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Judicial Review - Immigration Matters
"How and Where Can I Challenge the AAT's Decision?"

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'. 

Appeal Against A Tribunal's Decision

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'.

What is a Jurisdictional error?

  • 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.

Grounds For Judicial Review of Administrative Decisions

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

  • 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.

Time Limitations

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').

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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Frequently Asked Questions - Judicial Review of Migration Decision

- Can I apply for an extension in time to appeal against the AAT decision?

Yes, when applying to the court for Judicial Review outside of the allowed/standard timeframe, you can request the court in your initiating application to extend the time for you. However, you will need to provide a plausible explanation for your delay in lodging your appeal. If the court is satisfied with your explanation, it can accept your application out of time.

- Can the court grant me a visa if I appeal against the AAT decision?

The court cannot grant you a visa if you challenge the AAT's decision if the AAT agrees with the original decision maker not to grant you a visa. The court can only look at the AAT's decision to see if the AAT has made the decision according to the relevant law. The court will not decide a "question of fact" for you. The same is true for other matters, such as refusal of your Citizenship application, cancellation of your visa, etc.

- Do I need a lawyer to go to court if I do not agree with AAT's decision?

Not necessarily. There is no requirement that you must be assisted/represented by a lawyer to argue your case. However, given the complex nature of the relevant laws, policies, etc., it is strongly advised that appellants must seek legal advice before going to court.

- What are the costs for appealing against the AAT's decision?

Certain, there are significant costs that you must consider before going to court for Judicial Review. The actual costs may vary, depending upon the court in which you file for Judicial Review, whether you are eligible for concession, etc. Besides the court fees and charges, you must also consider the other party's costs, which you may be ordered by the court to pay (if you are unsuccessful in your Judicial Review). You can find the court fees and charges on the relevant court's website.

- I need to challenge the AAT decision; where can I find the relevant information?

If you have decided to challenge the AAT decision, you can find more information about how to lodge a Judicial Review Application against the AAT's decision on the relevant court's website. For instance, the Federal Circuit and Family Court of Australia's website provides detailed guidance regarding how to apply for Judicial Review, which forms to use, how to prepare supporting affidavits, which court can hear your application, how to service the document, what happens on the court hearing day, how to discontinue your Judicial Review application (in case you decide to discontinue), and so on. 

- How do court documents look like? How to prepare your case for Judicial Review?

Well, as mentioned above, usually court websites provide sufficient guidance regarding how to apply for Judicial Review and how to prepare your documents. If you are interested, you can take a look at some of the documents (such as an application, submissions, outline of submissions, etc.,) available on the Federal Circuit and Family Court's website: Djokovic v Minister for Home Affairs. Video Link - Djokovic Case

Need assistance with your Judicial Review matter? Please do not hesitate to contact us.

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