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Judicial review of migration decisions

Understanding your rights in challenging migration decisions

If your case at the Administrative Appeals Tribunal (AAT) did not result in a favorable decision or you believe a decision made by a Minister in migration matters is legally flawed, a judicial review may be your next step. At Australian Migration Lawyers, we represent clients in judicial reviews of migration decisions, ensuring your case is meticulously prepared and presented in court.

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The Australian Migration Lawyers difference

What is judicial review in migration law?

Judicial review is a legal process where the courts review the lawfulness of a decision or action made by a government body, like the AAT or a Minister. Unlike merits review, judicial review does not reconsider the facts of the case. Instead, it focuses on whether the decision was made following legal and procedural correctness.

Grounds for Judicial Review

Typical grounds for a judicial review include:

  • Procedural fairness: Were you given a fair hearing?
  • Jurisdictional error: Did the decision-maker have the power to make that decision?
  • Legality: Was the decision made in accordance with the law?
  • Reasonableness: Was the decision reasonable in the circumstances?

What is an AAT appeal?

An AAT appeal is a review of a decision made by a government body whereby an individual believes that an incorrect decision has been made and there are grounds for review. In Australia, when it comes to a visa application, the decision-making body is the Department of Home Affairs.

An appeal gives the applicant the opportunity to present arguments and information, such as supplying supporting documents or evidence, to the Tribunal to consider and review.

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The judicial review process

Our approach to your judicial review case includes:

  • We thoroughly review your case to determine the viability of a judicial review.
  • If grounds exist, we prepare and file an application for judicial review.
  • We represent your interests in court, presenting arguments and evidence.
  • The court can affirm, vary, or set aside the original decision.

Time limits for judicial review

It's crucial to act quickly as judicial reviews in migration matters often have strict time limits. Typically, applications must be lodged within 35 days of the decision. We can help ensure your application is timely and well-prepared.

What decisions can be made at the AAT?

AAT members can make the following decisions:  

  • Affirm a decision
  • Vary a decision
  • Set aside a decision 
  • Remit a decision

Costs of judicial review

The costs of a judicial review can vary based on the complexity of the case. We offer transparent pricing and flexible payment options to suit your needs. Contact us for a consultation and a detailed quote.

Why choose Australian Migration Lawyers for judicial review?

Australian Migration Lawyers’ team is experienced in the complex realm of judicial review in migration law. Unlike merits review, judicial review involves a careful examination of the legality and procedural integrity of decisions made in migration matters. Our team’s is available to assist with these high-stakes, intricate cases.

  • Strong Track Record in Judicial Review: We understand the critical nature of these reviews and consistently demonstrate our ability to navigate them effectively.
  • In-Depth Knowledge of Migration and Administrative Law: Every case we handle is approached with comprehensive legal insight and strategic acumen.
  • Commitment to Justice and Excellence: Our primary objective is to enhance access to justice. We achieve this by providing robust and thorough legal representation to every individual facing the daunting prospect of a judicial review. Whether it's a matter of visa cancellation or refusal, we stand ready to defend and advocate for your rights.
  • Ensuring Compliance with Legal Requirements: Our lawyers help to ensure that your application for judicial review is not only compliant but also strategically positioned to increase your chances of a favourable outcome.

Frequently asked questions

Read our most commonly asked questions about judicial reviews:

Can I apply for a judicial review myself?

Yes, you can apply for a judicial review yourself. However, the process can be complex and involves understanding legal principles and procedures. It’s strongly advised to seek the assistance of a migration lawyer who is experienced in judicial review matters. They can help you identify if your case has strong grounds for review, navigate the legal system, prepare the necessary documentation, and represent you in court.

What happens if the judicial review is unsuccessful?

If the judicial review is unsuccessful, the original decision of the Administrative Appeals Tribunal (AAT) or the Minister remains in effect. In some cases, you may have the option to appeal the judicial review decision to a higher court, such as the Federal Circuit and Family Court of Australia or the Federal Court of Australia, if there is a question of law that warrants further consideration. It’s important to discuss these options with your lawyer, as this involves additional processes and time limits.

How long does the judicial review process take?

The duration of the judicial review process can vary depending on several factors, including the complexity of the case, the workload of the court, and whether there are any delays in the proceedings. Generally, it can take several months to over a year from the filing of the application to the final decision. Your migration lawyer can provide a more specific timeline based on your individual case and the current court schedules.

What are the possible outcomes of a judicial review?

The possible outcomes of a judicial review include:

  1. Affirmation: The court may affirm the decision of the AAT or Minister, meaning the original decision stands.
  2. Variation: The court can vary the decision, altering some aspects of it.
  3. Setting Aside: The court can set aside the decision, effectively nullifying it. This may lead to the matter being remitted back to the original decision-maker for reconsideration.
  4. Remission: The court can remit the case back to the AAT or original decision-maker with specific directions for reconsideration. It's important to note that the court does not make a new decision on the merits of the case but focuses on the legality of the decision-making process.

Meet your Australian Migration Lawyer

We’re a diverse team of professionals with decades of combined experience. We care about your situation and will make sure you always get the support and advice you need.

Locations

We offer professional migration advice and support, no matter where you are based. Those located in Australia have the choice of meeting with us at one of our offices or online, and for those offshore, we are available to you online.

About the content author

Perry Q Wood
Partner - Principal Migration Lawyer

Perry Q Wood is National President of the Australian Institute of Administrative Law and one of Australia’s leading administrative and migration lawyers. To date, he has been involved in 1,000+ migration and refugee matters.

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