Judicial Review of ART Decisions in the Federal Circuit and Family Court

Judicial review is not a second hearing of your visa application. It is a legal process where a court examines whether the Tribunal made a legal error in reaching its decision.

If you believe the ART made a mistake in law, strict time limits apply. You generally have only 35 days to file an application.

If your deadline is approaching, we recommend seeking urgent legal advice. Contact our immigration lawyers today to assess whether you have viable grounds for judicial review.

Judicial review in immigration matters is a legal challenge to the lawfulness of a decision.

In migration matters, the Court does not reconsider the facts of your visa application. Instead, it determines whether the Tribunal made a “jurisdictional error” when making its decision.

This means the Court examines whether the decision was made according to law.

Judicial review is highly technical and requires detailed legal analysis of the Tribunal’s reasoning. It is not an opportunity to submit new evidence or ask the Court to reconsider your personal circumstances.

Most migration judicial review applications are filed in the Federal Circuit and Family Court of Australia (Division 2).

The Court’s role is limited. It does not decide whether your visa should be granted. It only considers whether the Tribunal committed a legal error.

If the Court finds such an error, it can set aside the Tribunal’s decision and send the matter back to be decided again according to law.

This process is often referred to as an immigration court appeal in Australia, although technically it is a judicial review.

The Court only reviews a decision in order to determine if a “jurisdictional error” has been made by the ART. This means the Court determines if the decision of the ART has been made according to law.

Examples of jurisdictional errors by the decision-maker include:

1. Not adopting a fair process in making the decision (i.e. failing to afford you “procedural fairness”)
2. Identifying a wrong issue.
3. Ignoring relevant facts, claims, considerations or materials the decision-maker was required to look at.
4. Relying on considerations or materials the decision-maker should not have looked at.
5. Incorrectly interpreting or applying the law.
6. Reaching a decision that is unreasonable in the legal sense.
7. Making a decision for which there was no evidence, or that was not reasonably open on the materials before it.
8. Being biased in the course of their decision, or making a decision in a manner that would cause a reasonable, fair minded lay observer to perceive the decision as being biased.

If the Court finds a jurisdictional error in the decision of the ART, it can refer your case back to a different decision maker at the ART with directions that the matter be heard again according to law.

Judicial review is not a second tribunal hearing, and the Court's powers are narrower than many applicants expect.

The Court can:

• Determine whether the ART's decision was affected by a jurisdictional error.
• Set aside the ART's decision if a jurisdictional error is found.
• Refer your case back to the ART with directions that it be heard again according to

The Court cannot:

• Reconsider the facts and reasons for your visa application.
• Take new factual information into account (unless it is relevant to a question of whether the decision maker made a jurisdictional error).
• Grant you a visa.

If your appeal to the Court is successful, your case will be remitted back to the ART with directions that it be heard again according to law. Only the Department of Home Affairs can grant you a visa, so you must also be successful in your subsequent ART hearing for you to potentially have a visa refusal overturned or a visa cancellation set aside.

Every case is different, but most judicial review applications follow the same broad path:

1. Reviewing your ART decision. Before anything is filed, your lawyer examines the ART's written decision to identify whether there are arguable grounds of jurisdictional error. Not every unfavourable decision contains a legal error, and this assessment is the most important step in the process.
2. Filing your application. An Originating Application is filed with the Federal Circuit and Family Court of Australia within 35 days of the ART's decision, setting out the grounds of review. A court filing fee applies. The Minister for Immigration is the respondent to your application and will be represented by lawyers acting for the government.
3. Preparing your case. The Court will make orders setting out the steps both sides must take, which usually include filing an amended application, written submissions and the relevant tribunal documents. In some cases the Court will first list a "show cause" hearing to decide whether your application raises an arguable case.
4. The final hearing. Your case is heard by a judge. The hearing deals with legal argument about whether the ART made a jurisdictional error. You will not give evidence about the merits of your visa application, because the Court cannot reconsider them.
5. The outcome. If the Court finds a jurisdictional error, your case is sent back to the ART to be decided again according to law. If your application is unsuccessful, you may be able to appeal to the Federal Court of Australia, but you may also be ordered to pay a portion of the Minister's legal costs. Getting advice on your prospects before you file is essential for this reason.

Strict time limits apply if you wish to apply to the Court for judicial review of an ART decision. You must file your application within 35 days of the date of the ART's decision. Note that this is the date of the decision itself, which may be different from the date on the notification letter you received.

The Court can extend this time limit in limited circumstances. If you need an extension, you must ask for it in your application and explain the reasons for the delay. Extensions are not granted automatically, so if you have missed the 35-day deadline you should get legal advice as soon as possible.

Lodging an application with the Court does not automatically extend your Bridging Visa or grant you a new one. In most cases, if the ART has affirmed the decision to refuse or cancel your visa, your existing Bridging Visa will cease a short time after the ART's decision.

To remain lawfully in Australia while your case is before the Court, you must apply for a new Bridging Visa on the basis that you are seeking judicial review. You should do this without delay after lodging your court application, as remaining in Australia without a valid visa can have serious consequences for your current case and any future visa applications.

Judicial review is complex litigation. It requires detailed analysis of Tribunal reasons, drafting precise grounds of review, and presenting legal argument before the Court.

Our immigration lawyers:

• Carefully assess whether a jurisdictional error exists
• Provide frank advice about prospects of success
• Prepare and file court documents within strict deadlines
• Represent clients in migration litigation proceedings

We understand that clients seeking judicial review are often under significant time pressure and stress. Our focus is on providing clear, strategic advice from the outset.

We offer all our prospective clients an initial meeting, during which we will examine the decision of the adverse ART and let you know what we can do for you moving forward.

To organise an initial consultation with us, please contact one of our experienced immigration lawyers on (02) 9590 3987.