What is a Judicial Review?

The Federal Circuit and Family Court of Australia (the Court) can review some decisions made under the Migration Act 1958. These include decisions made by the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister), the Administrative Appeals Tribunal (AAT) and the Immigration Assessment Authority (IAA). The people responsible for making decisions under the Migration Act include the Minister and the Members of the AAT and IAA (the decision makers). These decision makers look at the merits of your application and whether you should or should not be granted a visa. Judicial review The Court may only review a decision in order to determine if a ‘jurisdictional error’ has been made. This means the Court determines if the decision has been made according to law, including following the correct legal procedures and applying the law correctly. The Court is independent of the decision makers. The Court does not consider the merits of your application and whether you should or should not be granted a visa. If the Court finds a jurisdictional error, it can: refer your case back to the decision maker, and prevent the Minister from acting on the decision. The Court cannot: reconsider the facts and reasons for your visa application take new factual information into account (unless it is relevant to a question of whether the decision maker made a jurisdictional error), or grant you a visa. Who can apply? If you are unhappy with the decision, you may apply to the Court if you believe a jurisdictional error has been made. You should seek legal advice before filing an application. Confidentiality Generally, court hearings are open to the public. In certain circumstances a closed hearing may be ordered. If your case involves a protection visa decision, the Court is not allowed to publish your identity. Time limits You must file an application for review within 35 days of the date of the migration decision. The Court may extend the time limit. If you require a time extension, you must ask for it in the application and explain why. The Court will decide whether to grant an extension of time. Communicating with the Court You can contact the court registry for information about your case or if you need to give the Court information. You cannot communicate directly with the Judge allocated to decide your case outside of the courtroom. It is important that you keep the Court and the Minister’s solicitor advised of your current contact details, as they may need to contact you. If your contact details change, you must advise the Court and the Minister’s solicitor in writing as soon as possible. A Notice of Address for Service form is available from this web site or from the court registry. Court forms To apply for a review of a decision, you must complete: an application, and an affidavit. You can get these documents from the Court’s website or court registry. For help drafting an affidavit, see the Court’s fact sheet ‘Preparing an affidavit’ which is also available from the Court’s website. Your application must identify what jurisdictional error you believe the decision maker has made. In your affidavit, you must explain all of the relevant facts and circumstances relating to the alleged error. You must attach to your affidavit, a copy of the decision to be reviewed and any statement of reasons for the decision. You must complete all parts of the application; otherwise it may be returned to you for completion. Filing and fees You need to file your application and supporting documents with the Court. You can file court documents in person, by mail, or in certain circumstances by fax or email. You must pay a fee when you file your application and another fee for the final hearing. The fees do not apply in some cases; for example, if you hold certain government concession cards or you can demonstrate financial hardship. More information about fees is available from this web site or contact the court registry. Service After filing, you must give a sealed copy of your application and supporting documents to the Minister and in most cases the Tribunal who made the decision. This process is known as service of documents. You can serve the documents on the Minister via the Department of Home Affairs (the Department). The Department has offices in each capital city. Go to www.homeaffairs.gov.au or call the Department on 131 881 for address details. The Minister must respond within 28 days after you serve them. Court hearings The Court will allocate a time and date for your hearing. On the first court date the Court may give orders and directions for: an immediate hearing a second or final hearing date a stay or interim (temporary) orders the filing of amended or further documents. If the Court orders an immediate or a second hearing before a final hearing, the Court may require you to show that you have an arguable case. If you cannot show that you have an arguable case the Court may dismiss your application without a final hearing. At each court hearing, the Court will give you an opportunity to address the issues related to your case. If you have a lawyer they will speak for you. The Minister will usually be represented by a lawyer, and you or your lawyer will have the opportunity to respond to what is said in court. The Court often announces its decision at the end of the final hearing. If not, you will be notified of the date the Court will announce its decision.ChatGPT

The Federal Circuit and Family Court of Australia (the Court) possess the authority to review certain determinations established under the Migration Act 1958. These determinations encompass choices made by the Minister for Immigration, Citizenship, and Multicultural Affairs (referred to as the Minister), the Administrative Appeals Tribunal (AAT), and the Immigration Assessment Authority (IAA).

The individuals responsible for rendering determinations under the Migration Act encompass the Minister and the Members of the AAT and IAA (the decision makers). These decision makers evaluate the substance of your application, considering whether to grant or deny a visa.

Judicial Review The Court’s role in reviewing a determination is solely to ascertain if a ‘jurisdictional error’ has occurred. This means the Court examines whether the decision adheres to the legal framework, including proper procedural adherence and accurate application of the law. It’s important to note that the Court operates independently from the decision makers, refraining from assessing the merits of your application or visa eligibility.

If the Court identifies a jurisdictional error, it has the authority to:

  1. Refer your case back to the decision maker.
  2. Halt the Minister from executing the decision.

However, the Court does not possess the authority to:

  1. Reevaluate the factual details and reasoning behind your visa application.
  2. Consider new factual information, unless it pertains to the question of whether the decision maker committed a jurisdictional error.
  3. Grant you a visa.

Eligibility for Application If you are dissatisfied with a decision, you can seek recourse in the Court if you believe a jurisdictional error has transpired. Prior to filing an application, it is advisable to consult with legal counsel.

Confidentiality Generally, court proceedings are open to the public, but there may be instances where a closed hearing is ordered. In cases concerning protection visa decisions, the Court is prohibited from disclosing your identity.

Time Constraints You are required to submit an application for review within 35 days of the migration decision’s date. The Court retains the discretion to extend this time limit, provided you request an extension within your application and offer a valid explanation. The Court will ultimately decide whether to grant the time extension.

Communication with the Court To obtain information about your case or furnish the Court with necessary details, you can contact the court registry. However, direct communication with the Judge assigned to your case outside of the courtroom is not permissible.

Maintaining updated contact information is crucial. In the event of a change, you must promptly notify both the Court and the Minister’s solicitor in writing. A “Notice of Address for Service” form is available on the website or from the court registry.

Court Documentation For initiating a review of a decision, you must complete:

  1. An application.
  2. An affidavit.

You can obtain these forms from the Court’s website or the court registry. Should you require assistance in preparing an affidavit, refer to the Court’s fact sheet titled ‘Preparing an affidavit,’ also accessible on the Court’s website.

Your application should outline the specific jurisdictional error you believe the decision maker committed. In your affidavit, you must provide a comprehensive account of all pertinent facts and circumstances related to the alleged error. Additionally, you must attach a copy of the decision to be reviewed, along with any statement of reasons for that decision.

Ensure that all sections of the application are fully completed; otherwise, it may be returned for further completion.

Filing and Fees To submit your application and accompanying documents to the Court, you have the option of doing so in person, by mail, or, under certain circumstances, via fax or email. Applicable fees are payable upon filing your application and at the time of the final hearing. Some cases may be exempt from these fees, particularly if you hold specific government concession cards or can demonstrate financial hardship. Further information regarding fees is available on the website or by contacting the court registry.

Service After filing, it is essential to provide the Minister and, in most cases, the Tribunal that rendered the decision with a sealed copy of your application and supporting documents. This process is known as “service of documents.” You can serve these documents on the Minister through the Department of Home Affairs, which maintains offices in major cities. Contact details for the Department can be found at www.homeaffairs.gov.au or by calling 131 881. The Minister is required to respond within 28 days of service.

Court Proceedings The Court will schedule a hearing date for your case, during which it may issue orders and directions for various actions, such as an immediate hearing, a second or final hearing, temporary orders, or the submission of amended or additional documents. If the Court orders an immediate or second hearing before a final hearing, you may be asked to demonstrate that you have a plausible case. Failure to establish this may result in the dismissal of your application without a final hearing.

During each court hearing, you will have an opportunity to address the issues pertinent to your case. If you have legal representation, your lawyer will advocate on your behalf. Typically, the Minister will be represented by legal counsel, and you or your lawyer will be given the opportunity to respond to arguments presented in court.

The Court often renders its decision at the conclusion of the final hearing. In cases where the decision is not immediately announced, you will be informed of the date when the Court intends to deliver its decision.

Written by Ross Ahmadzai

27 Oct, 2023

You may also be interested in…

New Bridging Visa Provisions

New Bridging Visa Provisions

The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presencein, Australia of aliens,...

0 Comments

Submit a Comment

Your email address will not be published. Required fields are marked *