Why Judicial Review Matters in Migration Law
It is crucial to understand the difference between merits review and judicial review, as well as the types of legal errors that can lead to successful judicial review applications. Migration clients often face life-changing consequences from adverse decisions, and knowing the proper legal pathways can make all the difference.
Merits Review vs Judicial Review
Merits Review
- Conducted by a body such as the Administrative Appeals Tribunal (AAT).
- The decision-maker reconsiders the facts, law, and policy.
- The key question: What is the correct or preferable decision?
Judicial Review
- Judicial review is not a “second chance” at the merits.
- It is about ensuring decision-makers act within the law.
- Courts assess whether a decision-maker has exceeded their legal authority, not whether the decision was “right” or “wrong.”
Which Courts Have Jurisdiction?
- High Court of Australia: Original jurisdiction under s 75(v) of the Constitution.
- Federal Court of Australia (FCA): Reviews certain AAT decisions and Ministerial character decisions.
- Federal Circuit Court (FCC): Shares much of the High Court’s jurisdiction under s 75(v) but excludes certain matters (e.g. primary decisions and some Ministerial powers).
What Orders Can the Courts Make?
The courts may issue:
- Mandamus: Compels a decision-maker to perform their duty.
- Prohibition: Stops unlawful actions from continuing.
- Injunction: Prevents an officer from carrying out an action.
- Certiorari: Quashes a decision made contrary to law.
- Declaration: Clarifies legal rights or obligations.
Most common: Mandamus and Certiorari.
Practical Considerations for Judicial Review Applications
Time Limits
- Applications to the FCC must be lodged within 35 days of the decision.
- Extensions may be granted under s 477(2) of the Migration Act if it is in the “interests of the administration of justice.”
Bridging Visas
- Bridging visas do not automatically continue after the Tribunal stage.
- Applicants must apply for a new BV if lodging an FCC application.
- If the 35-day deadline is missed, they may only be eligible for a BVE (without work rights).
Costs & Risks
- Filing fee: $3,300 (can be waived for financial hardship).
- Adverse costs orders usually range from $6,000–$8,000.
- An adverse costs order creates a debt to the Commonwealth, impacting future visa applications (Public Interest Criterion 4004).
- Under s 486E, lawyers and RMAs may be personally liable if they encourage unmeritorious proceedings.
Common Misconceptions
- Judicial review is not a substitute for Ministerial intervention. Waiting on a Ministerial Intervention request is not a valid reason to delay filing an FCC application.
- Merits review vs judicial review – many clients confuse these. Judicial review is strictly about legality, not fairness of the outcome.
Final Thoughts
Judicial review is a powerful but limited tool in migration law. Success depends on identifying clear jurisdictional errors and acting promptly within statutory timeframes. Lawyers must balance client expectations with professional obligations, ensuring only cases with reasonable prospects are pursued.
At Australian Migration Law, we assist clients in navigating judicial review applications with careful legal strategy, deep knowledge of case law, and a clear focus on protecting rights under Australian law.
Need advice on judicial review? Contact Australian Migration Law today for a consultation.
Disclaimer
The content of this article is for information purposes only. Whilst every effort has been made to ensure the accuracy of the materials contained here and incorporated by reference, this article is not intended to constitute legal or immigration advice or assistance.
No person should act on the basis of the material contained in this presentation without obtaining advice relevant to their own circumstances and without considering and taking professional advice as may be necessary.
For tailored advice and comprehensive assistance with your migration matter, contact our experienced Australian immigration lawyers today. You can reach us by email at admin@australianmigrationlaw.com.au or phone +61 407 662 682 to obtain further guidance.