Judicial Review Lawyers

If you are not satisfied with a decision of the AAT, you may seek review of the AAT decision by the Federal Circuit Court. This is generally called a judicial review.

Judicial review is convened on grounds of errors of law, as opposed to merits. In other words, the Courts may hear AAT decisions that have been affected by jurisdictional error. Whether an error by the AAT was a jurisdictional error requires a holistic analysis. It becomes even more contentious as the Australian courts have avoided ruling on the scope of jurisdictional error. Despite these difficulties, it is broadly accepted that there is indeed a difference between jurisdictional and non-jurisdictional errors.


Jurisdictional Error Assessment

There has been a significant body of case law concerning the nature, definition and attributes of jurisdictional error. It is regarded as established at common law that an error of fact is not a jurisdictional error, but it is not clear whether that error is a non-jurisdictional error of law: see SZGOW v Minister for Immigration and Anor (2006) FMCA 1689; SZINP v Minister for Immigration and Citizenship (2007) FCA 1747; M33 of 2004 v Minister for Immigration and Anor (2007) FMCA 684; MZYFO v Minister for Immigration and Anor (2009) FMCA 1148; and Patel v Minister for Immigration and Anor (2011) FMCA 773.

Notably, Justice Keifel attempted to explain the difference between jurisdictional and non-jurisdictional errors in Linett v Australian Education Union (2002) 191 ALR 597 at 60 as follows:

  • The distinction between jurisdictional error and a ‘mere error of law’ is maintained, the latter being one which has been arrived at on an issue that has been entrusted to the inferior court or tribunal to decide for itself, even if the decision is wrong.


Bounds of Jurisdictional Error

In Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 at 71, the High Court stated – it is neither necessary, nor possible, to mark the metes and bounds of jurisdictional error. That is in essence, a jurisdictional error exists whenever a court sees fit.



Jurisdictional and Non-jurisdictional Error-MZYZA

The Federal Court attempted to distinguish between jurisdictional and non-jurisdictional errors in Minister for Immigration and Citizenship v MZYZA (2013) FCA 572. In this case, a decision by the Department of Immigration and Citizenship to refuse a protection visa was upheld by the Refugee Review Tribunal, which had been concerned with the authenticity of certain documents.

The Tribunal had put to the applicant that it was ‘very easy to obtain false documents in India’ but made no explicit finding that the specific documents in question, which appeared to support the applicant’s case, were fraudulent. As a result, the Federal Magistrate Court (FMC) found that the Tribunal had made a jurisdictional error. The Minister had argued that the weight to be given to the letter was a matter for the Tribunal, and that the Tribunal had implicitly decided to give it little or no weight. However, the FMC found (MZYZA v Minister for Immigration and Citizenship (2013) FMCA 15 at 23):

  • The FMC does not accept the submission that the Tribunal implicitly decided to give the letter little or no weight. There is no indication in the Tribunal’s reasons for decision of any cognisance of the letter in the part of the Tribunal’s reasons that records its reasons for decision, as opposed to its summary of the background. It seems to me that the Tribunal overlooked the letter while weighing up the evidence and formulating its decision, as opposed to setting out the background to the case.

The FMC went on to find that the letter was a crucial piece of evidence, and that the Tribunal may have reached a different conclusion had it turned its mind to the matter. The Tribunal’s decision was therefore set aside. The matter was appealed.

Justice Tracey upheld the Minister’s appeal in the Federal Court. His Honour did so primarily on the basis that a mere defect in the reasons for a decision is not a ground of jurisdictional error and that it was clear from the Tribunal’s reasons that it rejected the applicant’s claim to be a member of a certain political party. Justice Tracey summed up as follows:

  • Even if it is accepted that the Tribunal failed to have regard to the contents of the letter, I do not consider that such a failure constituted jurisdictional error. The Tribunal was bound to have regard to and assess the first respondent’s claim to have been persecuted because of the political and religious beliefs attributed to him … It did so. It was not suggested that the failure (if there was one) to refer to the contents of the letter occurred because the Tribunal had misdirected itself as to the proper scope of its deliberations or by failing to identify the relevant claims and integers of the claims raised by the first respondent. It was not bound to consider each and every piece of evidence which was related to those claims.

Justice Tracey added that the letter ‘did not, in my view, amount to evidence of pivotal importance, or as being so fundamental to the first respondent’s claim, that a failure to give consideration to its contents caused jurisdictional error.

The analysis given by Justice Tracey is highly comprehensive and thorough, but the justice himself admits that ‘value judgments are involved in determining whether material can be regarded as so ‘fundamental’ or so ‘important’ or so ‘overwhelming’ that a failure to have regard to it constitutes jurisdictional error’. It still seems apparent that courts have large discretion in determining whether something is a ‘jurisdictional error’ or not. MZYZA still does not provide an example of a decision turning on classification of something found to be an error of law as jurisdictional or not.


Materiality of Errors of Law

In Hossain v Minister for Immigration and Border Protection [2018] HCA 34, the High Court unanimously dismissed an appeal from the Full Court of the Federal Court involving a refusal by the Minister for Immigration and Border Protection to grant a visa. The question for the High Court went to the heart of the concept of jurisdictional error. In answering that question, the High Court also provided guidance on the correlation between two distinct concepts, that are whether an error is jurisdictional and the concept of futility.

These notions have long been intertwined and their relationship often misunderstood. The Court gives a detailed and updated explanation of what a jurisdictional error is and illuminates new light on the long-standing difficulties in attempting to define it. In a nutshell, the Court explains that a jurisdictional error will only arise where an error of law meets the threshold of materiality (which is determined by consideration of the relevant statute under which a decision-maker is purporting to act). Justice Edelman commented that the question of the materiality of an error will ordinarily start with the question – Did the error deprive the applicant of a successful outcome?

In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, the High Court affirmed (by a 3-2 majority) that an error will be jurisdictional only if it is “material” to the outcome of the decision under review. In other words, courts will ask whether the avoidance of error could realistically have resulted in a different decision. If the result would have been the same even in the absence of the error, a court may be reluctant to set the decision aside.


Appeal to Federal Circuit Court

Q: The AAT affirmed the visa refusal. Can I now apply for a judicial review?

Strict requirements apply to matters for judicial review. Most importantly, you must be able to demonstrate that the AAT and/ or the Department of Home Affairs has acted outside their power with respect to your matter. Detailed guidance on the jurisdictional error assessment was stated as above by reference to the case law. As it is one of the most complex areas of the legal profession, only legally trained professionals can competently assess your eligibility for judicial review. Certainly, there are no quick answers.


Q: Do I need to engage a migration lawyer?

Whilst there is nothing preventing you from representing yourself, it is important to appreciate the enormous complexity of both your matter and the rules of the court.

It is important to remember that the Australian Government will often be represented by large law firms in administrative law matters. Being self-represented would place you at incredible disadvantage.

Therefore, it is highly advisable that you seek professional advice before commencing an appeal for judicial review. Doing so will help ensure you are not proceeding with a hopeless application or commencing your matter improperly.


Q: Do I need to engage a barrister?

A barrister is an independent specialist advocate and advisor in law with many years of experience and recognition in the profession. Their expertise can make huge differences to outcomes of complex legal cases, such as judicial reviews. At Visa Plan, we have a pool of Australia’s best migration barristers which we often engage. We invite that you contact to schedule an in-depth consultation with our lawyers.


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