Judicial review
If your visa application has been refused or your visa cancelled, and you have exhausted your options for merits review at the Administrative Appeals Tribunal, you can apply to the Federal Circuit Court or the Federal Court for judicial review. Judicial review is a highly technical area of the law in which we have significant expertise. Accordingly, we can provide you with full representation at a very competitive rate. We provide some general information about judicial review below.
Judicial review
What is judicial review?
Judicial review is about enforcing minimum standards of compliance with the law on administrative decision-making. Judicial review cannot get a person a visa, but it can get them another opportunity to get a visa (or not have their visa cancelled).
To be successful in judicial review of a migration decision, a person must demonstrate that the decision is vitiated by jurisdictional error. Put another way, the person must demonstrate that the decision-maker fell into or made a jurisdictional error.
If the person can establish jurisdictional error, then the Court will grant them relief by quashing the decision and ordering the decision-maker to make the decision again. In essence, the Court will give the person another chance to gain a visa.
If you or someone you know has made or needs to make an application for judicial review, get in touch for a consultation at 08 6558 1838, schedule a call or request an appointment.
Jurisdictional error
Jurisdictional error, in simple terms, is legal error which could have affected the outcome of the decision made by the decision-maker. In more accurate terms, it is material non-compliance with the statutory conditions or pre-conditions of the exercise of the decision-making power.
Jurisdictional error can take many forms. Common errors include: the failure by the decision-maker to consider a claim made by a visa applicant to be entitled to the visa sought, the decision-maker engaging in illogical or unreasonable fact finding, the visa applicant being denied procedural fairness and the decision-maker misinterpreting or misapplying the law.
In order for an error to be a jurisdictional error, it must have affected or be capable of affecting the outcome of the decision. If the error could not possible have made any difference to the outcome, it will not be a jurisdictional error. On the other hand, all that needs to be established is that there could realistically have been a different outcome. This is not a high bar, and the word realistically has been described as meaning ‘not fanciful or improbable’.
If you or someone you know has made or needs to make an application for judicial review, get in touch for a consultation at 08 6558 1838, schedule a call or request an appointment.
What is the process?
A person who wants to apply for judicial review of a migration decision must do so within 35 days of the decision being made. Depending on what kind of migration decision it is, the application must be made to the Federal Court or the Federal Circuit Court.
The application must be accompanied by an affidavit annexing the decision of which judicial review is sought. Once those documents are accepted for filing, they must be served on the Minister and any other parties. The application will then be listed for a directions hearing.
The directions hearing is where the Court will make programming orders. These orders require the parties to do certain things, such as file evidence and submissions, by certain times. The application will be listed for final hearing at which point the Court will hear oral argument. After oral argument, the Court will make a judgment, either orally at the conclusion of the hearing or in writing at a later date.
If you or someone you know has made or needs to make an application for judicial review, get in touch for a consultation at 08 6558 1838, schedule a call or request an appointment.