There are many visa applicants who have received a visa refusal and then appealed the decision to the Administrative Appeals Tribunal (AAT) for merits review, only to find that the AAT did not find in the applicants’ favour. If the AAT has affirmed the Department of Home Affairs’ decision to refuse your visa and you believe that an error was made in reaching this decision, you may be able to apply for a judicial review.
For a number of reasons, the applicant who has been unsuccessful at the AAT should seek legal advice as to their options for judicial review at the Federal Circuit Court (FCC).
The reason why there is a judicial review option is because the AAT process can also be flawed. Even though the AAT is an independent body, that does not mean they always come to the correct decision.
Watch our video to learn more about your appeal options after receiving a visa refusal:
What is 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. The Court is independent of decision makers and 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.
You can remain in Australia on a bridging visa while you await a decision.
What is a jurisdictional error?
A jurisdictional error is where a decision-maker commits an error of law by interpreting the law incorrectly. Below is a non-exhaustive list of possible jurisdictional errors:
- Failure to provide procedural fairness, in relation to s 359A of the Migration Act 1958 (Cth). This involves not providing the applicant the opportunity to comment on or respond to an issue that would form the reason for affirming the decision.
- Where the AAT identified the wrong issue, asked the wrong question or applied the wrong test
- Failure to consider relevant material. There will be jurisdictional error if a decision-maker fails to take into account a relevant consideration. Conversely there will be error if the decision-maker takes into account irrelevant material.
- Considering irrelevant material
- Failure to consider claims. If it is apparent that the decision-maker has otherwise misunderstood and thereby failed to correctly determine the claims there will be error.
- Breach of rules of natural justice/failure to follow mandatory procedures
- Procedural fairness not afforded where the applicant was excluded from being present while material witnesses gives evidence
- Apprehended or actual bias. The test for actual bias is that the decision-maker must show a state of mind that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
- Illogicality, irrationality or unreasonableness
If you do not fit one of the examples provided above, you may still have grounds for judicial review. Contact us with what jurisdictional error you believe the decision-maker has made and we can provide expert legal advice as to your prospects of success.
Is there a Time Limit to Appeal to the Federal Circuit Court?
There are strict deadlines for lodging a judicial review with the Federal Circuit Court. You need to file an application 35 days from the date of the AAT decision. You may request for an extension of time and the Court will decide whether to grant the extension of time.
As there is a short time limit to appeal, it is important that you seek legal advice as soon as possible, if you believe that a jurisdictional error has been made.
Seeking Legal Advice: Difference Between a Migration Agent and a Lawyer
In Australia, only a qualified lawyer can give legal advice on the prospects of success of an application to the Court when seeking to prove that a jurisdictional error has occurred. It is important that you seek professional legal advice before embarking on the judicial review process.
At a court hearing, the Minister for Home Affairs will be represented by a lawyer and you will have the opportunity to respond to what is said in Court. If you have a lawyer, they will speak on your behalf. Therefore it is important to be represented by a lawyer to reduce the stresses that are involved leading up to and during the court hearing.
Registered Migration Agents cannot act on your behalf in completing the judicial review application to the Court but an Australian Immigration Lawyer can.
At Work Visa Lawyers, we have a team of dedicated Immigration Lawyers who are also Registered Migration Agents. We are experienced in the judicial review process and are committed to getting positive outcomes for our clients.
What if I have failed in my merits review and there is no judicial review option?
You may be eligible to seek Ministerial Intervention of the visa application if there are no other legal alternatives for you to stay in Australia.
The Ministerial Intervention route can be successful if you can show unique and compelling circumstances that are sufficient to warrant a visa to be granted to you and your family. Everyone’s circumstances are different so it is important that you seek legal advice as soon as possible. We can also assist you with a request for Ministerial Intervention.
Do you need help?
Our team of experienced Immigration Lawyers and Migration Agents look forward to assisting you with your Australian visa or appeal.
Based in Adelaide South Australia, we provide Australian Immigration advice to people and businesses from all over the world.
If you require further information regarding your Australia visa options you can contact us through: