Challenging a migration decision where a legal error may have occurred

An unfavourable decision by the Administrative Review Tribunal, or another migration decision not open to Tribunal review, may be capable of challenge in the Federal Circuit and Family Court of Australia (Division 2). This process is called judicial review and begins with a careful assessment of the decision, record and applicable legislation.

Judicial Review Is Not a Merits Appeal

The Court does not reconsider whether the visa should be granted or replace factual findings simply because another conclusion was possible. Its role is to decide whether the decision-maker acted within the authority given by law and followed the required legal process. A poor outcome or factual disagreement does not by itself establish reviewable error.

What Is a Jurisdictional Error?

A jurisdictional error is a legal error affecting the validity of a decision. It may arise where the wrong legal test was applied, a substantial claim was not addressed, procedural fairness was denied, a mandatory requirement was not followed, authority was exceeded or the decision was legally unreasonable. The grounds must be expressed precisely and supported by the record.

What Can the Court Do?

If jurisdictional error is established, the Court may set aside the invalid decision and return the matter for reconsideration according to law. It cannot grant a visa or direct that the next decision must be favourable. The ultimate migration outcome remains to be determined by the Tribunal or Department under the applicable law.

How We Can Help

◆ Reviewing Department, ART and Court decisions and the available record

◆ Assessing possible jurisdictional error, prospects, risks and urgent deadlines

◆ Preparing judicial review applications, grounds, affidavits and written submissions

◆ Representing clients at directions hearings, interlocutory applications and final hearings

◆ Briefing counsel where appropriate and advising on remittal or further appeal options

Appeals, Costs and Urgent Advice

A judgment of the Federal Circuit and Family Court may, in an appropriate case, be appealed to the Federal Court. The appeal must identify an error in the Court's judgment and is not another merits assessment. Court proceedings also carry filing fees, procedural obligations and possible adverse costs consequences.

Strict time limits apply to judicial review and appeals. If you have received a Tribunal or Court decision, obtain advice immediately so the decision date, possible grounds, risks and filing options can be assessed before time expires.