Judicial Review
Judicial Review of decisions
If your merits review application is unsuccessful or a decision has been personally made by the Minister, you can seek judicial review of that decision in the Courts. This is something which needs to be carefully considered.
Please click on the headings below for more information.
What is Judicial Review?
To understand what judicial review is (there are whole textbooks written on this topic) you need to have a basic understanding of the”separation of powers” in our system of government. When the Minister or a delegate or the AAT makes a decision in relation to a visa, it is an administrative decision (made by the executive arm of government).
When you make an application for the judicial review of an administrative decision in the courts (the judicial arm of government) you are asking the court to look only at the “legality” of the decision under review. It is a different procedure to an “appeal” and it is not a “re-hearing” of the merits review case. The Courts will not engage in merits review and it will be very difficult to challenge fact finding of the administrative decision maker. So, just because you disagree with the decision or even if the decision contains factual mistakes, it does not mean that your judicial review application will succeed.
Because of section 476 of the Migration Act (and the High Court case of S157), to be successful in judicial review you have to show that the administrative decision maker has made a jurisdictional error (which is a special type of an error of law). Even if there is an error in a decision, not all errors are “jurisdictional”. Sometimes there are errors “within jurisdiction” (which are not reviewable). So, just because there is a mistake in a decision does not mean that your application will be successful.
Even if you are successful, the outcome is usually that the matter is sent back to the administrative decision make to be re-decided “according to law”. The possibility exists that the administrative decision maker will find against you again.
What is a jurisdictional error?
In Craig v South Australia (1995) 184 CLR 164 at 179 the High Court described it like this:“ If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise ofpower is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”;- Sometimes you will read in cases, that decision makers didn’t engage in an “active intellectual process” or didn’t give “proper, genuine and realistic consideration” to the Applicant’s arguments;
- Legal unreasonableness is difficult to prove, but it might arise if a decision is “manifestly unreasonable”, or is “irrational or bizarre” or it it “lacks an evident and intelligible justification“; and
- Rarely, administrative decisions can be affected by bias or by fraud
By all means browse through my blog posts about immigration cases and how issues were raised and dealt with.
What happens in judicial review proceedings (and how can I help you)?
Most judicial review proceedings are started in the Federal Circuit and Family Court of Australia (“FCFCOA”). I have set out in the table below a summary of the typical steps in a judicial review case. An application for judicial review is a very formal process conducted in a court. It is adversarial (which means the Minister will engage lawyers to argue against the claim) and the proceedings are conducted according to the rules of Court the laws of evidence.
I have been a migration lawyer since 2001 and became a barrister in 2006. I can advise you on whether there is a jurisdictional error in the decision. If there is, I can help you with the drafting of the Application and the preparation of your case generally and draft the written submissions for you. I can represent you in court at the hearing. I am happy to negotiate fees with you and happy to consider “unbundling” of services (eg perhaps you only want me to draft the application or to draft the submissions).
Steps in a judicial review proceedings
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- An Application (setting out particulars of the alleged jurisdictional error) together with an affidavit attaching a copy of the decision being reviewed is filed with the court and served on the Minister
- Case management directions will be made. This is usually by agreement between the parties and without the need to appear in court
- The Minister will serve an indexed “Court Book” containing all the relevant documents on the Applicant (or their lawyers)
- The Applicant will have a chance to amend the Application after considering the Court Book
- In the weeks before the final hearing, the Applicant and the Minister will each prepare written legal submissions about the case
- The matter will be listed for hearing before a Judge. Hearings will usually take a “couple of hours”
- The Judge may give an “ex tempore” judgment (orally on the day of the hearing) or may reserve judgment and hand it down some later time
Time Limits
Adverse Costs
Those costs will become a “debt to the Commonwealth” and will have an effect on future visa applications you make. Most visas have a condition that you have no debts to the Commonwealth.