Reviewing the decision of the Administrative Appeals Tribunal or lower court
Judicial review of migration decisions is an option available to individuals and businesses via a process undertaken by the federal courts. A judicial review enables the court to examine the lawfulness of a migration decision made by an authorised decision maker which is in most cases the Administrative Appeals Tribunal.
Grounds for judicial review – Jurisdictional Error
If a judicial review application is to be successful the court must be satisfied that an error of law has been made in association with the decision in question. If the court finds that jurisdictional error has indeed occurred.
Only matters that argue that the decision maker has made an error when applying the law and relate to the core power of that decision-maker’s ability to make the decision are able to be judicially reviewed.
What is considered jurisdictional error?
- The decision maker failed to apply the right legal principles or visa criteria. This can occur when the Tribunal fails to take into account things that they must as a matter of law in order to carry out the decision;
- The decision maker failed to ensure that the Tribunal process is fair. This can be raised as an argument when you have not been given the chance to understand or respond to adverse information relied upon by the decision-maker. In this situation, the adverse information must not have come from you but from another, completely separate source;
- The decision was based on non-existent evidence or a circumstance which gives rise to the decision-maker’s power does not exist. This is what is referred to as a “jurisdictional fact”; and
- The decision was unreasonable because it was irrational or illogical.
What outcomes are available from judicial review?
If you feel that jurisdictional error has arisen in your matter you have the right to appeal that decision by lodging an application for appeal to the Federal Circuit Court (FCC).
In some cases, if you are not satisfied with the decision of the Federal Circuit Court (FCC) you can proceed to submitting an appeal to the Federal Court and then continue to the High Court of Australia.
In the event the court makes a decision that jurisdictional error did occur the court has the power to rule that the original decision is void. This will result in the matter returning to the original decision-maker to reconsider the matter with the directions of the court.
Do I appeal to the Federal Circuit Court or the Federal Court of Australia?
Federal Circuit Court
The most common immigration appeal is when an applicant is appealing the decision of the Administrative Appeals Tribunal after having their decision ‘affirmed’. This is when the Administrative Appeals Tribunal ‘agrees’ with the decision of the Department of Home Affairs. Applicants can appeal this decision if they believe the Tribunal has made ‘jurisdictional error’ when reconsidering their matter.
In these circumstances it is possible to submit an application before the Federal Circuit Court of Australia (FCC) with the intention of having the Tribunal’s decision quashed and ordering the Tribunal to make a new decision that is not affected by ‘Jurisdictional Error’.
Federal Court of Australia
A not so common appeal is when applicants appeal to the Federal Court of Australia instead of the Federal Circuit Court of Australia. Appeals to the Federal Court of Australia is required in certain circumstances such as when the Minister or Assistant Minister for Immigration has personally made a decision to refuse, cancel or not intervene in a matter.
It is also possible to file an application for appeal when a decision has been made by a judge in the Federal Circuit Court of Australia (FCC) which is perceived to be affected by jurisdictional or legal error.
How can we help?
Ethos Migration Lawyers can assist to represent you in a Judicial Review if you believe the decision you have received has been infected by jurisdictional error.
Our team of immigration lawyers will work with counsel (barristers) to assess the merits of your case and provide you with accurate, transparent and easy to understand advice on your options moving forward.