Judicial Review
Individuals and businesses have the option of pursuing judicial review for migration decisions through the federal courts. This process allows the court to assess the legality of a migration decision made by an authorized decision-maker, typically the Administrative Appeals Tribunal.
For a Judicial Review application to succeed, the court needs to be convinced that an error of law has been made in relation to the decision under consideration. If the court determines that a jurisdictional error has indeed taken place, the application may be successful.
Consideration – Jurisdictional Error
- Did the decision-maker in-correctly apply the appropriate immigration law principles or visa criteria, which can happen when the Tribunal neglects important factors required by law for making the decision?
- The decision-maker did not ensure a fair tribunal process, which can be argued if you were not given an opportunity to understand or respond to unfavourable information relied upon by the decision-maker. In this matter, the unfavourable information must not have originated from you but from a completely separate source.
- The decision was based on evidence that does not exist (or) on a circumstance that does not grant the decision-maker the authority to make the decision. This is known as a “jurisdictional fact.”
- The decision was unreasonable due to being irrational or illogical.
Outcomes
If you believe there has been a Jurisdictional Error in your matter, you can appeal the decision by applying to the Federal Circuit Court (FCC). If you are dissatisfied with the FCC’s decision, you can further Appeal to the Federal Court and eventually to the High Court of Australia. If the court determines that a jurisdictional error occurred, it can declare the original decision null and void. As a result, the matter will be returned to the original decision-maker for reconsideration based on the court’s instructions.
Federal Circuit Court
The typical legal challenge or appeal occurs when an applicant challenges the Administrative Appeals Tribunal’s decision after their initial decision has been upheld. This happens when the Tribunal agrees with the Department of Home Affairs (DOHA) decision. If applicants believe that the tribunal made a jurisdictional error in revaluating their matter, they can appeal this decision. In such situations, they can submit an application to the Federal Circuit and Family Court of Australia (FCFCA)in order to invalidate the Tribunal’s decision and request a fresh decision that is free from jurisdictional errors.
Federal Court of Australia
An infrequent type of appeal occurs when applicants choose to appeal to the Federal Court of Australia instead of the Federal Circuit Court of Australia. This is necessary in specific situations, such as when the Minister or Assistant Minister of Immigration personally makes a decision to deny, revoke, or not intervene in a matter. Additionally, it is possible to submit an appeal application when a judge in the Federal Court of Australia (FCA) renders a decision that is believed to be influenced by jurisdictional or immigration errors.
Here’s how we assist:
Our experienced team can assist you with the appeal process and work closely with a Barrister to represent your matter in the Federal Court of Australia (FCA) and provide valuable guidance through the judicial review process.
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