Judicial Review of Migration Decisions in Australia: A Guide by Bansal Lawyers

Migration law in Australia can be complex and difficult to navigate. Individuals seeking to challenge decisions related to visas, immigration matters, and other migration-related issues often find themselves in need of legal guidance. One of the key legal processes for such challenges is judicial review.

At Bansal Lawyers, we specialize in providing expert advice and representation for clients facing migration decisions that they believe have involved jurisdictional errors. This article provides an overview of judicial review of migration decisions by the Federal Circuit and Family Court of Australia (the Court), including important processes and considerations.

What is Judicial Review in Migration Cases?

Judicial review is a process where a court reviews the lawfulness of a decision made by a government body or administrative authority. In the case of migration decisions, this means that if you are dissatisfied with a decision related to your visa application, you may request the Federal Circuit and Family Court of Australia to review it.

However, it is essential to understand that the court does not review the merits of your visa application. Instead, it focuses on whether a jurisdictional error was made. A jurisdictional error occurs when the decision-maker (e.g., the Minister for Immigration or members of the Administrative Review Tribunal (ART) or Immigration Assessment Authority (IAA)) has:

• Failed to follow the correct legal procedures.
• Misinterpreted or applied the law incorrectly.
• Acted beyond their legal powers.

The Court will only determine whether such an error occurred and will not evaluate the substance of your visa application itself.

What the Court Can and Cannot Do

The Court has specific powers when reviewing a migration decision:

The Court can:

• Identify if a jurisdictional error has occurred.
• Refer your case back to the decision-maker (such as the Minister or ART) for reconsideration.
• Prevent the Minister from acting on a flawed decision.

The Court cannot:

• Reconsider the facts of your visa application.
• Take into account new factual information, except if it is relevant to whether a jurisdictional error occurred.
• Grant you a visa directly.

It is important to understand that the Federal Circuit and Family Court of Australia will not grant a visa even if the decision was flawed, but rather it ensures that the decision-making process is lawful and follows due process.

Time Limits for Filing a Judicial Review Application

In order to request a judicial review of a migration decision, you must file an application within 35 days of the decision date. Failing to meet this deadline could result in your application being dismissed.

If you need more time, you can request an extension, but you must explain why you were unable to meet the original time frame. The Court will then decide whether to grant an extension based on your circumstances.

The Process of Applying for Judicial Review

To initiate judicial review, you must complete an application and an affidavit. Your application should clearly identify the jurisdictional error that you believe occurred in the decision-making process. The affidavit should detail the facts and circumstances surrounding the error and include the decision to be reviewed, as well as any statement of reasons for the decision.

Once your application is filed, you must serve a copy of the application and supporting documents to the Minister (or the relevant decision-making body) within a specific time frame.

Court Hearings and Your Role

Once your application is filed and served, the Court will allocate a hearing date. The hearing allows both parties—the applicant (you) and the Minister's legal representative—to present arguments regarding the alleged jurisdictional error. It’s important to note that unless excused, you must attend the hearing, as failure to do so may lead to your case being dismissed.

In some cases, the Court may decide that you have not shown an arguable case and may dismiss your application before the final hearing.

Legal Costs and Fees

Filing a judicial review application comes with associated costs. You will need to pay a fee when you submit your application and another fee if the case goes to a final hearing. There are exceptions, such as if you are in financial hardship or hold certain government concession cards. For more details about fees, contact the Federal Circuit and Family Court of Australia or visit their website.

Additionally, the unsuccessful party typically must pay the legal costs of the successful party. If you withdraw your case, you may also be required to cover some of the costs incurred by the other party.

Confidentiality and Protection Visas

In some instances, court hearings may be closed to the public, particularly when sensitive matters, such as protection visas, are involved. In these cases, the Court is also prohibited from publishing your identity to protect your privacy.

When to Seek Legal Advice

Judicial review is a highly technical process that requires a solid understanding of legal procedures. At Bansal Lawyers, we strongly recommend seeking professional legal advice if you are considering judicial review for your visa decision. Our experienced migration lawyers can assess your case, help you understand whether there has been a jurisdictional error, and guide you through the application and hearing process.

In complex migration matters, the right legal advice can make all the difference. We provide tailored support to ensure that you understand your options and the legal steps you need to take.

Contact Bansal Lawyers for Assistance

If you believe that a migration decision has been made unlawfully or improperly and you are considering judicial review, Bansal Lawyers is here to assist you. Our expert team can offer advice on your case, help you prepare the necessary documents, and represent you throughout the judicial review process.

Don’t navigate the complexities of judicial review alone. Contact us today to schedule a consultation and protect your rights under Australian migration law.