Migration Law Blogs Series (MLBS) 16 – Migration visas – Applying for a judicial review (Part 5) – The ground of misconstruction Migration Law Blogs Series (MLBS) 16 – 

By Mr Anthony J Aristei

This is the sixteenth 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.

In part 3 of our blogs on this topic, we referred to a number of the recognised grounds for judicial review. Of those various grounds, the specific grounds below are further discussed in this blog:

  • Identifying the wrong issue of law; and
  • asking the wrong question of fact to be applied in the case.

As noted, these grounds had been developed by the ‘common law’ over centuries. They are now applied in relation to migration decisions in Australia.

Misconstruction, what is it?

The Federal Circuit Court is intended to operate as the primary Court to conduct the judicial review of a migration decision. However, the Federal Court itself, and even the High Court has such a power.

The general aim of a judicial review is to determine whether an inferior Court or Tribunal has made a legal error when exercising its own jurisdiction (i.e. its legislative authority to act).

If such an error has been made and that error is fundamental to the exercise of the inferior Court or Tribunal’s jurisdiction, then the decision must be set aside (or ‘quashed’).

The particular type of legal error discussed in this blog is commonly known as ‘misconstruction’. The formal term is referred to as a ‘constructive failure to exercise jurisdiction’.

How does this ground work in practice?

A simple example should demonstrate the point. If you apply to the Administrative Appeals Tribunal (‘AAT’) for a migration decision, then you expect to have a hearing of your matter, and to receive a decision about your case.

However, if the Administrative Appeals Tribunal (‘AAT’) mistakenly refused to hear your case or to give you a decision, then its conduct would constitute an express failure to exercise its jurisdiction.

It would clearly not have ‘done its job’ in operating as a tribunal, namely by:

  • Identifying the legal rules which apply to your case;
  • Identifying the facts of your case (from the legally admissible evidence); and
  • providing you with its reasons for the decision made.

The same type of error occurs if the Administrative Appeals Tribunal (‘AAT’) actually ‘hears and determines’ your case, but does so in a way that constitutes a ‘constructive’ (i.e. non-express) failure to exercise its jurisdiction.

For instance, in the case of MIMA v Bhardwaj (2002) ALJR, the Administrative Appeals Tribunal (‘AAT’) effectively denied the applicant a hearing of his application for an adjournment. It then affirmed the Department’s decision to cancel the applicant’s student visa.

The reviewing Court concluded that the denial amounted to a failure by the Administrative Appeals Tribunal (‘AAT’) to exercise its jurisdiction. The application for an adjournment was validly made to the Administrative Appeals Tribunal (‘AAT’), and it should have been properly heard and determined.

In the High Court case of Dranichnikov v MIMA (2003) HCA 26, a similar outcome occurred.

When applying for a protection visa, the applicant claimed that he was a member of a group of businessmen in Russia who had spoken out against organised crime.

Yet the Administrative Appeals Tribunal (‘AAT’) decided the case simply upon the basis of his membership of the group. No reference was made to the group’s outspoken views, which would have justified his fear of persecution if he returned to his home country.

The Court ruled that the Administrative Appeals Tribunal (‘AAT’) had failed to decide the particular question of law which it was supposed to decide. Instead, it decided another question of law that had not been raised in the case before it.

As the error constituted a failure to exercise jurisdiction, the Administrative Appeals Tribunal’s decision was set aside.

Other examples where such failures have occurred in past cases include:

  • where the authority claimed to have exercised a duty, but had misconstrued the content of the duty;
  • where the authority was supposed to have performed a duty within a required time period, but had not done so;
  • where the authority (being a tribunal) failed to consider the substance of the application because it misunderstood the meaning of relevant definitions set out in the Migration Act 1958 (Cth) – see MIMA v Miah (2001) CLR 57; and
  • where the authority has made a fundamental mistake in either applying the law, understanding the facts, or reasoning through to a valid conclusion.

Such mistakes or errors are sufficient to undermine the legality of the decision that was supposed to have been made by the Tribunal (i.e. according to law).


This ground is an important source of review, but it is not easily identified unless the person looking has been legally trained and they know how to spot the things they are looking for. Following this once the error has been identified, it must be carefully worded in your application for judicial review.

If you require professional assistance by a migration lawyer to look over your matter to spot any potential grounds, we can be contacted on our office number on: +61 8 6323 8697

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