Note, this post does not relate to decisions made by the Administrative Appeals Tribunal or Minister for Immigration relating to the cancellation or refusal of visas on ‘character grounds’ under s 501 of the Migration Act. If the Tribunal has affirmed a decision to cancel or refuse a visa on ‘character grounds’, or affirmed a decision not to revoke the mandatory cancellation of your visa, read this post.
You have gone to the Administrative Appeals Tribunal (AAT) full of hope, only to be told that they have affirmed the Department of Home Affairs’ decision to refuse your visa application. What’s next?
Putting to one side the possibility of Ministerial Intervention, which is only available to unsuccessful AAT applicants facing the most exceptional circumstances or hardship, your only remaining option is to apply to the Federal Circuit and Family Court of Australia (Circuit Court) for judicial review of the AAT’s decision.
Judicial Review Overview
While you should read our detailed post on judicial review, here is a quick refresher:
- the Circuit Court can review decisions by the AAT to affirm a decision by the Department to refuse a visa (or nomination application);
- any application for judicial review of an AAT decision must be filed within 35 days after the decisions is made (the Court only has a limited ability to extend the time for filing an application);
- the Circuit Court can only set aside the AAT’s decision if it finds that the decision is affected by ‘jurisdictional error’;
- the concept of ‘jurisdictional error’ is complex, but may involve a failure by the decision-maker to properly understand the relevant law, consider relevant matters or material, or have a reasonable and rational basis for making the decision;
- if your application is successful, your case will be sent back to the decision-maker to be re-determined according to law (the Court cannot grant you a visa or approve your nomination application);
- if your application for judicial review is unsuccessful, it is likely that the Court will order you to pay a significant portion of the Minister’s legal costs;
- you should seek expert legal advice as soon as possible after receiving any adverse migration decision.
We cannot emphasise the last point enough. This area of law is particularly complex, to the point where even some experienced migration lawyers are hesitant (or straight out refuse) to act in judicial review proceedings. While this post attempts to shed some light on base-level concepts that underlie the judicial review of visa refusal decisions made by the AAT, it is not a comprehensive guide to judicial review and is in no way a substitute for legal advice specific to an adverse migration decision you have received or your particular circumstances.
The Migration Act 1958
The Migration Act sets out:
- the types of visas that can be granted to non-citizens;
- the criteria for grant of each of those different types of visas; and
- the powers of the Minister responsible for administering the Migration Act to grant or refuse visas and to delegate decision-making authority to employees of the Department of Home Affairs.’
Eligibility for grant of all Australian visas are criteria based. Subject to some limited exceptions, if the decision-maker is satisfied that you have met all of the prescribed criteria for the visa you have applied for, then you must be granted the visa. If the decision-maker is not satisfied that you meet all the criteria for grant, they must refuse your application. The grant criteria for most visas (but not protection visas or special category visas) are set in in Schedule 2 to the Migration Regulations and so are often referred to as ‘Schedule 2 Criteria’. However, these Schedule 2 Criteria often refer to concepts defined elsewhere in the Migration Regulations, the Migration Act, or statutory instruments made by the Minister or a delegate, so identifying the precise criteria that must be satisfied in order for the visa to be granted is often difficult.
Identifying the grounds for refusal
If the AAT has affirmed a decision to refuse your visa application, it is highly likely that it did so because it was not satisfied that you met one or more of the criteria for grant of the visa. For example, it may not have been satisfied that:
- in the case of an application for a partner visa–you and your sponsor are in a ‘genuine relationship’;
- in the case of an application for a student visa–that you are a ‘genuine temporary entrant’;
- in the case of an application for a protection visa–that you are a ‘refugee’.
Identifying jurisdictional error
Identifying which criterion (or criteria) the AAT was not satisfied that you met is the first step in determining whether the decision is affected by jurisdictional error. Once the relevant criterion is identified you must then determine whether the Tribunal’s conclusion that you did not satisfy that criterion is affected by a jurisdictional error, such as:
- failure to properly understand the criterion and the law relevant to that criterion;
- failure to consider a mandatory consideration when determining whether you satisfied that criterion;
- overlooking or ignoring evidence or other material relevant to whether you satisfy the criterion;
- failure to afford you procedural fairness.
If the AAT refused your visa application because it was not satisfied that you met more than one criterion, then you must satisfy the Court that the Tribunal’s conclusions in relation to each criteria were affected by jurisdictional error. Further, you must satisfy the Court that had the AAT not committed the error there is a realistic chance that the AAT could have reached a different conclusion. These principles are labelled ‘materiality,’ which in itself is a complex area of law.
Court fees for applying for judicial review
From 1 July 2023, the filing fee payable to the Circuit Court for review of a migration decision is $3,785. This amount can be reduced to $1,890 if the Court is satisfied that paying the full fee would cause you financial hardship. The filing fee can be waived entirely if the Court is satisfied that paying the reduced fee would still cause you financial hardship. The Court’s filing fee is automatically waived in certain circumstances, including if you are currently detained. Other Court fees may be payable after filing.
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. 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 of $2,000 (GST exclusive).
At Hannan Tew Lawyers, we act in judicial review proceedings on a unique partially conditional (no-win, no-fee) basis. This means that you will only be required to pay part of our fees regardless of the outcome, while the remainder of our professional fees will only be recoverable if your application is successful. In each case we set an upper limit for our non-conditional professional fees (i.e., the fees that you must pay us regardless of outcome) which we call our ‘non-conditional cap’. We determine the non-conditional cap applying to your case based on the strength of your prospects of success, the complexity of your case and whether you are currently detained. In general, we will set the non-conditional cap between $7,000 to $9,000, exclusive of GST.
What are they key points?
A summary of the key points is as follows:
- There is a 35-day limitation period for applying for judicial review of any migration decision.
- The Court can only set aside the Tribunal’s decision if the decision is affected by jurisdictional error.
- 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.
- Hannan Tew acts in judicial review applications on a partially conditional (no-win, no-fee) basis;
- Book a free, 20 minute consultation regarding your judicial review case [here] or contact us for an assessment of your prospects here.