Statutory Judicial Review of Australian Migration Decisions
The Migration Act 1958 (the Act 1958) was just a 37 pages document in 1958 when it was originally enacted. Today, it is 1038 pages document comprising two volumes supported by hundreds of legislative instruments including four volumes of the Migration Regulations 1994 and ever developing case law.
In Australian migration legislation, the first decision to grant, refuse or cancel a visa is not a final decision on the merit of a case. The first forum to re-assess a primary decision is Administrative Appeals Tribunal established under part II of the Administrative Appeals Tribunal Act 1975 (the Tribunal). Some decisions are reviewable by the Immigration Assessment Authority (the Authority) on the referral of the Minister of Home Affairs previously known as the Department of Immigration and Border Protection.
Mostly but not all the primary decisions are reviewable by the Tribunal on the application of an aggrieved person.
Different statutory provisions are provided to review a primary decision by the Tribunal.
The part-5 of the Act 1958 relates to the merit review of the visas other than protection visa,1 and part-7 is related to the protection visas also known as refugee visas.2
Fast track reviewable decisions are reviewable by the Authority if referred by the Minister,3 under Part 7AA of the Act 1958. These decisions relate to refuse protection visas to some applicants, including unauthorised maritime arrivals that entered Australia on or after 13 August 2012.
The Tribunal or the Authority are independent institutions from the department of home affairs or the Minister and their function is called merit review as the merit of the entire case is reconsidered.
There are two remedies available to a person not satisfied with the merit review outcome. The first one is to approach to the Minister of Immigration and Border Protection under ss 351, 417, 495B or 501J of the Act 1958. The other one is judicial remedy known as Judicial Review provided by the part VIII of the Act 1958 that is the subject of this article.
Only the High Court, the Federal Court and the Federal Circuit Court of Australia have jurisdiction in relation to migration decisions.4
The immediate forum to challenge a decision of the Tribunal is Federal Circuit Court of Australia (the FCCA).5
The FCCA has same constitutional powers as available to the High Court of Australia under section 75(v) of the Constitution. This provision provides that High Court can issue a writ of mandamus or prohibition and issue an injunction against an officer of the Commonwealth.
There is 35 days strict time limit to make a judicial review application and in some cases could be less than that. The FCCA can extend the time limit if an application is made and the court is satisfied that it is necessary in the interest of administration of justice.6
The FCCA has no jurisdiction to hear an application against a primary decision or an order of administrative character known as a privative clause decision.
The Federal Court of Australia (the FCA) in some cases can review a privative clause decision. Like the FCCA the FCA has same original jurisdiction as available to the High Court of Australia under s 75(v) of the constitution as discussed above.7
The FCA may exercise original jurisdiction if the decision is a privative clause decision of the Tribunal on review under s 500 of the Act 1958 and the decisions made by the Minister of Immigration and Border Protection under Ss 501-501CA of the Act 1958.8 These provisions include refusal and cancellation of visas on character ground.
The FCCA can transfer proceedings to the FCA and the later may exercise original jurisdiction in that matter.9
The reason to specifically mention the original jurisdiction of the FCA is to avoid confusion because the FCA also has appellate jurisdiction. The FCA has jurisdiction to hear and determine appeals from the judgments of its single judge in original jurisdictions,10 and from the judgements of the FCCA.11
Not every judgment of the FCCA can be appealed in the FCA but mostly the final determination judgment is appealable. An appeal from the interlocutory judgment of the FCCA can only be brought after leave to appeal by the FCA12. The FCA cannot exercise its appellate jurisdiction against an order made or not made with respect to extend the time limit to make an application by the FCCA or the FCA exercising their original jurisdiction.13
An application to the FCA for a remedy to be granted in the exercise of its original jurisdiction must be made within 35 days from the date of the migration decision.14 The FCA can extend the time on a written application if the extension of time is necessary in the administration of justice.15
The judgment of the appellate jurisdiction of the FCA is final subject to special leave to appeal in the High Court of Australia.16 An appeal may not be brought to the High Court from a judgment of the FCA that makes an order or refuses to make an order to extend the time to make an application for judicial review.17
An application to the High Court for a remedy to be granted in exercise of the court’s original jurisdiction in relation to a migration decision must be made to the court within 35 days of the date of the migration decision and the High Court may, by order, extend that 35 day period if an application is made and the Court is satisfied that the extension is necessary in the administration of justice.18
All of the above discussion is a limited introduction of procedural statutory provisions providing forums for the judicial review. The merit of the judicial review has not been discussed here.
Briefly, the merit of a judicial review application or appeal depends upon a single test known as “Jurisdictional Error” if available in the decision appealed from.
There is no end of the list of the elements of a possible jurisdictional error. The law is ever developing. The failure to exercise the authority and acting beyond the legal authority or breach of the rule of natural justice are examples of the jurisdictional error.
The High Court of Australia in a migration litigation case held that “a decision that involves Jurisdictional error is a decision that lacks legal foundation and may be regarded, in law, as no decision at all.19
An applicant seeking the judicial review has to establish a jurisdictional error from the facts of the case.
A hopeless or bound to fail migration litigation is seriously discouraged by the law. Part 8B of the Act 1958 specifically provides that cost orders may be made if migration litigation is brought to the court that has no prospect of success. A cost order may extend to a lawyer or even a third party and may be made by the court on its own motion or on the application of a party to the litigation.
Disclaimer: It is incomplete general introductory information on statutory provision of judicial review of migration decisions and is not a legal advice in any manner.
Originally published on 11 May 2018 at LinkedIn.
Basharat Ahmad Jatt
Barrister & Solicitor
This article is general information for the community and not legal advice. For legal advice please contact with particular facts of your case.
The author is an Australian Lawyer of Pakistani origin. Anyone looking for an Urdu, Punjabi, or Hindi speaking lawyer in Australia can confidently contact Jatt Lawyers.
Legal support for Australian Muslims for inheritance and family law issues in Australia is the common practice area of Jatt Lawyers.