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.
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.