AAT Refusals
Overview / Eligibility
Judicial review of migration decisions
Judicial review is the process through which Courts ensure that decisions made under the Migration Act, including by the Administrative Appeals Tribunal and the Minister (acting personally) are made ‘according to law.’ If a decision is not made according to law, the Court will set aside the decision and send the matter back to the decision-maker to be re-determined.
Eligibility
- The Federal Circuit and Family Court of Australia (Circuit Court) reviews decisions made by the Tribunal in its Migration and Refugee Division. This includes most visa refusal and nomination refusal decisions.
- The Federal Court of Australia (Federal Court) reviews decisions made by the Minister acting personally or by the Tribunal’s General Division. These decisions usually relate to visa cancellations or refusals on ‘character grounds’ under s 501 of the Migration Act.
- In some instances, only the High Court of Australia can review a migration decision, but this is rare.
Powers of the Court
- If the Court is satisfied that a decision is affected by jurisdictional error, it can make an order quashing (setting aside) the decision.
- The Court cannot substitute a decision for the decision-maker (the Court cannot grant a visa or decide not to cancel a visa). Instead, the Court will send the matter back to the decision-maker to be determined according to law.
- The Court can order that the Minister pay some of your legal costs if your application is successful.
Judicial review considerations
- Courts can only decide whether the decision was lawful. A Court cannot change a decision only because it disagrees with the conclusion reached by the decision-maker.
- A decision is unlawful if it is affected by a ‘jurisdictional error.’ The definition of ‘jurisdictional error,’ and this area of law generally, is complex.
- An error cannot be jurisdictional if it could not have affected the decision ultimately reached by the decision-maker.
Examples of jurisdictional error
- Misidentifying the issues that need to be determined when making a decision.
- Failing to take into account a mandatory consideration (or taking into account a prohibited consideration).
- Failing to take into account relevant evidence or material (or taking into account irrelevant evidence or material).
- Making a decision so unreasonable that no reasonable person could reach the same decision.
Timeframe and processes
Judicial review of migration decisions
Strict timeframes and processes apply to judicial review applications, whether made to the Federal Circuit and Family Court of Australia (FCFCoA) or the Federal Court of Australia (Federal Court). Applications for judicial review are adversarial, which means that the decision you want to be reviewed by the Court will be defended by experienced lawyers appointed by the Minister (even if the decision you want to be reviewed was made by the Tribunal).
Timeframes
- Any application for judicial review of a Tribunal’s decision, whether to the Circuit Court or Federal Court, must be filed within 35 days after the decision was made by the Tribunal.
- Any application for judicial review of a decision made by the Minister personally must be made to the Federal Court within 35 days after the date the Notice of Decision was issued.
- The Court can only extend these timeframes in limited circumstances.
Making an application
- To apply for judicial review of a migration decision you must prepare, file, and serve:
- An originating application setting out the grounds on which you allege the decision is affected by jurisdictional error; and
- A supporting affidavit annexing a copy of the decision you want the Court to review.
After making an application
- The Court will set your application down for a First Court Date. The purpose of this first hearing is to set the schedule of steps to be taken by both you and the Minister’s lawyers. If you can agree to a schedule with the Minister’s lawyers before the First Court Date, you will usually not have to attend.
Process
- The usual series of steps taken in an application for judicial review are:
- Minister’s lawyers file a ‘Court Book’ composed of all documents and material before the decision-maker at the time of making their decision;
- You prepare, file, and serve a written outline of your arguments to the Court;
- the Minister prepares, files, and serves a written outline;
- A hearing takes place before the judge, where you (or your lawyer) and the Minister’s lawyers make oral arguments to the Court;
- The Court makes its decision, sometimes at the end of the hearing but more commonly after reserving judgment for further consideration.
- In some circumstances you may be required to file an amended originating application altering your ‘grounds of review’ or further submissions after the conclusion of the hearing.
Costs
Judicial review of migration decisions
A number of different Court fees, including filing fees and setting down fees, are usually payable to the Court when you apply for judicial review. The amount of these fees is different for the Federal Circuit and Family Court of Australia (Circuit Court) and Federal Court of Australia. Additionally, if your application for judicial review is unsuccessful, the Court will likely order you to pay a substantial part of the legal fees paid by the Minister to defend against your application.
No Court fees if you are in detention
- If you are currently detained, including in immigration detention, you are automatically exempt from paying any Court fees, including filing fees or setting down fees. There are other categories of persons who are also exempted from paying Court fees.
Court Fees – Circuit Court
- Filing Fee: $3,535.00
- The Circuit Court’s filing fee can be reduced by 50 percent to $1,765.00 if the Court is satisfied that paying the full fee would cause you financial hardship. The Court can waive the whole of the filing fee if it is satisfied that paying the reduced fee would still cause you financial hardship.
- Setting down fee: $875.00
- The Circuit Court can waive the whole of this fee if it is satisfied that paying it would cause you financial hardship.
Court Fees – Federal Court
- Filing Fee: $1,530.00
- Setting Down Fee: $3,055.00
- These fees can be waived if the Court is satisfied that paying them would cause you financial hardship.
Order for costs
- It is usual for the Court to order that the unsuccessful party pay a significant part of the successful party’s legal costs. This includes applications for judicial review of migration decisions. If your application is unsuccessful, the Court will likely make an order requiring you to pay money to the Minister. If you are legally represented and are successful in your application, the Court will likely order the Minister to pay a significant part of your legal costs.
Professional Fees
- Because of the nature and intensity of judicial review proceedings, the cost of retaining lawyers to act on your behalf can be substantial. To provide certainty for our clients, Global Solicitors Lawyers acts in judicial review proceedings on a partially conditional (no-win, no-fee) basis in applications for judicial review. When we offer to act on your behalf, we will set an ‘out-of-pocket cap’ which limits the amount you will have to pay us for legal fees regardless of the outcome. The balance of our fees will only be payable if your application is successful and should be covered by any order for costs made in your favor by the Court.
- The usual range of our ‘out-of-pocket cap’ is $7,000.00 to $9,000.00 (exclusive of GST), but may be set higher or lower depending on your particular circumstances. The factors we take into account when setting your out-of-pocket cap include:
- The strength of your case;
- Whether you are detained;
- Your financial circumstances.