Judicial review is often described as the option of last resort for people experiencing difficulties on their pathway to migrating to, or remaining in, Australia. But what is it?
Judicial review is the process by which Courts ensure that decisions made under the Migration Act by the Minister or the Administrative Appeals Tribunal (AAT) are made ‘according to law.’ If the Court finds that the decision was not made according to law, it has the power to ‘quash’ (set aside or overturn) the decision under review.
When can a Court overturn a decision by the AAT or Minister?
In order for a decision to be made ‘according to law’, the decision-maker must, among other things:
- actually have the power to make the decision (i.e., be validly appointed or authorised);
- correctly understand the law applying to the decision, including correctly identifying the questions that must be answered when making a decision;
- turn their mind to all all mandatory considerations and ignore any prohibited matters;
- consider all relevant documents, evidence or other material that they have before them (and ignore any irrelevant material); and
- not be unreasonable or irrational in the way it reaches its decision (it is important to note that the test for ‘reasonableness’ is high: ‘Whether any reasonable person could reach the same conclusion in the same way as the decision-maker’).
Failure to do any one of the above things might result in a ‘jurisdictional error,’ which is an error by a decision-maker that prevents their decision from being made according to law. Sometimes decisions affected by jurisdictional error are described as being ‘unlawful’, ‘invalid’, or ‘of no force or effect,’ but all of these terms reflect the same concept: The decision was not made according to law and the Court will set aside the decision.
What can the Court do on judicial review?
It is important to know that a Court performing a judicial review will not, and cannot, consider whether the decision they are reviewing was ‘right,’ ‘good,’ or ‘preferable.’ The Court can only decide whether the decision was made according to law (or, from the other perspective, whether it is affected by jurisdictional error). There are plenty of ‘bad’ decisions made according to law that the Court has no power to overturn or change. The Court cannot overturn a decision just because it would have come to a different decision than the AAT or Minister.
It is also important to keep in mind that if a Court does find that a decision was not made according to law it only has the power to ‘quash’ (set aside) the decision and send the matter back to the decision-maker to be determined according to law. Even if your application for judicial review is successful, the Court cannot grant you a visa (or approve an employer’s nomination application). Whether the Tribunal or Minister will make a different (i.e., favourable) decision on the second go-around will depend on the individual merits of your case.
The law and processes governing judicial review of migration decisions in Australia are complex and differ depending on the type of decision being reviewed. Many lawyers, including experienced migration lawyers, avoid providing advice about, or acting in, judicial review applications. It is extremely important to seek advice from a lawyer experienced in judicial review applications as soon as possible after receiving any adverse migration decision as different migration decisions are reviewable by different courts and there are strict timeframes within which applications for judicial review must be filed.
What types of decision are subject to judicial review?
In general, there are two types of migration decisions that are subject to judicial review:
- decisions by the AAT in its Migration and Refugee Division affirming an original decision of the Department of Home Affairs refusing the grant of a visa (or the approval of a nomination); and
- decisions made by the AAT’s General Division or by the Minister personally relating to the cancellation or refusal of a visa on ‘character grounds’ under s 501 of the Migration Act.
There are other, less common, types of migration decisions which can be reviewed by a Court.
Which Courts have the power to review migration decisions?
Decisions made by the AAT’s Migration and Refugee Division are reviewable by the Federal Circuit and Family Court of Australia (Circuit Court).
Decisions made by the AAT’s General Division or the Minister acting personally are reviewable by the Federal Court of Australia (Federal Court).
There are other types of decisions which, in rare circumstances, can only be reviewed by the High Court of Australia.
What is the timeframe for applying for judicial review?
Regardless of who made the decision and which Court has the power to review it, there is a strict 35-day limitation period for applying for judicial review of any migration decision. This time limit can only be extended in exceptional circumstances by the Court.
What is the process for a judicial review application?
Once filed, an application for judicial review of a migration decision follows a relatively predictable process (whether in the Circuit Court or Federal Court):
- File application and supporting affidavit (including paying the relevant Court filing fee).
- Serve application and supporting affidavit.
- Court sets a timeline of steps to be taken (either at a first court date or by the consent of the parties).
- Minister’s lawyers file and serve the Court Book (a bundle containing all documents that were before the decision-maker).
- Applicant files and serves written outline of submissions.
- Minister files and serves written outline of submissions.
- Payment of setting down fee (unless waived by the Court).
- Final hearing before the Court, where the parties make their arguments to the Court.
- Court hands down its decisions.
Can I provide further evidence to the Court reviewing the decision?
Because the Court is focussed on the decision-maker’s decision making process and not on their ultimate decision, an applicant for judicial review can only file and rely on additional evidence or material that was not available to the decision-maker in rare circumstances. In most cases, the Court is unable to consider evidence that was not available to the decision-maker. This means that it is exceptionally rare for any witness to be called at the hearing of a judicial review application and the final hearing is usually limited to the lawyers for the Applicant and the Minister making legal arguments about whether the decision is affected by jurisdictional error.
What are the potential consequences for applying for judicial review?
It is important that you carefully consider whether to apply for judicial review as there are significant financial risks associated with losing your case. This is because, if your application is unsuccessful (including if you discontinue your application before it is finally determined), it is likely that the Court will order you to pay a significant part of the Minister’s legal costs, which could amount to thousands or tens-of-thousands of dollars. Conversely, if your application is successful, the Court is likely to order that the Minister pay some part of your legal costs.
Do I need a lawyer to apply for judicial review?
Judicial review of adverse migration decisions is a complex area of law with high stakes consequences for both successful and unsuccessful applicants. It is very important that you seek legal advice as soon as possible after receiving an adverse migration decision.
At Hannan Tew Lawyers, we offer a free, 20 minute judicial review consultation with our Special Counsel Joel McComber, who has extensive experience acting in judicial review applications of migration decisions before the Circuit Court, Federal Court and even High Court of Australia. You can book this consultaiton through here.
At this consultation Joel will provide you with advice about the limitation period applying to your case, the Court that has the power to hear and determine your case, and the process of applying for judicial review. Unfortunately we cannot provide you with advice regarding potential grounds of review or your prospects of success at a free initial consultation, but we do offer an assessment of judicial review prospects for a fixed fee.
What are they key points?
A summary of key points is as follows:
- There is a 35-day limitation period for applying for judicial review of any migration decision.
- The Court which has the power to judicially review an adverse migration decision depends on the type of decision that has been made and who made it.
- If you apply for judicial review of a migration decision and your application is unsuccessful, the Court is likely to order you to pay some part of the Minister’s legal costs.
- You should seek legal advice as soon as possible after receiving an adverse migration decision so that you can receive specific advice about the limitation period applying to your case, the Court with the power to review the decision, and your prospects of success.
- Contact us for a free, 20 minute consultation regarding your judicial review case through here.