Judicial review is fundamentally different from a visa application or ART merits review. The Court does not decide whether a person deserves a visa or simply reconsider the evidence. It examines whether the migration decision was made according to law and whether a jurisdictional error occurred.
An application for judicial review of a migration decision in the Federal Circuit and Family Court of Australia generally must be filed within 35 days of the migration decision. The Court has power to extend time, but an extension is discretionary and should not be assumed.
What the Court can and cannot do
- The Court can determine whether the decision-maker made a jurisdictional error.
- If an error is established, the Court can set aside or restrain the legal effect of the decision and remit the matter for lawful reconsideration.
- The Court does not conduct a new merits hearing and cannot simply grant a visa because it would have preferred a different factual outcome.
- New factual material is generally not used to remake the visa case, although evidence can be relevant to whether a legal error occurred.
Examples of issues that may require legal analysis
- procedural fairness
- failure to consider a relevant claim or issue
- asking the wrong legal question
- misunderstanding the statutory task
- legal unreasonableness
- jurisdictional facts
- failure to comply with mandatory procedures
- whether the ART had jurisdiction in the first place
Court documents and case management
A migration judicial review application ordinarily involves an Originating Application – Migration Act, an affidavit and the grounds relied on. Proceedings can involve directions hearings, summary judgment applications, extension-of-time issues and a final hearing. Court filing and service requirements must also be met.