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?

It is very hard to exactly describe what a jurisdictional error is and Judges often disagree with each other about whether there is such an error.However, a jurisdictional error is one which somehow affects the “exercise of power” of the administrative decision maker. Not all errors are “jurisdictional”. Let me give some examples:

  • 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

    1. 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
    2. Case management directions will be made. This is usually by agreement between the parties and without the need to appear in court
    3. The Minister will serve an indexed “Court Book” containing all the relevant documents on the Applicant (or their lawyers)
    4. The Applicant will have a chance to amend the Application after considering the Court Book
    5. In the weeks before the final hearing, the Applicant and the Minister will each prepare written legal submissions about the case
    6. The matter will be listed for hearing before a Judge. Hearings will usually take a “couple of hours”
    7. 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

You have 35 days to start proceedings for the judicial review of an AAT decision. In special circumstances that time can be extended. There are different time limits for other types of decisions.

Adverse Costs

If you lose a judicial review case you will be ordered to pay the Minister’s legal costs of the proceedings. In the FCFCOA those costs are set out in a scale which appears in Schedule 2 of the FCFCOA (Division 2) (General Federal Law) Rules 2021. The amount is approx $8000.

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.

Reasonable Prospects

Lawyers are not allowed to encourage applicants to start proceedings if there are no reasonable prospects of success. The possibility exists that costs orders will be made against the lawyers.


Usually no new evidence will be allowed. You can obtain (at your own cost) a transcript of the AAT proceedings (to show what happened), but you can’t rely on new documents that support your case.


There is no oral evidence given at a Judicial Review hearing. The case is legal argument about whether or not the Tribunal has made a jurisdictional error