Judicial review of a visa decision is not a second appeal

Judicial review of a visa decision is a narrow remedy. A court sitting in judicial review asks one question: was the decision made lawfully? If you have exhausted merits review at the Administrative Review Tribunal (ART) and still hold a refusal or cancellation, this is often the last avenue. Knowing what a court can and cannot do is the difference between a viable application and a wasted deadline.

Merits review and judicial review answer different questions

Confusing the two is the most common and most expensive mistake at this stage.

Merits review at the ART re-examines the case from the beginning. The Tribunal can look at the evidence afresh, form its own view of the facts, and substitute the decision it considers correct or preferable. It is a reconsideration of the outcome.

When the Federal Circuit and Family Court of Australia (FCFCOA) reviews a migration decision under section 476 of the Migration Act 1958, it does not ask whether the refusal was fair, harsh or wrong on the facts. It asks whether the decision-maker stayed within the law. If the decision was lawful, the court must leave it standing, however much sympathy the applicant’s circumstances attract. The concept that engages the court’s power is jurisdictional error.

What counts as jurisdictional error

Jurisdictional error means the decision-maker did something the law did not authorise, or failed to do something the law required, in a way that goes to the validity of the decision. It is a legal defect rather than a factual disagreement. A few recurring categories account for most cases.

Denial of procedural fairness

A decision-maker must give you a real opportunity to respond to the case against you. Where a tribunal’s decision turns on particular issues, the applicant must be given a chance to address those issues, as the High Court confirmed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. If the Tribunal decided your case on a concern it never raised, and you were never invited to answer it, that can be a jurisdictional error.

The question is whether the process was capable of producing a fair result. If a critical adverse finding first appeared in the decision itself, how that finding emerged deserves close scrutiny.

Legal unreasonableness

A decision can be so unreasonable that no reasonable decision-maker could have arrived at it. The threshold is high and frequently misunderstood. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, the Full Federal Court confirmed that a discretion of this kind is wide, and that a decision is not legally unreasonable merely because another judge, or another delegate, might have decided it differently.

Many applicants expect a court to intervene because the outcome feels harsh. It will intervene only where the decision falls outside the boundaries of what the law permits. Disagreement is not error.

Other categories

Jurisdictional error can also arise where the decision-maker applied the wrong legal test, ignored a mandatory consideration, took an irrelevant matter into account, or made a finding with no evidence to support it. Each turns on the precise provision that governed the decision. The first task in any judicial review assessment is therefore to identify the exact rule the decision-maker was applying, whether a criterion in the Migration Regulations 1994 or an obligation under the Migration Act 1958.

The deadline is short and strict

The time limit for judicial review in the FCFCOA is set by section 477 of the Migration Act 1958: 35 days from the date of the migration decision (section 477(1)). Under section 477(2) the court may extend that period, but only on a written application explaining why the extension is necessary in the interests of the administration of justice, and only if the court is satisfied that it is. The court’s own guidance states the same rule: 35 days, extendable only on application.

The extension power is no safety net, and the court’s deadline is not the Tribunal’s. In Khabra v Minister for Immigration and Border Protection [2015] FCA 1405, the Federal Court of Australia dealt with the statutory time limit for applying to the Tribunal for merits review, which is jurisdictional and cannot be extended at all, however sympathetic the circumstances. Khabra concerned that Tribunal deadline, not section 477; the 35 day court deadline can be extended, but only on the narrow basis described above. From the moment an adverse ART decision arrives, the clock is running. Confirm the current period against section 477 on Migration Act 1958 and obtain advice before days are lost.

What the court can do if the application succeeds

A successful judicial review does not produce a visa. The court sets the flawed decision aside and remits the matter to the decision-maker to be decided again according to law. The Tribunal or delegate then makes a fresh decision, free of the specific error the court identified.

That fresh decision can still be a refusal. If the error was a denial of procedural fairness, the remedy is a fair process rather than a favourable outcome. Judicial review is therefore a poor fit where the real complaint is that the applicant did not meet a visa criterion. Correcting a legal error does not supply a criterion that was never satisfied.

When judicial review is worth pursuing

Judicial review is the right tool where there is an identifiable legal defect in how the decision was made. It is the wrong tool where you want the facts reconsidered, because that opportunity belonged to the merits review stage and has passed.

A realistic assessment before filing means reading the decision record closely against the provisions that governed it, identifying whether a recognised category of jurisdictional error is arguably available, and weighing that against the cost and the strict deadline. An application with no arguable ground exposes the applicant to an adverse costs order and delays the inevitable.

If your matter is at an earlier stage, the more effective course is usually to get the underlying application right the first time, whether an employer sponsored visa, a skilled visa or a partner visa. A complete, well evidenced application is the strongest protection against a refusal.

What to do now

If you hold an ART decision you believe was made unlawfully, act immediately. Preserve the decision record, note the date you were notified, and seek advice on whether an arguable ground of jurisdictional error exists before the section 477 period expires. The Tribunal’s own guidance is at art.gov.au and the governing provisions are at Migration Act 1958.

Visa Plan Lawyers advises clients on whether a visa refusal or cancellation discloses jurisdictional error and whether judicial review is the appropriate response. If you are weighing an application to the Federal Circuit and Family Court, contact our team through our employer sponsored visas or skilled visas pages to arrange a case assessment while your options remain open.

General information only, current at the date shown. It is not legal advice on your situation. To get advice on your matter, book a consultation.