Judicial Review Migration Law Blogs Kean Legal Barristers and Solicitors

Migration Law Blog Series (MLBS) 12 – Migration visas- Applying for a judicial review – (Part 1)

This is the twelfth in a series of blogs that are focusing on Migration Law.

If you have a migration issue and you are not sure if it you should file or what documents to file, do not delay, please seek legal advice straight away. Do not wait until it is 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 form Kean Legal Barristers & Solicitors is ready to help.

By Mr Anthony J Aristei

Earlier blogs on this subject have referred to applications for ‘judicial review’. We will go into detail of what exactly ‘judicial review’ is in this blog.

What is judicial review?

The principles of judicial review apply in the Administrative Appeals Tribunal (‘AAT’), to the Federal Circuit Court (‘FCC’) and to the High Court of Australia (although to a varying extent).

The ‘beating heart’ of the various grounds for judicial review is the detection of a ‘jurisdictional error’.

Broadly speaking, this type of error occurs when the Federal Court or Administrative Tribunal –

  1. fails to exercise its authority or power given to it under the Migration Act; or
  1. exceeds that authority or power

– see MIMA v Yusuf (2001) 206 CLR 323.

A number of the cases in this area of law have attempted to summarise the different grounds of jurisdictional error.

For example, the following grounds have been referred to:

  1. Identifying a wrong issue of law;
  1. Asking the wrong question of law or fact to be applied;
  1. Ignoring relevant material (when determining the case); and
  1. Relying upon irrelevant material.

From time to time, other grounds of judicial review are also referred to, such as:

  • denying procedural fairness to the applicant (sometimes known as ‘natural justice’); and
  • Acting unreasonably (i.e. by the decision which has been reached).

This means that a visa applicant has no prospect of success in either a review or appeal before one of the Federal Courts or Administrative Tribunals unless they can identify the previous decision maker’s decision has made one of the errors described above.

If an error has been made by the original decision maker then the resulting decision they have made is considered a nullity. The decision to refuse to grant a visa will be treated as if it had never been made in the first place.

If I can show a jurisdictional error, does this mean my visa is granted?

The short answer is that there is no short answer.  

The long answer is that this is a complicated question and the starting point is what ground of judicial error is being relied on. Following this the remedy sought will arise from what error has been made. 

It is the grounds for judicial review which provide the basis for a successful Court order or remedy.  These remedies have historically been known as ‘prerogative writs’. (They are also discussed in our blogs relating to ‘remedies’). Please read our other blog in relation to ‘remedies’. 

The issuing of a prerogative writ enables that erroneous decision to be quashed. The visa application can then be properly re-determined according to law.

Whether a jurisdictional error has been made by either:

  • the Department of Home Affairs Immigration and Citizenship (“Migration Department”);
  • the Administrative Appeals Tribunal (“AAT”); or
  • a Federal Court,

the resulting decision may be still be treated as a nullity in the manner noted.

It should ‘go without saying’ that the professional assistance of a migration adviser with legal experience is recommended if an application for judicial review is being considered. If you have a problem or difficulty relating to your visa or application, we highly recommend that you speak to us to obtain legal advice and representation. We can be contacted on our 24/7 office number on: +61 8 6323 8697

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