On what grounds can I seek judicial review?

Jim Moriarty this week received a visa refusal. The refusal was upheld by the Administrative Appeals Tribunal (AAT), and he believes that something wasn’t taken into account. After getting notified about the refusal, he sat and considered. It occurred to him that perhaps some key things weren’t properly considered. In thinking of this over a cup of tea, Jim remembers an article he’d read about judicial review. He decides that he’s probably got a case, and goes looking for someone who can handle it for him. It’s not something that he wants to do on his own!

The following day, Jim walks down to his local immigration lawyer and puts his refusal on the front counter.

“I want to talk to someone about a judicial review,” he says to the receptionist.

In due course, the lawyer comes out and sits with Jim. He reads over the refusal.

“On what grounds do you believe you can seek a judicial review?” he asks Jim.

It’s a tough question to answer when you’re not the person with all the knowledge.

When can I seek a judicial review?

In general, there a few grounds on which you can seek a judicial review. These include:

  • the decision-maker was not acting in good faith in making the decision
  • the decision doesn’t relate to the subject of the law
  • another jurisdictional error (examples include an error of law, and non-compliance with statutory procedures, among others)
  • … and so on.

There are a range of other grounds on which a judicial review may be sought.

One of the key things to consider yourself is: What outcome do I want, if I seek a judicial review? It’s important to understand that the question of judicial review comes up after a decision is made by a tribunal established under the Migration Act 1958.

So, what ARE these Tribunals?

The tribunals set up under the Migration Act are not a form of Court. They are statutory review bodies, and are independent of the Department of Immigration and Border Protection (DIBP).

What place does the Administrative Appeals Tribunal have for migration matters?

The Migration Act tells us that the Administrative Appeals Tribunal (AAT) was put in place to review certain decisions made by the DIBP. But, it is important to note that the AAT is only accessed by application.

A strict, and formal, process applies. You would not, for example, go from primary refusal to the AAT.

What would happen to Jim’s application?

An AAT decision can potentially be taken to judicial review. Here is the process:

  1. apply for a visa to DIBP
  2. refusal comes from DIBP
  3. we determine there are valid grounds to challenge the refusal
  4. apply to the AAT
  5. the AAT makes a decision.

If the decision is in Jim’s favour, then that’s great. If not, then the decision needs to be looked at in terms of whether it can be challenged through the courts.

If there is a reasonable prospect of success, an application can potentially be brought to the Federal Circuit Court of Australia, or the High Court.

When does a matter go to court?

It’s important to remember that the relevant court cannot grant the visa or uphold the refusal. The only thing they can do is decide whether the decision was a legal error.

Then the application goes back to DIBP or the Tribunal for to be revisited.

What does this process do for me?

It makes sure that if there is some form of error in the AAT’s (or the Department of Immigration’s) decision-making, that the correct result can be obtained.

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