Taking a migration case to court generally means applying for judicial review of a decision made by Home Affairs, the Minister for Immigration or the Administrative Review Tribunal (ART). Judicial review is different from merits review at the ART. The court does not reconsider whether you should get the visa. It only examines whether the decision involved ‘jurisdictional error’, that is, whether it was made according to law. If the court finds such an error, it will usually set aside the decision and send it back to be decided again, rather than grant the visa itself.

Legal framework and which court hears your case

Judicial review of migration decisions is governed by Part 8 of the Migration Act 1958 (Cth), together with the Judiciary Act 1903 (Cth) and section 75(v) of the Constitution. Under section 476 of the Migration Act, judicial review of most migration decisions (including ART decisions) is first heard by the Federal Circuit and Family Court of Australia (Division 2). The Federal Court has original jurisdiction over some decisions and hears appeals from the Federal Circuit and Family Court. After that, a party can seek special leave to appeal to the High Court.

Time limits

Under section 477 of the Migration Act, an application for judicial review to the Federal Circuit and Family Court must be made within 35 days of the decision. The court can extend the time if it is in the interests of the administration of justice, but an extension is not automatic: you must explain the delay and show your application has merit. Appeals have their own time limits under the court rules.

Common legal errors

• Misunderstanding or misapplying the legal test;
• Procedural unfairness, such as not giving the applicant a chance to respond to adverse information, or a fair opportunity to put their case at the hearing;
• Failing to consider something the law requires to be considered, or taking irrelevant matters into account;
• A decision that is legally unreasonable or has no evidence to support it;
• Acting beyond power, or failing to follow a procedure required by law.

Simply disagreeing with the findings of fact or how the evidence was weighed is generally not enough to support judicial review.

The process

1. Assessment: We review the decision, the ART file and the hearing recording to identify any arguable legal error. Under section 486I, a lawyer can only start proceedings on your behalf if they certify that the case has reasonable prospects of success.
2. Filing: The application is filed within the time limit, setting out the grounds of review.
3. Case management: The court lists the matter and makes directions about written submissions and evidence.
4. Hearing: Lawyers for both sides make submissions on the legal issues, and the court then delivers judgment.
5. Outcome: If you succeed, the decision is usually set aside and sent back to the ART or Home Affairs to be reconsidered. If you lose, you can consider an appeal.

Risks and things to consider

• Legal costs: An unsuccessful applicant usually has to pay the Minister’s legal costs, so think carefully before starting proceedings.
• Visa status: During judicial review, you may need to apply for a bridging visa to stay lawful, and some people have very limited options.
• Time limits: If you miss the 35-day deadline and seek an extension, you must fully explain why.
• Limited outcome: Even if you win, your case must be decided again and the final outcome is uncertain.

For an overview of the ART process, see our page on ART migration review; for judicial review involving visa cancellation, see Visa cancellation. For more questions and answers, see Australian immigration law FAQs (Part 4): the Administrative Review Tribunal and judicial review.

Documents you’ll need

Usually the decision under review and its reasons, the ART file and hearing recording, your original visa application, correspondence between you and Home Affairs, and proof of your identity and visa status.

How we help

Chua Tan Associates has practised in Melbourne since 1990, and two of our lawyers are Law Institute of Victoria Accredited Specialists in Immigration Law. We can assess whether a decision contains an arguable legal error, file for judicial review or appeal within the time limit, advise on bridging visas and costs risks, and work with barristers where needed. We work in English, Mandarin and Cantonese. For more information, see our Australian immigration law services page.

Chua Tan Associates has practised in Melbourne since 1990, acting for clients in Australia and overseas in English, Mandarin and Cantonese. For a confidential consultation, call +61 3 9602 3988 or email chuatan@tpg.com.au. This article is general information only and is not legal advice.

This article is part of the guide: Australian immigration solicitor - See all related guides