If your merits review application has been unsuccessful, you may be able to commence proceedings in the Federal Circuit Court of Australia for a judicial review of the Tribunal’s decision.
What is Judicial Review?
Australia has a strong independent court system as a result of the doctrine of “separation of powers”. This means that the law is applied equally to both the government as well as to citizens and there is no such thing as “unfettered power”. A helpful definition of judicial review was given by the High Court in Church of Scientology v Woodward (1982) 154 CLR 25 per Brennan J at 70:
Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.
However, in a judicial review application, the Court can only look at whether the decision of the Tribunal is “legal”. There is no power to challenge facts that you don’t agree with (except in some very limited circumstances).
What is a Jurisdictional error?
To be successful in a judicial review case, you have to identify a jurisdictional error made by the Tribunal. One of the most commonly cited definitions of a jurisdictional error comes from a joint judgment of the High Court in Craig v South Australia (1995) 184 CLR 164 at 179:
“ If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
Other examples of jurisdictional errors are if the Tribunal was biased or acted unreasonably or in some way failed to exercise its jurisdiction by not considering all of your claims. Although these issues sound simple enough they are all highly technical concepts in Administrative Law.
An application for judicial review is a very formal process conducted in a court. It is adversarial (which means the Minister will engage lawyers to argue against the claim) and the proceedings are conducted according to the rules of Court the laws of evidence. There will be directions made by the court for the filing of written submissions about the legal issues and there will be a hearing conducted before a Judge.
A large proportion of judicial review proceedings are unsuccessful. Usually when a case is unsuccessful the applicant is ordered to pay the Minister’s legal costs. Those costs will be a debt to the Commonwealth which may affect future visa applications.
It is very important that you get proper advice about grounds for review and carefully consider whether you should seek judicial review.
Because I am a barrister, I have appeared and argued many judicial review applications over the years.
The Federal Circuit Court of Australia has the power to deal with most judicial review applications. The proceedings are started by the filing of an “Initiating Process” where you have to set out the grounds of your application (i.e. why you say there is a jurisdictional error).
For decisions made in Australia, the time limit for lodging an application is 35 days. It can be extended in some circumstances. Longer time frames will apply for offshore decisions.
How can I help?
The rules and procedure (including case management) of the Federal Circuit Court will apply. The Minister (who is the defendant) will be required to provide you with a court book. I can help you draft and refine your grounds of application. I can also assist with the drafting of submissions in preparation for hearing and I will also represent you at the hearing.