By Mr Anthony J Aristei
This is the second in a series of blogs that will focus on Migration Law.
If you have a migration issue, and you are not sure if it should be taken to the Court or Tribunal, please contact our office for legal advice. It is best to seek this advice early than wait until it is urgently needed, when it may be too late.
Nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office if you have any questions on 08 63238613. Unsure of what stage your matter is at, or what to do next? A solicitor from Kean Legal Barristers & Solicitors is ready to help.
Has your Visa application been refused?
If a Visa application has been refused by a review tribunal, usually the Administrative Appeals Tribunal (‘AAT’), the applicant has a right to apply to the Federal Circuit Court (‘FCC’) for a ‘second chance’.
The process is known as an application for judicial review. (This phrase has also been more closely examined in related blogs).
What is Judicial Review
Judicial review is quite different from an appeal. Judicial review examines the power or jurisdiction to make a decision or to take some action. Whereas an appeal looks at the merits of the decision.
Courts therefore consider two basic questions when hearing an application for judicial review:
- whether there was power to do the act or make the decision in question; and
- if there was power, whether the power was exercised lawfully.
This means that when the Federal Circuit Court looks at a judicial review, it does not look at whether it was the ‘correct or preferable decision on the facts of the case.
For example, in a case for a Direct Nomination Entry Visa
My Experience in Judicial Review
In my over 36 years of experience as a legal practitioner, I have sighted a countless number of applications that have been completed by self-represented Applicants, or assisted by migration agents. Generally speaking, a vast majority of those applications have not been successful as the applicant has not satisfied the Court that there was a judicial error.
I have often seen applicants adopt the ‘scatter gun’ approach, where the simply set out all of the grounds in their application which they believe are relevant. However, they are basically buying a lotto ticket for that ‘1 in a million’ chance of winning.
On the other hand, the presentation of carefully considered and crafted grounds for review are far more likely to result in a positive outcome. That outcome could flow from a settlement of the proceedings, or by a judgement from the Court, or even after a further appeal.
Applications for judicial review are quite difficult because specific legal principles need to be applied. This is because the form of the application for judicial review requires an extensive knowledge of Court law and procedure. In particular, the identification of the grounds sought for review by the Court must be drawn from recognised principles within the wider genus of administrative law (i.e. Administrative Decisions (Judicial Review) Act 1977 (Cth)) and the species we now know as migration law.
It is important that when first filing the Application in the Federal Circuit Court, that you get it ‘right’. The Court is limited to a determination of the stated grounds of review which are presented to it in the application. If those grounds are defective, no amount of primary or appeal Court hearing time can remedy them. Nor can the Court second guess what may have been the real underlying legal issues in the case.
Time Limitation
As soon as a visa applicant has been informed of an unsuccessful outcome in the AAT (or a review tribunal), they should seek advice about the possibility of an application to the Federal Circuit Court. That advice can be sought from the existing adviser, or by a new independent adviser.
After the AAT has given their decision, you only have 35 days to prepare and lodge the application and supporting documents with the FCC.
It is VERY important that the application is filed and accepted by the Federal Court Registry AND also served on the Migration authorities WITHIN that time-limit.
If an application is filed after the time-limit, it requires permission from the Court to have the application heard after the time limitation.
How we can help
Assistance from the outset by a legal practitioner with knowledge and experience in migration law is recommended.
We can provide advice as to the strength of your case and save you costs if you we do not think you have a strong case. Alternatively, we can also advise you on alternative visa subclasses we think you are more likely to be granted.