succeed in your appeal against a tribunal's decision you will have to show the court a 'jurisdictional error'.

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What is a Jurisdictional error?

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  • An error is jurisdictional if it is so serious that Parliament could not have intended for a decision affected by such an error to be valid (i.e. within the jurisdiction).

  • An error is jurisdictional if, and only if, it was material to the decision. That means, had it not been made, a different outcome could have resulted. Therefore, an error in a disputed decision itself is not sufficient to establish a Jurisdictional Error (because of privative clauses). The error must also be jurisdictional and material.

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Grounds For Judicial Review of Administrative Decisions

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A decision may be considered by the court to be affected by 'Jurisdictional Error' if, for example:

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  • The decision was made in breach of the rules of natural justice

  • There was a failure to follow procedures that were required by law to be observed

  • The decision-maker (delegate) did not have the authority/jurisdiction to make that decision

  • The impugned decision was not authorized by the enactment (i.e., an act of Parliament)

  • The decision was an improper exercise of power by the decision-maker

  • The decision involved an error of law

  • The decision was induced or affected by fraud

  • There was no evidence or other material available before the decision-maker to justify the Decision

  • The decision was otherwise contrary to the law.

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Time Limitations

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There are strict timeframes within which applications for Judicial Review and Merits Review must be lodged. An application for Judicial Review of AAT's decision must be lodged within 35 days before the Federal Circuit and Family Court of Australia ('FCFCOA') or Federal Court of Australia ('FCA').

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However, an appeal from a final decision of the FCFCOA must be filed within 28 days with the FCA. The timeframe for lodging an appeal against an interlocutory decision of FCFCOA is 14 days from such an interlocutory decision.

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Warning! Please note that Australian immigration laws and policies are highly complex and dynamic. Therefore, no information provided on this website in relation to Australian immigration laws and policies (or on any other matter) is intended to be legal advice. Please read our Terms and Conditions.

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