About Judicial Review

 

If a party believes an AAT decision is wrong, they can appeal the decision to a higher court. Parties may appeal to either the Federal Court or the Federal Circuit court depending on the type of decision being appealed.

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An appeal to a higher court can only be about a question of law. This means that you or your representative must consider that the AAT made a mistake in law when deciding your case. This is different to questions of fact. If the AAT has made findings about the facts in your case, the Court will not assess those findings.  A finding of fact usually concerns a judgement on whether something happened or will happen, and is separate from any judgement about the legal consequence of the fact.

 

Judicial review is typically used to remedy errors of law which affect the authority of the decision-maker to make the decision. It is a process that allows the courts to supervise the Tribunal and lower courts, and protect against these bodies making decisions outside of their authority.

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How does it work?

 

If the Court finds that jurisdictional error has occurred, it has the authority to refer your application back to the preceding decision-maker (the Tribunal or the Department of Home Affairs).  The Court can prevent the Minister from acting on the decision.

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Appealing to the Court generally means appointing a Solicitor and a Barrister to represent you at Court. Generally, the Solicitor will choose the Barrister for you. If you are facing complicated issues within Australian migration law, it is best to seek legal advice. The issues can often be incredibly complex, and you will need experts to guide you. Do not delay. Appeals and judicial reviews are time-sensitive.

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What is a jurisdictional error?

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A jurisdictional error is where a decision-maker commits an error of law by interpreting the law incorrectly. Below is a non-exhaustive list of possible jurisdictional errors:

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• Breach of rules of natural justice/failure to follow mandatory procedures

• Procedural fairness not afforded where the applicant was excluded from being present while material witnesses gives evidence

• Apprehended or actual bias. The test for actual bias is that the decision-maker must show a state of mind that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

• Illogicality, irrationality or unreasonableness

• Failure to consider relevant material. There will be jurisdictional error if a decision-maker fails to take into account a relevant consideration. Conversely there will be error if the decision-maker takes into account irrelevant material.

• Considering irrelevant material

• Failure to provide procedural fairness, in relation to s 359A of the Migration Act 1958(Cth). This involves not providing the applicant the opportunity to comment on or respond to an issue that would form the reason for affirming the decision.

• Where the AAT identified the wrong issue, asked the wrong question or applied the wrong test

• Failure to consider claims. If it is apparent that the decision-maker has otherwise misunderstood and thereby failed to correctly determine the claims there will be error.

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If you do not fit one of the examples provided above, you may still have grounds for judicial review. Contact us if you believe the AAT has made a jurisdictional error in its decision and we can provide expert legal advice as to your prospects of success at the FCC.

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What is the Statutory Time limits for lodging the application?

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S 477 of the Migration Act specified that the application must be filed within 35 days of the date of the decision but can be extended “in the interests of the administration of justice”. The Court may extend the time limit. If you require a time extension, you must ask for it in the application and explain why. The Court will decide whether to grant an extension of time.

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Sections 477, 477A and 486A of the Act provide that the time limit for applying to the Federal Circuit Court, the Federal Court or the High Court respectively is 35 days from the date of the migration decision.These provisions relate only to applications for judicial review, in that court’s original jurisdiction, following a migration decision (a decision of the AAT (Migration and Refugee Division or General Division)).

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The ‘date of the migration decision’ is defined in s477(3) of the Act. In terms of calculating the 35 day period, the period begins the day after the date of the migration decision (table item 5 in s36(1) of the Acts Interpretation Act) and includes ‘day 35’ (table item 3 in s36(1) of the Acts Interpretation Act).

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The Review Process

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Step 1: prepare an application, an affidavit and any other supporting documents. Lodge it to the Court within the time limits. 

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Step 2: arrange for a sealed copy of the application (and other documents)  to be served to the Minister and the Tribunal. You can serve the documents to the Minister through the Department of Home Affairs office in any capital city.

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Step 3: the Court will have a quick review of the application and set a date for your hearing. The Court will set a hearing dates, order a stay or temporary orders for the duration of the case, and allow for the filing of any additional documents.

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Step 4: At the hearing, the Court will give you a chance to address the issues in your case. If you have a lawyer, they will speak on your behalf. The Minister is normally represented by a lawyer.

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Step 5: Sometimes, the decision is announced at the end of the final hearing. Otherwise, the Court will notify you of the date it will announce its decision.

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Please note: You can request an interpreter to translate for you in court. You must note this on your application form.

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